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New Rules for Recreational Boat Permits Would be Hard to Enforce, Controversial

July 23, 2008 - Thousands of Maine pleasure boaters, from kayakers to sailors to powerboat owners, could soon face new federal permitting rules intended to keep pollution out of lakes, rivers and the ocean.

The U.S. Environmental Protection Agency, driven by a controversial 2006 California court decision, is preparing to impose the rules on more than 13 million recreational boaters by the end of September.

Unless the courts or Congress step in, each boater would effectively be assigned a Clean Water Act discharge permit that forbids such activities as washing a moored boat with soap that contains phosphates; dropping food waste or cigarette butts overboard; and launching a small outboard without inspecting and cleaning its hull.

Although it's unclear how the agency would enforce the rules, the prospect of a new layer of regulations and federal fines has riled up members of the recreational boating community and industry in Maine and across the country.

Many of the targeted activities are already regulated, and they are far from the biggest threats to the water, boaters say.

"This court has forced EPA to spend valuable time, when they could have been working on real issues (instead of writing) some permit that they don't have a snowball's chance in hell of enforcing," said Susan Swanton of the Maine Marine Trade Association, a group representing marinas.

Several boaters in Portland said they had heard little about the regulations, and had varying reactions. But they will grow concerned as they learn about the new rules, industry representatives said.

"The only way you're going to get zero impact is to not be there at all," said Phineas Sprague, owner of Portland Yacht Services. "It's gone beyond rational."

EPA officials say the agency is not pleased to be going through the process, either. But they also say the proposed standards will promote cleaner boating without being too much of a hardship.

"This particular rule was forced by a court action," said Dale Kemery, a spokesman for the EPA. "There's a lot of misunderstanding about how this might affect small-boat owners."

The EPA has exempted recreational boats from Clean Water Act discharge limits for about 30 years, after deciding it would not be practical or worthwhile to issue permits to every individual boater.

But that changed in 2006 when a U.S. District Court in California ruled that no group, not even recreational boaters, can be exempt from the Clean Water Act. It ordered that permits be issued to boaters by Sept. 30, 2008.

The EPA appealed and is still fighting the decision. Congress, meanwhile, has been moving to pass a law to formally exempt recreational boaters. There appears to be widespread support, but neither the Senate nor the House has passed a bill to head off the new rules.

Maine's congressional delegation is supporting the exemption, Swanton said.

"They, all four of them, get it and understand what a kick in the teeth this would be for the boating industry and the tourism industry," she said.

Boaters have lots of reasons to stay on shore these days, including high fuel prices and lack of leisure time, Swanton said. "You add on top of that some foolish regulation that could open these people up to scrutiny and fines -- is that the straw that breaks the camel's back?"

Even Maine's Department of Environmental Protection is opposing the rule.

Andrew Fisk, director of the agency's land and water bureau, testified in Congress last month that a permitting system for individual boaters is a waste of resources.

Fisk said in an interview this week that the state is working with marinas on voluntary practices and rules to reduce pollution. The Clean Water Act, meanwhile, should be used to go after such threats as waste from cruise ships or ballast water from tankers that contains invasive species, he said.

The EPA proposal would automatically issue federal discharge permits to all recreational boats or uninspected passenger vessels less than 79 feet in length. That group includes canoes and rowboats, as well as commercial fishing vessels such as lobster boats, according to the DEP.

The owners of those boats would not have to pay for the permits or file any paperwork, according to state and federal officials. But they would be responsible for knowing -- and following -- the rules.

A second permit and a more rigorous set of rules would be applied to larger vessels. Some of those vessels would be required to file plans for containing pollution.

While the permit is free, some critics have pointed to theoretical fines of as much as $32,500 per day under the Clean Water Act.

The EPA is not threatening crackdowns and fines, and estimates it will cost anywhere from 29 cents to $25.99 each year for a typical boater to comply with the rules.

Steve Hinchman, an attorney for the Conservation Law Foundation in Brunswick, agreed with critics that issuing a general permit for all recreational boats is "a blunt instrument." But, he said, the boating community should already be doing everything that the permit would require.

"This is just about personal responsibility," he said. "Walk along the Maine coast and you will find levels of junk that you never find on the roadside anymore. Boaters have to get with it. If using toxic cleanser results in a fish kill, then you're on notice that you can be fined for it, and that's appropriate."

Several recreational boaters who said they've heard little or nothing about the pending rules had varying reactions.

Keith Canning of Portland said he welcomes the idea.

"It's our resource, and we've got to do everything we can to protect it," Canning said Tuesday while filling the oil and gasoline tanks of his 23-foot outboard at DiMillo's Marina in Portland.

He used an absorbent pad to wipe a drop of oil from the boat's rail and was careful not to overfill his gasoline tank, practices that would be mandated under the new rules.

Others said boaters are already careful about avoiding pollution and that the regulations might not accomplish much.

"It seems like a lot of (the rules) are already there," said Jay Rock, who filled the gas tank of his employer's powerboat at DiMillo's on Tuesday. He owns a small catamaran, which would make him accountable under the rules, too.

"How would they regulate that? It would be absolutely impossible to do."

By Staff Writer John Richardson, Portland Press Herald, July 23, 2008.


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