RHODE ISLAND 

--

D EPARTMENT OF ENVIRONMENTAL MANAGEMENT 

a 235 Promenade Street, Providence, Rl 02908-5767 

September 28, 2012 

David M. Webster 

Chief, Industrial Permits Branch 

Office of Ecosystem Protection 

U.S. Environmental Protection Agency- Region 1 

1 Congress Street - Suite 1100 

Boston, MA 02114-2023 

TDD 401-222-4462 

RE: 401 Water Quality Certification- (Draft) Small Vessel General Permit (sVGP) and 

(Draft) Vessel General Permit, (VGP) Request for Clean Water Act Section 401 

Certification 

WQC File No. 12-017 

Dear Mr. Webster: 

The Rhode Island Department of Environmental Management, Office of Water Resources has 

reviewed the above referenced Permits for compliance with Section 401 of the Clean Water Act and 

Rhode Island's State Water Quality Regulations (Chapter 42-35 pursuant to Chapters 46-12 and 42-

1 7.1 of the Rhode Island General Laws of 1956, as amended. 

The USEP A has requested that the state review the conditions and stipulations contained in both the 

draft Small Vessel General Permit (sVGP) and the draft Vessel General Permit (VGP) respectively, 

entitled "Proposed Small Vessel General Permit (sVGP)" and Proposed 2013 Vessel General 

Permit (VGP)." The draft sVGP sets forth conditions and requirements pertaining to discharges 

from vessels covered by the EPA's National Pollutant Discharge Elimination system (NPDES) for 

discharges incidental to the normal operation of commercial vessels less than 79 feet in length. The 

draft VGP sets forth conditions and requirements pertaining to discharges from vessels covered by 

the EPA's National Pollutant Discharge Elimination System (NPDES) for discharges incidental to 

the normal operation of commercial and non-commercial vessels greater than or equal to 79 feet in 

length. 

It is the determination of the Water Quality Certification Program that said respective draft Permit 

conditions for both the sVGP and the VGP are in compliance with the requirements of Section 401 

of the Clean Water Act and the State Water Quality regulations provided that the vessels comply 

with the above referenced general permit documents and the following conditions: 

Small Vessel General Permit Conditions: 

1. The conditions in the draft sVGP cannot be made less stringent without violating water quality 

standards and other requirements of Rhode Island State Law (See 40 CFR 124.53(e)(3). 

0 30% post-consumer fiber 
Mr. David M. Webster 

WQC 12-017 

September 28, 2012 

Page2 

Vessel General Permit Certification Conditions: 

The Department finds that the conditions in the draft VGP cannot be made less stringent without 

potentially violating water quality standards and other requirements of State law, and also 

establishes other conditions more stringent than those contained in the draft VGP that are needed to 

meet the requirements of either the Clean Water Act and the Rhode Island Water Quality 

Regulations for Water Pollution Control, amended December 2010 adopted in accordance with 

Chapter 42-35 pursuant to Chapters 46-12 and 42-17.1 of the Rhode Island General Laws of 1956, 

as ammended. The purpose of the more stringent conditions below is to comply specifically with 

Rule 8.D.(1)(a) of the RI Water Quality Regulations which state that 

"At a minimum, all waters shall be free of pollutants in concentrations or combinations or from 

anthropogenic activities subject to these regulations that: 

1. Adversely affect the composition of fish and wildlife; 

u. Adversely affect the physical, chemical, or biological integrity of the habitat; 

111. Interfere with the propagation of fish and wildlife; 

tv. Adversely alter the life cycle functions, uses, processes and activities offish 

and wildlife; or 

v. Adversely affect human health" 

Given that the courts have upheld that ballast water contains pollutants (Northwest Environmental 

Advocates vs. EPA, 2008) and that ballast water has the potential to spread invasive species, 

disease organisms and other pollutants that have the potential to disrupt the ecological balance of 

Rhode Island's waters, the Department fmds that the conditions in the draft (and final) VGP cannot 

be made less stringent without violating water quality standards and other requirements of State law 

and the requirements of the Clean Water Act or Rhode Island State Law (See 40 CFR 124.53 (e)(2) 

and (3). Additionally, studies show1 that more stringent conditions than the draft VGP are required 

in order to reduce the unintentional discharge of invasive species contained ballast water. 

Conditions More Stringent than the Conditions Contained in the Draft VGP: 

1. The operator of any vessel covered under the draft VGP whose voyage originates outside the 

exclusive economic zone (EEZ) and enters Rhode Island waters shall conduct ballast water 

exchange or flushing beyond the EEZ, at least 200 nautical miles from any shore, and in water 

at least 2,000 meters in depth. These requirements remain in effect regardless of whether the 

1 Most of the water and most of the organisms carried in a vessel's ballast tanks are physically expelled during mid-ocean exchange or flushing, 

and many of the remaining organisms are then killed by salinity shock (osmotic stress) from the ocean water with which the ballast tanks are 

refilled. See paper submitted by Canada to the IMO, BLG 15/5/7, S.A. Bailey et al., "Evaluating Efficacy of an Environmental Policy to Prevent 

Biological Invasions," Environ. Sci. Techno!. 45, 2554-61 (2011), at2557 and 2559, paragraphs 8 and 9; S.A Bailey et al. (20 11), op. cit., at 

2555-56. In our existing certification dated 2008, we indicated that ballast water exchange produces variable results and is "therefore unprotective 

as an ongoing permit condition;" however, the effectiveness of exchange and flushing has been (re)confirmed by recent work. See S.A. Bailey et 

al. (2011), op. cit., E. Briski et al., Efficacy of'saltwater flushing' in protecting the Great Lakes from biological invasions by invertebrate eggs in 

ships' ballast sediment, Freshwater Biology 55, 2414-2424 (2010); S. Ellis and H. Macisaac, Salinity tolerance of Great Lakes invaders, 

Freshwater Biology 54, 77-89 (2009); S. Santagata et al., Effects of osmotic shock as a management strategy to reduce transfers of non-indigenous 

species among low-salinity ports by ships, Aquatic lnvasiotts 3, 61-76 (2008); D.F. Reid et al., Identifying, Verifying, and Establishing Options for 

Best Management Practices for NO BOB Vessels, Final Report, NOAA (June 2007). 
Mr. David M. Webster 

WQC 12-017 

September 28,2012 

Page 3 

vessel is equipped with a ballast water treatment system. No vessel subject to this condition 

which operates a treatment system in accordance with Section 2.2.3.5 of the draft VGP shall 

bring ballast water into Rhode Island waters unless its ballast tanks have been exchanged or 

flushed at a location at least 200 nautical miles from shore and unless any water reintroduced 

into the vessel's tanks is ocean water from that same general location which has been treated by 

the vessel's treatment system prior to entry into Rhode Island waters. 

This condition adds no new requirement or deadline for ballast water treatment. The 

requirements and deadlines for ballast water treatment are those specified in the draft VGP, 

Section 2.2.3.5 and Table 6. However, in addition to meeting the requirements in Section 

2.2.3.5 and Table 6, vessel operators will need to continue performing exchange or flushing. 

This condition does not apply to vessels that either have no ballast tanks or that carry only 

permanent ballast water, all of which is contained in sealed tanks that are not subject to 

discharge, or that carry only potable water that meets the requirements of section 2.2.3.5.1 .3 of 

the draft VGP in their ballast tanks. 

This condition does not apply if the master of the vessel determines that compliance with this 

condition would threaten the safety or stability of the vessel, its crew, or its passengers because 

of adverse weather, equipment failure, or any other relevant condition. If a vessel is unable to 

conduct ballast water exchange or flushing due to serious safety concerns as specified above, 

the operator of any vessel with ballast on board shall take reasonable measures to avoid 

discharge of organisms in ballast water and shall inform the Department in writing of the 

measures taken. 

The above condition combines water quality protection with operational flexibility. They 

provide flexibility to the industry by allowing further development of treatment technology and 

testing protocols. While not a mandatory requirement, the Department urges vessel permittees 

to voluntarily install currently available technologies that go beyond the IMOD-2 standard (e.g., 

systems that have demonstrated the ability to meet and exceed a lOX IMO level oftreatment) as 

a means of gaining useful experience while contributing to the advancement of treatment 

technology. 

2. The discharge of bilge water from any vessel covered under the draft VGP whose voyage 

originates outside the exclusive economic zone (EEZ) shall discharge all existing bilge water 

prior to entering Rhode Island waters. This condition does not apply to the discharge of bilge 

water if the master of the vessel determines that compliance with this condition would threaten 

the safety or stability ofthe vessel, its crew, or its passengers because of adverse weather, 

equipment failure, or any other relevant conditions. If the operator of the vessel (originating 

outside of the EEZ) is unable to discharge their bilge water prior to entering Rhode Island 

waters, the operator is prohibited from discharging bilge water within Rhode Island waters. 

The Department finds that this condition is necessary to protect the ecological integrity of RI 

waters from the discharge of invasive species within bilge water. The BMP's required within 

the draft VGP include prohibitions on releases of certain chemicals, including dispersants, 
Mr. David M. Webster 

WQC 12-017 

September 28, 2012 

Page4 

detergents, emulsifiers, chemicals, and other substances; however it has been demonstrated2 

that bilge water is a significant vector for transporting invasive species. The Department has 

added this condition but isolated it to those vessels that originate outside of the EEZ since the 

prohibition is intended to restrict the discharge of invasive species to Rhode Island waters. 

3. In addition to meeting the·draft VGP monitoring requirements in Section 2.2.3.5.1.1.4, all 

vessels covered under the VGP and operating in Rhode Island waters, after a Ballast Water 

Treatment System is installed, must sample and analyze the ballast water discharge at least once 

a year (provided appropriate facilities are available), using the California shipboard sampling 

protocol, or a compliance monitoring protocon developed by the USCG, whichever is most 

advanced and available. The monitoring results shall be submitted to EPA and the Department 

on an annual basis, consistent with the mechanisms used in the VGP for all other submissions. 

Coordination of sampling/monitoring shall be directed to Kevin Cute of the RI Coastal 

Resources Management Council. Such live organism monitoring shall include the collection of 

representative discharge samples and the testing (counting) of live organisms in such samples 

by qualified personnel in accordance with standard and/or best available sampling and 

analytical methods. In addition to EPA submissions, the applicant must submit all sampling 

results to the Office of Water Resources, RI Department of Environmental Management. 

4. Graywater discharges to nutrient and pathogen impaired waters from vessels subject to the VGP 

covered under this permit shall be managed in accordance with Section 2.2.15 ofthe VGP. All 

requirements applied to special waters listed in Appendix G of the dVGP apply to Rhode Island 

waters that are impaired for nutrients and/or pathogens. A specific list identifying impaired 

waters within the State of Rhode Island is available at 

http://www.dem.ri.gov/pubs/305blindex.htm. This website contains the most recent Integrated 

Water Quality Monitoring and Assessment Report which shall be used to identify the impaired 

waterbodies. Specifically, appendixes Category 4A (Impaired but TMDL has been completed) 

and Categoy 5 (303{d} listed and impaired). This is necessary to comply with Rule 9b (no 

further degradation of low quality waters) of the State Water Quality Regulations. This 

condition shall also support the ''No Discharge Area designation of state waters pursuant to 

Section 312-(f)(3) of Public Law (Federal Water Pollution Control Act) and 92-500 as 

amended. 

General Conditions for both the sVGP and the VGP: 

1. Violation of the terms and conditions of this Certification may result in violation of the State's 

Water Quality Regulations and appropriate enforcement action. 

2. This Water Quality Certification does not relieve your obligation to obtain any other 

applicable local, state, and federal permits prior to actively issuing sVGP and VGP permits. 

3. This Water Quality Certification shall expire five (5) years from the date of issuance. 

2 Muir, Adrianna A. PhD, California Research Bureau, Managing Coastal Aquatic Invasive Species in California: Existing Policies 

and Policy Gaps: Requested by Senate Natural Resources and Water Committee; January 2011. CRB 11-001 
Mr. David M. Webster 

WQC 12-017 

September 28, 2012 

Page 5 

4. In accordance with the Rhode Island Water Quality Regulations (including but not limited to 

Rule 17) and all other applicable laws and regulations, the Director may modify, suspend, or 

revoke, in whole or in part this Water Quality Certification for the VGP. 

In addition to any necessary enforcement actions stemming from the violation of any of the terms or 

conditions of this Water Quality Certificate, issuance of this Water Quality Certificate does not bar 

the Department, or any of its various Divisions, from instituting any investigation and /or 

enforcement actions that it may deem necessary for violations of any and all applicable statutes, 

regulations and/or permits, including but not limited to violations of the terms or conditions of any 

previous Water Quality Certificate(s) issued to you as an applicant or for this site. 

This is the State's Water Quality Certification, which shall have the full force and effect of a permit 

issued by the Director. Violation of the terms and conditions of this Certification may result in 

violation of the State's Water Quality Regulations and appropriate enforcement action. 

Sincerely, 

AngeloS. 

NA~' Liberti III, P.E., Chief 

Surface Water Protection 

ec: Margaret McGrath, Programming Services Officer, Office of Boating, RIDEM 

Grover Fugate, RI CRMC 

Kevin Cute, RI CRMC 

John Torgan, The Nature Conservancy 

Tom Kutcher, Save the Bay 

Edward LeBlanc, U.S. Coast Guard 

Howard Me Vay, RI Pilots Association 

Robert Rheault, PhD 

Marissa DeSautel, RID EM 

Tom Rich, Chairman, RIMT A