As a participant in the National Shellfish Sanitation Program, the Commonwealth of Virginia works as a partner with the federal government to ensure that interstate shellfish shipments originating in Virginia are safe for human consumption. If the federal government determines that a stale shellfish control program offers the necessary protection, it will endorse interstate shipments from that state. If endorsement is not given to a state, it can destroy the shellfish industry there.

The Virginia Department of Health Is understandably anxious to maintain federal endorsement of its shellfish sanitary control program. In order to do so, it must properly classify the areas from which shellfish are taken as approved or not approved. Those which are approved must be protected from all raw sewage discharge, as well as industrial and radioactive wastes. In addition, they must meet a Fecal Coliform Standard of 14 per 100 milliliters. No shellfish may be taken from non-approved areas.

In Its administration of this program, and more particularly in an attempt to protect shellfish areas from raw sewage discharges, the Health Department has sought to require the retention of sewage on all vessels within shellfish areas. Some boaters argue that shellfish areas can be protected adequately through the use of "flow-through" devices, which release treated sewage into the water. The Health Department fears that the introduction of any sewage, even if treated, into shellfish areas is dangerous. For several years now the Department, together with the State Water Control Board, has been attempting to implement regulations requiring that vessels kept in certain waters of the Commonwealth have holding tanks. The regulations have also sought to ensure that marinas in these areas have adequate facilities to remove sewage from these holding tanks.

The enforcement of these regulations bas been complicated by federal statutes and regulations. Provisions of the Federal Water Pollution Control Act forbid states and other political subdivisions from adopting or enforcing regulations pertaining to marine sanitation devices after January 30, 1977, for new vessels, and January 30, 1980, for all other vessels with installed toilets. Marine sanitation device (MSD) is a term used to identity all those appliances installed on vessels to prevent the discharge of untreated sewage into water. The most common types of MSD's are those already described above – holding tanks and flow-through devices.

The regulations originally adopted to implement the federal act would have required either holding tanks or flow-through devices producing no more than 200 fecal coliform per 100 milliliters. Because of technological deficiencies, however, the Coast Guard changed the MSD requirement for vessels under 65 feet; they may utilize MSD's which produce up to 1,000 fecal coliform per 100 milliliters.

Only if it determines that some of its waters need protection greater than that given by federal statutes and regulations can a state supersede these federal provisions. In such cases, a state can completely prohibit discharges of treated or untreated sewage. In doing so, however, it must petition the U.S. Environmental Protection Agency (EPA) for a finding that sufficient pump-out facilities can be found at marinas in an area with a ban to serve vessels in that area.