Ballast water discharge and the environment

Cruise ships, large tankers, and bulk cargo carriers use a tremendous amount of ballast water, which is often taken on in the coastal waters in one region after ships discharge wastewater or unload cargo, and discharged at the next port of call, wherever more cargo is loaded. 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. [Statement of Catherine Hazelwood, The Ocean Conservancy, “Ballast Water Management: New International Standards and NISA Reauthorization,” Hearing, House Transportation and Infrastructure Subcommittee on Water Resources and Environment, 108th Cong., 2nd sess., March 25, 2004.] 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. [David Pimentel, Lori Lach, Rodolfo Zuniga, and Doug Morrison, “Environmental and Economic Costs Associated with Non-indigenous Species in the United States,” presented at AAAS Conference, Anaheim, CA, January 24, 1999.]

United States regulation of ballast water discharge

Clean Water Act regulations currently exempt ballast water discharges incidental to the normal operation of cruise ships and other vessels from NPDES permit requirements (see above discussions concerning sewage and graywater). 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, arguing that ballast water should be regulated as the “discharge of a pollutant” under the Clean Water Act’s Section 402 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.32 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.33 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.34

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 (Northwest Environmental Advocates v. EPA, No. C 03-05760 SI (N.D.Cal, September 18, 2006)). 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.

The government has appealed the district court’s ruling, and the parties are waiting for a ruling from the appeals court. However, in June 2007, EPA also 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.

The 110th Congress has been considering 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 (S. 1578, ordered reported by the Senate Commerce Committee on September 27, 2007, and H.R. 2830 (H.Rept. 110-338)). Some groups oppose S. 1578 and H.R. 2830, because the legislation would preempt 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 includes no citizen suit provisions.

References

This article is based on a public domain Congressional Research Service report: Copeland, Claudia. [http://www.ncseonline.org/NLE/CRSreports/07Dec/RL32450.pdf "Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues"] (Order Code RL32450). Congressional Research Service (Updated February 6, 2008).