12/4/2023 1:53 pm Date / Time filed with the Register of Regulations | VA.R. Document Number: R____-______ |
Virginia Register Publication Information
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Transmittal Sheet: Response to Petition for Rulemaking
Initial Agency Notice
X
Agency Decision
Promulgating Board: | State Water Control Board |
Regulatory Coordinator: | Melissa Porterfield (804)698-4238 melissa.porterfield@deq.virginia.gov |
Agency Contact: | Joseph Bryan (804)659-2659 joseph.bryan@deq.virginia.gov |
Contact Address: | Department of Environmental Quality 1111 East Main Street, Ste 1400 P.O. Box 1105 Richmond, VA 23218 |
Chapter Affected: | |
9 vac 25 - 31: | Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation |
Statutory Authority: |
State: Section 62.1-44.15(10) of the Code of Virginia Federal: Section 402 of the Clean Water Act 40 Code of Federal Regulations, Parts 122, 123, 124, 403 and 503 |
Date Petition Received | 07/21/2023 |
Petitioner | Andy Cortez |
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.
Agency Plan
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.
Publication Date | 08/14/2023 (comment period will also begin on this date) |
Comment End Date | 09/04/2023 |
Take no action
Agency Response Date | 12/04/2023 |
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.