Florida-Indian River-Vero Beach to Fort Pierce Aquatic Preserve Vessel Sewage No-Discharge Zone; Tentative Affirmative Determination

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of tentative affirmative determination.

SUMMARY:

Pursuant to the Clean Water Act, the State of Florida has determined that the protection and enhancement of the quality of the waters within the Indian River-Vero Beach to Fort Pierce Aquatic Preserve (“the Preserve”) requires greater environmental protection. As such, Florida has submitted an application to the U.S. Environmental Protection Agency (EPA), Region 4, for a determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available, so that the State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters. The proposed no-discharge zone encompasses the 9,500 acres of the Preserve located in the Indian River and St. Lucie counties. The Preserve extends 12 miles from the southern Vero Beach corporate limit south to the north U.S. Highway A1A bridge in Fort Pierce. Through this notice, EPA is soliciting public comment on the Agency's tentative affirmative determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters subject to the proposed no-discharge zone.

DATES:

Comments must be received on or before September 5, 2024.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R04-OW-2024-0379, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from www.regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) 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). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Jennifer Dimaio, Ocean, Wetlands, and Streams Protection Branch, Water Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960; telephone number: (404) 562-9268; email address: dimaio.jennifer@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

Notice is hereby given that the State of Florida submitted an application on July 3, 2024, to the U.S. Environmental Protection Agency, Region 4, for a determination under Clean Water Act section 312(f)(3) that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the Preserve.

EPA's role under Clean Water Act section 312(f)(3) is to review State applications to determine whether adequate pumpout and treatment facilities are reasonably available. Applications submitted pursuant to section 312(f)(3), in accordance with 40 CFR 140.4, must include: (1) a certification that the protection and enhancement of the waters described in the petition require greater environmental protection than the applicable Federal standard; (2) a map showing the location of commercial and recreational pumpout facilities; (3) a description of the location of pumpout facilities within waters designated for no discharge; (4) the general schedule of operating hours of the pumpout facilities; (5) the draught requirements on vessels that may be excluded because of insufficient water depth adjacent to the facility; (6) information indicating that treatment of wastes from such pumpout facilities is in conformance with Federal law; and (7) information on vessel population and vessel usage of the subject waters. A copy of Florida's application, as well as a memorandum summarizing conversations between EPA and the State, are available in the docket.

After consideration of all comments received, if EPA makes a final determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the Preserve, the State of Florida may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into those waters through the designation of a no-discharge zone. Vessels with installed toilets are required to operate U.S. Coast Guard-approved marine sanitation devices (MSDs). MSDs are either flow-through systems—Type I or Type II MSDs—that treat sewage before discharging to surrounding waters or holding tanks—Type III MSDs—that retain sewage onboard. Upon designation of a vessel sewage no-discharge zone, vessels with flow-through systems that operate within the zone's boundaries would need to retrofit to holding tanks to prevent any overboard discharge. These vessels would then require access to pumpout facilities to empty their holding tanks. Alternatively, U.S. Coast Guard regulations at 33 CFR 159.7(b) specify four methods of securing a flow-through MSD to demonstrate compliance with a no-discharge zone. These methods include: (1) closing the seacock and removing the handle; (2) padlocking the seacock in the closed position; (3) using a non-releasable wire-tie to hold the seacock in the closed position; or (4) locking the door to the space enclosing the toilets with a padlock or door handle key lock. EPA must determine whether adequate facilities are reasonably available to those vessels that would require pump outs to support the designation of a no-discharge zone.

II. Application Information and Determination

A. Proposed Waters and Certification of Need

As described in its application, the State of Florida has determined that the protection and enhancement of the quality of the waters within the Preserve requires greater environmental protection than is afforded by the applicable Federal standard. The proposed no-discharge zone encompasses the entirety of the Preserve, as delineated in Chapter 258.39, Florida Statutes (F.S.), as described in the Official Records of Indian River County in Book 368, pages 9-12, and in the Official Records of Saint Lucie County in Book 187, pages 1083-1086. The proposed no-discharge zone includes a segment of the Atlantic Intracoastal Waterway between approximately mile 953.5 (North 27 degrees 37.6153 minutes, West 80 degrees 22.1865 minutes) and mile 964.8 (North 27 degrees 28.3272 minutes, West 80 degrees 19.4741 minutes). The 9,500-acre Preserve extends 12 miles from the southern Vero Beach corporate limit to the north U.S. Highway A1A bridge in Fort Pierce and includes Big Starvation Cove, Wildcat Cove, and Fort Pierce Cut.

The Florida Department of Environmental Protection's Office of Resilience and Coastal Protection administers the Preserve as part of a network that protects the State's most popular and ecologically important waters. The Preserve lies within the Indian River Lagoon, one of the most biologically diverse estuaries in North America and is also designated as an Estuary of National Significance and an Outstanding Florida Water (Chapter 62-302, Florida Administrative Code (F.A.C.)). As referenced in the State of Florida's application, the East Coast Florida Regional Planning Council and Treasure Coast Regional Planning Council estimated the total annual value of the lagoon to be $7.6 billion in 2014.

The waters in parts of the Preserve do not meet all applicable water quality standards and have been identified by the State of Florida as impaired by nutrients and fecal coliforms. A nutrient Total Maximum Daily Load for the Preserve was adopted by the State of Florida in March 2009 and is included in the State's 2021 Central Indian River Lagoon Basin Management Action Plan.

In 2021, the Florida Legislature passed Senate Bill 1086 creating Chapter 327.521, F.S., designating, upon approval from EPA, all waters within the boundaries of aquatic preserves identified in Chapter 258.39, F.S., as no-discharge zones. The State of Florida's application and this notice pertain only to the Preserve.

B. Adequacy and Availability of Pumpout Facilities

EPA's analysis of the reasonable availability of adequate facilities considers the number of recreational and commercial vessels that use the proposed waters on both a regular and transient basis. To estimate the number of vessels operating in the proposed waters, the State of Florida used registration data from the Florida Department of Highway Safety and Motor Vehicles and determined that there are approximately 26,000 vessels registered in the Indian River and St. Lucie counties. There is high vessel usage both inside and outside of the Preserve without significant seasonal variation. About 25,000 of the vessels registered in the two counties are for recreational purposes. In consideration that the Preserve encompasses only 25 percent of the water area in the two counties, the State of Florida estimates that 25 percent of the approximately 25,000 recreation vessels, or 6,209 recreational vessels, would operate within the proposed waters. To estimate how many of these 6,209 vessels have MSDs onboard, the State of Florida used the “Recreational Vessel Worksheet” from EPA's Guidance for Vessel Sewage No-Discharge Zone Applications (Clean Water Act Section 312(f)). The Worksheet provides default values for the percent of vessels, by length, that are expected to have an MSD onboard. Based on these calculations, about 1,534 recreational vessels are likely to require pumpout services if a no-discharge zone is designated.

The State of Florida also estimates that there are 823 commercial vessels operating in the Preserve, largely on a transient basis, in the fishing and boating industries ( e.g., construction, charter boats, and towing). Most of these vessels (637) are under 26 feet in length, and the State of Florida does not expect these smaller vessels to be equipped with an installed toilet. By extension, these vessels would not have MSDs onboard and would not require pumpout services if a no-discharge zone is designated. The basis for this assumption is that Florida law only requires those vessels 26 feet or more in length that have an enclosed cabin with berthing facilities to be equipped with a toilet (either portable or permanently installed). The State of Florida also provided information regarding a 48-slip marina that supports commercial fishing vessels 40 to 60 feet in length, noting that it is the only marina in the vicinity of the Preserve for commercial vessels over 40 feet. The marina and fishing fleet owner indicated to the State of Florida that these vessels are engaged in offshore day trips, traveling briefly through the southern border of the Preserve before departing into the Atlantic Ocean. The owner also explained that the vessels either do not have MSDs or, if a vessel is equipped with a toilet, the crew will lock the toilet (consistent with U.S. Coast Guard regulations at 33 CFR 159.7(b)) so that it cannot be used until offshore. Based on the foregoing information—that neither vessels under 26 feet in length (637) nor vessels over 40 feet in length (40) are expected to require pumpout services—there are 146 commercial vessels between 26 and 40 feet in length that may be affected by a no-discharge zone designation.

The State of Florida acknowledges that some vessels may be excluded from accessing available pumpout facilities due to draft limitations, since the authorized depth of the nearby Intracoastal Waterway is 12 feet. The State of Florida explained that any “draft excluded” vessel would not be originating in the Preserve and reasoned that these transient vessels with flow-through MSDs could refrain from discharging during the period of time ( i.e., 30 minutes to one hour) it would take to traverse the no-discharge zone. As such, the State of Florida does not expect any vessels to be excluded from operating within the Preserve despite draft limitations associated with the identified pumpout facilities.

In support of its application, the State of Florida provided information on the available pumpout facilities that can service the vessels that operate within the Preserve. Eight marinas with stationary pumpout facilities are located within approximately two miles of the Preserve. One of the eight pumpout facilities is a private, members-only facility, and the remaining seven are publicly accessible. The seven publicly accessible pumpout facilities dispose of collected sewage directly to a wastewater treatment plant ( i.e., either the Fort Pierce Utilities Authority or the City of Vero Beach Wastewater Treatment Plant). The private pumpout facility contracts with a licensed septage hauler.

The State of Florida also provided information on two mobile service providers that operate pumpout trucks that can service vessels operating in and around the Preserve. In addition to reviewing the information provided in the State of Florida's application, EPA contacted the two providers to request additional information regarding their operations and availability to vessel operators in the Preserve. The first provider, Marine and RV Pumping ToGo, services Miami to Fort Pierce and operates nine trucks with capacities between 900 and 1,500 gallons. The provider charges a base fee of 200 dollars for a pumpout, increasing from there based on gallons pumped and distance traveled. The second provider, Coastal Tank, is based out of Fort Lauderdale but offers services between Key West and the Florida-Georgia border on the Atlantic Coast. Coastal Tank operates three trucks with a capacity of 4,000 gallons and typically charges between 650 and 1,300 dollars for a pumpout depending on factors, such as distance traveled. The second provider typically services the superyacht industry and focuses on oil and tank cleanings, but also provides sewage pump out services. A memorandum is available in the docket which summarizes EPA's conversations with the two providers and includes additional details regarding their services.

To determine whether sewage pumpout capacity for recreational vessels is sufficient to meet demand during periods of peak usage in the Preserve, EPA compared the number of vessels needing pumpout service during peak usage with the number of vessels supported by existing pumpout facilities within the proposed no-discharge zone. In its application, the State of Florida provided a completed copy of the “Recreational Vessel Worksheet” discussed earlier in this notice. Based on the total number of vessels operating during peak usage ( e.g., a holiday weekend), the number of vessels serviced per hour by each facility, and the hours of operation for each facility, the Worksheet generates a recommended number of pumpout facilities to provide a reliable level of service for the recreational vessel population within a proposed no-discharge zone. Of the 1,534 recreational vessels expected to have MSDs onboard, the Worksheet assumes that 40 percent of those vessels would be operating during peak usage, such as a holiday weekend. In this case, 614 recreational vessels are expected to require access to pumpout facilities during peak usage, but up to 778 recreational vessels can be served by existing pumpout facilities ( see Section 3.1 of the State of Florida's application, available in the docket, for the completed worksheet). As such, EPA expects that adequate pumpout facilities are available to handle expected demand during periods of peak recreational boating. Additionally, the ongoing cost for recreational vessels to access these facilities is minimal, with most of the facilities charging only five dollar per use. Information regarding each pumpout facility, including location, operating hours, and fees, can be found in Table 1.

Because commercial vessels incur additional types of costs associated with accessing pumpout facilities that recreational vessels do not, EPA evaluated the adequacy and reasonable availability of facilities for commercial vessels using the “No-Discharge Zone Cost Analysis Tool” from EPA's Guidance for Vessel Sewage No-Discharge Zone Applications (Clean Water Act Section 312(f)). The Tool, which relies on a mix of default values and information provided in the State of Florida's application, conducts a screening analysis to calculate how frequently the demand for pumpout facilities ( i.e., the volume of sewage produced by commercial vessels) is projected to exceed commercial vessel pumpout facility capacity ( i.e., the volume of sewage that can be pumped out) across a typical year. Then, the cost analysis portion of the Tool generates an estimate of the percent increase in baseline operating costs that commercial vessels may incur as a result of using pumpout facilities if the no-discharge zone is established. While the State of Florida's application reiterates that not all registered commercial vessels would be operating in the proposed no-discharge zone because it only covers 25 percent of the water area of the two counties, EPA conservatively assumed that all 146 commercial vessels between 26 and 40 feet in length would require pumpout services when populating the Tool. EPA also assumed that one-third of these 146 vessels were working vessels ( e.g., tugboats) and two-thirds were fishing vessels. Regarding available pumpout facilities, EPA included the seven publicly accessible facilities but conservatively did not include the private facility since it is unclear how many vessels can be serviced there. The two mobile service providers were also not included in the Tool because vessels are largely expected to access the stationary facilities due to convenience and cost.

EPA's screening analysis showed that demand for pumpout services is never expected to exceed capacity in the Preserve, indicating that sufficient pumpout capacity is available for commercial vessels. In fact, capacity greatly exceeds demand, and EPA expects that this capacity surplus would be sufficient even if both recreational and commercial vessels were accessing the facilities during peak usage. EPA also considered the various costs incurred by commercial vessels associated with accessing facilities, including pumpout fees and lost revenue due to the time spent pumping out. The Tool showed that the tugboat category, used as a catch all for the working boats in the area, would incur a 0.8 percent increase in baseline operating costs, while commercial fishing vessels would incur a 6.3 percent increase. Almost all of this increase is attributable to lost revenue due to the time it takes to pump out sewage from a vessel; however, these costs would only be incurred when the vessel operator is forgoing work in favor of pumping out sewage. In other words, if the vessel can pump out sewage in between fishing trips, then revenue is not being lost. The true percent increase, therefore, is likely much lower on the basis that vessel operators should be able to time their pumpout activities to minimize cost impacts and, more generally, EPA used conservative values in populating the Tool. As discussed, most of these vessels are believed to be transient and not likely to be impacted in any meaningful way by the designation of a no-discharge zone. As such, EPA determined that facilities are reasonably available to these vessels. A copy of the completed Tool that includes the calculations and underlying assumptions is available in the docket.

The wastewater treatment plants that receive sewage from the stationary pumpout facilities are the Fort Pierce Utilities Authority (FPUA) Wastewater Treatment Plant (WWTP) and the City of Vero Beach WWTP. The FPUA WWTP has a permitted capacity of 10 million gallons per day annual average daily flow (MGD AADF). The FPUA is in the process of relocating the WWTP five miles inland from its current location and has a projected fully operational date in late 2027. The relocated WWTP will be rated at 8 MGD AADF with a peak flow of 24 MGD and can be increased to 30 MGD to accommodate future growth. The City of Vero Beach WWTP has a permitted capacity of 4.5 MGD AADF. The State of Florida anticipates that the City of Vero Beach will replace and relocate this WWTP in early 2027 with a WWTP to be located further inland with a capacity of 5 MGD AADF. The State of Florida indicated that capacity analysis projections demonstrate that the City of Vero Beach WWTP's current design capacity would not be exceeded within a ten-year timeframe. Despite some deficiencies regarding reporting, exceedances, and unresolved discharges over the last few years, the State of Florida indicated that both WWTPs are in compliance with effluent limits. Additionally, based on best available information, the State of Florida explained that the capacity loads of these WWTPs would not be meaningfully impacted by the likely increase in the volume of sewage treated by the WWTPs that may result from establishment of a no-discharge zone. In support of its application, the State of Florida provided capacity reports for the two WWTPs. These reports are available in the docket.

C. Determination

In summary, EPA finds that adequate facilities for the safe and sanitary removal of sewage are reasonably available to recreational and commercial vessels within the Preserve. This analysis included an assessment of whether existing pumpout facilities could meet the expected demand during periods of peak usage, as well as a consideration of the costs associated with accessing and using those facilities. EPA finds that both recreational and commercial vessels would incur minimal costs to access pumpout facilities. Finally, EPA finds that sewage is handled in conformance with Federal law by the pumpout facilities and the associated wastewater treatment plants.

Based on the information above, EPA Region 4 hereby makes a tentative affirmative determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are available for the waters of the Preserve in the State of Florida. EPA is seeking public comment on the contents of Florida's application and EPA's tentative affirmative determination.