### New York State DepartmentofEnvironmental Conservation Division ofEnvironmental Permits, 4th 

### Floor 625 Broadway, Albany, NY 12233-1750 Phone: (518) 402-9167· Fax: (518) 402-9168 Website: www.dec.ny.gov Joe Martens Commissioner



## ORr:CI211lI2D September 26, 2012 

## CTO 004Sl.4 21IJI! Mr. John Filippelli, Director 

# FY. 'l. R.fSOUI? Division ofEnvironmental Planning and Protection 

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## &79. ' Re: Clean Water Act Section401 Certification for 2013

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## I Commercial and Large Recreational Vessel General Permit and Small Vessel General Permit Dear Mr. Filippelli: This Certification is issuedbythe NewYork State Department ofEnvironmental Conservation (Department) pursuant to Section 401 ofthe Federal Clean Water Act (CWA or Act), 33 U.S.C.§1341, in response to your letter ofDecember 16,2011 to Mr. William R. Adriance, Chief Permit Administrator, Division ofEnvironmental Permits, and is based onthe information and materials available at (http://cfpub.epa.gov/npdes/vessels/vgpem1it.cfm) and, orincluded in Docket ID No. EPA-HQ-OW-2011-0141, available at (http://www.regulations.gov). Please note that Mr. Adriance has retired, and I am responding as the ChiefPermit Administrator for the Department. The Department certifies there is areasonable assurance that discharges from vessels coveredby the EPA's National PollutantDischarge Elimination System (NPDES) Vessel General Permit (VGP) for discharges incidental to the normal operation of commercial and non-commercial vessels greater than or equal to 79 feet in length, and the NPDES Small Vessel General Permit (sVGP), will comply with the applicable provisions of33 U.S.C §§ 1311, 1312, 1313, 1316, 1317 and 1341 (CWA §§ 301, 302, 303, 306,307 and 401), and that permittees and their activities will not contravene applicable limitations, standards and other appropriate requirements ofState law, provided the following conditions set forth in this Certification are met. 

### Small Vessel General Permit Certification Conditions The conditions in the draft sVGP cannotbe made less stringent without violating waterquality standards and otherrequirements ofState law. See 40 CFR 124.53 (e)(3). The Departmenthas not identified any additional conditions that are neededto meet the requirements ofeitherthe

Page 1of7CWA orNewYork State Law, provided the conditions ofthe final sVGP are at least as stringent as the conditions ofthe draft s VGP. The Departmentfinds that EPA's supporting analysis has shown that the requirements ofthe sVGP is sufficientlyprotective ofNew York's waters. 

### Vessel GeneralPermit Certification Conditions The Department finds that the conditions in the draft VGP cannot be made less stringent without violating water quality standards and otherrequirements ofState law, and also establishes other conditions morestringent than those containedin the draft VGP that are neededto meet the requirements ofeitherthe CWA orNew York State law. As further explained herein and inthe Department's Fact Sheet dated 2012, each such condition is needed to assure compliancewith the relevantprovisions oflaw and regulation which are set forth in the Department's Fact Sheet dated 2012. In accordance with 40 CFR §§ 124.53(e)(2) and (3), those provisions ofthe CWA and New York State law form the basis for the conditions ofthis Certification. In accordance with 40 CFR § 124.53 (e)(2) and (3), each such condition cannotbe made less stringent and still comply with the requirements ofState law and regulation, including State waterquality standards. Since the requirements ofNew York State law and regulation, including waterquality standards, are more stringentthan the protections the VGP would otherwise provide, this water quality certification is necessary. In accordance with 40 CFR § 122.44(d)(1), numeric Water Quality-Based Effluent Limitations (WQBEL) for living organisms in ballast water discharges canbe set for vessels coveredunder the VGP. The WQBEL is set at a level which will neither cause nor contribute to an excursion above New York State water quality standards, including State narrative criteria for water quality. While this Certification does not set a WQBEL, it does specify interim measures to ensure compliance with State water quality standards, including State narrative criteria for water quality, until such time as the WQBEL is developed and fully attainable. The Certification also sets conditions for othervessel discharges such as bilge water. All studies, reports, authorities and other documents citedherein, including the Department's Fact Sheet dated 2012, are incorporated into this Certificationby reference. 

### Conditions set forth in the draftVGP cannotbe made less stringent: 

### 1. Draftpermitgenerally. The conditions set forth in the draft VGP, including Section 2.2.3.5 (discharge limitations), Section 2.2.3.7 (GreatLakes exchange and flushing), and Section 2.2.15 (graywater), cannot be made less stringent without impairing New York waters for their bestusage. These conditions, or equally protective conditions, are needed to comply with the New York State statutes andregulations indicated in the Department's Fact Sheet dated 2012. In accordance with 40 CFR 124.53 (e)(3), this condition cannotbe made less stringent and still comply with State water quality standards.
Forexample, permittees mustmeetthe following discharge limits consistent with Section 2.2.3.5 and Table 6: BallastWaterTreatmentto BAT(BestAvailable Technology) Schedule found in the VGP, unless excluded from these requirements by Parts 2.2.3.5.3 or 2.2.3.8 ofthe VGP:

Page 2 of7a. For organisms greaterthan or equal to 50 micrometers in minimum dimension: discharge must include fewer than 10 living organisms per cubic meter ofballastwater. b. Fororganisms less than 50 micrometers and greaterthan or equal to 10 micrometers: discharge must include fewer than 10 living organisms per milliliter (mL) ofballast water.

c. Indicatormicroorganisms must not exceed:

1. ForToxicogenic Vibrio cholerae (serotypes 01 and 0139): a concentration of less than 1 colony forming unit (cfu) per 100 mL.

11. ForEscherichia coli: a concentration offewer than 250 cfu per 100 mL. iii. Forintestinal enterococci: a concentration offewer than 100 cfu per 100 mL 

### Conditions more stringentthan those contained in the draftVGP:
2. Exchangeand flushingfor voyages originatingbeyondtheexclusive economiczone (EEZ). The operator ofany vessel coveredunderthe VGP whose voyage originates outside the exclusive economic zone and enters New York waters shall conduct ballast water exchange or flushing beyond the EEZ1
, at least 200 nautical miles from any shore, and in water at least 2,000 meters in depth, resulting in a salinity level ofat least 30 parts per thousand (ppt). These requirements remain in effectregardless ofwhetherthe vessel is.equipped with a ballast water treatment system. No vessel subject to this condition which operates a treatment system in accordance with Section 2.2.3.5 ofthe draftVGP shallbring ballast waterinto New Yorkwaters unless its ballast tanks have been exchanged or flushed at a location at least 200 nautical miles from shore in accordance with the above requirements, and unless any waterreintroduced into the vessel's tanks is ocean water from that same general location which has been treated bythe vessel's treatment system priorto entry into NewYork waters. All vessels entering NewYorkwaters must maintain the ability to measure salinity levels in each tank onboardthe vessel so that salinities ofat least 30ppt canbe ensured. This condition adds no new requirement or deadline for ballast watertreatment. The requirements and deadlines for ballast watertreatment are those specified in the draft VGP, Section 2.2.3.5 andTable 6. However, in addition to meeting those requirements, vessel operators will needto continue performing exchange or flushing. This condition does notapply to vessels:

I "Exclusive Economic Zone" (EEZ) means the area established by Presidential Proclamation Number 5030, dated March 10, 1983 (48 FR 10605,3 CFR, 1983 Comp., p. 22) which extends from the base line ofthe territorial sea of the United States seaward 200 miles, and the equivalent zone ofCanada. [source: 33 C.F.R. 151.2025]

Page 3of7a. that eitherhave no operable ballasttanks or that carry only permanentballastwater, all of which is in sealed tanks that are not subject to discharge, or b. that carry only potable water that meets the requirements ofsection 2.2.3.5.1.3 ofthe draft VGP in theirballasttanks. This condition does not apply ifthe master ofthe vessel determines that compliance withthis condition would threaten the safety or stability ofthe vessel, its crew, or its passengers because ofadverse weather, equipment failure, or any other relevant condition. Ifa vessel is unable to conductballast water exchange or flushing due to serious safety concerns as specified above, the operator ofany vessel with ballast on board shall take reasonable measures to avoid discharge of organisms in ballast water and shall inform the Department in writing ofthe measures taken.
For vessels entering the Great Lakes from outside the EEZ and carrying onlyresidual amounts of ballast water and/or sediment, the flushing requirements are equivalent to those set forth in the May 4,2012 edition ofthe Seaway Regulations and Rules, 33 CFR401.30(f). New York finds that the exchangelflushing requirements set forth in this condition, including the combination oftreatment with exchange or flushing, are needed to prevent impairmentofwaters for their bestusage and are thus neededto complywith the New York State statutes and regulations indicated in the Department's Fact Sheet dated 2012. In accordance with 40 CFR 124.53 (e)(2), this condition cannotbe made less stringent and still comply with State water quality standards. 

### 3. WQBEL. The discharge ofballast water from vessels covered underthe EPA VGP contains biological pollutants in the form ofaquatic invasive species (AIS). These pollutants must notbe discharged at a level which will cause, or have the potential to cause, or contribute to an excursion above the State narrative water quality standards in 6NYCRR Part 703.2. Vessels discharging ballast water in New York's waters must control the level ofthese biological pollutants to a level to achieve the Statenarrative water quality standards. A numeric effluent limitation for this condition is deferred until the next VGP. 

### 4. ConfinedLakervessels. Requirements and recommendations for vessels that operate exclusively in the Great Lakes are the following BestManagement Practices 

### (BMPs). New Yorkrequires the use ofreasonable and effective managementpractices to limit the introduction and spread ofaquatic invasive species, until at least the WQBEL is fully implemented. The following 

### BMPs are 

### requiredto be implemented in the GreatLakes:

a. In lieu ofthe normalS-year inspection, annually inspect andreplace, as necessary, ballast sea chest screens. Replace screens with the smallest openings allowed by good engineeringpractice. Inspections will be documentedby log entry, diver's report, video report, dry-docking report, marine inspection note, or surveyor's report.

Page 4 of7

### b. During cargo operations while accounting for boom list, hull stress, andbending moments, lighten the ship as much as practical to elevate water intakes before ballasting to minimize sedimentuptake and increase water flow.

c. Ballast watertaken aboardin Viral Hemorrhagic Septicemia (VHS) affected waters shall be the minimumneededto ensure the safety ofthe crew and vessel. Additional ballast water canbe taken aboard, once deeper water is reached. d. Ballast water shall always be taken aboard or discharged via the pumps and never "gravity fed or drained." This ensures an organism that somehow makes it pastthe screen is pulverized by the high speed, highpressure, and tight tolerance pump. The following 

### BMPs are 

### recommendedto be implemented in the Great Lakes:

e. The temperature range in which the VHS virus is known to replicate, and in which fish kills have been detected, is quite broad (37°F -70°F [3°C

- 21°C)). Since this range encompasses the majority ofwater temperatures found in the Great Lakes throughout the year, New York State recommends following this supplemental BMP regardless ofwater temperatures.

l. 

### In orderfor the VHS disease to spread, an uninfected, yet vulnerable fish must be exposed to an active virus, such as with exposure to the bodily fluids from an infected fish. The virus is most stable in a living fish. It

### can remain active in dead or macerated fish parts, but for a shorter time. Therefore New York State recommends its vessel operators take all appropriate actions to insure that fish or fish parts do not entertheirballasttanks. This is accomplished by inspecting the W' openings screening the ballast water intakes and using pumps as macerators during uptake and discharge.

11. 

### Fishpopulations are denser near shore and significantly less dense more than 3 miles from shore; therefore, New York State recommends its vessel operators, when and where possible, minimize uptake ofballast water in near shore locations. To further reduce risk, when possible: 1) 

### Conduct aballast water exchange in the deepest, warmest waterpriorto entering Lake Superior (this practice would specificallypreclude exchanging ballast water in Lake St. Clair and the western basin ofLake Erie). 2) Ifvessel operators are unable to conduct an exchange in the lower Great Lakes, consider doing an exchange in deep, remote waters ofLake Superior. 3) Although it is unlikely a live fish or larger fish particle couldhave entered the ballast system, consider exchanging ballast water within the ship orrePage 5 of7circulating it within aballasttank (pumps act as a macerator to reduce the possibility ofdischarging fish or largerpieces offish). 4) Continue working with the U.S. Coast Guard and Council ofLake Committees to evaluate additional risk reduction actions. New York finds that the

### BMPs set forth in this condition are needed to prevent impairment of waters for theirbestusage and are thus neededto comply with the New York State statutes and regulations indicated in the Department's Fact Sheet dated 2012. In accordance with 40 CFR 124.53 (e)(2), this condition cannotbe made less stringent and still comply with State water quality standards. 

### 5. Live organism monitoring. In addition to meeting the draft VGP monitoring requirements in section 2.2.3.5.1.1.4, all vessels covered underthe VGP and operating in New York waters, after a Ballast Water Treatment System is installed, must sample and analyze the ballast water discharge at least once ayear (provided appropriate facilities are available) using the California shipboard sampling protocol, or a compliance monitoring protocol developed by the USCG, whichever is most advanced and available. This monitoring shall include sampling for >50 /lm and for 10-50 /lm organisms. The monitoring results shall be submittedto EPA and the Department on an annual basis, consistent with the mechanisms used in the VGP for all other submissions. The Department'spoint ofcontactis provided at the close ofthis letter. Such live organism monitoring shall include the collection ofrepresentative discharge samples and the testing (counting) oflive organisms in such samples by qualified personnel in accordance with standard and/orbest available sampling and analytical methods. New York finds that the monitoringrequirements set forth in this condition are needed to prevent impairment ofwaters for their bestusage and are thus needed to comply with the New York State statutes and regulations indicatedin the Department's Fact Sheetdated 2012. In accordance with 40 CFR 124.53 (e)(2), this condition cannot be made less stringent and still comply with State waterquality standards. 

### 6. Bilge water. Discharge ofbilge water is prohibited in New York waters. This condition does not apply to the discharge ofbilge water ifthe master ofthe vessel determines that compliance with this condition would threaten the safety or stability ofthe vessel, its crew, or its passengers because ofadverse weather, equipmentfailure, or any otherrelevant condition. New York finds that the dischargeprohibition set forth in this condition, coupled with the narrowly defined safety exemption, is needed to prevent impairment ofwaters for theirbest usage and is thus needed to comply with the NewYork State statutes and regulations indicated in the Department's Fact Sheet dated 2012. In accordance with 40 CFR 124.53 (e)(2), this condition cannot be made less stringent and still comply with State water quality standards. 

### Basis for conditions. The above conditions combine waterquality protection with operational flexibility. They provide flexibility to the industry by allowing further development oftreatment technology and test

Page 6of7protocols. While not a mandatoryrequirement, the Department urges vessel permittees to voluntarily install currently available technologiesthat go beyond the IMO D-2 standard (e.g., systems that have demonstrated the abilityto meet and exceed a lOx IMO level oftreatment) as a means ofgaining useful experience while contributingto the advancement oftreatment technology.
The detailed basis for the above conditions is set forth in a separate Fact Sheet dated 2012. Contact The contact point for consultation, submittals, and approvals as refelTed to inthis Certification is:
Mr. Donald E. Tuxill, P.E. New York State Department ofEnvironmental Conservation Division ofWater, 4th Floor 625 Broadway Albany, New York 12233-3505 (518)402-8168

The Departmentreserves the right to challengethe EPA's VGP and sVGP. Should you require further information regardingthis Certification, please feel free to contact Mr. Tuxill. Sincerely,

John J. Ferguson ChiefPennit Administrator

Page 701'7

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### OUI? NYS Department ofEnvironmental Conservation (DEC or Department) 

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This Fact Sheet supports the Department's 2012 draft Certification ofEPA's Vessel General Permit which is issuedunderthe Clean Water Act (CWA), 33 U.S.C. 

### § 1341. 

### Legal basis for Certification All studies, reports, authorities and other documents cited herein are incorporated into this Fact Sheet by reference. The term "law," as used herein, includes duly promulgated regulations. The CWA's "objective

... is to restore and maintain the chemical, physical and biological integrity ofthe Nation's waters (and) [i]n order to achieve this objective

... (1) it is the national goal that the discharge ofpollutants into the navigable waters be eliminatedby 1985; (2) it is the national goal that wherever attainable, an interim goal ofwater quality which provides for the protection and propagation offish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983; (3) it is the national policy that the discharge oftoxic pollutants in toxic amountbe prohibited. 33 U.S.C. § 1251 (a). In addition, the Act requires that "[i]n orderto carry out (its) objective

..

.there shall be achievednot later than July 1, 1977, any more stringent limitation,includingthose necessary to meet water quality standards, treatment standards, or schedules ofcompliance, established pursuant to any State law orregulations (under authority preservedby section 1370 ofthis title) or any otherFederal law orregulation, orrequired to implement any applicable water quality standard establishedpursuant to this chapter. 33 U.S.C. § 1311 (b)(I)(C). The CWA further requires that "water quality standard(s) shall consist ofthe designated uses ofthe navigable waters involved and the water quality criteria for such waters based on such uses." 33 U.S.c. § 1313(c)(2)(A). Moreover, EPA regulations implementing the Act's requirements to "maintain" the chemical, physical, and biological integrity ofthe nation's waters require States to include in their water quality standards an antidegradation policy. 40 C.F.R. 131.6(d); 40 C.F.R. 131.12. Among other aspects ofthe required antidegradation policy is the protection ofexistinguses, 40 C.F.R. 131.12(a)(I), defined as "those uses actually attained in the waterbody on or after November 28, 1975, whether or not they are included in the water quality standards." 40 C.F.R. 131.3(e).

Page 1of 11New York Environmental Conservation Law (ECL) Article 17 is entitled "WaterPollution Control." Its declaration ofpolicy states: It is declared to be the public policy ofthe state ofNew Yorkto maintain reasonable standards ofpurity ofwaters ofthe state consistent with public health andpublic enjoymentthereof, the propagation and protection offish and wild life, including birds, mammals and other terrestrial and aquatic life, and the industrial development ofthe state, and to that end requires the use ofall known available and reasonable methods to prevent and control the pollution ofthe waters ofthe state ofNew York.
ECL § 17-0101. Departmentregulations adoptedpursuantto ECL Article 17 define "pollution" as follows: Pollution means the presence in the environment ofconditions and/or contaminants in quantities ofcharacteristics that are ormay be injurious to human, plant or animal life or to property orthat unreasonably interfere with the comfortable enjoyment oflife and propertythroughout such areas ofthe State as shall be affected thereby.
6 NYCRR § 700.1(a)(47). Both the CWA and the ECLdefine "pollutant"to include "biological materials". 33 U.S.c. § 1362 (6); ECL § 17-0105 (17). The ECL further defines "pollutant" to include "ballast". Id.
Pursuant to ECL Section 17-0301, DEC has developed waterquality standards for the waters of New York State. Title 5 ofECL Article 17 makes unlawful any discharges that violate those water quality standards, providing that: [i]t shall be unlawful for any person, directly orindirectly, to throw, drain, run or otherwise discharge into such waters organic orinorganic matter that shall cause or contribute to a condition in contravention ofthe standards adoptedbythe department pursuantto section 17-0301. ECL 

### § 17-0501. Department regulations adopted pursuant to ECL Article 17 broadly define effluent limitations that serve to, inter alia, control the discharges prohibitedunderECL § 17­ 0501. Effluent limitations mean any restriction on quantities, qualities, rates and concentrations ofchemical, physical, biological, and other constituents ofeffluents that are discharged into or allowed to run from an outlet orpoint source or any other discharge within the meaning ofsection 17-0501 ofthe Environmental Conservation Law into surface waters, groundwater orunsaturated zones. 6 NYCRR 

### §700.1(a)(15).
New York's water quality standards establish classifications and designated uses ofNew York waters. 6 NYCRRPart 70l. NewYork's water quality standards also include the waterquality criteria setforth at 6 NYCRRPart 703. Includedtherein is the criteria, that, for numerous Page 2 of 11identified classes ofwaters, limits the discharge of"toxic or otherdeleterious substances" to "none in amounts that will

... impairthe waters for theirbestusages." 6 NYCRR § 703.2. The bestusages ofthe classes ofwaters specified in 6 NYCRR § 703.2 include fish, shellfish and wildlife propagation and survival, fishing, drinking water supply, andprimary and secondary contactrecreation. Further, consistent with the requirements ofthe CWA, New York's Water Quality Antidegradation Policy, implementedthrough State laws including ECL Article 17 and Departmentregulations adopted pursuantthereto, operates to ensure existing instream water uses and the level ofwater quality necessary to maintain and protect those existing uses. See DEC Organization and Delegation Memorandum No. 85-40, Water Quality Antidegradation Policy, September 9, 1985.
As explainedherein, Conditions #1-6 ofthe Department's draft Certification dated 2012 are neededto assure compliance with the CWA andthe provisions ofNew York State law set forth above. In accordance with 40 CFR 

### § 124.53(e)(2) and (3), the CWA and State law provisions cited above form the basis for each ofConditions #1-7 ofthe Certification. In accordance with 40 CFR 

### § 124.53(e)(2) and (3) these conditions cannotbe made less stringent and still comply with the requirements ofState law, including State water quality standards. Since the requirements ofNew York State law, including water quality standards, are more stringentthan the protections the VGP wouldprovide, the Department's 2012 Certification is necessary. The need to reduce water qualityimpacts from ballast water discharges
Pursuant to the Clean WaterAct, the inclusion ofa state water quality certification requirement in the draft VGP appropriatelypreserves the lawful authority ofthe individual States to implement more protective ballast waterpollution controls as part ofthe EPA general permitwithin their respective waters. Pursuant to the Clean Water Act, the States also have the authorityto adopt more stringentballast waterrequirements than currently proposedunder the draft VGP. As part ofNew York's certification ofthe draft VGP, DEC finds thatthe additional discharge standards set forth as conditions in the Department's 2012 Certification are necessary to reduce the unintentional discharge ofinvasive species, disease organisms and otherpollutants that have the potentialto disrupt the ecological balance ofNew York's waters and negatively impactthe fish and wildlife resources ofthe State, as well as other states, and to comply withthe requirements offederal and State law, including State water quality standards. The additional discharge standards set forth as conditions in the Department's 2012 Certification are necessary for the following reasons. 

### First, there is overwhelming evidence that water quality, including fish, shellfish, and wildlife propagation and survival, has been impaired in recent decades in New York's waters by invasive species. 

### Second, direct discharge ofinvasive species into New Yorkwaters is not a necessary condition for impaim1entbyinvasive species; discharges into adjacent, connected waters have already severely impairedNew Yorkwaters for theirbestusage such as fish, shellfish, and wildlifepropagation and survival. 

### Third, the above points provide a reasonable basis for determining that water quality will be further impairedby additional, future introductions and spreading ofinvasive species; and that impairments to New York's waterquality will be causedby discharges ofsuch species to adjacent, connected waters. Page 3 of 11Invasive speciesspreadto New York waters. The ability ofvarious invasive species to spread into adjacent, connected waters is well known. The zebra mussel is a prime example. This mussel, introduced in or nearLake St. Clairwhere it was discovered in 1988,I quickly spread into New Yorkwaters and throughout the Great Lakes and beyond.2The rapid spread ofthe zebra mussel since 1988 canbe seen, for example, on a series ofmaps available on the website ofSea Grant's National Aquatic Nuisance Species Clearinghouse. 3 As another example, the round goby was introduced into the St. Clair River in 1990, "probablyvia contaminatedballast water oftransoceanic ships.,,4 Following this discharge in adjacent, connected waters, the round goby has moved into New York waters and contributedto the impairment ofthese waters for theirbestusage such as fish, shellfish, and wildlife propagation and survival.5 Round gobies "have shown a rapid range ofexpansion through the Great Lakes,,6 and have been found in the upper St. Lawrence River and the lower Genesee River, among other New York waters.7Yet another example is the spiny water flea, "firstfound in Lake Huron in 1984

- probably imported in the ballast water ofa trans-oceanic freighter. Since then, populations have exploded and the animal can now be found throughout the Great Lakes and in some inland lakes,"s including New York waters. Invasive species in the GreatLakes. As recognizedby EPA,9 the predominantpathway for aquatic invasive species entry into the Great Lakes is the ballast water ofoceangoing ships.IO The Great Lakes, while accounting for only a small fraction ofglobal shipping, are closely connectedto otherports worldwide, with most suchportsbeing separated from the Great Lakes by no more than two ship voyages.II Invasive species introduced into the GreatLakes from vessels' untreated ballast water discharges have created serious, damaging impacts thatthreaten the resource's ecological and economic health.12 Because the Great Lakes contain fresh water,

I NOAA, National Centerfor Research on Aquatic Invasive Species, Great Lakes Aquatic Non-indigenous Species List (www.glerI.noaa.gov Ires/Programs/ncraislgreat_lakes _list.html). 2 D. Strayer, Twenty years ofzebra mussels: lessons from the mollusk that made headlines, Front Ecol Environ 7(3), 135-141 (2009). 3 New York Sea Grant, National Aquatic Nuisance Species Clearinghouse (www.aquaticinvaders.org). 4 Great Lakes Information Network, "Goby in the Great Lakes Region" (www.great­ lakes.netlenvtlflorafaunalinvasive/goby.htm1). 5 U.S. Geological Survey, Non-indigenous Aquatic Species (NAS) Program, Species Fact Sheet, "Apollonia (Neogobius) melanostomus (Pallas 1814); Common Name: round goby," (http://nas.er.usgs.gov/queries/FactSheet.asp?specieslD=713); M. Walsh et a!., Occurrence and Food Habits ofthe Round Goby in the Profunda1 Zone ofSouthwestern Lake Ontario, 33 J. ofGreat Lakes Research 83 (2007). 6 U.S. Geological Survey, Species Fact Sheet, op. cit. 7 U.S. Geological Survey, Non-indigenous Aquatic Species (NAS) Program (http://nas.er.usgs.gov/AlertSysternldefault.asp), NAS Alert System results for New York. 8 Great Lakes Information Network, "SpinyWater Flea in the Great Lakes Region" (www.greatIakes.netlenvtlflora­ faunalinvasive/spinyflea.html).; DEC, Spiny Flea Confirmed in First "Inland" Water (October 30,2008). 9 EPA, Aquatic Nuisance Species in BallastWaterDischarges: Issues and Options, 4,6 (September 10,2001), identified at 66 Fed. Reg. 49381 (September 27, 2001).
10 E. Mills et a!., Exotic Species in the Great Lakes: A History ofBiotic Crises and Anthropogenic Introductions, 19 1. ofGreat Lakes Research 1(1993); Kipp et aI., Transoceanic ships as vectors for non-indigenous freshwater bryozoans, Diversity and Distributions 16, 77-83 (2010). II R. Keller et aI., Linking environmental conditions and ship movements to estimate invasion species transport across the global shipping network, Diversity and Distributions 17, 93-102 (2011). 12 16 U.S.c. §4701(a). Page 4 of 11some ofthe most damaging ballast water-induced species are native to other fresh orbrackish waters, particularlythose in the Ponto-Caspian region (the Black, Caspian and Azov Seas). 13 These Ponto-Caspian invaders are now abundant in European waters used extensively by ships destined for the Great Lakes, and their continued invasion into the Lakes is consideredhighly probable. 14 

### Invasive species adversely affect nativespecies. Such invasive species have competedwith, preyed upon and otherwise altered the Great Lakes' environment, resulting in population declines and compromised species viability ofthe region's nativeplants, fish and wildlife. 15 They have harmed the region's commercial and recreational fishing industries and damaged its public water and energy generating infrastructure. 16 The insidious effects ofthese species have been costly to deal with and show no signs ofdissipating. The harm causedbyexotic nuisance species such as the zebramussel, round goby, and spiny water flea in the Great Lakes is widespread. For example, large zebra mussel populations reduce food and oxygen for native fauna, and have been observed completely covering native mussels and snails, threatening their survival. 17 The zebra mussel readily attaches to submerged hard surfaces includingrocky shoals, water intake pipes and docks, forming dense layered colonies that have approached one million mussels per square meter. IS Power companies and others must repeatedly remove mats ofthese mussels from their infrastructure. In addition, selective feeding by zebra mussels has been implicated in recurring nuisance algae blooms in the Great Lakes, causing taste and odor problems and increased treatment costs for municipal water supplies. 19 Congress estimates that the economic disruption to communities,justfrom the zebra mussel, has already costbillions of dollars.2o The round goby, an invaderfrom the Black and Caspian Seas, feeds on mollusks, crustaceans, and lake trout eggs and fry, injuring GreatLakes native species through competition for food and predation.21 The invasive

### Hemimysis anomala, an omnivorous Ponto-Caspian

13 A. Ricciardi and H. MacIsaac, RecentMass Invasion ofthe North American Great Lakes by Ponto-Caspian Species, 15 Trends in Ecology and Evolution 62 (2000); L. Campbell et al. 2009, Re-engineering the eastern Lake Erie littoral food web: The trophic function ofnon-indigenous Ponto-Caspian species, Journal ofGreat Lakes Research 35, 224-231 (2009). 14 Ricciardi and Maclsaac, op. cit.; U.S. EPA, Predicting future introductions ofnon-indigenous species to the Great Lakes. National Centerfor Environmental Assessment, Washington, DC, EPAJ6001R-08/066F(2008); Wikipedia entry for Dikerogammarus villosus, http://en.wikipedia.org/wikilDikerogammarus_villosus; D. Platvoet et al., Flexible Omnivory in Dikerogammarus villosus (Sowinsky, 1894) (Amphipoda)

- Amphipod Pilot Species Project (AMPIS) Report 5, Crustaceana 82 (6), 703-720 (2009). 15 16 U.S.c. §4701(a). 16 Id.; K. Limburg et al., The good, the bad, and the algae: perceiving ecosystem services and disservices generated by zebra and quagga mussels, Journal ofGreat Lakes Research 36,86-92 (2009). 17 U.S. Dept. ofthe Interior, National Biological Survey, A. Benson, et al., "Invasion ofthe ZebraMussel into the United States," Our Living Resources: A Report to the Nation on the Distribution, Abundance, and Health ofU.S. Plants, Animals and Ecosystems, 445-46 (1995). 18 Id.; D. Pimentel, et al., Environmental and Economic Costs ofNon-Indigenous Species in the United States, 50 Bioscience 53, 58 (2000). 19 National Oceanic and Atmospheric Administration, Great Lakes Environmental Research Laboratory, Aquatic Invasive Species (AIS) and the Great Lakes: Simple Questions, Complex Answers, (September 2002). 20 16 U.S.c. §470l(a)(4). 21 M.L. Corn et al., "InvasiveNon-Native Species: Backgroundand Issues for Congress," Congressional Research Service, Report for Congress, RL30123 (updated November 25,2002); Michigan Dept. ofNatural Resources, Annual Report, State ofthe Great Lakes, 32 (1993); J. Young et al., Demography and substrate affinity ofthe round goby (Neogobius melanostomus) in Hamilton Harbour, Journal ofGreat Lakes Research 36,115-122 (2010). Page 5 of 11mysid which quickly became a major part ofthe alewife diet after it was first observed in southeastern Lake Ontario in May 2006, has the potential to alter energy flow in GreatLakes foodwebs.22 Another exotic invader from the Black and Caspian Seas, the spiny water flea, rarely more than a centimeter in length, competes with newly hatched Great Lakes native fish populations by feeding on zooplankton. The sharp spines characteristic ofthe spiny water flea preventmost small fish from swallowing it, thereby allowing this invaderto reach a disproportionate population abundance.23 Since 2000, significantmortality oflake sturgeon, Common Loon, Red-breasted Merganser, and other fish and waterbirds havebeen documented on Lake Erie. More recently, since 2002, similar mortality events have been noted, with increasing regularity, distribution and magnitude on Lake Ontario. Overthe past several years Caspian Tern, and several other waterbird species, have been impacted. Nonnative invasive species, the quaggamussel and round goby, appear to be the biological transport mechanismbringing deadly Type E botulism toxin from the benthic environment to within foraging range ofnesting and migrating waterbirds. 24
Invasive species in New York coastal waters andthe Hudson River basin. Aquatic invasive species also pose a serious threat to the ecological health and biodiversity ofnative ecosystems ofLong Island Sound and can affect the economic interests and public health ofresidents. To date, more than 50 non-native and 40 cryptogenic species have been identified in Long Island Sound. 25 The Asian shore crab, believedto have been introduced via ballast water discharge, was first found inthe U.S. in 1988 in southern New Jersey and is now found from Maine to North Carolina.26 The Asian shore crab arrived in New YorkHarbor and Long Island Sound in 1994 or 1995, andhas since become the dominant crab in the intertidal zone in these areas, reaching densities greaterthan 300 per square meter in western Long Island Sound and causing population declines ofnative crabs such as common mud crab, green crab, and Atlantic rock crab. Atlantic rock crab has not been found since 1998, green crab densities have decreased 50% from 1998 to 2001, and common mud crab densities are down 96%. Overall, the diversity ofthe intertidal crab community in portions ofwestern Long Island Sound have dropped greatly since 1998.27
In the Hudson Riverbasin, at least 113 non-indigenous species have established populations.28 Most came from Eurasia orthe Mississippi-Great Lakes basin, and some are ballast-water invaders, many ofwhich cause large economic damage and irreversible ecological changes. The best-known ofthese is the zebra mussel, which appeared in the Hudson in 1991 following introduction to the Great Lakes via ballast water. Zebramussels now constitute more

22 B. Lantry et al., Occurrence ofthe Great Lakes' mostrecent invader, Hemimysis anomaia, in the diet offishes in southeastern Lake Ontario, Journal ofGreat Lakes Research 36, 179-183 (2010). 23 Com et al., op. cit.; Michigan Dept. ofNatural Resources, op. cit.
24 K. Roblee, W. Stone and D. Adams, "WaterbirdMortality as a Result ofType E Botulism in Lake Erie and Lake Ontario," Northeast Natural History Conference IX, New York State Museum, Albany, NY (2006). 25 Balcom, Nancy. 2007. Long Island Sound Interstate Aquatic Invasive Species ManagementPlan. New England Interstate Water Pollution Control Commission, US Environmental Protection Agency, Long Island Sound Study, State ofConnecticut and New York State. 26 Science Daily, Japanese Shore Crabs Invade Penobscot Bay, Maine, http://www.sciencedaily.com/releases/2002/07/020719073146.htm (July 19, 2002). n
.

Long Island Sound Study, 2001 Fall Update, http://www.longislandsoundstudy.netipubs/news/fallOltxt.htm. 28 Mills, E., M. Scheuerell, D. Strayer and J. Carlton. 1996. Exotic Species in the Hudson River Basin: A History of Invasions and Introductions. 18 Estuaries 814-823.Page 6 of 11than halfofconsumerbiomass in the river, and have completely altered the river's ecosystemby consuming 80% ofthe plankton in the river,29 causing large declines in valuable open-water fish species such as American shad30 andthe destruction ofhundreds ofmillions ofnative bivalves.31 Economic costs ofthe zebra mussel invasion to waterintakes alone have been estimated at $267 million in North America32 and in the range of$100,000-$1,000,000 peryear in the Hudson River alone.33 Otherinvaders that are thoughtto have arrived in ballast waterhave caused large ecological changes in the Hudson River; these include the Asian shore crab, now very common along the lower Hudson, where it displaces native crabs, the wedge rangia 

### (Rangia cuneata), which dominates the waters ofthe lowerHudson, and the Chinese mitten crab, which appeared in numbers in the Hudson for the first time in 2008, and which has the potential to damage infrastructure (levees and embankments) as well as harm native populations ofplants and shellfish.34 Many other species now traveling around the world in ballast water (e.g., the golden mussel

### Limnopernafortunei, the amphipod 

### Corophium curvispinum, and the ruffe 

### Gymnocephalus cernuus) wouldbe able to survive and prosperin the Hudson, where they could contribute to further economic and ecological damage.35
Basis for Water Quality Based Effluent Limitation (WQBEL)
The conditions in the Department's 2012 Certification combine waterquality protection with operational flexibility. The conditions are protective and provide flexibility to the industry by allowing further development oftreatmenttechnology and testprotocols before setting a WQBEL. Underthe CWA (40 CFR 131.6(d); 40 CFR 131.12), EPA is obligated to issue WQBELs that will not cause a contravention ofany state's waterquality standards. This obligation exists even ifthe supporting data are sparse, as is often the case. Agencies are typically able to issue numerical WQBELs "by making 'conservative' assumptions, using safety factors similar to those used in ecological risk assessments for pollutants, and/or by setting the standards based on the upperconfidence limits ofpredictions ofinvasions.,,36 EPA has often relied on this type of

29 Strayer, D.L., N.F. Caraco, J.1. Cole, S. Findlay, and M.L. Pace. 1999. Transfonnation offreshwater ecosystems by bivalves: a case study ofzebra mussels in the Hudson River. 49 BioScience 19-27. 30 Strayer, D.L., K. Hattala, and A. Kahnle. 2004. Effects ofan invasive bivalve (Dreissenapolymorpha) on fish populations in the Hudson Riverestuary. 61 Canadian Journal ofFisheries and Aquatic Sciences 924-941. 31 Strayer, D.L., and H.M. Malcom. 2007. Effects ofzebra mussels (Dreissenapolymorpha) on native bivalves: the beginning ofthe end or the end ofthe beginning? Journal ofthe North American Benthological Society 26: 111-122. 32 Connelly, N.A.; O'Neill, C.R.; Knuth, B.A. and Brown, T.L. 2007. Economic impacts ofzebra mussels on drinking water treatment and electric powergeneration facilities. 40 Environ. Mgmt. 105-112. 33 Strayer, D.L. 2006. Alien species in the Hudson River, pp. 296-310 in: 1.S. Levinton and J.R. Waldman (eds.). The Hudson River estuary. Cambridge University Press. 34 Id.; MacDonald, J.A., R. Roudez, T. Glover, and J.S. Weis, 2007, The invasive green crab and Japanese shore crab: behavioral interactions with anative crab species, the blue crab, 9 Biological Invasions 837- 848; NOBANIS, 2008, Invasive species fact sheet. Eriocheir sinensis. http://www.nobanis.org/files/factsheets/Eriocheir _sinensis.pdf. 35 Ricciardi, A., 1998, Global range expansion ofthe Asian mussel Limnoperna fortunei (Dunker, 1857) (Bivalvia: Mytilidae): another fouling threat to freshwater systems, 13 Biofouling 97-106; Ricciardi, A., and J.B. Rasmussen, 1998, Predicting the identity offuture biological invaders: a priority for aquatic resource management, 55 Canadian Journal ofFisheries and Aquatic Sciences 1759-1765. 36 H. Lee et ai., Density Matters: Review ofApproaches to Setting Organism-Based Ballast Water Discharge Standards, U.S. EPA Office ofResearch and Development, National Health and Environmental Effects Research Laboratory, Western Ecological Division, EPAl600/R-10/03l (2010), at 6. Page 7 ofIIconservative approach to derive water quality standards or limits for heavy metals and organic chemicals whentoxicological datasets have been incomplete. In cases where a federal agency issues a permit such as the VGP that does 

### not include a numerical WQBEL, states can and should do so. New York's obligation to do so is drivenby its water quality standards, set forth in 6 NYCRR Section 703.2, whichprohibitthe discharge to state waters ofany "deleterious substances" that would violate the bestusage ofthose waters. Biological pollutants, such as AIS, qualify as such substances, andhave already significantly impacted the biological integrity of New York's waters. New Yorkhas maintained, and successfully defended in Court 

### (Port of OswegoAuth. v. 

### Grannis, 70 A.D.3d 1101 (3 rd Dep't), 

### Iv. to appealdenied, 14 N.Y.3d 714 (2010)), its rights to assert this standard in a water quality certification, andto exercise its statutory and regulatory authority to adopt WQBELs containing standards at least two orders of magnitude more stringentthan the

### IMO D-2 standard.
In general, WQBELs are necessary to control pollutants which EPA "determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard." 40 C.F.R. § 122.44(d)(I)(i). WQBELs are notbased on available control technology, buton what is necessary to achieve waterquality standards, 

### seeAm. PaperInst., Inc., v. 

### Us. EPA, 996 F.2d 346,350 (D.C. Cir. 1993); 40 C.F.R. § 122.44(d)(1). EPA has a legal obligation to ensure that waterquality standards are protected in any permit that it issues, including the VGP. 

### See, e.g., Defenders ofWildlife v. 

### Browner, 191 F.3d 1159, 1163 (9th Cir. 1999) (noting that, underthe CWA, EPA "isunder specific obligation to require that level ofeffluent control which is needed to implement existing water quality standards"). This water quality obligation extends to ensuring thatthe VGP is consistent with the CWA's anti-degradation policy and to provide full protection ofexisting and designated uses such as the protection andpropagation offish, shellfish, and wildlife, as well as recreation, from aquatic invasive species. 

### See 40 C.F.R. § 131. 12(a) (anti-degradation); 

### id. § 131.6 (designated uses); 

### see also PUDNo.1 of Jefferson County v. 

### Washington Dept. of Ecology, 511 U.S. 700, 715-19 (1994). In addition, it is clear that narrative water quality standards can be the basis for a Section 401 Water Quality Certification. 

### See PUD No.1.
The requirements for a WQBEL in theVGP are consistent with the established CWA procedures for developing any NPDES permit. EPA

- or otherwise a State orTribe

- must evaluate the discharge to determine compliance with Sections 101 and 301(b)(1)(C) ofthe CWA, and40 CFR 122.44(d)(I). These require thatpermits include limits for all pollutants orparameters which are ormay be discharged at a level that will cause or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality. Therefore, any limits mustbe stringent enough to ensure that water quality standards are met. As explained bythe U.S. Supreme Court in 

### PUDNo.1, the purpose ofnarrative standards is to allow states to develop numeric limits to address unforeseen new issues thatmight arise in individual locations on specific facts. Narrative criteria such as "there shallbe no discharge of toxic pollutants intoxic amounts" therefore "mustbe translated into specific limitations for individual projects"

### PUD No.1 v. 

### Washington Dep't of Ecology, 511 U.S. 700, 716 (1994). The Supreme Courtexplained that it wouldbe burdensome for a stateto be required to study every surface water in the state to a level ofgreat specificitybefore establishing numeric criteria for a specific site. The Court thus provided states with the flexibility to use narrative criteria that can Page 8 of 11be translated into numeric limitations for new individual projects with the level ofspecificity required based on the particularcharacteristics and designated bestuses ofthe waterbody where the discharge would occur. Id. at 717-18. See also IslanderEastPipeline Co. v. McCarthy, 525 F.3d 141, 145 (2d Cir. 2008), which notes that "In applying open-ended standards,

... a state is expected to translate its narrative criteria into 'specific limitations for individual projects'." EPA's own 'narrative' WQBEL in the draft VGP incorporates the general requirement that the vessel owner/operator must control the discharge(s) such that states' water quality standards are not violated. However, since the IMO D-2 standard may not adequately treat all AIS,37 any discharge ofballast water at the IMO D-2 concentration has the potential to violate state water quality standards and thus violate the VGP. Ithas been found, for example, that "even with the IMO standards, per-ship discharges in excess of 106 total zooplankton remain possible.,,38 This would result in a strong likelihood thatballast waterdischarges subject only to the IMO D-2 standard would have the potential to discharge AIS under the draft VGP. Thus, a numeric WQBEL is needed but will apparently notbe providedbyEPA in the foreseeable future. According to the VGP Fact Sheet, EPA determined that it is infeasible to calculate numeric WQBELs for ballastwaterbecause "atthis time the lack ofavailable data and information prevents a precise quantification ofthe invasion risk associated with ballast water discharges." DraftVGP Section 1.9.1 (Modification ofthe VGP) indicates that EPA will considermodifying the permit after the "scientificunderstanding of

...invasionbiology has evolved such that new information would havejustifiedthe application ofsignificantly more stringent effluent limitations

...had this been understood at the time ofpermit issuance

..." The National Research Council (NRC) Committee's report indicates a 10 to 15 year time horizon will be required to obtain the experimental and field data needed to parameterize and ground-truth the risk/release models. While these concerns about data gaps cannotbe dismissed, they need to balanced against the likelihood ofadditional invasions ofU.S. and state waters during EPA's proposedWQBEL development period of 10 to 15 years. During this period, the IMO D-2 standard will not be adequately protective. New Yorkfinds that numeric WQBELs more stringentthan IMO D-2 arejustified, and can be developed in the future based on additional data collection, analysis, and modeling. Putting in place a process for developing technologies to meet such standards is consistent with the CWA'stechnology-forcing requirements.

Basis for Certification conditions Condition#2 ofthe Department's 2012 Certification, applicable to vessels entering New York waters from outside the EEZ, effectively serves as an interim WQBEL that will be protective of state water quality until a numeric WQBEL is developed and implemented. Condition #2

37U.S. EPA, Draft VGP Fact Sheet, p. 125 ("

...even at the IMO level ofdischarge, reasonable potential exists for such discharges to cause or contribute to violations ofapplicable water quality standards

..."); also u.S. Coast Guard, Final Programmatic Environmental Impact Statement for the Ballast Water Discharge Standard, February 2012, esp. pp. ES-7, 4-l3 through 4-16, G-ll, and G-23

.. 38 M.S. Minton et aI., "Reducingpropagule supply and coastal invasions via ships: Effects ofemerging strategies," Front. Ecol. Environ. 3(6),304-308 (2005). Page 9 of 11requires operation ofa treatment systemthat meets IMO D-2 requirements in conjunction with ballastwater exchange or flushing. This interim WQBEL,justifiedpartly by the known effectiveness ofexchange and flushing alone39 and partly by recent research by Canada's Department ofFisheries and Oceans on the benefits ofcombining exchange and flushing with treatment,40 has recently undergone land-based testing at the GSI test facility in Superior, Wisconsin.41 Early results from the GSI land-based tests are consistent with the goal ofreducing propagule pressure,42 at least for fresh andbrackish receiving waters, in order to achieve an invasionrisk "atleast 10 times lower"than wouldbe achieved using ballast watertreatment alone. 43 In DEC'sjudgment, the interim WQBEL meets antidegradation and anti-backsliding requirements relative to DEC's currently effective certificationbecause 1) the treatment-system performance will exceed IMO D-2 for the reasons described above; 2) the exchange and flushing alone will keep "risky" organism concentrations at orbelow an adverse effects level; and 3) the more stringent conditions ofDEC's existing certification are not yet considered technologically achievable and are not yet in effect. In accordance with 40 CFR 

### § 124.53(e)(2), this condition cannotbe made less stringent and still comply with the requirements ofState law, including State water quality standards.

Condition #4 ofthe Department's 2012 Certification, setting best managementpractices (BMPs) for confined laker vessels, is neededto control impacts from these vessels which collectively transport 70 million tons ofballast water peryearwithin the Great Lakes. Their transfers of ballast water transfers may contribute to species introductions and "are likely the most important ballast-mediated pathway ofsecondary spreadwithin the Great Lakes.,,44 In accordance with 40 CFR § 124.53(e)(2), this condition cannotbe made less stringent and still comply with the requirements ofState law, including State water quality standards.

39 Most ofthe water and most ofthe organisms carried in a vessel's ballast tanks are physically expelled during midocean exchange or flushing, and many ofthe remaining organisms are then killed by salinity shock (osmotic stress) from the ocean water with which the ballast tanks are refilled. Seepaper submitted by Canadato the IMO, BLG 15/5/7, S.A. Bailey et aI., "Evaluating Efficacy ofan Environmental Policy to Prevent Biological Invasions," Environ. Sci. TechnoI. 45,2554-61 (2011), at 2557 and 2559, paragraphs 8 and 9; S.A. Bailey et aI. (2011), op. cit., at 2555-56. In our existing certification dated 2008, we indicated thatballast water exchange produces variable results and is "thereforeunprotective as an ongoing permit condition;" however, the effectiveness ofexchange and flushing has been (re)confirmed by recentwork. See S.A. Bailey et aI. (2011), op. cit., E. Briski et aI., Efficacy of 'saltwaterflushing' in protecting the Great Lakes from biological invasions by invertebrate eggs in ships' ballast sediment, Freshwater Biology 55, 2414-2424 (2010); S. Ellis and H. MacIsaac, Salinity tolerance ofGreat Lakes invaders, FreshwaterBiology 54, 77-89 (2009); S. Santagata et aI., Effects ofosmotic shock as a management strategy to reduce transfers ofnon-indigenous species among low-salinityports by ships, Aquatic Invasions 3, 61-76 (2008); D.F. Reid et aI., Identifying, Verifying, and Establishing Options for Best Management Practices for NOBOB Vessels, Final Report, NOAA (June 2007). 40 Paper submittedby Canada to the IMO, BLG 15/5/7, op. cit. Note that, in addition to the benefits derived from physical expulsion and salinity shock, the combined process allows treatment systems to operate on a more uniform and more biologically sparse feed water. 41 Publication oftest results pending. 42 Sarah Bailey, DFO Canada,pers. comm. (describing early results in general terms). 43 Paper submittedby Canada to the IMO, BLG 15/5/7, op. cit., paragraph 18. 44 M.P. Rup et aI., Domestic ballast operations on the Great Lakes: potential importance ofLakers as a vector for introduction and spread ofnon-indigenous species, Canadian Journal ofFisheries and Aquatic Sciences 67(2), 256­ 268 (2010). Page 10 of 11In Condition#S ofthe Department's 2012 Certification, the monitoring requirements for >SO 11m and 10-S0 11m organisms are needed as a check on the effectiveness ofConditions #2 and #3 as interim WQBEL measures, 

### i.e., whether they serve as protective interim substitutes for the WQBEL. The monitoring condition will thus satisfy 40 CFR 

### § 122.44 (i), which requires monitoring to assure compliance with permit limitations at a minimum frequency ofonce per year. Implementation ofthe above monitoring requirements will also build capacity for the expertise and types ofspecialized equipment needed for effective and economical monitoring of ballast water discharges. Note that the results ofsuch monitoring will need to be interpreted with caution for fresh and brackish receiving waters, since total organism concentrations will typically differ from "risky" organism concentrations. "Non-risky" organisms may include those discussed above that are unlikely to survive in brackish and freshwater environments, and may also include those that cannotbe considered invasive because they are native to and/or already established in the receiving waters.45 In accordance with 40 CFR 

### § 124.S3(e)(2), this condition cannotbe made less stringent and still comply with the requirements ofState law, including State water quality standards. Condition #6 the Department's 2012 Certification, prohibiting discharge ofbilge water in New York waters, is consistent with Condition#S ofthe Department's currently effective certification dated December 17,2008. The bilge water discharge prohibition in Condition #6 is necessary because the suite ofbilge water BMPs proposed in the VGP is insufficient. These BMPs include prohibitions onreleases ofcertain chemicals, including dispersants, detergents, emulsifiers, chemicals, and other substances that remove the appearance ofa visible sheen from bilge water discharges; however, DEC finds that an outrightprohibition onbilge water discharge is needed to protectwater quality. Bilge water is waste water accumulated in the bottom part ofa vessel from the engine room and other mechanical parts ofthe vessel. Itis typically contaminated with petroleum including volatile and semi-volatile organic compounds like benzene and polycyclic aromatic hydrocarbons. Even with the BMPs in the VGP, bilge water could contain elevated level ofhazardous chemicals that couldbe harmful to the ecosystem. The discharge ofbilge water qualifies as a pollutant discharge from a point source, pursuantto the Clean WaterAct and State law, and shouldbe properly regulated to protect the waters ofthe United States. In accordance with 40 CFR 

### § 124.S3(e)(2), this condition cannot be made less stringent and still comply with the requirements ofState law, including State waterquality standards. Itshouldbe notedthatthe discharge ofsewage is not coveredby eitherthis certification orthe VGP because sewage discharge is governedby the Marine Sanitation Devices requirements of the Clean Water Act, 

### 33 U.S.C. 1322.

45 See comment on NOBOB vessels submitted 2121112 by B. Smith, DocketNo. EPA-HQ-OW-2011-0141-0553. Page 11 of11