On July 12, 2023, the Department of Environmental Quality received Andy Cortez’s petition to the State Water Control Board (Board) to regulate commercial fishing vessel pump water as a point source pollutant due to vacuum pump water containing dissolved organic matter, including nitrogen, phosphorous, suspended solids, and high BOD. Mr. Cortez states in the petition that the discharge is not in compliance with § 62.1-44.2, § 62.1-44.5.9A.1.3, 9VAC25-31-50.A.1 or 9VAC25-31-50.A.2. Mr. Cortez formally requests that the Board amend the existing Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulations, 9VAC25-31 or develop a new regulation.

A 21-day public comment period is being announced in the Virginia Register of Regulations. Upon completion of the public comment period, the State Water Control Board will consider the petition at a future meeting and decide whether or not to move forward with the rulemaking.

At the November 30, 2023, meeting of the State Water Control Board, staff presented the Board with information on the petition and a summary of the comments received on the petition during the public comment period.  The petition states that vacuum pumps are used to transfer netted fish and seawater from a waterbody into a hopper on the ship, the water is discharged overboard from the hopper via a pipe, and the fish are emptied into the hold of the ship.  There is no addition of any pollutant or combination of pollutants to surface waters through the discharge of the vacuum pump water; therefore, discharges would not be considered a discharge of a pollutant per federal law and the Virginia Pollution Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31).  This is consistent with the ruling in the North Carolina Coastal Fisheries Reform Group v. Capt. Gaston LLC et al. (76 F.4th 291 (4th Cir. 2023)) where returning bycatch to the ocean was not considered a discharge of a pollutant.  The State Water Control Board voted to not initiate a rulemaking in response to the petition.