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No Discharge Zones

No discharge sign.

No discharge sign at on the Lynnhaven River. ©Margaret Pizer/VASG

No discharge sign.

No discharge sign at on the Lynnhaven River. ©Margaret Pizer/VASG

Virginia Marine Resource Bulletin
Volume 42, Number 1, Winter 2010
By Margaret Pizer

Three years ago, the Lynnhaven River in Virginia Beach became the Commonwealth’s first tidal creek to be designated as a No Discharge Zone (NDZ)—meaning that all boats are prohibited from releasing treated or untreated sewage into the river. Now, a bill passed by the State Assembly and signed by Governor Kaine last March aims to open the way for other tidal creeks to follow suit.

“The tidal creeks of the Commonwealth are hereby established as no discharge zones,” says part of the legislation. A literal reading of that sentence has led to some understandable alarm and confusion in the boating community, but the immediate impact of the law will be less dramatic.

“The legislation might make it easier to go through the process of designating an NDZ, but it doesn’t take the place of that process,” explains Karen Forget, Executive Director of Lynnhaven River Now, a nonprofit group that was instrumental in getting the Lynnhaven designated as an NDZ. “It took us about two and a half years to work through the process from the initial application to designation.”

No Confusion Zone
One of Jeff Chanat’s jobs is to clear up any confusion about NDZs in Virginia. He’s the state Department of Environmental Quality’s (DEQ) point person for the NDZ designation process. Despite the language quoted above, says Chanat, the legislation “doesn’t do anything to create NDZs, because that is a federal designation. The law is a resolution that all the tidal creeks within Virginia should become NDZs as soon as practical, and it’s a mandate to the Virginia DEQ, which is the state agency responsible for designation, that we pursue that goal.”

Because NDZs are federally designated, the state has to apply to the EPA to get the designation for a particular area, which could be defined as a single creek, or a group of creeks within a region. To win EPA approval, an NDZ must contain adequate alternatives to discharge, including pumpout facilities at local marinas or access to portable pumpout equipment. A second and equally important criterion is public support. “We really have to demonstrate to the EPA that we are not forcing this down anyone’s throat—that the local community, the boating community, and the community at large are behind the idea,” says Chanat.

The primary idea motivating the designation of NDZs is to prevent the release of fecal bacteria into waterways. “Human fecal bacteria are a problem in tidal creeks for a couple of reasons,” explains Chanat. “First, they are simply indicators of pollution by human sewage,” which could also contain pathogens such as viruses, protozoa, or other more dangerous bacteria. “Also, any sewage dumped from vessels contains nutrients—nitrogen and phosphorous—which contribute to the huge nutrient problem that we already have in tidal creeks.’’

Chanat says that one discharge of raw sewage can have a huge impact in a small tidal creek. “A boating party of four adults going out for one weekend in one of these smaller creeks, assuming the water was completely pristine before they got there, could bring [water quality] down below shellfish standards for bacteria if they discharge their sewage. It doesn’t take a lot of untreated sewage to make a big difference.’’

The Clean Water Act of 1972 outlawed the dumping of raw sewage in U.S. navigable territorial waters and specified requirements for marine sanitation devices (MSDs), which are devices for storing or treating sewage on board vessels. MSDs that simply store untreated sewage and optionally discharge it are referred to as type three devices. Type one and type two MSDs provide varying levels of treatment to the bacteria prior to releasing it.

“It has been against the law to discharge a type three device anywhere in territorial waters for a long time,” explains Chanat. “What the No Discharge Zone idea puts forth is that maybe we don’t want to dump anything whatsoever. So what NDZs regulate is the small proportion of boaters who have type one or two devices, who could otherwise legally discharge but would not be able to under the NDZ law.”

Lynnhaven River Success
NDZ designation can be initiated internally by DEQ or externally by any local municipality, county, or city, but either way the guidelines and process are basically the same. In the case of the Lynnhaven, the city of Virginia Beach initiated the process. “The city was the applicant and a really strong advocate of doing this,” says Karen Forget of Lynnhaven River Now. “We held several community meetings, followed all the guidelines for public announcement, had a comment period for the federal, state, and local designations, and we had very little opposition.”

Forget says the Lynnhaven cleanup has been a huge success—as a result not only of NDZ designation, but a variety of other efforts, including sewage system improvements on land and a vigorous campaign to get dog owners to “scoop the poop” deposited by their pets.

The state Department of Health shellfish sanitation division has 36 test spots in the Lynnhaven because it was historically a rich oyster ground. “Before 2006, virtually the entire river was closed to shellfish harvest” because of high bacteria levels, says Forget. After NDZ designation, the percentage of the river open to shellfish harvest increased dramatically, reaching 31 percent in 2008. “That’s a really big accomplishment,” says Forget, “because the fecal coliform standard for shellfish harvest is very rigorous.”

Full Speed Ahead?
Despite this success, both Chanat and Forget emphasize that boaters are not the only contributors to pollution in tidal creeks.

“I wouldn’t want anybody to think that boats were the whole problem because they aren’t, and boaters are pretty sensitive about that,” says Forget. “The majority of boaters are going to do the right thing but there’s a small percentage who are not going to and having the threat of being levied a big fine is really important to get complete compliance. Complete compliance is what you really have to have because just one illegal discharge pollutes a huge area of a river.”

But NDZ designation irks some boaters who consider themselves environmentally conscious, says Keith Jones, an avid boater and owner of Compass Marina in Mobjack, Virginia. “There’s no good data about how much boaters are contributing to the problem. If they are [discharging raw sewage] they’re doing it illegally, and no one is really discussing the efficacy of the on-board treatment systems.” Jones and others argue that these systems effectively remove bacteria and pathogens from treated waste, and that restricting the discharge of treated sewage does little to improve water quality. “All you’re affecting [with NDZs] is a small percentage of the boaters who actually installed MSDs because they cared about the environment in the first place.”

Proponents argue that posting NDZ signage makes all boaters more aware of discharge restrictions and that if designation helps prevent even one illegal discharge of raw sewage, the benefits will outweigh the inconvenience to boaters with type one or two devices. On that logic, several Virginia communities are moving ahead with NDZ designation. “The biggest initiative that we have right now is on the Northern Neck,” says DEQ’s Chanat. “This was initiated internally from DEQ with broad indications of support from county governments and other local stakeholders.” DEQ is contracting with the Northern Neck Planning District Commission to do the legwork necessary to prepare those applications, which consists of estimating the local and transient boat traffic, determining marina locations and the operational status of pumpouts, and conducting public outreach and education.

In addition, an application to designate Jackson Creek, Broad Creek, and Fishing Bay—all in the Deltaville area—as NDZs was approved by EPA in late August 2009; the federal designation was adopted as Virginia law in late October of that year.

“We’re working with the Virginia Aquarium on another application right now for Rudy Inlet and Owl creek [in Virginia Beach],” says Forget, who sees these local, watershed-based efforts as the key to cleaning up the Bay. “Even people who would never in a thousand years identify themselves as environmentalists will get behind an effort that is in their community, where they understand exactly what’s being done and they see the results.”