69–010 

Calendar No. 832 

110TH CONGRESS REPORT " ! SENATE 2d Session 110–398 

CLEAN BOATING ACT OF 2008 

JUNE 23, 2008.—Ordered to be printed 

Mrs. BOXER, from the Committee on Environment and Public 

Works, submitted the following 

R E P O R T 

[To accompany S. 2766] 

together with 

ADDITIONAL VIEWS 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Environment and Public Works, to which was 

referred a bill (S. 2766) to amend the Federal Water Pollution Control Act to address certain discharges incidental to the normal operation of a recreational vessel, having considered the same, reports favorably thereon and recommends that the bill do pass. 

PURPOSES OF THE LEGISLATION

The purposes of the Clean Boating Act of 2008 (the Act) are to 

codify the exclusion of discharges incidental to the normal operation of recreational vessels from permitting requirements under 

the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. 

(commonly known as the Clean Water Act), and to require management practices and performance standards for discharges from such 

vessels. 

GENERAL STATEMENT AND BACKGROUND

The Act amends the Clean Water Act to provide that no permit 

shall be required by the EPA Administrator under the national pollutant discharge elimination system (NPDES) for certain categories 

of discharges from recreational vessels. The following discharges 

from recreational vessels would be excluded from permit requireVerDate Aug 31 2005 07:08 Jun 24, 2008 Jkt 069010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR398.XXX SR398

smartinez on PROD1PC64 with REPORTS
2 

ments: graywater; bilge water; cooling water; weather deck runoff; 

oil water separator effluent; effluent from properly functioning marine engines; and any other discharge that is incidental to the normal operation of such vessels. 

In 1973 EPA promulgated a regulation that excluded discharges 

incidental to the normal operation of vessels from NPDES permitting requirements. EPA’s denial of a petition seeking repeal of that 

regulation was published in September 2003 and subsequently 

challenged in the U.S. District Court for the Northern District of 

California. In September 2006 the court issued an order revoking 

the applicable regulatory exclusion, effective September 30, 2008. 

EPA estimates that the court’s order could affect over 13 million 

recreational vessels. 

The Act provides that the Clean Water Act section 402 permit requirements, 33 U.S.C. § 1342, shall not apply to recreational vessels. A ‘‘recreational vessel’’ is defined as any vessel that is leased, 

rented, or chartered to a person for that person’s pleasure or that 

is manufactured or used primarily for pleasure, excluding vessels 

that are subject to Coast Guard inspection and that are engaged 

in commercial use or that carry paying passengers. 

The Act requires the EPA Administrator to: (1) develop management practices for recreational vessels to mitigate the adverse impacts on waters of the United States of discharges incidental to 

normal vessel operation (excluding sewage) in any case in which 

the Administrator determines that the use of those practices is reasonable and practicable; and (2) promulgate federal standards of 

performance (which may distinguish among vessel types, classes, 

and sizes, as well as new and existing vessels) for each discharge 

for which such a management practice is developed. The Act calls 

for the Secretary of the Department in which the Coast Guard is 

operating to promulgate regulations governing the design, construction, installation, and use of management practices for recreational 

vessels as necessary to meet such standards of performance. It prohibits operation of recreational vessels in or discharges from those 

vessels into waters of the United States or waters of the contiguous 

zone, other than in compliance with such standards. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Section 1 would provide that the Act may be cited as the ‘‘Clean 

Boating Act of 2008’’. 

Section 2. Discharges incidental to the normal operation of recreational vessels 

Section 2 would amend Section 402 of the Clean Water Act, 33 

U.S.C. § 1342, by adding a new subsection (r), to provide that no 

permit shall be required under the Clean Water Act by the EPA 

Administrator (or by a State, in the case of an approved permit 

program under subsection 402(b)), for the discharge of any 

graywater, bilge water, cooling water, weather deck runoff, oil 

water separator effluent, or effluent from properly functioning marine engines, or any other discharge that is incidental to the normal operation of a vessel, if the discharge is from a recreational 

vessel. 


smartinez on PROD1PC64 with REPORTS
3 

Section 3. Definition 

Section 3 would define the term ‘‘recreational vessel’’ to mean 

any vessel that is (a) manufactured or used primarily for pleasure; 

or (b) leased, rented, or chartered to a person for the pleasure of 

that person. It would exclude from the definition of the term ‘‘recreational vessel’’ any vessel that is subject to Coast Guard inspection and that (i) is engaged in commercial use; or (ii) carries paying 

passengers. 

Section 4. Management practices for recreational vessels 

Section 4 would add a new subsection (o) to Section 312 of the 

Clean Water Act, 33 U.S.C. § 1322, that would apply to any discharge, other than a discharge of sewage, from a recreational vessel 

that is: (a) incidental to the normal operation of the vessel; and (b) 

exempt from permitting requirements under Section 2 (new Section 

402(r) of the Clean Water Act). 

The EPA Administrator, in consultation with the Secretary of the 

department in which the Coast Guard is operating, the Secretary 

of Commerce, and interested States, is required to determine the 

discharges incidental to the normal operation of a recreational vessel for which it is reasonable and practicable to develop management practices to mitigate adverse impacts on the waters of the 

United States. Such determinations would be promulgated in accordance with the Administrative Procedure Act, 5 U.S.C. § 553. In 

making those determinations, the Administrator would be required 

to consider: (i) the nature of the discharge; (ii) the environmental 

effects of the discharge; (iii) the practicability of using a management practice; (iv) the effect that the use of a management practice 

would have on the operation, operational capability, or safety of the 

vessel; (v) applicable Federal and State law; (vi) applicable international standards; and (vii) the economic costs of the use of the 

management practice. 

Initial determinations must be made not later than 1 year after 

the date of enactment. Every 5 years thereafter, the Administrator 

is required to review the determinations and, if necessary, revise 

the determinations based on any new information available to the 

Administrator. 

The Administrator would develop management practices for recreational vessels in any case in which the Administrator determines that the use of those practices is reasonable and practicable. 

For each discharge for which a management practice is developed, the Administrator, in consultation with the Secretary of the 

department in which the Coast Guard is operating, the Secretary 

of Commerce, other interested Federal agencies, and interested 

States, would promulgate, in accordance with the Administrative 

Procedure Act, 5 U.S.C. § 553, Federal standards of performance for 

each management practice required with respect to the discharge. 

In promulgating those standards, the Administrator is authorized 

to take into account considerations including the classes, types and 

sizes of vessels, and whether the vessels are new or existing. The 

Administrator is also required to consider the factors in paragraph 

(2)(B), including: (i) the nature of the discharge; (ii) the environmental effects of the discharge; (iii) the practicability of using a 

management practice; (iv) the effect that the use of a management 

practice would have on the operation, operational capability, or 


smartinez on PROD1PC64 with REPORTS
4 

safety of the vessel; (v) applicable Federal and State law; (vi) applicable international standards; and (vii) the economic costs of the 

use of the management practice. The Administrator would have authority to provide for a waiver of the applicability of the standards 

as necessary or appropriate to a particular class, type, age, or size 

of vessel. 

The standards of performance for a management practice are required to be promulgated not later than 1 year after the date of a 

determination that the management practice is reasonable and 

practicable. Every 5 years thereafter the Administrator is required 

to review the standards and, if necessary, revise the standards 

based on any new information available to the Administrator. 

The Secretary of the department in which the Coast Guard is operating would be required to promulgate regulations governing the 

design, construction, installation, and use of management practices 

for recreational vessels as are necessary to meet the standards of 

performance promulgated, as soon as practicable after the Administrator promulgates such standards, but not later than 1 year after 

the date on which the Administrator promulgates the standards. 

New subsection (o) would not affect the application of section 311 

of the Clean Water Act to discharges incidental to the normal operation of a recreational vessel. 

After the effective date of the regulations promulgated by the 

Secretary of the department in which the Coast Guard is operating, 

the owner or operator of a recreational vessel would be prohibited 

from operating in, or making any discharge incidental to the normal operation of the vessel into, the waters of the United States 

or the waters of the contiguous zone, if the owner or operator of 

the vessel is not using any applicable management practice meeting standards established under Section 4. 

LEGISLATIVE HISTORY

S. 2766 was introduced by Senator Nelson of Florida and Senator 

Boxer on March 13, 2008. They were later joined by the following 

cosponsors: Senators Whitehouse, Reed, Isakson, Vitter, Cardin, 

Mikulski, Burr, Snowe, Crapo, Chambliss, Cochran, Collins, Levin, 

Voinovich, Stabenow, Craig, Dole, Feinstein, Corker, Bayh, Coleman, Landrieu, Specter, Kohl, Wicker, Dodd, Carper, Bond, Brown, 

Webb, Bunning, Klobuchar, Schumer, Martinez, Lugar, Kerry, and 

Allard (as of June 18, 2008). The bill was read twice and referred 

to the Senate Committee on Environment and Public Works. The 

Committee met on May 21, 2008, when S. 2766 was ordered favorably reported without amendment by a voice vote. 

HEARINGS

The Committee did not hold hearings on S. 2766 during the 

110th Congress. 

ROLLCALL VOTES

There were no rollcall votes. The Committee on Environment and 

Public Works met to consider S. 2766 on May 21, 2008. A quorum 

of the Committee being present, S. 2766 was reported favorably 

without amendment by a voice vote. 


smartinez on PROD1PC64 with REPORTS
5 

REGULATORY IMPACT STATEMENT

In compliance with section 11(b)(2) of rule XXVI of the Standing 

Rules of the Senate, the Committee states that the bill would relieve owners or operators of approximately 13 million recreational 

boats of certain current court-ordered permitting requirements 

under the current Clean Water Act. As noted below, the Congressional Budget Office has concluded that the bill will not establish 

any private-sector mandates. 

MANDATES ASSESSMENT

In compliance with the Unfunded Mandates Reform Act of 1995 

(Public Law 104–4), the Committee finds, consistent with the determination of the Congressional Budget Office, that S. 2766 would 

impose no Federal intergovernmental unfunded mandates on State, 

local or tribal governments. The Committee further agrees with the 

Congressional Budget Office that the bill does not impose private 

sector mandates. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with paragraph 11(a) of rule XXVI of the Standing 

Rules of the Senate and section 403 of the Congressional Budget 

Act of 1974, the Committee provides the following cost estimate, 

prepared by the Congressional Budget Office: 

S. 2766—Clean Boating Act of 2008 

S. 2766 would direct the Environmental Protection Agency (EPA) 

to investigate discharges of pollution from recreational boats to determine what types should be regulated and to promulgate standards of performance for managing those discharges. The U.S. Coast 

Guard (USCG) would be responsible for enforcing the standards developed by the EPA. 

CBO estimates that implementing S. 2766 would have no significant effect on the federal budget because the EPA is already required to regulate discharges from recreational boats that it deems 

should be regulated, and either that agency or the USCG must enforce such regulations. The two agencies are currently carrying out 

those responsibilities. Enacting the legislation would not affect revenues or direct spending. 

The bill contains no intergovernmental or private-sector mandates and would impose no costs on state, local, or tribal governments. 

On June 3, 2008, CBO transmitted a cost estimate for H.R. 5949, 

the Clean Boating Act of 2008, as ordered reported by the House 

Committee on Transportation and Infrastructure on May 15, 2008. 

The two bills are nearly identical, and the CBO cost estimates are 

the same. 

The CBO staff contact for this estimate is Deborah Reis. The estimate was approved by Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 


smartinez on PROD1PC64 with REPORTS
(6) 

SENATOR INHOFE’S ADDITIONAL VIEWS 

Senator Inhofe agrees that legislation is necessary to clarify and 

make permanent the long standing and common sense recreational 

vessel exemption from the National Pollution Discharge Elimination System (NPDES) permitting requirement under the Clean 

Water Act (CWA) for discharges incidental to the normal operation 

of a vessel into navigable waters. However, this ‘‘incidental discharge’’ exemption has historically encompassed both recreational 

and commercial vessels and has been in place for the life of the 

CWA without any attempts by Congress to amend or revise the 

regulatory exemption. Additionally, no sound evidence indicates 

that negative environmental impacts have resulted from this exemption by either recreational or commercial vessels. Therefore, in 

Senator Inhofe’s view a straightforward, uninhibited incidental discharge exemption for both recreational and commercial vessels is 

necessary and prudent. 

Language in S. 2766 requires that the Administrator of the Environmental Protection Agency in consultation with the Secretary of 

the Coast Guard must review incidental discharges and recommend 

best management practices for recreational vessels. The Secretary 

of the Coast Guard shall promulgate performance standard regulations encompassing the Administrator of the Environmental Protection Agencies’ recommendations. Senator Inhofe believes that increasing agency burdens with insufficient reason is costly and unnecessary. In addition, all recreational boat owners might be required to purchase expensive and superfluous equipment for preexisting vessels in order to meet requirements created by this act. 

Section 4 undermines the basic statutory requisite of eliminating 

needless government regulation and vessel owner burden. 

CHANGES IN EXISTING LAW

In compliance with section 12 of rule XXVI of the Standing Rules 

of the Senate, changes in existing law made by the bill as reported 

are shown as follows: Existing law proposed to be omitted is enclosed in øblack brackets¿, new matter is printed in italic, existing 

law in which no change is proposed is shown in roman: 

* * * * * * * 

FEDERAL WATER POLLUTION CONTROL ACT 

* * * * * * * 

SEC. 101. (a) The objective of this Act is to restore and maintain 

the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, 

consistent with the provisions of this Act—


smartinez on PROD1PC64 with REPORTS
7 

(1)* * * 

* * * * * * * 

SEC. 301. (a) Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of 

any pollutant by any person shall be unlawful. 

(b) In order to carry out the objective of this Act there shall be 

achieved—

(1)(A) * * * 

* * * * * * * 

SEC. 312. (a) For the purpose of this section, the term—

(1) ‘‘new vessel’’ includes every description of watercraft or 

other artificial contrivance used, or capable of being used, as 

a means of transportation on the navigable waters, the construction of which is initiated after promulgation of standards 

and regulations under this section; 

(2) * * * 

* * * * * * * 

(o) MANAGEMENT PRACTICES FOR RECREATIONAL VESSELS.— (1) APPLICABILITY.—This subsection applies to any discharge, 

other than a discharge of sewage, from a recreational vessel 

that is—

(A) incidental to the normal operation of the vessel; and 

(B) exempt from permitting requirements under section 

402(r). 

(2) DETERMINATION OF DISCHARGES SUBJECT TO MANAGE- MENT PRACTICES.— (A) DETERMINATION.— (i) IN GENERAL.—The Administrator, in consultation 

with the Secretary of the department in which the 

Coast Guard is operating, the Secretary of Commerce, 

and interested States, shall determine the discharges 

incidental to the normal operation of a recreational 

vessel for which it is reasonable and practicable to develop management practices to mitigate adverse impacts on the waters of the United States. 

(ii) PROMULGATION.—The Administrator shall promulgate the determinations under clause (i) in accordance with section 553 of title 5, United States Code. 

(iii) MANAGEMENT PRACTICES.—The Administrator 

shall develop management practices for recreational 

vessels in any case in which the Administrator determines that the use of those practices is reasonable and 

practicable. 

(B) CONSIDERATIONS.—In making a determination under 

subparagraph (A), the Administrator shall consider—

(i) the nature of the discharge; 

(ii) the environmental effects of the discharge; 

(iii) the practicability of using a management practice; 

(iv) the effect that the use of a management practice 

would have on the operation, operational capability, or 

safety of the vessel; 


smartinez on PROD1PC64 with REPORTS
8 

(v) applicable Federal and State law; 

(vi) applicable international standards; and 

(vii) the economic costs of the use of the management 

practice. 

(C) TIMING.—The Administrator shall— (i) make the initial determinations under subparagraph (A) not later than 1 year after the date of enactment of this subsection; and 

(ii) every 5 years thereafter— (I) review the determinations; and 

(II) if necessary, revise the determinations based 

on any new information available to the Administrator. 

(3) PERFORMANCE STANDARDS FOR MANAGEMENT PRACTICES. 

(A) IN GENERAL.—For each discharge for which a management practice is developed under paragraph (2), the Administrator, in consultation with the Secretary of the department in which the Coast Guard is operating, the Secretary of Commerce, other interested Federal agencies, and 

interested States, shall promulgate, in accordance with section 553 of title 5, United States Code, Federal standards 

of performance for each management practice required with 

respect to the discharge. 

(B) CONSIDERATIONS.—In promulgating standards under 

this paragraph, the Administrator shall take into account 

the considerations described in paragraph (2)(B). 

(C) CLASSES, TYPES, AND SIZES OF VESSELS.—The standards promulgated under this paragraph may— (i) distinguish among classes, types, and sizes of vessels; 

(ii) distinguish between new and existing vessels; 

and 

(iii) provide for a waiver of the applicability of the 

standards as necessary or appropriate to a particular 

class, type, age, or size of vessel. 

(D) TIMING.—The Administrator shall— (i) promulgate standards of performance for a management practice under subparagraph (A) not later 

than 1 year after the date of a determination under 

paragraph (2) that the management practice is reasonable and practicable; and 

(ii) every 5 years thereafter— (I) review the standards; and 

(II) if necessary, revise the standards, in accordance with subparagraph (B) and based on any new 

information available to the Administrator. 

(4) REGULATIONS FOR THE USE OF MANAGEMENT PRACTICES.—

(A) IN GENERAL.—The Secretary of the department in 

which the Coast Guard is operating shall promulgate such 

regulations governing the design, construction, installation, 

and use of management practices for recreational vessels as 

are necessary to meet the standards of performance promulgated under paragraph (3). 

(B) REGULATIONS.—


smartinez on PROD1PC64 with REPORTS
9 

(i) IN GENERAL.—The Secretary shall promulgate the 

regulations under this paragraph as soon as practicable after the Administrator promulgates standards 

with respect to the practice under paragraph (3), but 

not later than 1 year after the date on which the Administrator promulgates the standards. 

(ii) EFFECTIVE DATE.—The regulations promulgated 

by the Secretary under this paragraph shall be effective 

upon promulgation unless another effective date is 

specified in the regulations. 

(iii) CONSIDERATION OF TIME.—In determining the effective date of a regulation promulgated under this 

paragraph, the Secretary shall consider the period of 

time necessary to communicate the existence of the regulation to persons affected by the regulation. 

(5) EFFECT OF OTHER LAWS.—This subsection shall not affect 

the application of section 311 to discharges incidental to the 

normal operation of a recreational vessel. 

(6) PROHIBITION RELATING TO RECREATIONAL VESSELS.—After 

the effective date of the regulations promulgated by the Secretary of the department in which the Coast Guard is operating 

under paragraph (4), the owner or operator of a recreational 

vessel shall neither operate in nor discharge any discharge incidental to the normal operation of the vessel into, the waters of 

the United States or the waters of the contiguous zone, if the 

owner or operator of the vessel is not using any applicable management practice meeting standards established under this subsection. 

* * * * * * * 

NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM

SEC. 402. (a)(1) Except as provided in sections 318 and 404 of 

this Act, the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 301(a), upon condition 

that such discharge will meet either (A) all applicable requirements 

under sections 301, 302, 306, 307, 308, and 403 of this Act, or (B) 

prior to the taking of necessary implementing actions relating to all 

such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this Act. 

(2) * * * 

* * * * * * * 

(q) COMBINED SEWER OVERFLOWS.—

(1) REQUIREMENT FOR PERMITS, ORDERS, AND DECREES.—

Each permit, order, or decree issued pursuant to this Act after 

the date of enactment of this subsection for a discharge from 

a municipal combined storm and sanitary sewer shall conform 

to the Combined Sewer Overflow Control Policy signed by the 

Administrator on April 11, 1994 (in this subsection referred to 

as the ‘‘CSO control policy’’). 

(2) * * * 

* * * * * * * 


smartinez on PROD1PC64 with REPORTS
10 

(r) DISCHARGES INCIDENTAL TO THE NORMAL OPERATION OF REC- REATIONAL VESSELS.—No permit shall be required under this Act by 

the Administrator (or a State, in the case of a permit program approved under subsection (b)) for the discharge of any graywater, 

bilge water, cooling water, weather deck runoff, oil water separator 

effluent, or effluent from properly functioning marine engines, or 

any other discharge that is incidental to the normal operation of a 

vessel, if the discharge is from a recreational vessel. 

SEC. 501. (a) The Administrator is authorized to prescribe such 

regulations as are necessary to carry out his functions under this 

Act. 

(b) * * * 

* * * * * * * 

SEC. 502. Except as otherwise specifically provided, when used in 

this Act: 

(1) * * * 

* * * * * * * 

(24) OIL AND GAS EXPLORATION AND PRODUCTION.—The term 

‘‘oil and gas exploration, production, processing, or treatment 

operations or transmission facilities’’ means all field activities 

or operations associated with exploration, production, processing, or treatment operations, or transmission facilities, including activities necessary to prepare a site for drilling and 

for the movement and placement of drilling equipment, whether or not such field activities or operations may be considered 

to be construction activities. 

(25) RECREATIONAL VESSEL.—

(A) IN GENERAL.—The term ‘‘recreational vessel’’ means 

any vessel that is—

(i) manufactured or used primarily for pleasure; or 

(ii) leased, rented, or chartered to a person for the 

pleasure of that person. 

(B) EXCLUSION.—The term ‘‘recreational vessel’’ does not 

include a vessel that is subject to Coast Guard inspection 

and that—

(i) is engaged in commercial use; or 

(ii) carries paying passengers. 

* * * * * * * 

Æ 


smartinez on PROD1PC64 with REPORTS