Ballast water regulation in the United States

Ballast water discharge typically contains a variety of biological materials, including plants, animals, viruses, and bacteria. These materials often include non-native, nuisance, exotic species that can cause extensive ecological and economic damage to aquatic ecosystems. Ballast water discharges are believed to be the leading source of invasive species in U.S. marine waters, thus posing public health and environmental risks, as well as significant economic cost to industries such as water and power utilities, commercial and recreational fisheries, agriculture, and tourism.^[1] Studies suggest that the economic cost just from introduction of pest mollusks (zebra mussels, the Asian clam, and others) to U.S. aquatic ecosystems is more than $6 billion per year.^[2]

The zebra mussel, native to the Caspian and Black Seas arrived in Lake St. Clair in the ballast water of a transatlantic freighter in 1988 and within 10 years spread to all of the five neighbouring Great Lakes. The economic cost of this introduction has been estimated by the U.S. Fish and Wildlife Service at about $5 billion.

Congress passed the National Invasive Species Act of 1996 in an attempt to control aquatic invasive species. The Coast Guard issued ballast water regulations, pursuant to NISA, in 2012. The Environmental Protection Agency (EPA) has issued discharge permits for controlling ballast water under Clean Water Act authority.

United States regulation of ballast water discharge

National Invasive Species Act

Congress passed the National Invasive Species Act in 1996.^[3] Organisms targeted by NISA are categorized as aquatic nuisance species, including in particular zebra mussel and the Eurasian ruffe. NISA authorizes regulation of ballast water, a key factor in the spread of aquatic invasive species. The Coast Guard issued ballast water regulations, pursuant to NISA, in 2012.^[4]

Clean Water Act

Because of the growing problem of introduction of invasive species into U.S. waters via ballast water, in January 1999, a number of conservation organizations, fishing groups, native American tribes, and water agencies petitioned EPA to repeal its 1973 regulation exempting ballast water discharge under the Clean Water Act (CWA). They argued that ballast water should be regulated as the “discharge of a pollutant” under the National Pollutant Discharge Elimination System (NPDES) permit program. EPA rejected the petition in September 2003, saying that the “normal operation” exclusion is long-standing agency policy, to which Congress has acquiesced twice (in 1979 and 1996) when it considered the issue of aquatic nuisance species in ballast water and did not alter EPA’s CWA interpretation. Further, EPA said that other ongoing federal activities related to control of invasive species in ballast water are likely to be more effective than changing the NPDES rules. Until recently, these efforts to limit ballast water discharges by cruise ships and other vessels were primarily voluntary, except in the Great Lakes. Since 2004, all vessels equipped with ballast water tanks must have a ballast water management plan.

After the denial of their administrative petition, the environmental groups filed a lawsuit seeking to force EPA to rescind the regulation that exempts ballast water discharges from CWA permitting. In March 2005, a federal district court ruled in favor of the groups, and in September 2006, the court remanded the matter to EPA with an order that the challenged regulation be set aside by September 30, 2008.^[5] The district court rejected EPA’s contention that Congress had previously acquiesced in exempting the “normal operation” of vessels from CWA permitting and disagreed with EPA’s argument that the court’s two-year deadline creates practical difficulties for the agency and the affected industry. Significantly, while the focus of the environmental groups’ challenge was principally to EPA’s permitting exemption for ballast water discharges, the court’s ruling — and its mandate to EPA to rescind the exemption in 40 CFR §122.3(a) — applies fully to other types of vessel discharges that are covered by the regulatory exemption, including graywater and bilge water.

In June 2007, EPA initiated steps seeking public comment on regulating ballast water discharges from ships, an information-gathering prelude to a potential rulemaking in response to the district court’s order. In 2008 the Agency published a general permit regulating vessel discharges. The permit contained requirements to use best management practices for controlling ballast water, but did not include numeric pollutant discharge limits.^[6]

The 110th Congress (2007-2008) considered ballast water discharge issues, specifically legislation to provide a uniform national approach for addressing aquatic nuisance species from ballast water under a program administered by the Coast Guard.^[7] Some groups opposed the legislation because it would have preempted states from enacting ballast water management programs more stringent than Coast Guard requirements, while the CWA does allow states to adopt requirements more stringent than in federal rules. Also, while the CWA permits citizen suits to enforce the law, the pending legislation would have included no citizen suit provisions.

To minimize the spread of invasive species in U.S. waterways, EPA and the Coast Guard developed plans to regulate the concentration of living organisms discharged in the ballast water of ships.^[8] A June 2011 National Research Council study provided advice on the process of setting these limits. The study found that determining the exact number of organisms that could be expected to launch a new population is complex. It suggested an initial step of establishing a benchmark for the concentrations of organisms in ballast water below current levels, and then using models to analyze experimental and field-based data to help inform future decisions about ballast water discharge standards.^[9]

2013-2014 general permits

Under CWA authority, EPA published its latest Vessel General Permit in 2013. The permit sets numeric ballast water discharge limits for commercial vessels 79 feet (24 m) in length or greater.^[10] EPA issued a separate permit for smaller commercial vessels in 2014.^[11][12]

See also

• Ballast water discharge and the environment
• Environmental issues in the United States
• Environmental impact of shipping

References

• This article is based on a public domain Congressional Research Service report: Copeland, Claudia. "Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues" (Order Code RL32450). Congressional Research Service (Updated February 6, 2008).

External links

• Cruise Ship Discharges - EPA
• Vessels: Incidental Discharge Permitting - EPA