EPA Proposes
“Special Ocean Sites”
Kristen M. Fletcher, J.D., LL.M.
In January, the EPA proposed amendments to existing regulations
implementing the ocean protection provisions of Clean Water
Act § 403 which provides that permits for discharging
into ocean waters must meet EPA guidelines. The EPA proposed
the rule to protect coastal waters that are under great threat
from industrial and municipal pollution and because“[h]ealthy
oceans are essential to the Nation’s economy and natural
heritage.”1 They are currently under review and, if approved
by the new EPA Administrator, will be sent out for public
comment. The proposed changes represent what may be the last
vestiges of the Clinton administration’s efforts to focus
federal attention on healthy ocean waters.
The proposed changes would provide for establishment of baseline
water quality standards for ocean waters beyond three miles
offshore, strengthen the requirements for a permit to discharge
into ocean waters, and establish Special Ocean Sites (SOSs),
areas within ocean waters that are of outstanding value. The
proposed rule notes that offshore ventures such as aquaculture,
biotechnology, oil and gas drilling and production, and other
industrial activities are expanding into new areas of the
ocean and “many will need to discharge wastewater as
part of their operations.”2 When discharging into ocean
waters, they must obtain a permit and meet the Ocean Discharge
Criteria. The proposed rule represents the first significant
changes since the criteria was released in 1980.
Clean Water Act § 403
Entities wishing to discharge into ocean waters that are within
the jurisdiction of the Clean Water Act must first obtain
a National Pollutant Discharge Elimination System (NPDES)
Permit.3 The issuance of this permit is subject to the Ocean
Discharge Criteria developed by the EPA which requires dischargers
to assess the impact of the proposed discharge on the biological
community in the area of the discharge as well as the surrounding
biological communities.
The purpose of the criteria is to determine the degradation
of the waters by certain types of disposal including analysis
of the effect on marine life and ecosystems, the permanence
of the effects, and other locations and methods for disposal.4
If the EPA, or in some cases the state authority, determines
that the discharge will result in unreasonable degradation
of the marine environment, then additional restrictions are
imposed including stipulations for temporal criteria such
as seasonal limitations on the discharge or process criteria
such as the rate of discharge.
Discharges & Healthy Ocean Waters
The original guidelines were promulgated in 1980 but with
the new rule, the EPA plans to establish certain protections
for federal waters that are analogous to those in state waters.
The first effort is to designate all federal ocean waters
where there are no applicable CWA water quality standards
in place as “Healthy Ocean Waters.” Discharges into
Healthy Ocean Waters must meet water quality standards.5 For
the first time, these areas would have to meet 16 specific
water quality criteria, in addition to other conditions necessary
to support aquatic life and wildlife, recreational, and aesthetic
values.
Special Ocean Sites
The rule also proposes to create new protections for “Special
Ocean Sites” that have significant environmental value,
including prohibitions for new and expanded ocean development.
Special Ocean Sites are defined as sites which are of outstanding
ecological, environmental, recreational, scientific, or aesthetic
value. To provide a buffer zone, the SOS will include a minimum
1,000 meter wide band of water extending around the area.
Under the rule, no permits for new or significantly expanded
discharges will be issued for these sites.6 However, the President
can waive this prohibition on new or expanded permits in the
paramount interest of the U.S. such as national security or
essential energy development.
EPA is proposing to establish four Special Ocean Sites:
• Flower Garden Banks, located off Texas;
• Gorda Ridge-Blanco Fracture zone, located off Oregon;
• Escanaba Trough of the Gorda Ridge, located off California;
and,
• Northern Right Whale Critical Habitat Areas, located
off Massachusetts and the Florida/ Georgia border.
While the EPA is not proposing an SOS for state waters, the
agency is soliciting proposals from states including Florida
(the Dry Tortugas National Park), Hawaii (the Northwestern
Hawaiian Islands), and California (the Channel Islands National
Marine Sanctuary).
The proposal allows for a process in which citizens or states
can recommend a site for establishment as an SOS in addition
to those proposed by the federal agency. Other such sites
can include areas within U.S. jurisdiction that have outstanding
value, such as critical habitat established under the Endangered
Species Act, high value coral reefs, hydrothermal vents and
certain Essential Fish Habitat areas.
The proposal is unique as it represents the first time development
activities such as mining, oil and gas exploration, and fish
farming in federal ocean waters beyond three miles offshore
would have to meet protective new standards under the Clean
Water Act. Like many new federal regulations or pending regulations,
the EPA proposal is now under review by the new EPA Administrator
Christine Todd Whitman, as required by President Bush on January
20, 2001.7
To see the proposed rule and an EPA-prepared Fact Sheet, visit
http://www.epa.gov/owow/oceans/protecting_oceans/ .
Endnotes:
1. Proposed Rule at 8.
2. Id.
3. 33 U.S.C. § 1342 (2001). Waters under the jurisdiction
of the Clean Water Act include the territorial sea, waters
of the contiguous zone, and the oceans. See 33 U.S.C. §
1343(a) (2001).
4. 33 U.S.C. § 1343(c) (2001). Section (c)(2) provides
that “where insufficient information exists on any proposed
discharge to make a reasonable judgment on any of the guidelines
. . . no permit shall be issued. . . .”
5. However, for specific waters where applicable state, territorial,
tribal or federal water quality standards are in place, those
water quality standards continue to apply. Proposed Rule at
41.
6. “Significantly expanded discharge” means a discharge
with a 20% or greater increase in pollutant loadings above
the current permit limit.
7. See Memorandum for the Heads and Acting Heads of Executive
Departments and Agencies, 66 Fed. Reg. 7702 (2001).
