02-14495. New York State Prohibition on Marine Discharges of Vessel Sewage; Receipt of Petition and Final Determination

Notice is hereby given that a petition was received from the State of New York on July 5, 2001 requesting a determination by the Regional Administrator, Environmental Protection Agency (EPA), pursuant to section 312(f) of Public Law 92-500, as amended by Public Law 95-217 and Public Law 100-4 (the Clean Water Act), that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of the Peconic Estuary, County of Suffolk, State of New York. The Towns of East Hampton, Riverhead, Shelter Island, Southampton, and Southold, and the Villages of Dering Harbor, Greenport, North Haven, and Sag Harbor are seeking to establish a New York State Designated No-Discharge Zone (NDZ) for the open waters, harbors and creeks on the Peconic Estuary, Suffolk County, New York west of a line from Orient Point (41.16133, -72.23065) to Montauk Point (41.07312, -71.8570).

On March 6, 2002, EPA published a Receipt of Petition and Tentative Determination and accepted comments from the public for a thirty (30) day period. EPA received letters from the following individuals or communities:

Honorable David E. Kapell, Mayor, Village of Greenport, 236 Third Street, Greenport, New York 11944.

Paul W. Esterle, 2971 Broad Street, #155, Bristol, Tennessee 37620-3461.

Rameshwar Das, 61 Shoridge, East Hampton, New York 11937.

Two of the comment letters expressed support for the establishment of the NDZ, stating that the NDZ was important to protect fishing and water recreational resources. One letter stated that the existing NDZ in East Hampton is a valuable component of public awareness for ensuring the health of the estuary and that it served to bring the stakeholders in the estuary into the process.

One comment letter objected to establishing a NDZ and raised two general concerns. In explaining the first concern, the commentor pointed out that the existing national standards already prohibit the discharge of untreated sewage from vessels and argued that the quality of treated wastes discharged from marine sanitation devices (MSDs) was better than wastes discharged from on-shore sewage treatment systems.

In response, EPA acknowledges the accuracy of the first point regarding the existing national prohibition against untreated discharges from MSDs in coastal waters such as the Peconic Estuary. However, EPA questions the claim that MSDs produce wastewater that is cleaner than the wastes discharged from on-shore sewage treatment plants, and EPA notes that the justification provided in the letter to support the claim is anecdotal. Further, EPA is not aware of any studies conducted on the discharges from existing MSDs that evaluate the efficacy of the units after years of operation. Sewage treatment plants, on the other hand, are typically required to reduce biochemical oxygen demand and total suspended solids by 85%, and are generally subject to routine monitoring and reporting requirements. In addition, many sewage treatment plants are required to provide disinfection, which commonly results in effluent quality less than 100 colonies per 100 milliliter for fecal coliform, which is better than the standards that MSDs are required to meet.

The second concern raised in the letter challenged the conclusion in the tentative determination that sufficient pumpout facilities were available for boaters. The commentor cites an article that was published in Cruising World regarding the Rhode Island coastal waters NDZ. The article recounts a boater's three day attempt, in Rhode Island, to locate a functioning pumpout facility. The article alleges that many of the pumpouts in the waters of Rhode Island are in disrepair or not accessible. Based on their independent surveys, the State of Rhode Island and Save the Bay disagree with the conclusion of the Cruising World article.

EPA does not see the relevance of the article on the Rhode Island NDZ to the number of pumpouts and vessel populations in the Peconic Estuary. Based upon the information provided in the application, there are more than adequate pumpout facilities available to the boaters. While neither agreeing or disagreeing with the article conclusion, EPA does recognize that proper operation and maintenance of the pumpout facilities are essential to the successful implementation of the NDZ.

In further response to the comment letter, the Clean Water Act (Sec. 314(f)(3)) authorizes a State to completely prohibit the discharge from all vessels of any sewage, whether treated or not, by making a written application to EPA. Upon receipt of an application, EPA must determine whether adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available. The State of New York has applied to EPA in accordance with the Clean Water Act and EPA has determined that such facilities are reasonably available. The criteria for approval of the NDZ application is the adequacy and availability of the pumpouts for the number and size of vessels operating in the Peconic Estuary. This criteria has been satisfied.

This determination is based on the following information which was included in the application submitted to EPA by the State of New York and the Towns of East Hampton, Riverhead, Shelter Island, Southampton, and Southold, and the Villages of Dering Harbor, Greenport, North Haven, and Sag Harbor. The open waters, harbors and creeks of the Peconic Estuary support significant shellfisheries, fish spawning, nursery and feeding areas, primary contact recreation such as swimming, and are or have within them State designated Significant Coastal Fish and Wildlife Habitats. Vessel counts indicate that there are approximately 7,000 to 11,300 boats in the area on an average summer weekend.

These areas provide important natural and recreational resources that contribute significantly to the local, regional and state economy and the protection and enhancement of these waters is crucial to maintaining the natural resource values and economic viability of traditional maritime commercial and recreational activities.

A New York State Designated No-Discharge Zone has already been established in the Town of East Hampton (1998) for the enclosed harbors and creeks on the Peconic Estuary from the Sag Harbor Village line to Montauk Point, Town of East Hampton, Suffolk County, New York. The existing NDZ includes Northwest Creek, Accabonac Harbor, Three Mile Harbor, Napeague Harbor, Hog Creek and Lake Montauk.

For many years, most of the Peconic Estuary was open for shellfishing. However, beginning in the mid-1980's, the creeks and embayments experienced partial seasonal closures due to coliform bacteria levels. At present, the major creeks and embayments experience closure on a year round or a seasonal basis due to high levels of coliform bacteria in the water. Although vessel waste may be a relatively small contributor to marine pollution in general in the Peconic Estuary, pollution from boats has been identified in the New York State Priority Waterbodies List as one of several key pollution sources that has led to shellfish being classified as an impaired use in water quality classifications within the Peconic Estuary.

According to the State's petition, the maximum daily vessel population for the waters of the Peconic Estuary is 11,247 vessels which are docked or moored. An inventory was developed including the number of recreational, commercial and estimated transient vessels that occupy the estuary. The following table summarizes the location of pumpout facilities and vessel populations:

Waterbody	Vessels	Pumpouts
Orient Harbor	281	0
Greenport Harbor	1026	2
Southold Bay	1319	4
Hog Neck Bay	251	0
Cutchogue Harbor Complex	699	2
Southold	449	2
Flanders Bay Complex	572	4
Red Creek Pond	187	0
Cold Springs Pond	341	3
Bullhead Bay/Sebonac Complex	76	1
North Sea Harbor	253	0
Noyack Sea Harbor	300	0
Sag Harbor Complex	1867	2
Three Mile Harbor	1262	8
Accabonac Harbor	56	0
Napeague Harbor	20	0
Lake Montauk	1274	6
Dering Harbor	381	1
Coecles Harbor	287	1
West Neck Harbor	346	0
Total	11247	36

The ratio of boats to pumpout facilities has been based on the total number of vessels which could be expected. With thirty shore-side pumpout facilities and six pumpout vessel available to boaters, the ratio of docked or moored boats (including transients) is approximately 311 vessels per pumpout. Standard guidelines refer to acceptable ratios failing in the range of 300 to 600 vessels per pumpout.

There are commercial vessel operators active in and around the Peconic Estuary. These include the Cross Sound Ferry, the Plum Island Ferry, the Shelter Island Ferry and the commercial fishing fleets which operate out of Greenport and East Hampton. Cross Sound Ferry has a fleet of seven vessels. Six of these accommodate autos, trucks, buses and passengers. Cross Sound Ferry also offers high speed ferry service on its passenger only vessel, Sea Jet I. The ferries run hourly from each location, generally between 7 a.m. and 9 p.m., although the schedule varies with the season and at holidays. All of the Cross Sound Ferry fleet have holding tanks. These are pumped out at its facility in New London. Waste is emptied into the sewer system for treatment at the New London Sewage Treatment Plant. The Plum Island Ferry operates three vessels between Orient Point and the USDA facility on Plum Island. Vessel waste from the ferries is pumped out and treated at the sewage treatment facility at Plum Island.

Two vehicle ferries run between Shelter Island and the mainland. The North Ferry Co., Inc. provides ferry service between the Village of Greenport and the Town of Shelter Island. The North Ferry operates four 100-ton, 90-foot-long ferries, each capable of carrying cars, trucks, bicycles, and passengers. The ferry operates between 5:40 a.m. and 11:45 p.m., running every 15 minutes between 7:15 a.m. and 10:15 p.m., with additional trips on holiday weekends. No restroom facilities are on board.

South Ferry Inc. of Shelter Island provides ferry service between the Town of Shelter Island and the Village of North Haven. The South Ferry operates 3 ferries, each capable of carrying cars, trucks, bicycles, and passengers. The ferry operates between 6 a.m. and 11:45 p.m., running every 10-12 minutes, with additional trips on holiday weekends. No restroom facilities are on board.

Greenport is home to a commercial fishing fleet. Although subject to turnover and change, the fleet has an estimated 16 vessels. The Village of Greenport Harbor Management Plan (December 1998) identified 3 bay draggers operating out of Stirling Basin and 11 trawlers and 2 scallopers operating from facilities in Greenport Harbor, including Coopers, Greenport Yacht and Shipbuilding and the Village of Greenport's commercial fishing dock. The Greenport Seafood Dock and Market and the Greenport Fish factory provide facilities for the unloading and distribution of fish and are used by both local and offshore fleets. The Village's commercial fishing dock, known as the railroad dock, is a layover facility for commercial craft and is not a full service facility. Discussions with the commercial fishing fleet indicate that they discharge holding tanks outside the three mile limit.

Commercial fishing facilities in East Hampton are concentrated in Three Mile Harbor and Lake Montauk. Data from the Town of East Hampton Draft LWRP (Feb. 1999) indicate that the Town's Commercial Dock at the end of Gann Road on Three Mile Harbor serves 5-6 bay trawlers, 3-5 lobster boats and three or more trap fishermen. Lake Montauk is an important commercial fishing center and has an extensive and varied fleet. Although subject to turnover and change, the fleet has at times comprised as many as 44 ground fish trawlers, 12 inshore and 7 offshore lobster boats, and 53 long-liners, including as many as 30 transient boats from other areas of the East Coast (A. T. Kearney, Development of a Commercial Fisheries Industry Strategy for the State of New York, 1989). Commercial dock space is available at two municipal and four private docks on Star Island and on West Lake Drive, two facilities on East Lake Drive and two facilities on the west side of the Inlet. Discussions with the commercial fishing fleet indicate that they discharge holding tanks outside the three mile limit.

There is one recreational party fishing boat that operates out of Greenport, the Peconic Star II. It docks at the Mitchell site and has a capacity for up to 150 persons. This vessel has two 60 gallon holding tanks and these are pumped out by a septic truck. The Peconic Queen operates out of the Peconic River in Riverhead and tours the estuary. This vessel has a holding tank and pumps out at the Town of Riverhead pumpout in downtown Riverhead. Montauk is also home to charter boats for offshore sport fishing and the Viking passenger ferry fleet. Interviews indicate that these vessels discharge holding tanks outside the three mile limit.

The 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 Peconic Estuary in the County of Suffolk, New York. This final determination on this matter follows a 30-day period for public comment and results in a New York State prohibition of any sewage discharges from vessels in the Peconic Estuary.

Based on this EPA determination, the Peconic Estuary automatically becomes a State designated No-Discharge Zone, pursuant to Section 33.e.1. of the New York State Navigation Law. Within the No-Discharge Zone, discharges from marine toilets are prohibited under Section 33.e.2 of the State Navigation Law, and marine sanitation devices on board vessels operated in a No-Discharge Zone must be secured to prevent discharges. This statute may be enforced by any police officer or peace officer acting pursuant to their special duties.

Dated: May 21, 2002.

Jane M. Kenny,

Regional Administrator, Region II.