Updates to the National Pollutant Discharge Elimination System Definitions and Exclusions

Issuing agencies

Abstract

The U.S. Environmental Protection Agency (EPA) proposes to revise a regulatory definition under the Clean Water Act (CWA) permitting regulations pertaining to discharges in the contiguous zone and ocean. The proposal would revise the regulatory definition of "discharge of a pollutant" to reflect and faithfully implement the statutory exclusion of vessels and other floating craft that add pollutants in the contiguous zone or the ocean from inclusion in the definition of "discharge of a pollutant" or "discharge", and thus, from National Pollutant Discharge Elimination System (NPDES) program requirements. The proposed rulemaking would also make conforming and clarifying changes to the NPDES regulatory exclusion for vessels and other floating craft. The effect of these changes would be that the addition of pollutants by a vessel or other floating craft in the contiguous zone or the ocean that is not secured to the seabed would not be a discharge and would not require CWA NPDES permit authorization to add pollutants to those waters.

Full Text

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<title>Federal Register, Volume 91 Issue 171 (Friday, September 4, 2026)</title>
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[Federal Register Volume 91, Number 171 (Friday, September 4, 2026)]
[Proposed Rules]
[Pages 56819-56825]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-18134]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[EPA-HQ-OW-2026-6965; FRL 13340-01-OW]
RIN 2040-AG56


Updates to the National Pollutant Discharge Elimination System 
Definitions and Exclusions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) proposes to 
revise a regulatory definition under the Clean Water Act (CWA) 
permitting regulations pertaining to discharges in the contiguous zone 
and ocean. The proposal would revise the regulatory definition of 
``discharge of a pollutant'' to reflect and faithfully implement the 
statutory exclusion of vessels and other floating craft that add 
pollutants in the contiguous zone or the ocean from inclusion in the 
definition of ``discharge of a pollutant'' or ``discharge'', and thus, 
from National Pollutant Discharge Elimination System (NPDES) program 
requirements. The proposed rulemaking would also make conforming and 
clarifying changes to the NPDES regulatory exclusion for vessels and 
other floating craft. The effect of these changes would be that the 
addition of pollutants by a vessel or other floating craft in the 
contiguous zone or the ocean that is not secured to the seabed would 
not be a discharge and would not require CWA NPDES permit authorization 
to add pollutants to those waters.

DATES: Comments must be received on or before October 19, 2026. Please 
refer to the SUPPLEMENTARY INFORMATION section for additional 
information on the public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2026-6965, by any of the following methods:
    <bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> 
(our preferred method). Follow the online instructions for submitting 
comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#dd928af0b9b2beb6b8a99db8adbcf3bab2ab"><span class="__cf_email__" data-cfemail="bef1e993dad1ddd5dbcafedbcedf90d9d1c8">[email&#160;protected]</span></a>. Include Docket ID No. EPA-HQ-OW-
2026-6965 in the subject line of the message.
    <bullet> Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Office of Water Docket, Mail Code 28221T, 1200 Pennsylvania 
Avenue NW, Washington, DC 20460.
    <bullet> Hand Delivery or Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m. to 4:30 p.m., 
Monday through Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Kenda Conley, Water Permits Division, 
Office of Water (7324G), Environmental Protection Agency, 1200 
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-
564-0306; email address: <a href="/cdn-cgi/l/email-protection#c3a0acadafa6baeda8a6ada7a283a6b3a2eda4acb5"><span class="__cf_email__" data-cfemail="fc9f9392909985d2979992989dbc998c9dd29b938a">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
    A. Purpose of the Regulatory Action

[[Page 56820]]

    B. Summary of the Major Provisions of the Regulatory Action
    C. Cost and Benefits
II. Public Participation
    A. Written Comments
III. General Information
    A. What action is the Agency taking?
    B. What is the Agency's authority for taking this action?
    C. What are the incremental costs and benefits of this action?
IV. Background
    A. Clean Water Act Statutory and Regulatory Background
V. Proposed Regulatory Revisions
    A. What is the Agency proposing?
    B. Proposed Rulemaking Rationale
    C. Implementation
    D. Requests for Comment
VI. Supporting Information
    A. Economic Impacts of the Proposed Rulemaking
    B. Children's Environmental Health
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 14192: Unleashing Prosperity Through 
Deregulation
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act

I. Executive Summary

A. Purpose of the Regulatory Action

    The U.S. Environmental Protection Agency (EPA) proposes to revise 
an existing regulatory definition under the National Pollutant 
Discharge Elimination System (NPDES) regulations to reflect and 
faithfully implement the text of the Clean Water Act (CWA) and enhance 
regulatory clarity by indicating more explicitly which addition of 
pollutants are excluded from the NPDES regulations.

B. Summary of the Major Provisions of the Regulatory Action

    The definition of ``discharge of a pollutant'' is central to the 
implementation of the CWA and the NPDES permitting program. The CWA 
generally prohibits discharges into navigable waters, the contiguous 
zone, and the ocean without first obtaining an NPDES permit. See 33 
U.S.C. 1311(a) and 33 U.S.C.\1\ ``Discharge of a pollutant'' or 
``discharge'' is defined differently based on the geographic location 
of the receiving water. First, for navigable waters, CWA section 
502(12)(A) defines ``discharge of a pollutant'' as ``any addition of 
any pollutant to navigable waters from any point source.'' 33 U.S.C. 
1362(12)(A). Second, for waters of the contiguous zone or the ocean, 
CWA section 502(12)(B) defines ``discharge of a pollutant'' as ``any 
addition of any pollutant to waters of the contiguous zone or the ocean 
from any point source other than a vessel or other floating craft.'' 
For each of these jurisdictional waters, the term ``point source'' is 
defined by statute to include a vessel or other floating craft. 33 
U.S.C. 1362(14). As a result of these statutory definitional 
differences, additions of pollutants from a vessel or other floating 
craft into waters of the contiguous zone or ocean are expressly 
excluded from the definition and not considered ``discharges of 
pollutants.'' Consequently, additions of pollutants from vessels or 
other floating craft in the contiguous zone or ocean are excluded from 
the scope of the NPDES permitting program. 33 U.S.C. 1311(a), 1342(a), 
and 1362(14)(B).
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    \1\ Generally, and subject to specified conditions, ``the 
Administrator may, after opportunity for public hearing issue a 
permit for the discharge of any pollutant, or combination of 
pollutants, notwithstanding section 1311(a) of this title.''
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    The current regulatory definition of ``discharge of a pollutant'' 
at 40 CFR 122.2 appears to narrow the statutory exclusion provided by 
CWA section 502(12) through regulatory means, stating that it only 
applies to a vessel or other floating craft in the contiguous zone or 
ocean ``which is being used as a means of transportation.'' The current 
regulation at 40 CFR 122.3(a) similarly specifies that a vessel or 
other floating craft that adds pollutants to the waters of the 
contiguous zone or the ocean is not excluded from the NPDES permit 
requirements if it is operating in any additional capacity ``other than 
as a means of transportation.''
    The EPA proposes to clarify that NPDES permitting does not apply to 
pollutant additions from certain vessel offshore operations in the 
contiguous zone and ocean. Specifically, the proposal, if finalized, 
would provide that, in either the contiguous zone or the ocean, a 
vessel or other floating craft that is not secured to the seabed does 
not require NPDES permit authorization to add pollutants to such 
waters. The proposed changes would align the regulatory definition in 
40 CFR 122.2 with the text of the statutory definition of ``discharge 
of a pollutant'' and would make conforming changes to 40 CFR 122.3. 
Nothing in this proposal intends to modify the applicability of NPDES 
permitting to pollutant additions from operations in waters of the 
United States. Similarly, nothing in this proposal intends to modify 
the applicability of NPDES permitting to pollutant additions from 
facilities that are secured to the seabed in either the contiguous zone 
or the ocean.

C. Costs and Benefits

    Costs and benefits may be incurred as a result of implementing the 
proposed rulemaking. The agency prepared an economic analysis for the 
proposed rulemaking, available in the docket for this action. The EPA 
estimates that the proposed rulemaking is expected to result in a total 
of $1.8 million dollars in cost savings. Potential foregone benefits of 
the proposed rule could include the current management of localized 
seafood processing discharges to ocean waters beyond three miles, with 
possible effects on marine species and receiving-water quality. The 
proposed rule would also eliminate permit-required monitoring and 
reporting, potentially reducing the information available for public 
review.

II. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2026-
6965, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. EPA may publish 
any comment received to its public docket. Do not submit to EPA's 
docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you consider to 
be Confidential Business Information (CBI), Proprietary Business 
Information (PBI), or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e., on the web, cloud, or 
other file sharing system). Please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a> for additional submission methods; the full EPA 
public comment policy; information about CBI, PBI, or multimedia 
submissions; and general

[[Page 56821]]

guidance on making effective comments.

III. General Information

A. What action is the Agency taking?

    To reflect and faithfully implement the text of the CWA, the agency 
is publishing a proposed rulemaking for public comment that would 
revise the regulatory definition of ``discharge of a pollutant'' or 
``discharge'' (and make conforming changes to the NPDES permit 
exclusion regulation at 40 CFR 122.3) to be consistent with the 
statutory definition of ``discharge of a pollutant,'' which excludes 
the addition of pollutants from vessels or other floating craft in the 
contiguous zone or ocean from the statutory definition of ``discharge 
of a pollutant'' and from the scope of the NPDES permitting program.

B. What is the Agency's authority for taking this action?

    The authority for this action is the Federal Water Pollution 
Control Act, 33 U.S.C. 1362 et seq., including sections 301, 402, 501, 
and 502.

C. What are the incremental costs and benefits of this action?

    The agency prepared an economic analysis for the proposed 
rulemaking, available in the docket for this rulemaking. The EPA 
estimates that the proposed rule would result in $1.7 million in annual 
compliance cost savings for offshore seafood processors operating in 
the contiguous zone or ocean, and $50,000 in annual administrative cost 
savings for the EPA associated with permitting this activity. In total, 
the proposed rulemaking is expected to result in approximately $1.8 
million in annual cost savings.
    Potential foregone benefits of the proposed rule could include the 
current management of localized seafood processing discharges to ocean 
waters beyond three miles, with possible effects on marine species and 
receiving-water quality. The proposed rule would also eliminate permit-
required monitoring and reporting, potentially reducing the information 
available for public review.

IV. Background

A. Clean Water Act Statutory and Regulatory Background

    Section 301(a) of the CWA provides that ``the discharge of any 
pollutant by any person shall be unlawful'' unless the discharge 
complies with certain other sections of the Act. 33 U.S.C. 1311(a). A 
person may discharge a pollutant without violating the CWA section 301 
prohibition by, for example, obtaining authorization to discharge under 
a CWA section 402 NPDES permit (33 U.S.C. 1342). Under CWA section 
402(a), the EPA may ``issue a permit for the discharge of any 
pollutant, or combination of pollutants, notwithstanding section 
[301(a)]'' upon meeting certain conditions required by the Act.
    The CWA defines ``discharge of a pollutant'' in two parts: ``(A) 
any addition of any pollutant to navigable waters from any point 
source, (B) any addition of any pollutant to the waters of the 
contiguous zone or the ocean from any point source other than a vessel 
or other floating craft.'' 33 U.S.C. 1362(12). A ``point source'' 
includes any ``discernible, confined and discrete conveyance, including 
but not limited to any pipe, ditch, channel, tunnel, conduit, well, 
discrete fissure, container, rolling stock, concentrated animal feeding 
operation, or vessel or other floating craft, from which pollutants are 
or may be discharged.'' 33 U.S.C. 1362(14). (emphasis added)
    Congress adopted the two-part framework for the definition of 
``discharge of a pollutant'' in 1972 to regulate point source additions 
based on where the addition of a pollutant occurs and the type of 
source involved, including a distinct treatment for vessels in the 
contiguous zone and the ocean.\2\
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    \2\ Under the Act, the EPA's seaward jurisdiction extends to 
three distinct belts: the territorial seas, the contiguous zone, and 
the ocean. The ``territorial seas'' means ``the belt of seas 
measured from the line of ordinary low water along the portion of 
the coast in direct contact with the open sea and the line marking 
the seaward limit of inland waters, and extending seaward a distance 
of three miles.'' 33 U.S.C. 1362(8). The ``contiguous zone'' means 
the ``entire zone established or to be established by the United 
States under article 24 of the Convention of the Territorial Sea and 
the Contiguous Zone.'' 33 U.S.C. 1362(9). When the CWA was enacted 
in 1972, Article 24 provided for a contiguous zone--a zone of the 
high seas contiguous to a country's territorial sea where a country 
may exercise certain controls, which may not extend beyond 12 miles 
from baseline from which the breadth of the territorial sea is 
measured. Therefore, under the CWA, the nine-mile contiguous zone 
extends beyond the three-mile territorial seas. ``Ocean'' means 
``any portion of the high seas beyond the contiguous zone.'' 33 
U.S.C. 1362(10).
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    In 1973, in relation to vessels and other floating crafts operating 
in the contiguous zone or the ocean, the EPA defined ``discharge of 
pollutant'' as ``any addition of any pollutant to the waters of the 
territorial sea, the contiguous zone or the ocean from any point source 
other than a vessel or other floating craft.'' 38 FR 13528, 13529 (May 
22, 1973).
    In 1979, the EPA expanded the regulatory definition of ``discharge 
of a pollutant'' as compared to the statutory definition by limiting 
the scope of the statutory vessel exclusion for additions of pollutants 
occurring in the contiguous zone and ocean to vessels ``being used as a 
means of transportation.'' 44 FR 32854, 32859 (June 7, 1979). The 1979 
regulatory definition remains in place and is the subject of this 
proposed rulemaking. Under the existing regulation, if a vessel or 
floating craft is not actively engaging in transport (i.e., it is not 
physically moving across the contiguous zone or the ocean), then such 
vessel or floating craft is not captured by the regulatory vessel 
exclusion. Based upon the regulatory language, for example, offshore 
seafood processor trawlers are presently not considered excluded 
vessels or other floating crafts because they engage in activity in one 
general location within the ocean or the contiguous zone and are not 
actively engaging in transport throughout the operation of the trawler 
while in the ocean or the contiguous zone. The preamble of the final 
1979 rulemaking justified the limitation of the statutory vessel 
exclusion based upon the agency's interpretation that the CWA and the 
NPDES program ``is aimed at industrial processes that occur at sea'' 
and that the CWA is ``designed to regulate routine industrial 
discharges.'' Id. The preamble failed to acknowledge or address why 
Congress treated additions of pollutants differently based upon 
geographic location of the receiving water irrespective of the type of 
source adding pollutants to the receiving water.

V. Proposed Regulatory Revisions

A. What is the Agency proposing?

    To reflect and faithfully implement the text of the CWA, the EPA 
proposes to revise the regulatory definition of ``discharge of a 
pollutant'' or ``discharge'' (and make conforming changes to the NPDES 
permit exclusion regulation at 40 CFR 122.3) to be consistent with the 
statutory definition of ``discharge of a pollutant,'' which excludes 
the addition of pollutants from vessels or other floating craft in the 
contiguous zone or ocean from the statutory definition of ``discharge 
of a pollutant'' and from the scope of the NPDES permitting program. 
This proposed rulemaking is expected to only impact the addition of 
pollutants to waters of the contiguous zone or ocean from vessels or 
other floating craft.
    The EPA proposes to remove the qualifying phrase ``which is being 
used as a means of transportation'' from paragraph (b) of the 
regulatory definition. This revision would match

[[Page 56822]]

the regulation to the statutory text of CWA section 502(12)(B), which 
excludes from the definition of ``discharge'' any addition of any 
pollutant from ``a vessel or other floating craft'' in the contiguous 
zone or ocean. To align with the ordinary meaning of ``vessel or other 
floating craft,'' the agency is also proposing to add the following 
explanatory sentence to the end of the paragraph under 40 CFR 122.2(b) 
to differentiate between ``vessel or other floating craft'' and 
``fixed'' craft: ``For the purposes of subsection (b) of this 
definition, any point source in the contiguous zone or ocean that is 
secured to the seabed is not a `vessel or other floating craft.' A 
point source is considered `fixed' or `secured' when it is either 
permanently attached to the seabed or is a buoyant facility 
substantially moored to the seabed, such that it cannot be moved 
without special effort through an undertaking from outside and separate 
from the facility, to change the location of the facility, or it is a 
mobile offshore drilling unit engaged in drilling operations.''
    The EPA proposes to also make conforming edits to the regulatory 
language at 40 CFR 122.3(a) to reflect the statutory text of CWA 
section 502(12)(B). First, as the scope of the NPDES permit requirement 
as it relates to vessels or other floating craft in the contiguous zone 
and ocean is addressed under the definition of ``discharge of a 
pollutant'' in 40 CFR 122.2, the EPA proposes to amend the language at 
40 CFR 122.3(a) so to limit the provision's applicability to only 
additions of pollutants to waters of the United States, including the 
territorial seas. The source and scope of the EPA's NPDES authority in 
waters of the United States, including the territorial seas, is 
different from the source and scope of the EPA's authority in the 
contiguous zone or ocean. This proposed rulemaking is based on the 
rationale that the current approach of addressing discharges from 
vessels and other floating craft similarly in waters of the United 
States, including the territorial seas, versus the contiguous zone and 
the ocean is inconsistent with the text of the CWA and would cause 
continued confusion.

B. Proposed Rulemaking Rationale

    The EPA proposes to revise the scope of the NPDES permitting 
regulations to reflect and faithfully implement the CWA section 
502(12)(B) statutory text defining the ``discharge of a pollutant'' in 
the contiguous zone and ocean. The applicability of the section 402 
NPDES requirements for all point source discharges into either a 
``water of the United States'' or the territorial seas is not affected 
by this proposed rulemaking.
    The proposed amended regulations would, if finalized, represent the 
best reading of CWA section 502(12)(B). In 2024, the Supreme Court 
decided Loper Bright Enters. v. Raimondo, 603 U.S. 369 and concluded 
that, the court must ``determine the best reading of the statute.''. 
Id. at 399. Accordingly, agencies are bound to implement, the ``best'' 
reading of a statute. The proposed rulemaking, if finalized, would 
revise aspects of the EPA's current 40 CFR 122.2 interpretation of the 
CWA definition of ``discharge of a pollutant,'' 33 U.S.C. 1362(12) and 
replace them with the best interpretation. The EPA has re-examined the 
language of CWA section 502(12)(B) under Loper Bright and believes that 
the current regulatory definition of ``discharge of a pollutant'' and 
its related implementing regulations are broader in scope than, and 
inconsistent with, the statutory definition of ``discharge of a 
pollutant.'' Therefore, the EPA proposes to revise the NPDES 
definitions section at 40 CFR 122.2 to reflect and faithfully implement 
the statutory scope of what is deemed a discharge of pollutants in the 
contiguous zone and the ocean.
1. 40 CFR 122.2--Definition of ``Discharge of a Pollutant''
    The EPA is proposing to revise 40 CFR 122.2 by removing the 
qualifying phrase ``which is being used as a means of transportation'' 
from paragraph (b) of the regulatory definition to match the statutory 
text at CWA section 502(12)(B). The CWA distinguishes a ``vessel or 
other floating craft'' from other point sources in those waters. 33 
U.S.C. 1362(12)(B). CWA section 502(12)(A) defines ``discharge of a 
pollutant'' as ``any addition of any pollutant to navigable waters 
[i.e., waters of the United States, including the territorial seas] 
from any point source,'' while CWA section 502(12)(B) excludes 
additions of pollutants from vessels and other floating crafts from the 
definition if the addition of pollutant occurs in the contiguous zone 
or the ocean.
    The EPA also proposes clarifying amendments to the applicability of 
the 40 CFR 122.2 exclusion for vessels or other floating craft in the 
contiguous zone or ocean that are not secured to the seabed. In doing 
so, the EPA retains and does not reopen its longstanding interpretation 
that a facility on the sea surface that is also secured to the seabed 
does not represent a ``vessel or other floating craft'' as used in the 
statutory definition of ``discharge of a pollutant,'' but rather that 
it is a point source that may discharge pollutants. 33 U.S.C. 1362(12). 
This approach is consistent with CWA section 502(12)(B).
    Under the proposal, the addition of pollutants from a free-
floating, unsecured vessel or other floating craft in the contiguous 
zone or ocean is not a discharge of a pollutant and would therefore not 
be regulated under the NPDES permitting program. By contrast, a vessel 
or other floating craft securely attached to the seabed in the 
contiguous zone or ocean would not be considered a ``vessel or other 
floating craft'' and instead would be treated as a fixed offshore 
facility. These securing attachments are different, functionally and 
structurally, from incidental anchoring or mooring to a buoy, which 
nearly every vessel or floating craft may use periodically during their 
voyages. Fixed offshore facilities do not qualify for the statutory 
vessel exclusion under CWA section 502(12)(B), and as a result, the 
addition of pollutants from these facilities would be a discharge 
subject to NPDES regulations. Dumping and other activities by vessels 
into either the contiguous zone or the ocean may be subject to other 
statutory or regulatory requirements imposed by other statutes such as 
the Marine Protection, Research, and Sanctuaries Act (MPRSA), the Oil 
Pollution Control Act of 1990 (OPA), and the Vessel Incidental 
Discharge Act (VIDA). With this proposal, the EPA does not intend to 
change the scope of such requirements under those separate statutory 
frameworks.
    The EPA is requesting comment on several key terms it presently 
intends to consider to inform any regulatory revision. Based on the 
language of the statute, the EPA seeks to determine the extent to which 
it can define the vessels and other floating craft subject to this 
revision. Consistent with its interpretation of the statutory text, the 
EPA is proposing ``vessel and other floating craft'', as relevant here, 
to apply to ``[a] craft . . . intended for navigation on water.'' 
Webster's II, New Riverside University Dictionary (1988) (emphasis 
added). A ``floating craft'' similarly represents a mode of water 
transportation; ``craft'' is defined, as relevant here, as a boat or 
ship, and a ``ship,'' in turn, is a ``large vessel adapted for deep-
water navigation.'' Id. When secured to the seabed, as described in 
this proposed rulemaking, a vessel or other floating craft cannot 
reasonably be seen as engaging in navigation on water, and thus, should 
not be considered a ``vessel or other floating craft'' within the 
meaning of CWA section 502(12)(B). There is no

[[Page 56823]]

indication in the text or legislative history of the CWA that Congress 
intended the phrase ``vessel or other floating craft'' to have anything 
other than its ordinary meaning, which centers on whether it regularly 
engages in navigation on water. Thus, when a vessel or other floating 
craft navigates in or throughout either the contiguous zone or the 
ocean, regardless of its specific operational status at any particular 
time or its other concurrent operational capacities, it is a vessel and 
its addition of pollutants into the contiguous zone or the ocean are 
not considered discharges, and are therefore excluded from NPDES 
permitting requirements.
    The EPA also seeks comment on the applicability and appropriateness 
of alternative definitions of ``vessels'' or ``other floating craft'' 
that would determine which ``vessels or other floating craft'' would 
not be deemed a ``discharge of pollutant'' in the ocean or contiguous 
zone. For example, the United States Coast Guard (USCG) relies on 1 
U.S.C. 3 to define ``vessel'' as ``every description of watercraft or 
other artificial contrivance used, or capable of being used, as a means 
of transportation on water.'' The EPA specifically requests comment on 
whether the EPA should utilize the same definition of ``vessel'' as 
provided for in 1 U.S.C. 3 or if the CWA's use of the more expansive 
phrase ``vessel and other floating craft'' encompasses a different type 
or category of vessel than contemplated and identified in 1 U.S.C. 3. 
The EPA specifically requests comment on whether the EPA should utilize 
the same definition of ``vessel'' as provided for in 1 U.S.C. 3 or if 
the CWA's use of the more expansive phrase ``vessel and other floating 
craft'' encompasses a different type or category of vessel than 
contemplated and identified in 1 U.S.C. 3.
    Unlike a vessel or other floating craft that meets the ordinary 
(i.e., navigation-focused) meaning of that term, an offshore facility 
secured to the seabed in the manner described by the proposed 
regulation cannot be said to be navigating and thus does not appear to 
be a vessel. For the purposes of this regulation, a structure may not 
be a ``vessel or other floating craft'' and therefore may not be a 
point source in the contiguous zone or the ocean if it is secured to 
the seabed when it is either permanently attached to the seabed, or it 
is a buoyant facility substantially moored to the seabed, such that it 
cannot be moved without special effort through an undertaking from 
outside and separate from the facility, to change the location of the 
facility, or it is a mobile offshore drilling unit engaged in drilling 
operations.\3\ However, the EPA seeks comment on when a structure in 
the contiguous zone or ocean may be subject to section 402 because it 
is not a ``vessel or other floating craft''. The EPA seeks comment on 
what may differentiate a structure from being a ``vessel or other 
floating craft'' including whether it is deemed ``fixed'' or 
``secured.'' The EPA also seeks comments on whether the EPA has fully 
identified all potential structures and ``vessels and other floating 
craft'' that may be impacted by this rulemaking.
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    \3\ This view is consistent with the EPA's historic 
understanding and rationale for applying the statutory exclusion for 
addition of a pollutant from a vessel or other floating craft into 
waters of the contiguous zone and ocean, articulated in its early 
regulations. As the EPA General Counsel reasoned in a General 
Counsel Opinion dated May 13, 1974, ``[I]t appears that the [CWA] 
was intended to cover ocean outfalls from land, from artificial 
islands, and from other fixed structures . . . the phrase `vessels 
or other floating craft' was intended to exclude those `vessels or 
other floating craft' which are not `fixed.''' Applying this 
reasoning, mobile oil and gas rigs, whether barges, semi-submersible 
rigs, jack-up rigs or drilling ships are all subject to FWPCA 
jurisdiction under CWA section 301 when they are engaged in drilling 
operations since at that time they are `fixed.''' All such oil and 
gas facilities are physically ``secured'' to a fixed wellhead on the 
seabed via a riser pipe.
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    In Lozman v. City of Riviera Beach, Fla., 568 U.S. 115 (2013), the 
Supreme Court of the United States held that to be a vessel under 1 
U.S.C. 3, a structure's physical ``characteristics and activities'' 
need to be such that a ``reasonable observer'' would conclude that the 
structure was designed to a practical degree to carry ``people or 
things'' on the water. Rather than relying upon any single structural 
characteristic to reach its decision, the Court instead focused on the 
phrase ``capable of being used as a means of transport[.]''
    The text of the statutory exclusion for the addition of pollutants 
from a vessel or other floating craft in the contiguous zone or the 
ocean expressly constrains the agency's regulatory discretion and EPA 
does not believe it may substantively narrow the scope of the exclusion 
without any statutory support. Based on commonly understood meanings of 
``vessel'' and ``floating craft,'' the best reading of the CWA is that 
it distinguishes between a vessel that operates freely on the water 
surface versus a land-based facility or a facility on the water surface 
that is secured to the seabed to conduct its operations.

C. Implementation

    Under this proposal, a vessel or floating craft operating as a 
mobile facility (i.e., a facility that navigates on water and is not 
secured to the seabed) that presently requires a permit under NPDES to 
add pollutants into the contiguous zone or the ocean would no longer be 
considered a discharger and therefore would not be subject to NPDES 
permitting requirements. For example, NPDES permit authorization would 
no longer be required for discharges into the contiguous zone or ocean 
from offshore seafood processor trawlers because these facilities are 
not secured to the seabed. By contrast, offshore facilities that are 
secured to the seabed to conduct their operations and add pollutants 
into either the contiguous zone or the ocean would remain point sources 
discharging pollutants subject to NPDES permitting requirements under 
the proposal.<SUP>4 5</SUP>
---------------------------------------------------------------------------

    \4\ These facilities also include surface facilities engaged in 
Offshore Oil and Gas Exploration and Commercial Recovery, whether 
from fixed platforms, drillships, or semi-submersibles that are 
secured to a wellhead on the seabed via a riser pipe.
    \5\ The EPA also issues NPDES permits for discharges from marine 
aquaculture facilities secured to the seabed of the ocean, and such 
facilities would not be deemed a ``vessel or other floating craft,'' 
would not qualify for exclusion from NPDES permitting requirements, 
and would continue to be regulated as point sources, wherever 
located in marine waters.
---------------------------------------------------------------------------

    As a general matter, the effect of this proposed regulation, if 
finalized, would be that the addition of pollutants into the contiguous 
zone or the ocean from a vessel that is not secured to the seabed would 
not be deemed a discharge and would not be subject to the NPDES 
program. This proposed regulation, if finalized, is not intended to 
implement any parts of the CWA other than sections 402 and 502, nor 
would it purport to implement any other statutes that may regulate 
releases or operations from any such vessels in the contiguous zone or 
the ocean.

D. Requests for Comment

    The EPA is seeking comment on the proposed revisions to the NPDES 
definitions regulation and exclusion regulations at 40 CFR 122.2 and 
122.3(a), respectively. The agency specifically requests input on the 
following:
    1. Any additional impacts on facilities currently subject to the 
NPDES permitting requirement that are not identified in this proposal, 
and impacts to other potentially affected sectors that may not be 
captured in the cost analysis.
    2. Alternative regulatory approaches or text that would reflect the 
best reading of the statute, or otherwise narrow or better target the 
scope of potentially affected categories of facilities, including 
suggested revisions

[[Page 56824]]

to definitions, or examples. EPA specifically requests comment on the 
proposed definitions, or any part of the proposed definitions, of 
``vessel and other floating craft'' ``secured,'' and ``buoyant 
facility'' and how these definitions align with those used by other 
agencies for the same terms (e.g., USCG).
    3. Whether to modify the regulation to codify statutory amendments 
since 1986 (see section V.A.2 of this preamble for further detail).
    4. Any information on implementation considerations for this 
proposed approach and how they relate to determining the ``best 
reading'' of CWA section 502(12)(b).
    5. Any suggestions to improve the clarity and readability of the 
proposed revisions.

VI. Supporting Information

A. Economic Impacts of the Proposed Rulemaking

    A copy of the EPA's cost analysis for the proposed rulemaking, 
titled, ``Draft Economic Analysis for the Proposed Updates to the 
National Pollutant Discharge Elimination System Definitions and 
Exclusions,'' is available in the docket for this action.

B. Children's Environmental Health

    This action is not subject to the EPA's Children's Health Policy 
(<a href="https://www.epa.gov/children/childrens-health-policy-and-plan">https://www.epa.gov/children/childrens-health-policy-and-plan</a>) because 
the proposed regulatory revisions address the implementation of the 
Clean Water Act and do not concern human health.

VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any changes 
made in response to OMB recommendations have been documented in the 
docket. The EPA prepared an economic analysis of the potential costs 
and benefits associated with this action. This analysis, ``Draft 
Economic Analysis for the Proposed Updates to the National Pollutant 
Discharge Elimination System Definitions and Exclusions,'' is available 
in the docket.

B. Executive Order 14192: Unleashing Prosperity Through Deregulation

    This action is expected to be an Executive Order 14192 deregulatory 
action. This proposed rulemaking is expected to provide burden 
reduction by narrowing the scope of the regulatory text to more closely 
align with the statutory text in the CWA. Thus, the agency anticipates 
that fewer CWA permits will be required, which will result in cost 
savings and reduced regulatory burden.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the PRA. The information collection burden for offshore 
entities currently covered by NPDES permits is accounted for under 
EPA's NPDES Program Information Collection Request (OMB control no. 
2040-0004, EPA ICR no. 0229.25). EPA is requesting a temporary control 
number (EPA ID 7830.01) to cover the information collection activities 
required under this rulemaking action, because of the concurrent timing 
of this proposed rule and the renewal of the NPDES Program ICR (OMB 
control no. 2040-0004). EPA will submit a request to merge the ICR for 
this proposed rule (EPA ID 7830.01) into the base ICR (EPA ICR no. 
0229.25) at a later date. You can find a copy of the ICR in the docket 
for this rule, and it is briefly summarized here.
    Under the proposed rule, currently permitted entities operating in 
the contiguous zone or ocean that are not secured to the seabed would 
no longer be subject to NPDES reporting and recordkeeping requirements. 
These requirements include completing and submitting notices of intent, 
notices of termination, discharge monitoring reports, noncompliance 
reports, annual reports, best management practices plans, analytic 
sampling requirements, and recordkeeping requirements. The associated 
information collection burden would be eliminated for those entities. 
In the interest of transparency and public understanding, the EPA has 
provided here relevant portions of the burden assessment of the 
proposed rule. More information about the burden assessment can be 
found in the supporting statement for the ICR.
    <bullet> Respondents/affected entities: 79.
    <bullet> Respondent's obligation to respond: Mandatory, pursuant to 
sections 301, 302, 304, 306, 307, 308, 316(b), 401, 402, 403, 405, and 
510 of the CWA; the 1987 Water Quality Act (WQA) revisions to CWA 
section 402(p); 40 (CFR) parts 122, 123, 124, and 125 (and parts 501 
and 503 for Biosolids); and the Great Lakes Critical Programs Act 
(CPA).
    <bullet> Estimated number of respondents: 0.
    <bullet> Frequency of response: 0.
    <bullet> Total estimated burden: 0 hours (per year). Burden is 
defined at 5 CFR 1320.3(b).
    <bullet> Total estimated cost: $0 (per year), includes $0 
annualized capital or operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. Submit your comments on the 
Agency's need for this information, the accuracy of the provided burden 
estimates and any suggested methods for minimizing respondent burden, 
EPA's plan to merge the ICR for this rulemaking action (EPA ID 7830.01) 
into the base ICR (0229.25), and other aspects of this collection to 
the EPA using the docket identified at the beginning of this proposed 
rule. The EPA will respond to any ICR-related comments in the final 
rule. You may also send your ICR-related comments to OMB's Office of 
Information and Regulatory Affairs using the interface at 
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this particular information 
collection by selecting ``Currently under Review--Open for Public 
Comments'' or by using the search function.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, EPA concludes that the impact of concern for 
this rule is any significant adverse economic impact on small entities 
and that the agency is certifying that this rule will not have a 
significant economic impact on a substantial number of small entities 
because the rule relieves regulatory burden on the small entities 
subject to the rule.
    Permitted offshore activities include oil and gas exploration/
production, aquaculture, and seafood harvesting/processing, but the 
proposed rule applies only to discharges from vessels or other floating 
craft that are not secured to the seabed and that occur outside waters 
of the United States. As a result, most entities, such as ocean placer 
mining (exclusively in waters of the United States), offshore oil and 
gas production (secured via risers), and most offshore aquaculture (net 
pens secured), are unlikely to be affected; the primarily potentially 
affected operations

[[Page 56825]]

are offshore seafood harvesting and processing from vessels that 
discharge in the contiguous zone or the ocean.
    Small business size for the seafood processing industry defined in 
13 CFR 121.201 for the NAICS code 311710 is 750 employees. Based on the 
industry establishment size data, small entities account for at least 
89 percent of establishments in this sector. As such, they are likely 
to account for 71 of the 79 permittees covered under the Region 10 
offshore seafood processing general permits that will benefit from the 
cost savings of this proposed rulemaking. Dividing the total NPDES 
permit requirement cost savings ($1,700,000) by the number of 
establishments (79) yields per establishment cost savings of nearly 
$22,000, which does not impose a significant adverse impact. Therefore, 
EPA estimated that 0 out of the estimated 71 small entities are 
significantly impacted by this regulation. We therefore conclude that 
this action would relieve regulatory burden for all directly regulated 
small entities. For more information, see the ``Draft Economic Analysis 
for the Proposed Updates to the National Pollutant Discharge 
Elimination System Definitions and Exclusions,'' available in the 
docket for this action.

E. Unfunded Mandates Reform Act

    This action does not contain an unfunded mandate of $100 million 
(adjusted annually for inflation) or more (in 1995 dollars) as 
described in the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538, and does not significantly or uniquely affect small 
governments. This action imposes no enforceable duty on any state, 
local, or Tribal governments or the private sector.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have Tribal implications as specified in 
Executive Order 13175. It will neither impose substantial direct 
compliance costs on federally recognized Tribal government, nor preempt 
Tribal law. The EPA directly implements the NPDES program in Indian 
Country (except in Maine); therefore, in compliance with the EPA Policy 
on Consultation and Coordination with Indian Tribes, the agency plans 
to consult with Tribal officials upon publication of the proposed 
rulemaking to provide Tribes an opportunity to provide meaningful and 
timely input into the development of the regulatory revisions.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. Therefore, this action is not 
subject to Executive Order 13045 because it does not concern an 
environmental health or safety risk. Since this action does not concern 
human health, EPA's Policy on Children's Health also does not apply.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355, May 22, 2001) because is it not 
likely to have a significant adverse effect on the supply, distribution 
of use of energy.

J. National Technology Transfer and Advancement Act

    This proposed rulemaking does not involve technical standards.

List of Subjects in 40 CFR Part 122

    Environmental protection, Water pollution control.

Lee Zeldin,
Administrator.

    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR part 122 as follows:

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

0
1. The authority citation for part 122 continues to read as follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

0
2. Amend Sec.  122.2 by revising the definition of ``Discharge of a 
pollutant'' paragraph (b) to read as follows:


Sec.  122.2   Definitions.

* * * * *
    Discharge of a pollutant means:
* * * * *
    (b) Any addition of any pollutant or combination of pollutants to 
waters of the ``contiguous zone'' or the ocean from any point source 
other than a vessel or other floating craft. This definition includes 
additions of pollutants into waters of the United States from: surface 
runoff which is collected or channelled by man; discharges through 
pipes, sewers, or other conveyances owned by a State, municipality, or 
other person which do not lead to a treatment works; and discharges 
through pipes, sewers, or other conveyances, leading into privately 
owned treatment works. This term does not include an addition of 
pollutants by any ``indirect discharger.'' For the purposes of 
paragraph (b) of this definition, any point source in the contiguous 
zone or ocean that is secured to the seabed is not a ``vessel or other 
floating craft.'' A point source is considered ``secured'' when it is 
either permanently attached to the seabed or is a buoyant facility 
substantially moored to the seabed, such that it cannot be moved 
without special effort through an undertaking from outside and separate 
from the facility, to change the location of the facility, or it is a 
mobile offshore drilling unit engaged in drilling operations.
* * * * *
0
3. Amend Sec.  122.3 by revising paragraph (a) to read as follows:


Sec.  122.3   Exclusions.

* * * * *
    (a) Any discharge of sewage from vessels, effluent from properly 
functioning marine engines, laundry, shower, and galley sink wastes, or 
any other discharge incidental to the normal operation of a vessel. 
This exclusion does not apply to rubbish, trash, garbage, or other such 
materials discharged overboard; nor to other discharges when the vessel 
is operating in waters of the United States, including the territorial 
seas, in a capacity other than as a means of transportation such as 
when used as an energy or mining facility, a storage facility or a 
seafood processing facility, or when secured to a storage facility or a 
seafood processing facility.
* * * * *
[FR Doc. 2026-18134 Filed 9-3-26; 8:45 am]
BILLING CODE 6560-50-P


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