U S EPA NEW ENGLAND RESPONSE TO COMMENTS ON THE NO DI SCHARGE AREA APPLICATION FOR

OUTER CAPE COD
IN TRODUCTION: 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 town s 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 M ay 31, 2011 . The Receipt of Petition was mailed or e - mailed to approximately 600 recipients, which included federal and state agencies, municipalities, M arine Trades Association s , marine facilities , and other interested organizations and individuals.
Thi s document represents EP A

- N ew England's Response to Comments on the Massachusetts application. Two comments were received ; copies may be requested from EPA by writ ing Ann Rodney , U.S. Environmental Protection Agency

- New England, Office of Ecosy stem 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 S tate 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 reasonabl y 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 dictate s the ty

pe of information that must be included in a state application for approval of a NDA. The Administrator's a uthority 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 E PA 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 that2

they are, then the state’s NDA shall take effect. In its application to EPA, Mas sachusetts has certified that its waters require the enhanced protection of the NDA. The resource description portion of the application explains the various ty pes of resources in the area. Massachusetts believes that its coastal waters need greater prot ection and the NDA will help in that regard because : (1) vessel sewage contributes to pollution problems, including aesthe tic 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 enjoy ment of these water s. 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 “ reasonabl y available” in the area proposed. EPA has evaluated compliance with this requirement, and has determined that the one faci l ity is adequate and reasonably availa ble 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 ex clude certain vessels from using the pumpout facilities, information indicating the waste from the pumpout facilities will be treated in conformance with f ederal standards, and information on the vessel population and vessel usage of the subject waters. E PA staff reviewed this information and discussed these issues with state personnel, and conduct ed 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 s ys tem, and no discharge zones make pollution worst. Boat Marine Sanitation Devices (MSDs) provide a better level of treatment than W aste W ater T reatment Plants (WWTP)

. He requested that regulations for shoreside s ys tems be enforced. Region 1 has been implementing its No Discharge Area (NDA) Program since 1991, and t here is no evidence to support th ese 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 flush ing (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 b y an MDS is heavily dependent on the individual boat owner’s operation and maintenance of the s ys tem, which is highly variable. Conversel y, a WWTP has daily operation and maintenance, permit limits, enforcement, and better quality effluent.3

EPA is unaware of regulations regarding shoreside sy stems 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, i f a marina, boatyard or a yacht club wants to expand , it mu st install a pumpout.
2

. Lynn M. Muench

- Letter Senior Vice President

– Regional Advocacy Midcontinent Office 1113 Mississippi Avenue Suite 108 St L ouis, MO 63104
American Waterway s Operators n either supported or opposed the designation but requeste d EPA recommit to encouraging states to engage in earl y 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 en co urage 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 D irector 3010 Main Street P.O. Box 398 Barnstable , MA 02630

- 0398 Supports th is designation.
4. Pleasant Bay Resource Management Alliance Carole Ridley , Coordinator P.O. Box 1584 Harwich, MA 02645 Supports th is 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 reasonabl y 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 stat e boundaries as described in its application as a No Discharge Area.