October 17, 2018

Coast Guard Authorization Act of 2018 (Substitute Amendment to S.140)

NOTEWORTHY

Background: On April 18, a cloture motion on amendment number 2232, a substitute amendment to S. 140 (Coast Guard Reauthorization) failed by a vote of 56-42. That substitute amendment contained provisions from the House-passed Department of Homeland Security Authorization Act, H.R. 2825. It also included the Vessel Incidental Discharge Act, which relates to the regulation of ballast water discharges and other incidental discharges from vessels. This substitute amendment has a revised VIDA title.

Floor Situation: On October 11, Majority Leader Mitch McConnell filed cloture on a motion to concur in the House amendment with a further amendment to S.140, Coast Guard Reauthorization. The Senate is scheduled to vote on the cloture motion on November 13 at 5:30 p.m.

Executive Summary: This revised substitute amendment has an updated Vessel Incidental Discharge Act title. The title provides for a uniform, national standard to govern discharges that are incidental to vessel operations, such as ballast water discharges. It makes the Environmental Protection Agency the lead for establishing these standards, and it makes the Coast Guard the lead for monitoring and enforcing the standards. Additionally, it permits certain regions flexibility in setting their own standards. The other titles in this legislation are substantively the same as in the substitute amendment debated in April. Technical changes have been made to account for the John S. McCain National Defense Authorization Act. RPC’s summary of notable provisions in the other titles is available here.

OVERVIEW OF THE ISSUE

Vessels such as container ships, commercial fishing vessels, and barges discharge water as part of their normal operations. These discharges, including from vessel ballasts, are one way that invasive aquatic species can be introduced into U.S. lakes, rivers, and other waterways. Invasive species can then threaten existing native species and otherwise alter their aquatic environments.

The current regulatory system governing incidental vessel discharges is complex, with overlapping rules and regulations. Regulations come from the Environmental Protection Agency, Coast Guard, and roughly half of the states, including some that want very strict ballast water standards. Maritime industry members have called for legislative proposals that reduce duplicative federal rules and provide a predictable regulatory environment for ballast water discharges and other vessel incidental discharges. Lawmakers in previous Congresses and in this Congress have debated legislation to clarify the rules for vessel operators while ensuring protections for aquatic environments.

Though the Coast Guard reauthorization legislation was passed out of the Commerce Committee by voice vote and had bipartisan support on the floor in April, it did not garner the 60 votes needed for the cloture. Objection to the VIDA provisions by environmental organizations was one of the main reasons.

This legislation is largely the same as the reauthorization measure that the Senate considered in April, except for the revised VIDA title. 

NOTABLE BILL PROVISIONS

TITLE IX – VESSEL INCIDENTAL DISCHARGE ACT

Section 903 – Standards for discharges incidental to normal operation of vessels

The section would amend the Federal Water Pollution Control Act by providing for a uniform national standard for incidental vessel discharges that are part of normal vessel operations. It would give the EPA primary responsibility for setting standards for vessel incidental discharges. It directs the EPA administrator, within two years, to establish performance standards for marine pollution control devices for incidental vessel discharges, and it directs the administrator to request a written concurrence from the Coast Guard for the standards.

The section would give the Coast Guard primary responsibility for administering, monitoring, and enforcing standards for vessel incidental discharges, through regulation that is consistent with the discharge standards that EPA establishes. The substitute amendment that was considered in April also would have established a uniform national standard; it would have established the Coast Guard as the lead agency for regulating incidental discharges.

This section governs the stringency of the standards that EPA is directed to establish. It requires the standards to rely on the best practicable control technology available, the best conventional pollutant control technology, or the best available technology that is economically achievable, depending on the type of pollutant being regulated. It also permits the EPA to write different requirements for various types and sizes of vessels. Additionally, it requires the EPA administrator, working with the Coast Guard, to review the standards at least every five years and make revisions as necessary. In general the standards cannot be revised to be less stringent except if based on new information that would justify less strict standards and under other limited circumstances.

The section preserves certain flexibilities for some states and regions to set, administer, and enforce vessel pollutant discharges. For example, the bill provides certain exemptions from ballast water exchange requirements – such as the required distance from shore a commercial vessel must be when exchanging ballast water – for vessels operating between ports or destinations in Pacific Coast states or between Pacific Coast states and the pacific coasts of Canada and Mexico. The bill also provides a process for Great Lakes states, working through the Great Lakes Commission, to develop enhanced vessel discharge standards for vessels operating within the Great Lakes System and submit them to the EPA and Coast Guard for approval.

The section provides for a transition period. It states that current requirements, including the vessel general permit that the EPA issues to regulated vessels and pertinent regulations under the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, will be maintained until the new standards are established and can be enforced.

The section also provides a process for a state to establish no-discharge zones if the state determines that stricter requirements over discharges are needed to protect or enhance its waters.

ADMINISTRATION POSITION

As of publication, a statement of administration policy on the substitute amendment is not available.

COST

As of publication, a cost estimate for the substitute amendment is not available.