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Are Wag Bags Legal?

This article originally appeared in the June 2008 issue.

Are Wag Bags Allowed to be Legally Used on Boats in U.S. Waters? - By Steve Morrell

Since we started selling Wag Bags last fall, I have had many people ask me if they are legal to use and will law enforcement accept them. I have researched this and my final conclusion is: Yes. They should accept them-if they know the laws. I discovered how little I really knew about Type III MSDs before this research. When I heard an FWC officer in Florida did not accept them, I realized that he probably did not really know the law either. In fact, I think few people really do. Hopefully, this will help to educate those who don't know, including those who should know the most-law enforcement. You can research this yourself to verify.

• I will use what I found on federal and Florida law, but I believe the reader will see below that federal law preempts state law and that the situation is the same in all states.
• Although, I am, by no means, a lawyer nor an expert on this law, it does not take a lawyer to research and understand the rules, although I heavily refer below to a legally drawn up and in-depth analysis of the situation by lawyers.
• Much of the below information was taken from the paper, "Florida Marine Sewage Discharge Regulation" from the Center For Governmental Responsibility, University of Florida, Levin College of Law. Quotes I use below which have no reference to them are quotes from this paper. I will refer to it below as the "University of Florida paper." The paper can be accessed at www.law.ufl.edu/conservation/pdf/marine_sanitation.pdf.
• Other parts referred to below are from the Code of Federal Regulations, CFR, which is the guide for human waste on boats that the Coast Guard uses.

Federal Law and Florida Law on MSDs

To start with, federal law preempts states from regulating MSDs, except in three instances. Those three instances have to do with houseboats and no-discharge zones, which do not affect us in this discussion. Outside these instances, if there is a Florida law regulating discharge, it is only valid if it does not conflict with federal law. Florida law-or any state law-cannot regulate MSDs.

• Federal law prohibits the manufacture, sale or operation of vessels with toilets that are not equipped with certified or labeled MSDs. There are three types of federally approved MSDs: Type I, Type II and Type III. We are only concerned here with Type III MSDs.
• Readers might think that this means that a Type III MSD must be labeled or certified to be able to be used. That's correct, but it all depends on the definitions of these words, like the word "certified," which the federal statute defines. We will get to that.

Florida law states, in Title XXIV, Chapter 327.53, the following (section 2 is about houseboats and skipped here) :

"Every vessel 26 feet or more in length which has an enclosed cabin with berthing facilities shall, while on the waters of the state, be equipped with a toilet. On a vessel other than a houseboat, the toilet may be portable or permanently installed. Every permanently installed toilet shall be properly attached to the appropriate United States Coast Guard certified or labeled marine sanitation device.

Every floating structure that has an enclosed living space with berthing facilities, or working space with public access, must be equipped with a permanently installed toilet properly connected to a Type III marine sanitation device or permanently attached via plumbing to shore-side sewage disposal. No structure shall be plumbed so as to permit the discharge of sewage into the waters of the state."

The Federal Definition of a Certified Type III MSD

The crux of the question for our discussion remains: What is a certified or labeled marine sanitation device? I know the above Florida law quote sounds redundant and confusing, but that's expected. One thing, before we move on to Type IIIs, is that portable toilets are acceptable and a case can easily be made that Wag Bags are a portable toilet. The manufacturer, PETT, calls the bags "portable, efficient, dry waste collection products." Nothing could be more portable than a Wag Bag.

• Back to the main question, which comes down to what is a certified or labeled marine sanitation device? The Coast Guard and the CFR defines what those are in 33 C.F.R. Part 159, which is the United States Code, Title 33 (Navigation and Navigable Waters), Part 159 (Marine Sanitation Devices). It describes MSDs as Type I, II and III. We will only discuss Type III here.
• Most people are going to automatically say a Type III is a holding tank. Not true, according to federal regulations. A holding tank fits the definition, but so do a lot of other options. Here is the CFR quote: "Type III marine sanitation device means a device that is designed to prevent the overboard discharge of treated or untreated sewage or any waste derived from sewage." (Italics are CFR, not mine.)
• That is a pretty broad quote. But let's dig deeper. The law goes on: "(a) No person may operate any vessel equipped with installed toilet facilities unless it is equipped with: (1) An operable Type II or III device that has a label on it under § 159.16 or that is certified under § 159.12 or § 159.12a;"
• That's pretty clear, but we must next go to the sections referred to. We are not concerned with a "device that has a label" but with certification. 159.12a (b) states that:

"(b) Any Type III device is considered certified under this section if: It is used solely for the storage of sewage and flushwater at ambient air pressure and temperature; and (2) It is in compliance with § 159.53(c)."

Obviously, it does not mention the word "holding tank" as a certified device, but leaves the situation open for broad interpretation and miscellaneous ways to fit the criteria.

Next we need to see if it complies with 159.53 (c): "Be designed to prevent the overboard discharge of treated or untreated sewage or any waste derived from sewage (Type III)."

The University of Florida paper also agrees with this information. Below is a quote from that paper:

"There is not a quantitative effluent limit for a Type III MSD. Rather the regulations require Type IIIs to be designed to prevent overboard discharge of treated or untreated sewage or any waste derived from sewage. Thus, Type III MSDs are often holding tanks, although vacuum collection, incineration, recirculation, and composting systems may also qualify as Type III MSDs.

Type III MSDs may have a through hull "Y" valve, but it may be opened only when the vessel is beyond U.S. territorial waters (three nautical miles). To secure the "Y" value in a no- discharge position, the vessel operator must either remove the value handle or use a padlock or a non-releaseable wire-tie to comply with federal law.

Finally, a Type III device will be considered certified without going through the certification process if it is used solely for the storage of sewage and flushwater at ambient air pressure and temperature' and is designed to prevent the overboard discharge of treated or untreated sewage or any waste derived from sewage."

It is clear, not only from reading the law on what a Type III MSD is in the CFR, but also in the interpretation by the University of Florida paper, that a Type III MSD can be many things and the words "holding tank" are not used as a limiting factor in that description. In fact, I never found the words "holding tank" in any federal law concerning a Type III MSD. Clearly any device which is "designed to prevent the overboard discharge of treated or untreated sewage"-to quote the federal law-qualifies as a Type III MSD.

Wag Bags not only easily and simply qualify as Type III MSDs, they could easily be called "holding tanks" themselves, because that is what they are actually doing; holding human waste to be disposed of later in a legal manner.

Just don't forget to secure the overboard discharge seacock correctly or remove the handle if you want to pass inspection.

Note: PETT, the manufacturer of Wag Bags, has received permission from every state in the United States to legally discard the product in landfills, which means they can be legally dumped in a municipal trash receptacle. If law enforcement says it must be pumped out at a pump-out station, tell them to pump it out of the Wag Bag. Wag Bags are also designed to break down in the elements after many months in a landfill, leaving them biodegradable and harmless to human life.

For those who would like to research the CFR on MSDs, go to www.mxak.org

For Florida law, go to www.leg.state.fl.us. Then go to Title XXIV, then Chapter 327, then 327.53, which is marine sanitation.