This issue first emerged over the proper management of vessel ballast water tanks used to enhance the stability of a vessel in varying sea conditions. Vessel operators uptake or discharge water from the tanks as sea conditions warrant. The seawater contained in the ballast tanks may contain a variety of aquatic species, some of which could be harmful if released into local marine ecosystems. The problem gained national notoriety in the early 1980’s, when vessels transiting through the St. Lawrence Seaway to U.S. Great Lakes ports released ballast water containing an invasive aquatic species – the zebra mussel. Since then, the International Maritime Organization (IMO) has been in negotiation to develop an International Convention for the Control and Management of Ships’ Ballast Water and Sediments, commonly known as the Ballast Water Convention. The United States has assumed a lead role in the IMO discussions with the goal of crafting international, comprehensive and technologically achievable standards to address what is clearly an international concern.
Until recently, ballast water management practices were governed by a number of federal regulations, primarily the National Invasive Species Act of 1996 (NISA). NISA addresses the problem by mandating a national effort to prevent the introduction and control the spread of aquatic species in the Great Lakes and contiguous waters under the oversight of the Coast Guard. The program required vessel operators to either complete ballast water exchanges in an area not less than 200 nautical miles from any shore; retain ballast water onboard the vessel; or use a Coast Guard approved alternative environmentally sound method of BWM prior to the vessel entering U.S. waters. In August of 2009, the Coast Guard issued proposed rulemaking that would, in a 2014/2016 time period, require all vessels entering U.S. waters equipped with ballast water tanks to comply with standards contained in the International Maritime Organization Ballast Water Convention. These standards limit the number of live organisms of a specified size contained in ballast water releases. Following the 2014/2016 time period, standards 1,000 times more stringent will gradually enter into force assuming appropriate technology is developed and available.
However, certain individual states, frustrated by the pace of the ongoing IMO ratification process, have focused their efforts on developing and imposing differing state-wide standards. However, such a conflicting, state-by-state approach would not realistically address the issue of the introduction of non-native aquatic species into American waters. In excess of 95 percent of import/export cargo transported through U.S. ports are carried aboard foreign-flag vessels. To apply and enforce varying state BWM regimes upon foreign-flag vessels could constitute a questionable venture into international maritime law. Furthermore, differing state BSM requirements could obviously lead to significant interstate commerce diversions in favor of states with less restrictive regulations, potentially magnifying the presence of invasive aquatic species in our coastal waters.
In addition, the Environmental Protection Agency (EPA) has published a final rulemaking to regulate all incidental vessel discharges, including ballast water, on all commercial and recreational vessels through the issuance of Vessel General Permits. This rulemaking resulted from a January 1999 petition submitted to the EPA requesting that the agency regulate vessel discharges through the authority of the Clean Water Act. The EPA ultimately denied the petition, following which the petitioners filed a lawsuit in the U.S. District Court for the Northern District of California challenging the EPA denial. In September of 2006, the Court ruled in favor of the petitioners and directed the agency to promulgate regulations encompassing all discharges from all vessels in U.S. waters effective December 19, 2008. The EPA appealed the decision, however the appeal was denied.
Transportation Institute, in conjunction with the Shipping Industry Ballast Water Coalition, is supportive of continuing the 35 year exclusion of BWM practices from the jurisdiction of the Clean Water Act. The Institute contends that the Clean Water Act’s instrument of regulation and enforcement, the Nation Pollutant Discharge Elimination System (NPDES) was designed to manage fixed point discharges, not mobile sources that move port to port, state to state, and country to country. As noted earlier, BWM practices are already covered by federal requirements, adding the overlay of NPDES requirements could conflict with those existing federal standards. Furthermore, under the NPDES, individual states can impose additional requirements above and beyond federal standards, resulting in a patchwork of conflicting federal and state requirements governing BWM procedures.
Transportation Institute, along with industry coalitions, supports efforts to create a comprehensive, uniform, technologically feasible and federally-preemptive BWM program that would protect local marine ecosystems from non-native invasive aquatic species without impeding international and interstate commerce. Shipping by its very nature is international in scope; regulation of its activities should likewise be universal in application.