US EPA NEW ENGLAND RESPONSE TO COMMENTS

ON THE NO DISCHARGE AREA APPLICATION FOR

OUTER CAPE COD

INTRODUCTION:

In April 2010, the U.S. Environmental Protection Agency New England Region (EPA) received 

an application from the Commonwealth of Massachusetts, pursuant to Section 312 (f)(3) of the 

Clean Water Act, 33 U.S.C. §1322 (f)(3), for the approval to designate waters of the Outer Cape 

Cod as a No Discharge Area (NDA) for sewage from vessels. The Outer Cape Cod is a 

collective term for the towns of Chatham, Orleans, Eastham, Wellfleet, Truro, and Provincetown. 

After a preliminary review of the application, EPA published a Receipt of Petition in the Federal 

Register on April 29, 2011. A 30-day comment period ran from April 29, 2011 through May 31, 

2011. The Receipt of Petition was mailed or e-mailed to approximately 600 recipients, which 

included federal and state agencies, municipalities, Marine Trades Associations, marine 

facilities, and other interested organizations and individuals.

This document represents EPA - New England's Response to Comments on the Massachusetts

application. Two comments were received; copies may be requested from EPA by writing Ann 

Rodney, U.S. Environmental Protection Agency - New England, Office of Ecosystem Protection, 

Oceans and Coastal Protection Unit, Five Post Office Square, Suite 100, OEP06-1, Boston, MA 

02109-3912.

DETERMINATION:

The decision to approve or disapprove a No Discharge Area (NDA) proposed by the state is 

based on the standards set forth in Section 312 (f)(3) of the Clean Water Act, 33 U.S.C. §1322 

(f)(3), and EPA regulations found at 40 C.F.R. § 140.4 (a). Section 312 (f)(3) of the Clean Water 

Act provides the following: “... if any State determines that the protection and enhancement of 

the quality of some or all of the waters within such State require greater environmental 

protection, such State may completely prohibit the discharge from all vessels of any sewage, 

whether treated or not, into such waters, except that no such prohibition shall apply until the 

Administrator determines that adequate facilities for the safe and sanitary removal and treatment 

of sewage from all vessels are reasonably available for such water to which such prohibition 

would apply.” EPA regulations at 40 C.F.R. §140.4 (a) mirror the statute’s provisions and 

dictates the type of information that must be included in a state application for approval of a 

NDA. The Administrator's authority for determining the adequacy of facilities for handling 

vessel sewage has been delegated to the Regional Administrator of the EPA Region in which the 

proposed NDA is located.

It is the state's role and authority to determine whether a NDA is required to enhance 

environmental protection of its waters beyond that provided by existing federal and state 

standards. In accordance with EPA regulations in 40 C.F.R. § 140.4 (a)(1), the state must certify

that such enhanced protection is required. On the basis of this state determination, the state is 

authorized to designate some or all of its waters as a NDA, except that such designation will not 

take effect unless and until EPA determines that adequate facilities are reasonably available for 

removing and treating the vessel sewage in a safe and sanitary way. Thus, EPA’s role is to 

determine whether or not adequate facilities are reasonably available. If EPA determines that 
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they are, then the state’s NDA shall take effect.

In its application to EPA, Massachusetts has certified that its waters require the enhanced 

protection of the NDA. The resource description portion of the application explains the various 

types of resources in the area.

Massachusetts believes that its coastal waters need greater protection and the NDA will help in 

that regard because: (1) vessel sewage contributes to pollution problems, including aesthetic 

concerns; (2) experience has shown that a NDA can help improve water quality; and (3) cleaner 

water will help the recreational and commercial economy, which relies heavily on the use and 

enjoyment of these waters. The Commonwealth of Massachusetts has a long-term commitment 

to improve state water quality. 

Before the state’s NDA can take effect, EPA must determine that adequate facilities for vessel 

sewage are “reasonably available” in the area proposed. EPA has evaluated compliance with this 

requirement, and has determined that the one facility is adequate and reasonably available to the 

boating public. Massachusetts’s application provided information on the number, location, and 

operating hours of the vessel sewage pumpout facility. The application also provided 

information concerning vessel draught requirements that could exclude certain vessels from 

using the pumpout facilities, information indicating the waste from the pumpout facilities will be 

treated in conformance with federal standards, and information on the vessel population and 

vessel usage of the subject waters. EPA staff reviewed this information and discussed these 

issues with state personnel, and conducted site visits in May 2011 to verify the existence and 

operation of the pumpout facility.

EPA received four comments on the “Receipt of Petition” published in the Federal Register on 

April 29, 2011. Below are the names and addresses of individuals who submitted comments, a 

summary of their comment, and EPA’s response, when appropriate.

1. Dave Dabay - e-mail

Mr. Dabay requests EPA allow the discharge of treated sewage to continue, because it is cleaner

than using a pumpout shoreside system, and no discharge zones make pollution worst. Boat 

Marine Sanitation Devices (MSDs) provide a better level of treatment than Waste Water 

Treatment Plants (WWTP). He requested that regulations for shoreside systems be enforced. 

Region 1 has been implementing its No Discharge Area (NDA) Program since 1991, and there is 

no evidence to support these comments. The use of pumpouts by boaters improves water 

quality. Studies conducted in Puget Sound, Long Island Sound, Narragansett Bay, North 

Carolina, and Chesapeake Bay have shown that boats can be a source of fecal coliform bacteria 

in areas with high boat densities and poor flushing (EPA 841-B-01-005, Nov. 2001).

Marine Sanitation Devices (MSDs) do not treat sewage as well as WWTP, MSDs do not remove 

nutrients, and nutrients are a pollutant of concern in Massachusetts. The level of treatment 

provided by an MDS is heavily dependent on the individual boat owner’s operation and 

maintenance of the system, which is highly variable. Conversely, a WWTP has daily operation 

and maintenance, permit limits, enforcement, and better quality effluent. 
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EPA is unaware of regulations regarding shoreside systems other than the Clean Vessel Act 

requires pumpouts be maintained in good working order for the life of the grant, and users can 

only be charged five dollars. In Massachusetts, if a marina, boatyard or a yacht club wants to 

expand, it must install a pumpout. 

2. Lynn M. Muench - Letter

Senior Vice President – Regional Advocacy

Midcontinent Office

1113 Mississippi Avenue

Suite 108

St Louis, MO 63104

American Waterways Operators neither supported or opposed the designation but requested EPA 

recommit to encouraging states to engage in early and open communication with the tugboat and 

barge industry prior submitting a petition for an NDA.

Our understanding is that the Massachusetts Coastal Zone Management did not contact the tug 

and barge industry for this designation because no large commercial vessels (excluding fishing 

boats) operate within NDA boundary. However, EPA will continue to encourage and engage the 

New England states and other affected entities early in the process, and encourage other states to 

do the same.

3. Association to Preserve Cape Cod - Letter

Maggie Geist, Executive Director 

3010 Main Street

P.O. Box 398

Barnstable, MA 02630-0398

Supports this designation.

4. Pleasant Bay Resource Management Alliance

Carole Ridley, Coordinator

P.O. Box 1584

Harwich, MA 02645

Supports this designation.

In conclusion, EPA’s responsibility in deciding to approve designation of an area as a NDA 

under the Clean Water Act, is to determine that there are reasonably available pumpout and 

dump station facilities for the vessels berthed and/or moored in the area. EPA has determined 

that adequate facilities are reasonably available for removing and treating the vessel sewage in a 

safe and sanitary manner. Therefore, Massachusetts may designate the waters of the Outer Cape 

Cod: Chatham to Provincetown, within state boundaries as described in its application as a No 

Discharge Area.