ELR Citation: ELR 20075
No(s). C 03-05760 SI (N.D. Cal. Mar 30, 2005)

A district court ordered the U.S. Environmental Protection Agency (EPA) to repeal 40 C.F.R. §122.3(a), which exempts ballast water from national pollutant discharge elimination system (NPDES) permitting requirements. The Clean Water Act directly states that EPA must form NPDES permit requirements for discharges incidental to the normal operation of a vessel, including ballast water; ballast water discharges constitute a "discharge" or "addition"; the discharged ballast water and other discharges incidental to the operation of a vessel constitute "pollutants"; the rivers, lakes, and harbors where ballast discharges occur are "navigable waters"; and ballast water discharges clearly arise "from" a "point source." In addition, EPA failed to demonstrate overwhelming evidence of acquiescence by Congress with respect to the exemption. EPA, therefore, acted in excess of its statutory authority under the Administrative Procedure Act in exempting an entire category of discharges from the NPDES permit program and in denying environmental groups' petition to rescind the regulation.