Redline-Strikeout Version: Changes Made During E.O. 12866 Review

1

DRAFT FINAL ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 140

EPA-R09-OW-2010-0438; FRL-####-#

RIN 2009-AA04

Marine Sanitation Devices (MSDs): Regulation to Establish a No Discharge Zone 

(NDZ) for California State Marine Waters

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule 

------------------------------------------------------------------------------------------------------------

SUMMARY: The U.S. Environmental Protection Agency (EPA) is establishing a No 

Discharge Zone (NDZ) for marine waters of the State of California for sewage discharges 

from: all large passenger vessels of 300 gross tons or greater; and from large oceangoing 

vessels of 300 gross tons or greater with available holding tank capacity or containing 

sewage generated while the vessel was outside of the marine waters of the State of 

California, pursuant to Section 312(f)(4)(A) of the Clean Water Act (CWA), 33 U.S.C.

Section 1322(f)(4)(A). This action is being taken in response to an April 5, 2006,

application from the California State Water Resources Control Board requesting 

establishment of this NDZ. Based on the State’s application, EPA has determined that the 

protection and enhancement of the quality of California’s marine waters requires the

prohibition of sewage discharges from two classes of large vessels. For the purposes of 

today’s rule, the marine waters of the State of California are defined as the territorial sea 

measured from the baseline, as determined in accordance with the Convention on the 

Territorial Sea and the Contiguous Zone, and extending seaward a distance of three miles 

and including all enclosed bays and estuaries subject to tidal influences from the Oregon 

border to the Mexican border. State marine waters extend three miles from State islands, 

including the Farallones and the Northern and Southern Channel Islands. A map of 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

2

California State marine waters and the NDZ can be obtained or viewed at the EPA’s 

website at http://www.epa.gov/region9/water/no-discharge/overview.html, or by calling 

(415) 972-3847. 

DATES: This final rule is effective [30 DAYS AFTER PUBLICATION IN THE 

FEDERAL REGISTER]

ADDRESSES: U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, 

Mail code WTR-8, San Francisco, CA 94105–3901. 

FOR FURTHER INFORMATION CONTACT: Mr. Paul Amato at (415) 972-3847 or 

amato.paul@epa.gov. 

SUPPLEMENTARY INFORMATION:

I. Background

II. Summary of Final Action 

III. Response to Comments 

A. Overview

B. Public Comments

1. Protection of California’s Coastal Resources

2. Expansion of the Rule

3. Scope and Applicability of CWA Section 312(f)(4)(A)

4. Classes of Vessels

5. Large Oceangoing Vessel Sewage Holding Capacity

6. Applying a No Discharge Zone for all California marine waters

7. Other General Comments
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

3

IV. Statutory and Executive Order Reviews

I.BACKGROUND

The proposed rule was published in the September 2, 2010, issue of the Federal 

Register (75 FR 53914). A 60-day comment period followed that ended on November 1, 

2010, during which time EPA Region IX received approximately 2,020 comment letters 

and emails, including 16 distinct letters and approximately 2,000 substantially identical 

letters. Section III addresses the comments.

Clean Water Act Section 312, 33 U.S.C. Section1322, (hereafter referred to as

―Section 312‖), regulates the discharge of sewage from vessels into the navigable waters. 

Pollutants most frequently associated with sewage discharges include solids, nutrients,

pathogens, petroleum products, heavy metals, pesticides, pharmaceuticals, and other 

potentially harmful compounds.1Sewage discharges can contaminate shellfish beds, 

pollute drinking water supplies, harm fish and other aquatic wildlife, and cause damage 

to coral reefs. Direct contact with these pollutants can have serious human health effects,

with children, the elderly, and individuals with compromised immune systems being 

most susceptible. Currently, California marine waters include 120 miles of coast that are 

listed as impaired for pathogens commonly associated with sewage.

Clean Water Act Section 312(h) prohibits vessels equipped with installed toilet 

facilities from operating on the navigable waters (which include the three mile territorial 

seas), unless the vessel is equipped with an operable marine sanitation device (MSD), 

certified by the Coast Guard to meet applicable performance standards. 33 U.S.C. Section 

1322(h). The provisions of Section 312 are implemented jointly by EPA and the Coast 

 

1 The State of California’s Application to the EPA for a No Discharge Zone 33 (Apr. 5, 2006).
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

4

Guard. EPA sets performance standards for MSDs and is involved in varying degrees in 

the establishment of NDZs for vessel sewage. 33 U.S.C. Sections 1322(b) and (f). The 

Coast Guard is responsible for developing regulations governing the design, construction, 

certification, installation and operation of MSDs, consistent with EPA’s performance 

standards. 33 U.S.C. Sections 1322(b) and (g); see also 33 C.F.R. Part 159. The Coast 

Guard’s responsibility includes certifying MSDs for installation on U.S. flagged vessels. 

Under some circumstances, vessel sewage discharges treated by an MSD may

contain higher concentrations of pollutants than discharges of treated sewage from landbased wastewater treatment plants and may cause or contribute to water quality 

impairments and impacts to sensitive marine habitats. In 2000, an Alaska Cruise Ship 

Initiative study sampled 21 cruise ships twice during the cruise season and found that 57 

percent of the samples exceeded fecal coliform standardseffluent limits and 78 percent 

exceeded suspended solids standardseffluent limits for Type II MSDs.2 Only one sample 

met the standards for both. The Coast Guard inspected six of the vessels with high 

effluent concentrations and found that five were exceeding standardslimits due to 

improper MSD operation or maintenance, resulting in issuance of civil penalties.

3

EPA 

estimates that large passenger vessels and large oceangoing vessels generate 25.2 million 

gallons of sewage each year while in California State marine waters a number that is 

projected to grow. Data was not available to quantify how much of this sewage is 

currently discharged while vessels are present in California marine waters; however, as 

shown in Table 1, EPA used existing data to estimate that the final rule will prohibit the 

 

2 Exceeding these limits is only a violation if the operator was not discharging through a properly operated 

and maintained MSD.

3 ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION, ALASKA CRUISE SHIP INITIATIVE

PART 2 FINAL REPORT (2001), available at http://dec.alaska.gov/water/cruise_ships/cruiseinitiative.htm
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

5

discharge of 22.5 million of the 25.2 million gallons of sewage that large vessels could 

otherwise legally discharge into California State marine waters each year. Small vessels 

without holding capacity, which are not regulated by today’s rule, generate an additional 

2.8 million gallons of sewage per year that can be legally discharged to California marine 

waters. 

Table 1. California Vessel Sewage Contributions and NDZ Prohibitions 

Sewage Source

Vessel Sewage 

Generation in 

State Waters 

(gallons/year)

Treated Vessel 

Sewage Prohibited 

by this NDZ 

(gallons/year)

Addressed by this rule

Large Passenger Vessels

Large Oceangoing Vessels with available 

holding capacity

 

Combined = 

Not addressed by this rule

Large Oceangoing Vessels without holding

capacity

Large Oceangoing Vessel discharges beyond 

holding tank capacity

Small Vessels without holding capacity

 

Combined = 

19.2 million

3.3 million*

22.5 million

2.73 million*

0.4 million

2.8 million**

5.5 million

19.2 million 

3.3 million

22.5 million

No Change 

 

No Change

No Change

No Change

* The sewage generation per year for large oceangoing vessels in this table (totaling 6 million gallons = 3.3 million + 

2.7 million) differs from the 3.4 million gallons per year estimated in the proposed rule because it is derived from more 

recent data and analysis indicating that the rate of sewage generation is higher than estimated for the proposed rule. The 

Chamber of Shipping of America (CSA) had conducted a vessel sewage data survey in response to EPA’s July 12, 

2010, Clean Water Act Section 312(b): Notice Seeking Stakeholder Input on Petition and Other Request to Revise the 

Performance Standards for Marine Sanitation Devices, 75 FR 39683. This data and its analysis can be found in the 

docket for this final rule at www.regulations.gov.

**EPA estimate based on State of California small vessel usage data in their January 27, 2009 Application Addendum.

The State of California declared the importance of protecting coastal water from 

vessel sewage when it enacted the California Clean Coast Act of 2005 (Senate Bill (SB) 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

6

771) and related legislation in 2003-2005 to limit pollution from large passenger and 

large oceangoing vessels. In enacting this legislation, the State found that California’s 

coastal waters warrant the higher level of protection that should be provided through an 

NDZ. California’s highly varied marine environments support high levels of biological 

diversity and habitat for several dozen species listed as endangered, threatened, or of 

concern under federal or State law and include designated essential habitat for nearly 100 

species of fish along most of California’s coast. The unique values associated with 

California’s coastal marine environment have been recognized through the creation of a 

network of more than 200 protected areas, reserves, sanctuaries, and monuments that 

together afford special resource protection status to the vast majority of California coastal 

waters including the four Federally designated National Marine Sanctuaries (Cordell 

Bank, Gulf of the Farallones, Monterey Bay, and Channel Islands) that combined occupy 

approximately one-third of the coastline. Waters along the California coastline support 

important economic, recreational, conservation, research, educational, and aesthetic 

values, and are becoming increasingly more important for potable water supply as 

desalinization measures are used to meet demands. 

CWA Section 312 generally preempts state regulation of the discharge of sewage 

from vessels: ―no state or political subdivision thereof shall adopt or enforce any statute 

or regulation of such state or political subdivision with respect to the design, 

manufacture, or installation or use of any [MSD] on any vessel subject to the provision of 

[CWA Section 312].‖ CWA Section 312(f)(1)(A), 33 U.S.C. 1322(f)(1)(A). Under 

Section 312(f), however, a state may, in certain circumstances, request that EPA establish 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

7

an NDZ for vessel sewage or, after required findings are made by EPA, establish such a 

zone themselves. 

There are three types of NDZ designations. First, under Section 312(f)(3) states 

may designate portions or all of their waters as NDZs if the state determines that the 

protection and enhancement of the quality of the waters require greater environmental

protection than provided by current federal standards. However, no such prohibition 

applies to discharges until EPA determines that adequate facilities for the safe and 

sanitary removal and treatment of sewage from all vessels are reasonably available for 

the waters in the NDZ. Second, a state may apply under Section 312(f)(4)(A), as 

California did here, for EPA’s determination that the protection and enhancement of the 

quality of specified waters within such state requires a prohibition. In contrast to Section

312(f)(3) NDZ designations, Section 312(f)(4) does not require EPA to determine that 

adequate pump out facilities are reasonably available for all vessels. Upon thisits

determination that the protection and enhancement of the quality of specified waters 

requires the prohibition, EPA shall by regulation completely prohibit the discharge from 

a vessel of any sewage (whether treated or not) into such waters. Lastly, a state may 

apply under Section 312(f)(4)(B) for EPA to establish, by regulation, a drinking water 

intake zone which prohibits the discharge of sewage into that zone. 33 U.S.C. Section 

1322(f), 40 C.F.R. Part 140.4.

The State of California, through the State Water Resources Control Board (State 

Board), applied to EPA for the establishment of an NDZ covering all California marine 

waters pursuant to Clean Water Act Section 312(f)(4)(A). As required by the California 

Clean Coast Act, the State Board’s application requested a prohibition of sewage
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

8

discharges from large passenger vessels and large oceangoing vessels with ―sufficient 

holding tank capacity‖ to contain sewage while the vessels are within the marine waters 

of the State. 

With today’s rule, the EPA Region IX Administrator grants this application.

II. SUMMARY OF FINAL ACTION 

EPA evaluated the State of California’s CWA Section 312(f)(4)(A) application 

for the establishment of an NDZ throughout the marine waters of the State and other 

relevant information, and because the Agency determinedissued a notice of proposed 

rulemaking that would establish the requested NDZ based on the Agency’s proposed 

determination that the protection and enhancement of the quality of these waters required 

it, issued a notice of proposed rulemaking that would establish the requested NDZ. EPA 

carefully considered the public comments on the proposed rule (available in the docket at 

www.regulations.gov), and concludes that nothing in these comments affects EPA’s

proposed determination that an NDZ is warranted for these waters. As discussed more 

fully below, EPA was convinced by some of the comments to make changes to the 

description of the class of covered large oceangoing vessels subject to the NDZ. The 

State has indicated that it finds these changes consistent with its NDZ petition.

As discussed more fully in the preamble to the proposed rule, California marine 

waters support a variety of unique, nationally important and biologically significant 

environments that contribute to California’s recreational, economic, and aesthetic values. 

EPA estimates that this rule will prohibit the discharge of approximately 22.5 million 

gallons of treated vessel sewage per year that could otherwise enter California marine 

waters. (EPA is unable to estimate how much of this treated sewage would actually enter 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

9

California marine waters in the absence of this rule). This action will protect and enhance 

water quality, which will benefit human health by reducing the potential for exposure to 

pollutants from: recreational use of the waters, commercial fishing, shellshellfish bed 

operations, and water intakes for desalination plants. Similarly, this action will provide 

benefits to wildlife and their habitats.

On September 2, 2010, EPA proposed an NDZ covering all California marine 

waters which would be applicable to large passenger vessels and to large oceangoing 

vessels with two days or more sewage holding capacity. Based on the comments received 

for the proposed rule, EPA has changed the description of the class of covered large 

oceangoing vessels so that it applies to all large oceangoing vessels that have not fully 

utilized available holding tank capacity or that contain sewage generated outside the 

NDZ. Revising the definition will provide greater protection and enhancement of the 

covered waters and make compliance more feasible. The reasons for this change are 

addressed in more detail in Section III. 

EPA is not changing the rule as it applies to passenger vessels, but has addressed 

a potential ambiguity by modifying the definition of ―large oceangoing vessel‖ to make 

clear that it excludes any vessel defined as a ―large passenger vessel.‖

Today’s rule establishes an NDZ for the marine waters of the State of California 

that applies to two classes of vessels—(1) passenger vessels of 300 gross tons or more 

having berths or overnight accommodations, and (2) oceangoing vessels of 300 gross 

tons or more equipped with a holding tank which has not fully used the holding tank's 

capacity, or which contains more than de minimis amounts of sewage generated while the 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

10

vessel was outside of the NDZ. 4 Vessels within these two classes are completely 

prohibited from discharging any sewage (whether treated or not) within the NDZ. 

EPA expects today’s rule will result in large oceangoing vessels with holding 

tanks maximizing use of their holding tank capacity while in the NDZ. In order to comply 

with the NDZ, a large oceangoing vessel with a holding tank will, in most cases, choose 

to empty its holding tank before entering California marine waters. While present in these 

waters, the vessel must refrain from discharging any sewage so long as it has any holding 

tank capacity. If the large oceangoing vessel reaches its holding tank capacity due only to 

sewage generated while in the NDZ, the vessel is no longer within the class of covered 

vessels and can discharge properly treated sewage in compliance with the NDZ. A vessel 

can choose to enter the NDZ without first emptying its holding tank, but then it may not 

discharge any sewage. 

EPA recognizes that de minimis amounts of sewage may remain in the holding 

tank of a vessel that has fully discharged before entering State waters, and therefore 

included this criterion in the rule.has clarified in the rule that such de minimis amounts do 

not prohibit the vessel from discharging in State waters once its holding tank capacity is 

fully used. A holding tank is ―fully used‖ when it has been filled to the point that safe 

and proper operation requires that it be discharged. EPA has also defined the term 

"holding tank" to make it clear that the rule does not intend for vessels operators to use 

ballast tanks, or other tanks that have not been specifically designed, constructed, and 

fitted for holding sewage, to store sewage while vessels are operating in California 

marine waters.

 

4 A vessel is subject to this rule if it is of 300 gross tons or greater as measured under the International 

Convention on Tonnage Measurement of Ships, 1969, measurement system in 46 U.S.C. § 14302, or the 

regulatory measurement system of 46 U.S.C § 14502 for vessels not measured under 46 U.S.C. § 14302.
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

11

This NDZ will not alter the ten existing NDZs in California, all of which were 

enacted pursuant to CWA Section 312(f)(3). These prior NDZs cover a relatively small 

portion of California’s total marine waters and remain in effect for all vessels. (not just 

large passenger and oceangoing vessels). In addition, certain sewage discharges from 

vessels are prohibited under National Oceanic and Atmospheric Administration (NOAA) 

regulations for the four California marine sanctuaries. Nothing in today’s rule affects 

these regulations. 

III. RESPONSE TO COMMENTS

In response to the proposed rule, approximately 2,020 comment letters and emails 

were received including 16 distinct letters and approximately 2,000 substantially identical 

letters in support of the rule. Comments were provided by regulated entities, trade 

organizations, government officials, non-governmental organizations, and members of 

the public. The substantive comments are grouped together and addressed below.

A. Overview

Most of the comment letters expressed support for this rule because it will help 

protect California’s marine biological resources, recreational opportunities, and human 

health from vessel sewage. Some of these commenters said the rule was necessary: (1) 

because there is a need for stronger standards to protect coastal resources from vessel 

sewage; and (2) it will improve California marine waters for commercial fisheries, 

tourism, aesthetics, science and research. Some supporting commenters further suggested 

that the rule should be expanded: (1) to include California marine waters out to 12 

nautical miles from shore; (2) to include all vessels; (3) to further regulate landside 

sources of pollution; (4) to improve inspection and testing procedures; (5) to improve 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

12

vessel discharge monitoring; and (6) to specify penalties for violators. One supportive 

commenter expressed concerns with the legal basis for regulating military vessels and 

one commenter suggested that EPA’s economic analysis was incomplete because it did 

not adequately consider impacts on small businesses. 

Commenters opposed to the proposed rule expressed several concerns regarding 

its legal and scientific basis, which largely fall into these four categories of comments: 

(1) CWA Section 312(f)(4)(A) does not permit EPA to establish an NDZ applicable to a 

subset of vessels; (2) the proposed rule does not adequately support an NDZ for all of 

California marine waters; (3) the connection between vessel sewage and impacts to 

California waters has not been sufficiently demonstrated; and (4) the two-day holding 

capacity requirement for oceangoing vessels is arbitrary, inconsistent with CWA Section 

312, and less protective than alternative approaches. The comments are addressed in 

detail below.

B. Public Comments

1. Protection of California’s Coastal Resources

Many commenters expressed support for EPA’s conclusion that the NDZ is 

required to protect California’s coastal waters from pollutants found in vessel sewage. 

Approximately 2,000 similar comment letters urged EPA to approve California’s 

application and stated that the NDZ would protect California’s fragile ocean and coastal 

ecosystem from vessel sewage and improve water quality for beaches, fishing, shellfish 

beds, and human health. Another letter signed by 19 members of California’s 

Congressional Delegation expressed strong support for EPA’s proposed rule. Several 

commenters expressed concerns with anticipated increases in sewage discharges due to 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

13

the growing cruise ship industry and the number of large oceangoing vessels in California 

waters. In addition, commenters said the NDZ was needed to protect the water quality of 

State and federally protected areas and to address inadequate federal discharge and 

monitoring requirements of a growing cruise and shipping industry with a documented 

history of illegal discharges. Economic benefits of improving California’s coastal 

resources were also provided as a reason for creating the NDZ. Some commenters stated 

that the information in California’s application to EPA was sufficient to demonstrate the 

need for the rule under CWA Section 312.

The EPA agrees with these concerns about impacts to coastal water quality and 

continues to findis finalizing its determination that this NDZ is required to protect and 

enhance the quality of California marine waters. The information provided by the State

and other sources demonstrates that California marine waters are a very important and 

sensitive resource that havehas been degraded by the discharge of sewage and would 

likely experience further degradation without the protections provided by this NDZ. This 

rule is expected to benefit California’s fragile coastal resources by significantly reducing 

the discharge of pollutants that can occur in vessel sewage. Water quality data for vessel 

sewage is limited because monitoring is not required; however, EPA considered the 2000 

Alaska Cruise Ship Initiative sewage sampling data from 21 cruise ships with Type II 

MSDs in determining that treated vessel sewage discharges can still contain pollutants in 

concentrations that exceed current federal standards.Type II MSD effluent limits.

5

Type 

II MSDs also do not remove nutrients and the biochemical oxygen demand loading which

contribute to water quality degradation. Based on this information, and the likelihood that 

 

5 As noted previously, such discharges may or may not be a regulatory violation, depending on whether or 

not they result from improper operation or maintenance of the device.
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

14

vessel traffic will continue to grow, EPA and the State of California have determined that 

even vessel sewage treated by an MSD that complies with CWA Section 312 standards 

may be a significant source of pollutants that have negative impacts on California’s 

coastal resources.

2. Expansion of the Rule

Some of the commenters recommended expanding the rule to increase protection 

of California’s coastal resources. One commenter recommended that EPA expand the 

distance of the proposed NDZ from three to twelve nautical miles from shore because 

winds and currents constantly move the sewage and even three miles from shore is too 

close to protect coastal resources. The commenter noted that some other federal laws, 

such as the National Marine Sanctuaries Act, the Marine Plastic Pollution Research and 

Control Act of 1987, and the Ocean Dumping Act, address pollution within the 12-mile 

contiguous zone. 

EPA recognizes that an NDZ does not impose a physical barrier to the movement 

of pollutants and understands the potential benefits of such an expansion, but the 

commenter’s proposal would extend the NDZ beyond the limit of the CWA territorial 

seas, into the CWA contiguous zone, an area in which CWA section 312 does not apply. 

See, e.g., CWA Section 312(b) (directing EPA to develop federal standards of 

performance for MSDs discharging into ―navigable waters‖) and CWA Sections 502(7) 

& (8) (defining ―navigable waters‖ as including the ―territorial seas‖ which extend 

―seaward a distance of three miles‖). Any request for action under the authorities cited 

by the commenter – even if potentially available – is outside the scope of today’s action 

on California’s application for an NDZ applicable to its waters, pursuant to CWA Section 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

15

312. EPA also notes that the U.S. Coast Guard, which is charged with enforcing this 

NDZ under CWA section 312(k), measures the CWA's jurisdictional boundaries in ocean 

waters by using nautical miles. See, e.g., 33 U.S.C. Part 2.

A commenter who supports establishment of an NDZ stated that the rule should 

be expanded to apply to all vessels, instead of just the classes of vessels requested by 

California’s legislation. EPA agreesrecognizes that prohibiting all vessels from 

discharging treated sewage in California marine waters couldmay have broader benefits

for water quality; however, the commenter did not provide information for the record 

demonstrating that such an expansion is required for the protection and enhancement of 

the quality of the specified waters. The State specifically requested, and provided

information in support of, an NDZ limited to large passenger vessels and large cargo 

vessels with adequate holding capacity. EPA approached the State Board about 

expanding the application to include all vessels, but the State Board determined this 

would be contrary to the Legislature’s instructions to limit the scope of the prohibition to 

the two specified classes of vessels. The State Board provided further support for the 

distinction between large and small vessels in an October 13, 2006, supplement to its 

CWA Section 312(f)(4)(A) application. The supplement cites a number of efforts 

directed at smaller vessels, including construction of pump-out facilities, educational 

outreach, and establishment of small NDZs under CWA section 312(f)(3) in key harbor 

areas. The supplement also summarizes data from marina surveys of small vessels 

which showed that 80% percent of the estimated 841,000 recreational vessels in 

California marine waters lack Type I or II MSDs, which means that they are already 

prohibited from discharging to marine waters by the CWA. EPA reviewed this material 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

16

and determined that the State’s approach was reasonable because it would control 

discharges from two significant classes of vessels which, together, generate most of the 

sewage that could be legally discharged into State waters, whereas neither the State, nor 

any commenters, submitted evidence showing that it would be necessary to prohibit all 

discharges from the remaining classes of vessels to provide for the protection and 

enhancement of the quality of the State’s waters. 

One commenter asked EPA to consider regulating landside wastewater sources as 

well, including municipal discharge and wastewater treatment facilities, because they are 

a larger source of pollutants. EPA agrees that landside discharges are a more significant 

contributor to pollutants in coastal waters, but these discharges are outside the scope of 

today’s rulemaking. Today’s rule establishes an NDZ under CWA Section 312, which is 

limited to vessel sewage discharges only. Landside point-source discharges of pollutants 

are regulated through the National Pollution Discharge Elimination System (NPDES) 

under CWA Section 402, and nonpoint sources of pollution are regulated under CWA 

Section 319.

A commenter also suggested improved inspections, sampling, monitoring, 

penalties and passenger fees as ways to improve the rule. Specifically, the commenter 

noted that the United States Coast Guard (Coast Guard) should have authority to conduct 

unannounced inspections of regulated vessels in light of several previously confirmed 

vessel sewage discharge violations. These activities are beyond the scope of today’s 

Section 312(f)(4)(A) rulemaking. We note that the Coast Guard has existing authority to 

inspect vessels and assess penalties under CWA Sections 312 (j) - (l), as well as its 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

17

general law enforcement authorities. 33 U.S.C. Sections 1322 (j)-(l); see also 14 U.S.C. 

Section 89. 

3. Scope and Applicability of CWA Section 312(f)(4)(A) 

Several commenters stated that CWA Section 312(f)(4)(A) requires a complete 

prohibition of discharges from all vessels upon the Administrator’s determination that 

specified state waters require protection. These commenters stated that Section 312(f)(4) 

and 40 C.F.R. Part 140.4(b) do not permit application of an NDZ to select vessel classes

and that EPA must act on the State’s application by either imposing an NDZ applicable to 

all vessels, or by not establishing an NDZ at all. One commenter further stated that it is 

implicit in Section 312(f)(4)(A) that NDZs are intended only for areas where sewage 

discharges are sufficiently impacting the marine ecosystem so as to justify banning them 

entirely. 

As noted in the Notice of Proposed Rulemaking, this is the first time an NDZ has 

been proposed for specific categories of vessels. EPA is issuing the rule, applicable to 

two classes of large vessels, based on: (1) the scope of the State’s NDZ application; (2) 

the evidence supporting a discharge ban with this defined scope; (3) lack of information 

demonstrating that an expansion is required, and (4) EPA’s interpretation that Section 

312(f)(4)(A) authorizes EPA to promulgate an NDZ for specific classes of vessels where 

appropriate. 

The final rule is consistent with the State of California’s application for an NDZ 

limited to all passenger vessels over 300 gross tons, and oceangoing vessels over 300 

gross tons with sufficient holding tank capacity. The State legislature specifically directed 

the State Board to submit an application to EPA requesting an NDZ for only these two 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

18

classes of vessels. As discussed above, EPA made its determination regarding the 

requested NDZ based on the record before it, which included information on sewage 

generation and the potential for sewage discharges to State waters from the subject 

classes of vessels and from other classes of vessels. The two subject classes of vessels 

are responsible for most of the sewage generated by vessels in California marine waters, 

an estimated 22.5 million gallons of 28 million total gallons generated and potentially 

discharged each year. The information obtained by EPA did not show that extension of 

the rule to all vessels was required to protect and enhance the quality of the State’s 

waters. The commenters also did not provide information which shows that it is 

necessary to include these other classes of vessels within the scope of the rule to protect 

and enhance the quality of these waters. 

Extending the rule to all vessels would also be unduly cumbersomeburdensome

on the community of marine vessel owners and operators. By applying this rule to the 

two classes of large vessels, the vast majority of sewage discharges will be abated in 

these sensitive waters. As discussed previously, much of the vessel-generated sewage that 

is not covered by this rule is already required to be pumped out in harbor pump-out 

stations, or discharged outside the 3-mile limit of State marine waters, because most 

recreational and small commercial vessels lack a Type I or Type II MSD to treat their 

sewage. The remaining vessels without holding tanks (which are required by CWA 

Section 312 to treat their sewage with approved MSDs), account for a comparatively 

small portion of the total sewage generated in the State’s marine waters. 

EPA considered the different structure and wording of the NDZ provisions to 

conclude that Section (f)(4)(A) allows for an NDZ limited to specific classes of vessels, 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

19

where appropriate. EPA believes that the contrast between the language in the NDZ 

provisions in Sections 312(f)(4)(A) and 312(f)(3) strongly suggest that Congress did not 

intend to foreclose the Agency from imposing an NDZ on a subset of vessels under the 

former where appropriate: Section 312(f)(4)(A) allows EPA to completely prohibit the 

discharge of any sewage from ―a vessel,‖ whereas Section 312(f)(3) provides for the 

complete prohibition of discharge of any sewage from ―all vessels.‖ If Congress had 

meant that all vessels must be subject to an NDZ under Section 312(f)(4)(A), it would 

have used the term ―all‖ as it did in section 312(f)(3). In addition, Congress’ desire to 

authorize NDZ protection for special waters where necessary could be significantly 

frustrated if the Agency were to adopt the commenters’ reading. After all, if EPA were to 

read the CWA to foreclose California’s application, the State would be forced to choose 

between seeking a complete discharge ban that includes some vessels, which as a group 

do not contribute greatly to the sewage discharge problem yet might have difficulty

addressingcomplying, or taking no action to protect water quality from any vessel 

discharges. In view of the textual differences between Sections 312(f)(3) and 

312(f)(4)(A), as well as the policy considerations underlying Congress’ enactment of 

those provisions, EPA reads Section 312(f)(4)(A) as permitting a state to seek an NDZ 

that is limited to specific classes of vessels. 6

 

6 Commenters who disagreed with this conclusion relied primarily on Congress’ use of the terms 

―completely‖ and ―any‖ in describing the scope of NDZs permitted under Section 312(f)(4)(A). See CWA 

§312(f)(4)(A) (providing that, upon making the required finding, the Administrator shall ―completely

prohibit the discharge from a vessel of any sewage (whether treated or not) into such waters‖) (emphasis 

added). While Congress’ use of the terms ―completely‖ and ―any‖ by itself, might be conducive to a 

reading that the NDZ must apply to all vessels, this language refers to ―a vessel.‖ These terms could simply 

have been used by Congress to indicate that the prohibition on discharge is absolute with respect to

whatever vessel or class of vessels it applies to, rather than permitting a standard which allows covered 

vessels to discharge sewage that meets a specified treatment standard. 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

20

Two commenters expressed concern that this rule could lead to the patchwork 

application of NDZ's between states or other jurisdiction based on vessel classes. The 

commenters believe that an NDZ that does not ban discharges from all vessels could lead 

to a lack of uniformity which would make the efficient operation of commercial vessels 

in U.S. waters very difficult. They stated that Congress created the NDZ program to 

address local water quality issues that deserved additional protections but that Congress 

also recognized a critical need for consistency across state lines. ―Uniformity and 

predictability of legal requirements was precisely the goal when Congress enacted CWA

Section 312(f)(1) which preempts the states from creating such inconsistent legal 

requirements particularly with regard to the application of Section 312(f)(4) which does 

not require a determination of adequate shore reception facilities.‖ 

As the comments indicate, Section 312(f) reflects a balance between the federal 

interest in uniform regulation of marine commerce and a state’s interests in protection 

and enhancement of the quality of specified waters. EPA has previously approved ten 

NDZs in California, and NOAA has established prohibitions on the discharge of sewage 

from large vessels in waters within the boundaries of the four National Marine 

Sanctuaries along the California coast. Already, the discharge requirements for vessels 

operating along the California coast are not uniform. Today’s rule will create a more 

uniform, well-defined boundary three miles from the California coast demarcating the 

NDZ for the covered classes of vessels. 

One of these commenters further stated that establishing an NDZ for vessel 

classes sets a ―dangerous precedent‖ because Section 312(f)(4)(A) does not require EPA 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

21

to find that adequate pump-out facilities are reasonably available for all vessels, as is the 

case for state applications under Section 312(f)(3). 

EPA does not expect that today’s action will lead to the establishment of 

unjustified NDZs in the future. As noted, Section 312(f)(4)(A) does not require EPA to 

find that adequate pump-out facilities are available, but, unlike Section 312(f)(3), it 

requires EPA to determine whether a proposed NDZ is required for the protection and 

enhancement of the quality of specified waters. If a state is unable to demonstrate that the 

waters specified in a proposed NDZ warrant that protection, or that the necessary 

protection can be provided by an NDZ, the state will not obtain a discharge prohibition 

under Section 312 (f)(4)(A). Under Section 312 (f)(3), only the state needs to determine 

whether the waters require protection, and EPA decides whether adequate pump-out 

facilities are reasonably available. 

Some commenters also suggested that the State should have sought EPA approval 

under CWA Section 312(f)(3), instead of 312(f)(4)(A). Section 312(f)(3) authorizes states 

to, ―completely prohibit the discharge from all vessels of any sewage‖ in some or all of 

their waters, provided that EPA determines that adequate sewage handling facilities are 

reasonably available to ―all vessels‖ operating in the affected waters. 

EPA does not decide which of these statutory provisions a state should use to 

apply for an NDZ. Having decided to apply under Section 312(f)(4)(A), the State of 

California was required to meet the criteria of this provision., and EPA is required to 

determine whether or not they have done so. With this final rule, we find that they have.

4. Classes of Vessels
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

22

Some commenters stated that there is no factual basis for distinguishing between 

large cargo vessels and smaller vessels with similar crew and passenger numbers because 

there would be no difference in the impacts of their sewage discharges on water quality. 

Some commenters also noted that the proposed rule had estimated that recreational 

vessels without holding tanks, as a class, have the potential to discharge more than twice 

the amount of sewage as covered cargo vessels. 

EPA recognizes that the size of a vessel is not always determinative of the amount 

of sewage it will generate or its potential to pollute State waters. We expect that some 

vessels below the 300 gross tonnage threshold sometimes carry a similar number of crew 

and passengers as some of the covered large oceangoing vessels. However, as discussed 

above, California’s application addressed vessels over 300 gross tons, and the revised 

data show that smaller vessels withwithout holding tanks, as a group, are a less 

significant source of sewage discharges within the NDZ than large oceangoing vessels 

(see Table 1). EPA believes that the State’s approach to defining the vessel classes by 

tonnage is practical and understandable. Alternatives, such as defining vessel classes by 

crew and passenger numbers, would be more difficult to implement and enforce. 

Several commenters stated that EPA did not explain the legal basis for applying 

the NDZ to select classes of vessels. Some of these commenters also stated that EPA 

should renotice the rule for comment after explaining the legal justification for applying 

Section 312(f)(4)(A) to limited classes of vessels. 

EPA is only required to reference the legal authority for the proposed rule. 5 

U.S.C. section 553(b)(2). The Notice of Proposed Rulemaking not only specified the 

legal basis for the proposed rule (CWA Section 312(f)(4)(A) and 40 C.F.R. Part 140.4), it 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

23

explained EPA’s rationale for proposing, for the first time, to limit the NDZ to certain 

vessel classes, and specifically invited the public to comment on this approach. The 

commenters’ detailed analyses of the issue shows that the commenters had a sufficient 

understanding of the legal issues to question EPA’s application of Section 312(f)(4)(A) to 

specific classes of vessels and offer specific arguments against the proposed approach. In 

this final rule preamble, EPA has, in response to these comments, explained its legal 

rationale for today’s action.

5. Large Oceangoing Vessel Sewage Holding Capacity 

Some commenters suggested that the two-day holding capacity requirement for 

oceangoing vessels in the proposed rule was arbitrary and impractical because it had no 

environmental impact-based justification and would cause large oceangoing vessels to 

have to make extra trips beyond State waters to discharge sewage. Commenters also 

noted that the requirement could incentivize holding tank removal or reduction to avoid 

regulation, resulting in an increase in unregulated vessels and vessel discharges. One 

commenter suggested that there should be an exception for vessels that had installed 

improved treatment systems rather than large holding tanks. A couple of commenters 

suggested that there was a greater impact from the sewage discharges of vessels not 

covered by the two-day holding capacity requirement. 

Most of the commenters who opposed the two-day holding capacity requirement

recommended revising the rule to more closely reflect California’s legislation, which

defines the covered class of large oceangoing vessels as those with ―a holding tank of 

sufficient capacity‖ to contain sewage while in the marine waters of the State. These 

commenters proposed changing the rule to require all vessels, to the extent they are 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

24

coming from waters in which discharge is permitted, to arrive with sewage holding tanks 

that have been discharged to the greatest extent operationally practicable. In addition, 

under the commenters’ suggested approach, all such vessels would be prohibited from 

discharging sewage within State waters to the extent that they have the capability to hold 

such sewage in a holding tank. These commenters stated that this approach would 

provide greater environmental benefit by regulating all vessels with holding tanks and 

result in a greater reduction in the amount of effluent discharged. In addition to written 

comments, representatives of the shipping industry met with EPA to discuss this 

approach during and after the proposed rule comment period.7These representatives 

stated that this approach would increase compliance and be easier to enforce since the 

Coast Guard could check the discharge logs at the same time and in the same manner as it 

investigated compliance with other shipping industry regulations. 

Based on the information provided by the commenters and EPA’s own evaluation 

of the sewage generation data, we agree that the proposed two-day holding tank 

definition may be impractical in some circumstances (e.g, causing some vessels to make 

additional trips from ports to discharge outside the NDZ and complicating port 

operations), might create an incentive for some vessel operators to remove existing 

holding capacity to avoid coverage by the rule, and, as discussed more fully below, 

would be less protective of coastal water quality than a rule that covers all large 

oceangoing vessels having any amount of holding capacity. As described in Section II, 

today’s rule replaces the proposed two-day holding tank capacity definition with a vessel 

class definition which provides that only those large oceangoing vessels equipped with 

 

7 Records of meetings between EPA and shipping industry representatives can be found in the docket for 

this rule at www.regulations.gov. 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

25

holding tanks which have fully utilized the capacity of those holding tanks while present 

in State waters may discharge any treated sewage. The Agency believes this approach 

better implements California’s request in its application for an NDZ that applies to large 

oceangoing vessels equipped with ―a holding tank of sufficient capacity.‖ Consistent 

with the State’s application, the final rule remains limited to large vessels.

Since the Notice of Proposed Rulemaking, EPA has acquired detailed 2010 large 

vessel data from the Coast Guard and the Chamber of Shipping of America (CSA), 

available in the docket for this rule. Data from the Coast Guard include port arrival and 

departure dates and times, and vessel identification, characteristics, country of origin, 

owners and operators for all vessels calling toon California ports in 2010. EPA used the 

Coast Guard data to better estimate port call frequency and durations for large vessels, as 

this information was more current and complete than the 2006 State Lands Trust Vessel 

Survey Data that EPA relied on for the proposed rule. The CSA vessel sewage data was 

compiled in response to EPA’s Clean Water Act Section 312(b): Notice Seeking 

Stakeholder Input on Petition and Other Request to Revise the Performance Standards 

for Marine Sanitation Devices, 75 FR 39683, July 12, 2010, and includes vessel, crew, 

sewage generation and holding capacity information for over 600 oceangoing vessels, of 

which 588 were 300 gross tons or greater. EPA was able to use this data to better estimate 

sewage generation rates and holding capacities for large oceangoing vessels because the 

holding capacity information is more detailed and reliable and includes the number of 

days of holding capacity and daily sewage generation rates for each vessel. EPA used the 

new data to compare the volumes of treated vessel sewage that would be prohibited from 

discharge into State marine waters under the proposed rule and this final rule. 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

26

Without direct data for vessel sewage discharges in State waters, EPA used the 

2006 State Lands data and 2010 Coast Guard and CSA data, to estimate the volumes of 

sewage generated by the different classes of vessels while present in California waters.

An analysis of the Coast Guard and CSA data indicate that the median daily sewage 

generation rate per person for large oceangoing vessel generatesvessels is 16 gallons of 

sewage per person, per day.8, which is almost twice as much as the estimate for large 

passenger vessels.

9 CSA sewage volume data ranged significantly and is attributed to 

crew size variation and likely to systems that process both sewage and graywater; 

regardless, this remains the best available data for large oceangoing vessels. The 2006 

State Lands data continues to be the best source of information for large passenger 

vessels, therefore, EPA’s estimated sewage generation rate for these vessels remains 8.4 

gallons per person, per day. as was used in the proposed rule. EPA used these sewage 

generation estimates, data on the number and length of vessel port calls, and the range of 

vessel sewage tank holding capacities, to compare the scope of coverage of today’s rule 

against the scope of coverage for the proposed rule. The Coast Guard and CSA data, and

EPA’s analysis and analytical methods are included in the docket for this rule. Based on 

theEPA’s analysis, EPA determined that today’s rule would regulate approximately 

twelve62 percent moreof large oceangoing vessels and prevent, or approximately twelve

percent more than the two-day holding capacity criteria of the proposed rule, because all 

 

8

 For the proposed rule, EPA did not have data on cargo ship sewage generation rates, so the Agency used 

passenger ship data from the December 29, 2008 Cruise Ship Discharge Assessment Report to estimate the 

sewage generation rate for large non-passenger oceangoing vessels at 8.4 gallons per person, per day. The 

Coast Guard and CSA is more reliable because it includes specific sewage generation data for large 

oceangoing vessels. 

9

 For the proposed rule, EPA did not have data on cargo ship sewage generation rates, so the Agency used 

passenger ship data from the December 29, 2008 Cruise Ship Discharge Assessment Report to estimate the 

sewage generation rate for large non-passenger oceangoing vessels at 8.4 gallons per person, per day. The 

Coast Guard and CSA is more reliable because it includes specific sewage generation data for large 

oceangoing vessels. 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

27

large oceangoing vessels with holding tank capacity, including those with less than two 

days, would now fall under the rule. Based on CSA data, approximately 50 percent of 

vessels reporting had less than two days holding capacity. This increase would prohibit

approximately nine percent more treated sewage, or over 780,000 gallons, from being 

discharged into California marine waters, as compared to the two-day holding capacity 

requirement in the proposed rule. In addition to the twelve percent of vessels with 

holding tanks having less than two days holding capacity, this analysis accounts for the 

additional discharges from vessels with more than two days holding capacity that would 

have been prohibited by the proposed rule, but which may not be prohibited by the final 

rule if the vessels discharge all sewage from their holding tanks before entering 

California marine waters.10 11 

Today’s rule also addresses the point raised by some commenters that the 

proposed two-day holding capacity rule would have excluded more cargolarge 

oceangoing vessels from the NDZ than it covered. Today’s As described above, today’s

rule will apply to approximately 62% percent of the large cargooceangoing vessels 

calling on California ports (those with holding tanks) and), instead of only 50 percent 

with two-day capacity using the originally proposed two-day holding capacity criteria. 

As a result today’s rule will prohibit the discharge of approximately 3.3 million gallons 

of sewage per year, compared to the estimated 2.7 million gallons of sewage that may 

continue to be discharged because it is generated in State waters and exceeds vessel 

 

10 The older data used in developing the proposed rule would also show that the final rule prohibits more 

sewage discharges, and is therefore more protective of water quality, but the extent of the difference would 

be less because EPA’s original estimate of daily sewage generation was lower. 

11 The older data used in developing the proposed rule would also show that the final rule prohibits more 

sewage discharges, and is therefore more protective of water quality, but the extent of the difference would 

be less because EPA’s original estimate of daily sewage generation was lower. 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

28

holding capacities. by vessels with no holding capacity or vessels that exceed the 

maximum holding capacity of their tanks. (See Table 1.) 

Since this approach is consistent with the State’s application for an NDZ, more 

protective of California marine waters, more operationally feasible, and more likely to 

lead to better compliance, EPA has eliminated the proposed two-day holding tank 

capacity criteria and associated definitions, and restructured the rule to require that all 

large oceangoing vessels with holding tanks fully utilize their holding tank capacity while 

in State marine waters. EPA has presented this approach to the State, and the State agrees 

that the final rule is an appropriate approach to implementing ―sufficient holding tank 

capacity.‖ 

Today’s final rule does not adopt the commenters’ specific proposed language, 

but it has substantially the same effect on large oceangoing vessels. Most covered vessel 

operators are expected to choose to enter State waters with empty holding tanks to be 

certain that they will fall outside the class of vessels subject to the NDZ if they fully use 

their holding capacity. In some instances, where a vessel with substantial holding 

capacity will be in State waters for a short time, this may not be necessary. However, any 

large oceangoing vessel which might reach its holding capacity while in State marine 

waters is expected to choose to empty its tanks before entering State marine waters. In 

addition, EPA did not incorporate the commenters’ proposed language requiring holding 

tanks to be ―discharged to the greatest extent operationally practicable‖ because this is 

addressed by the ―more than de minimis amounts of sewage‖ provision in the final rule. 

The rule also does not distinguish between large passenger vessels with certified 

MSDs and those with advanced waste treatment systems, as one commenter proposed, 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

29

because Section 312(f)(4)(A) expressly prohibits distinctions between vessel discharges 

based on the level of treatment (the regulation must ―completely prohibit the discharge 

from a vessel of any sewage (whether treated or not) into such water‖). 

5. Applying a No Discharge Zone for all California Marine Waters

Many commenters suggested that there is an insufficient nexus between vessel 

sewage and the entirety of California marine waters to designate an NDZ for all of the 

State’s coastal waters. Some commenters suggested that there is insufficient data to 

support an NDZ at all. Three commenters stated that a prohibition under CWA Section 

312(f)(4)(A) and 40 C.F.R. Part 140.4(b) requires science-based evidence that vessel

sewage discharges are impacting specific waters in the proposed NDZ and that the State 

and EPA had not provided sufficient evidence of the impacts. One stated that the 

determination of the proper area to be included in an NDZ requires a quantitative and 

qualitative consideration of the relationship between the discharge for which the 

regulation is being considered and the water quality characteristics (both baseline levels 

and water quality standards) of the ―specified‖ waters covered by the State’s application. 

Some commenters stated that under 40 C.F.R. Part 140.4(b), an NDZ could only be 

established where a prohibition on vessel discharges is needed to attain applicable water 

quality standards for the specific waters to be protected. Commenters suggested that 

impacts to water quality could not be measured without knowing the volume and spatial 

and temporal distribution of the discharges, or without ranking the contribution of the 

vessel discharges in relation to other sources of marine pollution. A commenter also 

stated that the diversity of California marine waters and the differing levels of impacts 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

30

from oceangoing vessels to the waters make ―lumping‖ them together into one NDZ 

illogical. 

Pursuant to CWA Section 312(f)(4)(A), EPA evaluated the waters that the State 

specified for NDZ coverage. At the outset, it is important to note that the statutory 

standard for when EPA must impose an NDZ under CWA 312(f)(4)(A) is where the 

Administrator determines ―that the protection and enhancement of the quality of specified 

waters within such state requires such a prohibition.‖ Contrary to what was suggested 

by commenters, nothing in the statute requires a demonstration focused on specific state 

water quality standards. 12

Based on the information contained in the record for today’s rule, EPA finds that 

the NDZ requested in the State’s application is required for all of California’s marine 

waters. This information demonstrates that significant portions of California marine 

waters are biologically important and sensitive, that large vessel sewage discharges are a 

significant source of marine pollution which is distributed widely throughout State 

waters, and that these discharges contribute to the degradation of the State waters. From 

the Mexican border to the Oregon border, California marine waters include 889 

recreational areas, 200 aquatic sanctuaries, over 100 state marine protected areas, 

including 34 locations designated as State Water Quality Protection Areas for unique 

biological values and or fragility, four National Marine Sanctuaries, other national and 

state parks, commercial and recreational fisheries, shellfish growing areas and essential 

fish habitat. These waters support important economic, recreational, conservation, 

 

12 EPA recognizes that its CWA section 312(f)(4)(A) regulations include a reference to state water quality 

standards, in the context of addressing a decision by the Administrator to expand or reduce the scope of a 

State’s requested NDZ, but that is not an issue in this designation. In any event, this reference predates 

amendments to CWA 312(f)(4)(A) which eliminated any need for EPA to determine whether an NDZ was 

necessary to protect applicable water quality standards, to the language in the statute today. 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

31

research, educational, and aesthetic values, and are becoming increasingly important for 

potable water supply as desalinization measures are being proposed and used to meet 

drinking water demands. California has also listed 120 miles of its coastal waters as 

impaired for pathogens commonly associated with sewage.13 

Specially designated areas found throughout California’s coastal waters are part 

of a larger connected oceanographic unit that is essential habitat for a wide range of 

important marine species. The entire length of California’s coastal waters is influenced 

by the California Current system, an eastern boundary current that forms the eastern 

portion of the North Pacific subtropical gyre. While this broad current moves southward 

off the continental shelf, seasonal coastal upwelling (driven primarily by coastal winds), 

as well as countercurrents and eddies (smaller scale cyclonic flows), contribute to mixing 

of continental shelf water with offshore ocean waters. The population dynamics, genetic 

structure, and biogeography of many coastal marine species are highly influenced by and 

dependent on this oceanographic connectivity. These waters provide important migration 

routes, feeding grounds, and breeding sites for many marine mammal species, including 

blue whales, gray whales, dolphins, porpoises, California sea lions, fur seals, and 

Northern elephant seals, as well as migratory and resident sea bird species, including 

petrels, cormorants, albatross, terns, shearwaters, pelicans, and auklets.

Because most of California’s coastal waters are recognized as possessing special 

significance, the degree of connectivity and mixing throughout these coastal waters 

requires that the NDZ extend to all of California’s marine waters. As some commenters 

noted, discharged sewage moves easily through coastal waters and can impair water 

 

13 These pathogens originate from both land-based and water-based sources.
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

32

quality in protected areas even if it is released outside those areas. By establishing the 

NDZ for all of California marine waters, instead of select areas of special concern, 

today’s rule will provide the required protection of water quality. In addition, it will be 

easier for vessel operators to understand the scope of the designation and be able to 

comply with the rule.

In light of the extensive array of important marine resources located throughout 

California’s coastal waters, their connection to the California Current system, and the 

presence of the two covered classes of large vessels in many parts of these waters having 

the potential to discharge 22.5 million gallons of sewage per year, EPA does not believe 

that Section 312(f)(4)(A) requires it to divide the proposed NDZ into individual segments 

and conduct site-specific evaluations of these segments to determine the extent to which

vessel sewage discharges are impacting each. None of the commenters indentified 

specific segments of the NDZ that they proposed to exclude from designation.14 The 

information provided in the State’s application, the proposed rule and supporting 

comments demonstrate that an NDZ encompassing all California marine waters is 

required to protect and enhance the quality of California marine waters which warrant 

special protection under CWA Section 312(f)(4)(A) because of their unique qualities and 

diverse resources.

7. Other General Comments

One commenter, while in support of the vessel sewage prohibition, expressed 

concerns with the legal basis for regulating military vessels under the rule stating that 

Section 553(a)(1) of the Administrative Procedure Act prohibits an agency from 

 

14 As noted previously, these commenters stated that EPA should deny the State’s request for establishment 

of an NDZ for all California marine waters.
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

33

regulating military matters. Section 553(a)(1) exempts rulemakings involving military 

functions from having to comply with the Administrative Procedure Act’s notice and 

comment procedures, but does not exempt military functions from all federal regulations. 

Pursuant to Section 312(d) of the CWA, certain military vessels are covered by today’s 

rulemaking according to the second applicability provision, i.e., any military vessel that is 

a "large oceangoing vessel equipped with a holding tank which has not fully used the 

holding tank's capacity, or which contains more than de minimis amounts of sewage 

generated while the vessel was outside of the marine waters of the State of California." 

Under CWA section 312(d), however, the Secretary of Defense has exercised the 

authority to exempt specific vessels or classes of vessels from compliance in the interest 

of national security. The Secretary of Defense promulgated Department of Defense 

(DoD) 4715.06-R1 ―Regulations on Vessels Owned or Operated by the Department of 

Defense‖ (January 2005), at p.8, sections C.1.3.1.1 through C.1.3.1.4, which explain the 

circumstances under which DoD has exempted its vessels from the sewage discharge 

requirements of Section 312, including for example, circumstances in which compliance 

would excessively and unreasonably detract from the vessel's military characteristics, 

effectiveness, or safety, and not be in the interest of national security. This DoD 

regulation states that commanding officers and/or vessel masters of exempted vessels are 

nonetheless required to limit sewage discharges into U.S. navigable waters, territorial 

seas, and NDZ's to the maximum extent practicable without endangering the health, 

safety, or welfare of the crew or other personnel aboard.

The commenter also stated that the economic analysis for the rule required under 

the Regulatory Flexibility Act was incomplete because it did not consider ―potentially 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

34

devastating‖ impacts to small shore-side businesses in the event regulated large passenger 

vessels spent fewer days at ports while transiting beyond the NDZ to discharge. The 

Regulatory Flexibility Act only requires agencies to consider economic impacts on small 

entities to which the rule will apply. See, e.g.,Cement Kiln Recycling Coalition v .EPA,

255 F.3d 855 (D.C. Cir. 2001), 5 U.S.C. 603(b)(3). This rule will not apply to "small 

shore-side businesses" and thus EPA was not required to consider the potential indirect 

impacts of the rule on those businesses. Nevertheless, EPA does not anticipate the rule 

will result in cruise ships spending fewer days at California ports than they would 

otherwise. The comment letter from Cruise Lines International Association, which 

represents 26 cruise lines, stated that their members have implemented the California 

legislative restrictions that formed the basis for the rule since the State legislation was 

enacted. 

Another commenter suggested that federal regulation of sewage discharges from 

vessels preempts state regulation. Section 312(f)(1)(A) of the CWA specifies no state or 

political subdivision thereof shall adopt or enforce any statute or regulation of such state 

or political subdivision with respect to the design, manufacture, or installation or use of 

any marine sanitation device on any vessel subject to the provisions of this section; 

however, the other subsections of 312(f) specifically authorize states to apply to EPA for 

establishment of NDZs. 

IV. Administrative Requirements 

Plain Language
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

35

In compliance with the principles in the President’s Memorandum of June 1, 1998 

(63 FR 31885), regarding plain language, this preamble and the Final Rule are written 

using plain language. 

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 

13563: Improving Regulation and Regulatory Review

Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), this action is a 

"significant regulatory action.‖ Accordingly, EPA submitted this action to the Office of 

Management and Budget (OMB) for review under EO 12866 and 13563 (76 FR 3821, 

Jan. 21, 2011) and any changes made in response to OMB recommendations have been 

documented in the docket for this action (docket number EPA–R09–OW–2010–0438).

EPA prepared an analysis of the potential costs associated with this action to 

determine whether the final rule would have an annual effect on the economy of $100 

million or more, or adversely affect in a material way the economy or a sector of the 

economy. Vessels that are equipped with MSDs and that navigate throughout California 

waters are already subject to the EPA MSD Standard at 40 C.F.R. Part 140 and the Coast 

Guard MSD Regulations at 33 C.F.R. Part 159. These standards prohibit the overboard 

discharge of untreated vessel sewage in state waters and require that vessels with 

installed toilets be equipped with Coast Guard certified MSDs which either retain sewage 

or treat sewage to the applicable standards. See, 40 C.F.R. Part 140.3; 33 C.F.R. Part 

159.7. There are three types of MSDs, but only Type II and Type III MSDs are used by 

the vessels affected by this rule. 

Vessels subject to this final rule include all large passenger vessels of 300 gross 

tons or more and oceangoing vessels of 300 gross tons or more equipped with sewage 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

36

holding tanks. The proposed rule relied on 2008 data for large passenger vessel calls to 

estimate that up to 40 percent of the large passenger vessels may need to retrofit their 

holding tanks, at an estimated cost of $200,000 per vessel, to ensure they had adequate 

holding capacity while operating in State waters. The total cost for this class of vessels 

was estimated to be $3.8 millionThe total estimated one-time capital cost for the existing 

fleet of large passenger vessels calling on California ports was estimated to be $3.8 

million. To estimate operation and maintenance costs, EPA assumed that most of the 

cost would be labor to operate and occasionally inspect new or retrofitted tanks. 

Conservatively assuming each ship would budget one hour per week for tank operation 

and maintenance at approximately $50 per hour, we estimated approximately $2,600 per 

year, per ship, or approximately $50,000 per year for operation and maintenances costs.

Approximately 62 percent of the large oceangoing vessels have sewage holding 

tanks and, therefore, are subject to this final rule. For the proposed rule, EPA evaluated 

the potential costs of voluntarily retrofitting holding tanks on some vessels to increase 

capacity or, alternatively, making extra trips beyond State marine waters to discharge 

sewage. However, the final rule does not require owners to retrofit any large oceangoing 

vessels or make extra trips to discharge outside of the NDZ to discharge sewage, and 

therefore doeswe do not anticipate that it will impose additional costs on these vessel 

operators. 

B. Paperwork Reduction Act 

This action does not impose an information collection burden under the 

provisions of the Paperwork Reduction Act, 44 U.S.C. Section 3501 et seq. Burden is 

defined at 5 C.F.R. Part 1320.3(b). Since today's rule would not establish or modify any 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

37

information and record keeping requirements, it is not subject to the requirements of the 

Paperwork Reduction Act.

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice and comment rulemaking 

requirements under the Administrative Procedure Act or any other statute unless the 

agency certifies that the rule will not have a significant economic impact on a substantial 

number of small entities. Small entities include small businesses, small organizations, and 

small governmental jurisdictions. 

For purposes of assessing the impacts of today's rule on small entities, small 

entity is defined as: (1) a small business as defined by the Small Business 

Administration’s (SBA) regulations at 13 C.F.R. Part 121.201; (2) a small governmental 

jurisdiction that is a government of a city, county, town, school district or special district 

with a population of less than 50,000; and (3) a small organization that is any not-forprofit enterprise which is independently owned and operated and is not dominant in its 

field. 

After considering the economic impacts of the final rule on small entities, EPA 

certifies that this action will not have a significant economic impact on a substantial 

number of small entities. The small entities subject to the requirements of this final rule 

fall under Deep Sea Freight Transportation (NAICS Code 483111) and Deep Sea 

Passenger Transportation (NAICS 483112) classifications.15 The U.S. Small Business 

Administration size standard for these businesses is 500 or fewer employees. To 

 

15 U.S. Small Business Administration Table of Small Business Size Standards, North American Industry 

Classification System (NAICS), www.sba.gov/size.
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

38

determine the size of companies that own large passenger and large oceangoing vessels 

that call at California ports, the EPA reviewed owner profiles for all large passenger 

vessels and several oceangoing vessels that responded to the State’s 2006 vessel survey. 

Based on this review, it was determined that no large passenger and oceangoing vessels 

that call at California ports are owned by companies that employ 500 or fewer people. 

D. Unfunded Mandates Reform Act 

This final rule does not contain a Federal mandate that may result in expenditures 

of $100 million or more for state, local, and tribal governments, in the aggregate, or the 

private sector in any one year, as demonstrated above in section A, Executive Order 

12866: Regulatory Planning and Review. 

Because the final rule contains no regulatory requirements that might significantly 

or uniquely affect small governments, it is also not subject to the requirements of section 

203 of the Act. Small governments are subject to the same requirements as other entities 

whose duties result from this final rule and they have the same ability as other entities to 

retain and pump out treated sewage or discharge outside of the designated zones.

E. Executive Order 13132: Federalism

This action does not have Federalism implications. It will not have substantial 

direct effects on the states, on the relationship between the national government and the 

states, or on the distribution of power and responsibilities among the various levels of 

government, as specified in Executive Order 13132. Section 312(f) of the CWA generally 

preempts state regulation of sewage discharges in state waters. An NDZ allows the state 

to seek protection of its state waters that it would otherwise be preempted from providing 

on its own. The State of California is requesting that EPA take action to designate all 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

39

State marine waters as an NDZ under CWA Section 312(f)(4)(A).), and EPA’s action in 

this final rule is responsive to this request. Therefore, Executive Order 13132 does not 

apply to this action. 

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments

This action does not have any known tribal implications, as specified in Executive 

Order 13175 (65 FR 67249, Nov. 9, 2000). The only expected impact on tribal rights or 

responsibilities is the improvement of ocean water quality. EPA has notified all 

California tribes with coastal reservations of this action and received no comments. 

G. Executive Order 13045: Protection of Children from Environmental Health Risks & 

Safety Risks

The order applies to economically significant rules under E.O. 12866 that 

concern an environmental health or safety risk that EPA has reason to believe may 

disproportionately affect children. This action is not subject to EO 13045 (62 FR 19885, 

Apr. 23, 1997) because it is not economically significant as defined in EO 12866.

H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, 

or Use

This action is not a ―significant energy action‖ as defined in Executive Order 

13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse 

effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

(NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. Section 272 note) directs EPA to 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

40

use voluntary consensus standards in its regulatory activities unless to do so would be 

inconsistent with applicable law or otherwise impractical. Voluntary consensus standards 

are technical standards (e.g., materials specifications, test methods, sampling procedures, 

and business practices) that are developed or adopted by voluntary consensus standards 

bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the 

Agency decides not to use available and applicable voluntary consensus standards. 

This final rule does not involve technical standards. Therefore, EPA did not 

consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in 

Minority Populations and Low-Income Populations

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental justice. Its main provision directs federal agencies, to 

the greatest extent practicable and permitted by law, to make environmental justice part 

of their mission by identifying and addressing, as appropriate, disproportionately high 

and adverse human health or environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in the United States. 

EPA has determined that this final rule will not have disproportionately high and 

adverse human health or environmental effects on minority or low-income populations 

because it increases the level of environmental protection for all affected populations 

without having any disproportionately high and adverse human health or environmental 

effects on any population, including any minority or low-income population. The final 

rule will further regulate and reduce pollutants from sewage in California marine waters 
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

41

thus reducing the risk of exposure to all populations, including those covered under this 

Executive order. 

K. Congressional Review Act,

The Congressional Review Act, 5 U.S.C. Section 801 et seq., as added by the 

Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that 

before a rule may take effect, the agency promulgating the rule must submit a rule report, 

which includes a copy of the rule, to each House of the Congress and to the Comptroller 

General of the United States. EPA will submit a report containing this rule and other 

required information to the U.S. Senate, the U.S. House of Representatives, and the 

Comptroller General of the United States prior to publication of the rule in the Federal 

Register. A Major rule cannot take effect until 60 days after it is published in the Federal

Register. This action is not a ―major rule‖ as defined by 5 U.S.C. Section 804(2). This 

rule will be effective [insert date 30 days from publication].
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

42

Lists of Subjects in 40 CFR Part 140

Environmental protection, Sewage disposal, Vessels.

__________________________

Dated: 

__________________________

Jared Blumenfeld

Regional Administrator, Region IX.

For the reasons stated in the preamble, EPA amends 40 CFR part 140 as follows:

PART 140 – [AMENDED]

1. The authority citation for part 140 continues to read as follows:

Authority: 33 U.S.C. 1322.

2. Section 140.4 is amended by adding paragraph (b) (2) to read as follows:

Sec. 140.4 Complete prohibition.

* * * * *

(b) * * *

(2)(i) For the marine waters of the State of California, the following vessels are 

completely prohibited from discharging any sewage (whether treated or not): 

(A) A large passenger vessel;
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

43

(B) A large oceangoing vessel equipped with a holding tank which has not fully 

used the holding tank's capacity, or which contains more than de minimis amounts 

of sewage generated while the vessel was outside of the marine waters of the State 

of California.

(ii) For purposes of paragraph (b)(2) of this section:

(A) ―Marine waters of the State of California‖ means the territorial sea measured 

from the baseline as determined in accordance with the Convention on the 

Territorial Sea and the Contiguous Zone and extending seaward a distance of 

three miles, and all enclosed bays and estuaries subject to tidal influences from 

the Oregon border (41.999325 North Latitude, 124.212110 West Longitude, 

decimal degrees, NAD 1983) to the Mexican border (32.471231 North Latitude, 

117.137814 West Longitude, decimal degrees, NAD 1983). A map illustrating 

these waters can be obtained from EPA or viewed at 

http://www.epa.gov/region9/water/no-discharge/overview.html.

(B) A ―large passenger vessel‖ means a passenger vessel, as defined in section 

2101(22) of title 46, United States Code, of 300 gross tons or more, as measured 

under the International Convention on Tonnage Measurement of Ships, 1969, 

measurement system in 46 U.S.C. § 14302, or the regulatory measurement system 

of 46 U.S.C. § 14502 for vessels not measured under § 14302, that has berths or 

overnight accommodations for passengers.
Redline-Strikeout Version: Changes Made During E.O. 12866 Review

44

(C) A ―large oceangoing vessel‖ means a private, commercial, government, or 

military vessel of 300 gross tons or more, as measured under the International 

Convention on Tonnage Measurement of Ships, 1969, measurement system in 46 

U.S.C. § 14302, or the regulatory measurement system of 46 U.S.C. § 14502 for 

vessels not measured under § 14302, that is not a large passenger vessel.

(D) A ―holding tank‖ means a tank specifically designed, constructed, and fitted 

for the retention of treated or untreated sewage, that has been designated and 

approved by the ship’s flag Administration on the ship’s stability plan; a 

designated ballast tank is not a holding tank for this purpose. 

* * * * *