2011-27990. New York State Prohibition of Discharges of Vessel Sewage; Final Affirmative Determination

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of determination.

SUMMARY:

Notice is hereby given that, pursuant to Clean Water Act Section 312(f)(3) (33 U.S.C. 1322(f)(3)), the State of New York has determined that the protection and enhancement of the quality of Jamaica Bay (the Bay) in the New York City metropolitan area requires greater environmental protection, and has petitioned the United States Environmental Protection Agency (EPA), Region 2, for a determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for those waters, so that the State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters.

The New York State Department of Conservation (NYSDEC) on behalf of the New York City Department of Environmental Protection (NYCDEP) has proposed to establish a Vessel Waste No Discharge Zone (NDZ) for the Bay that covers an area of approximately 20,000 acres (17,177 acres of open water and 2,695 acres of upland islands and salt marshes). It is bounded on the west and northwest by Brooklyn, and on the north and northeast by Queens. The northeastern and southeastern corners of the Bay are bordered by Nassau County. The northern shore of the Rockaway Peninsula, a part of Queens, forms the southern boundary. The Bay is connected to the Atlantic Ocean through the Rockaway Inlet and has a tidal range of approximately 5 to 6 feet. The NYSDEC certified the need for greater protection of the water quality. EPA hereby makes a final affirmative determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the Bay.

EPA published a tentative affirmative determination on August 3, 2011 in the Federal Register. Public comments were solicited for 30 days and the comment period ended on September 2, 2011. EPA received a total of twenty (25) comments via letter and email. The comment tally was twenty-three (23) in favor of, and two (2) questioning or opposing, the No Discharge Zone designation. All the relevant comments received have been considered in the final affirmative determination. This Federal Register document will address all comments submitted in response to the August 3, 2011 (Volume 76 Issue 149) Federal Register document.

Response to Comments

1. Comment: Twenty-three commenters including boaters, paddlers, kayakers, non-governmental organizations, and community advocates expressed strong support for EPA's action to establish a vessel waste no discharge zone for the Bay. Some commenters pointed out that this action will reduce pathogens and chemicals, improve water quality and further protect and restore the Bay.

EPA Response: EPA is in full agreement that designating the Bay is an important step to further protect this valuable natural resource, water quality, wetlands and habitats throughout the entire the Bay area.

2. Comment: One commenter stated that discharges from several small tugs with the required Marine Sanitation Devices (MSDs) are a relatively small source of pollution compared to the pollution caused by 1,200 to 1,500 of recreational vessels that utilized the Bay.

EPA Response: These comments go beyond the scope of EPA's authority in this action. Because EPA's authority here is limited to determining whether adequate pumpout facilities exist, it cannot base its determination on whether commercial vessel sewage is comparable in quantity or impact to other sources of pollution, or whether banning such discharges is otherwise unfair to commercial boaters. However, it is noted that the sewage discharged from MSDs is treated with chlorine, quaternary ammonia and formaldehyde, which can all pose threats to the marine environment, especially if present in substantial, concentrated amounts. EPA agrees with the NYSDEC, which certifies that the protection and enhancement of the waters of the Bay require greater environmental protection than the applicable federal regulations. Moreover, as noted above, the prohibition of sewage discharges pursuant to Clean Water Act Section 312(f)(3) applies to all vessels.

3. Comment: One commenter stated that the pumpout facilities that serve recreational vessels may not be reasonably available to commercial towboats and barges that service two oil terminals and two sand and gravel handling facilities located near Inwood at the head of the Bay, because some of those commercial vessels are too large to dock where the recreational vessel pumpout facilities are located. The commenter also stated that the type II flow-through MSD systems installed on the majority of their tugs have no storage capacity to retain effluent onboard.

EPA Response: EPA and NYCDEP gathered additional information about the location and accessibility of pumpout trucks in relation to commercial vessels that service the oil terminal and sand and gravel facilities. Pumpout trucks are readily available for hire and are able to reach commercial vessels on commercial docks at the head of the Bay. Therefore, commercial vessel operators can make arrangements to hire pumpout trucks and have their vessels pumped out at the accessible commercial docks. Alternatively, the tugs and barges could discharge sewage while at their home port(s). In order to achieve the storage capacity needed to hold sewage on board, a Type II MSD can be converted to a Type III MSD, commonly called a holding tank, which can be equipped with the valve, usually called a Y-valve, needed to discharge to a pumpout truck.

FOR FURTHER INFORMATION CONTACT:

Moses Chang [phone], email address: [e-mail].

SUPPLEMENTARY INFORMATION:

Notice is hereby given that the State of New York (NYS or State) has petitioned the United States Environmental Protection Agency, Region 2, (EPA) pursuant to section 312(f)(3) of Public Law 92-500 as amended by Public Law 95-217 and Public Law 100-4, that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the open waters and tributaries of the Bay, so that the State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters. Adequate pumpout facilities are defined as one pumpout station for 300-600 boats under the Clean Vessel Act: Pumpout Station and Dump Station Technical Guidelines (Federal Register, Vol. 59, No. 47, March 10, 1994).

The Bay is the largest estuarine water body in the New York City metropolitan area and one of the largest coastal wetland ecosystems in New York State. The open waters and tributaries within the Bay provide important natural and recreational resources for boating and recreational activities that contribute significantly to the local and regional economy. In 2005, the Jamaica Bay Watershed Protection Plan (JBWPP) was put into motion by the City Council of New York City under Local Law 71 (LL 71). The objective of LL 71 is to ensure a holistic watershed approach toward restoring and maintaining the water quality and ecological integrity of the Bay. The JBWPP recommends management actions for protecting and improving the health of the Bay, e.g., adoption of appropriate regulations to mitigate the impacts of boat vessel waste discharges.

The Bay is a component of the National Park Service's (NPS) Gateway National Recreation Area (GNRA). A significant portion of the Bay, approximately 9,100 acres, has also been designated by the NPS as the Jamaica Bay Wildlife Refuge and is designated by the New York State Department of State (NYSDOS) as a Significant Coastal Fish and Wildlife Habitat. The diversity of bird species and breeding habitats within the Bay were important factors in these designations. The Jamaica Bay Wildlife Refuge was also the first site to be designated by the National Audubon Society as an “Important Bird Area.” It is clear that the Bay is currently functioning as a regional habitat for many different species of wildlife. In combination with other water quality improvement initiatives, the NDZ designation will further enhance the recreational and ecological benefits of the Bay, potentially attracting more visitors to the Bay.

In order for EPA to determine that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the New York State areas of the Bay, the State must demonstrate that the pumpout-to-vessel ratio does not exceed 1:600.

In its petition, the State described the recreational vessels that use the Bay, and the pumpout facilities that are available for their use. Based on a review of NYS Department of Motor Vehicle boat registrations, site visits to marinas and reviewing high resolution orthoimagery of the Bay, NYCDEP has determined that there are approximately 1,200 to 1,500 boats that utilize the Bay throughout the boating season. This number may include a significant number of transient vessels and not only boats that are permanently moored in the Bay.

The Bay is primarily used for recreational boating with very little commercial traffic. The few commercial vessels that do enter the Bay are primarily sightseeing and fishing vessels which, pursuant to New York City regulations, must use private boat pumpout services to unload sewage within the Bay. Therefore, the boat pumpouts provided by NYCDEP within the Bay are utilized for recreational vessels only.

There are four vessel pumpout facilities available in the Bay. Three of those are land-based pumpout facilities operated by NYCDEP, and the fourth is a 24-foot sewage pumpout vessel operated by New York/New Jersey Baykeeper, that serves vessels docked or anchored throughout the Bay. All four facilities provide the pumpout services free of charge. Given that approximately 1,500 recreational vessels use the Bay, the pumpout-to-vessel ratio for those vessels is 1:375 (i.e., 4 facilities for 1,500 boats). Therefore, the pumpout facilities in the Bay satisfy the Clean Vessel Act criterion of 1 pumpout per 300-600 vessels.

A list of the facilities, phone numbers, locations, hours of operation, water depth and fee is provided as follows:

List of Pumpouts in the Bay NDZ Proposed Area Available for Recreational Vessels

Number	Name	Location	Contact information	Dates/days/hours of operation	Water depth (feet)	Cost
1	Hudson River Yacht Club	Paerdegat Basin	718-251-9791; Channel 71	May 1-Oct 31; daily, 10 a.m.-5 p.m	10-14	Free.
2	Coney Island WWTP	Shellbank Creek	718-743-0990; Channel 13	May 1-Oct 31; 24 hrs	8-10	Free.
3	Rockaway WWTP	Jamaica Bay	718-474-3663; Channel 68	May 1-Oct 31; 24 hrs	10-14	Free.
4	NY/NJ Baykeeper's 24 foot sewage-pumpout vessel	Jamaica Bay	732-337-9262; Channel 9	Memorial Day to Labor Day; Sunrise to sunset	N/A	Free.

Based on the above, EPA hereby makes a final affirmative determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are available for the open waters and tributaries of the Bay of the New York City metropolitan area.

Dated: September 30, 2011.

Judith A. Enck,

Regional Administrator, Region 2.