The state is proposing new environmental regulations for boatyards that would impose stricter water standards, but give struggling boatyards more time meet the new requirements while protecting them from citizen lawsuits.

The Washington Department of Ecology has issued a draft Boatyard General Permit that would impact about 100 boatyards around the state. The permit sets stricter limitations for the amount of copper boatyards located on saltwater can flush into stormwater drains, lowers the copper limitations for boatyards located on freshwater and introduces a new limitation on zinc. Public meetings on the permit will be held next week in Lacey and Everett, and Ecology is accepting comments on the permit until May 28 (see below).

Many boatyards will need to install costly water treatment systems to bring water-borne pollutants down to acceptable levels. Recognizing that boatyards have been hit hard by the recession, Ecology has included a provision in the permit that would allow struggling boatyards to request a hardship certification. The provision follows an economic impact study which found that more than 20 percent of Washington boatyards can’t afford to install the treatment systems.

If granted the certification from Ecology, the boatyards would have five years – the length of the permit – to install water treatment systems. Those boatyards would be subject to even more stringent pollution limits based on water quality, rather than the more lenient “technology-based” benchmarks applicable to the other boatyards, which are based on the water treatment methods currently available.

The boatyards subject to the stricter standards would also be protected for the duration of the permit from citizen lawsuits, according to Ecology. That will be of great interest to boatyards, which have been fearing the possibility of citizen lawsuits since last December, when environmental watchdog group Puget Soundkeeper Alliance (PSA) threatened to sue five Seattle area boatyards over alleged violations of the Clean Water Act.

Gary Bailey, Ecology’s water quality permit specialist, said the department didn’t set out to protect boatyards when drafting the permit. Under the federal Clean Water Act, he said, Ecology can only implement a compliance schedule for struggling boatyards if it imposes stricter “water quality-based” standards on those yards. Under the law, boatyards subject to the stricter standards are protected from citizen lawsuits during the compliance period, Bailey said.

“We didn’t do it to protect anybody,” he said. “This was the legal mechanism that we had in this permit for working through the fact that some folks can’t install treatment systems at this time. The only option that we could see is to give these folks an opportunity to raise money, and do that through a period of time.”

Mixed reation

That explanation is not likely to satisfy PSA, which could appeal the proposed permit. Its executive director, Bob Beckman, has said boatyards were aware of water quality standards before the recession hit. He accuses some boatyards of dragging their heels in installing water treatment systems, while others – such as Seaview Boatyard and Canal Boatyard – stepped up and implemented the systems, at considerable expense.

Beckman did not respond to several requests to discuss the proposed permit, which has been met with mixed reaction from other stakeholders. Chip White of CSR Marine, one of the boatyards targeted by PSA, said the permit is confusing and makes unreasonable demands of boatyards.

As an example, White cited a requirement that all boatyards draft a stormwater pollution prevention plan and explain how best management practices to carry out the plan were determined, to what degree those practices are expected to reduce pollution and the technical basis for those expectations.

“How could you possibly believe that a small business with less than 50 employees and sometimes less than 20 employees has the resources to meet this requirement?” he said.

White also said he’s unconvinced that the permit will protect hardship-certified boatyards from citizen lawsuits, since that isn’t specifically stated in the document.

“There’s nothing in there that says I can’t be sued,” he said. “I don’t really trust anybody any more on this whole issue.”

The permit proposes stricter benchmarks for copper and zinc, but a more lenient limit for lead. Benchmarks are considered target levels and are not legally enforceable, while limits are legally enforceable levels. The permit also sets the same benchmarks for boatyards on freshwater and saltwater.

The previous permit set stricter benchmarks for boatyards on Lake Union and the Seattle ship canal, but an Ecology water study during the winter of 2008 and 2009 showed that levels of copper, lead and zinc were below problem levels in both bodies of water, alleviating the need for stricter limits.

The new permit proposes a copper benchmark of 147 parts per billion (ppb) daily, versus the old benchmark of 38 ppb for boatyards on freshwater and 229 for those on saltwater. The proposed benchmark for zinc is 85 ppb, while the limit for lead changes from 55.6 ppb to 185 ppb. The lake is expected to soon be removed from Ecology’s list of impaired waterways.

George Harris, president of the Northwest Marine Trade Association, which represents boatyards, said using technology-based limits in the permit is “sensible.” But Harris said he’s concerned about the strict limits that would apply to boatyards receiving the hardship provision.

“It seems like you’re trading time for effluent limits that are very strict,” he said. “And I think most businesses wouldn’t want to do that if they really understand the permit.”

Harris said he’ll be consulting with the NMTA’s environmental attorney and preparing written comments to submit before the May 28 deadline. “We’re still studying (the permit),” he said.

Marina Hench, the NMTA’s director of government affairs, said she’s skeptical that boatyards would be able to meet the stricter effluent limits with the water-treatment technology that’s currently available.

“I think it’s fair to say that the Department of Ecology did the best they could to make the permit as reasonable as possible,” she said. “It seems that while a hardship provision could be a useful mechanism, the way the law is written and the precedents that have been set on this issue make it not really palatable to boatyards to actually use, because of the effluent limits and the low numbers.”

Bailey, however, said he’s confident that as technology continues to evolve, boatyards will be able to achieve the tighter water quality standards.

“I think the technology will improve,” he said. “And when treatment devices are under close attention and being monitored, they performed better than what we’re finding on a day-to-day basis in some of the boatyards. The water quality-based limits should be achievable in a couple of years.”

Public meetings and comments

Public meetings will be held on the draft general permit on:

• Monday, May 24 at 1 p.m., the Department of Ecology, 300 Desmond Drive, Lacey
• Wednesday, May 26 at 1 p.m., Everett Public Library, 2702 Hoyt Ave., Everett

Ecology will be accepting written comments on the draft permit until 5 p.m. Friday, May 28. Email comments are preferred and can be sent to gary.bailey@ecy.wa.gov Comments can also be mailed to: Gary Bailey, Department of Ecology, P.O. Box 47600, Olympia, WA., 98504-7600.

A fact sheet and the draft permit can be accessed here.

About Deborah Bach

Deborah Bach is the editor and co-founder of Three Sheets Northwest. She is an avid sailor and long-time professional journalist. You can find Deborah aboard Three Sheets, an Island Packet 38, with her husband Marty and their cat Lily.

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