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EPA’s New Ballast Water Regulations Insufficient to Protect Great Lakes from Invasive Species

On November 30, 2011, the U.S. Environmental Protection Agency proposed more stringent regulations than are currently on the books for the regulation of ballast water discharged by commercial ships.

According to the EPA, ballast water is water that is taken onboard a ship and stored in tanks to add weight for the reason of keeping the ship upright and stable. Commonly, a ship’s crew will take-on more ballast water as cargo is unloaded, and will release ballast water as cargo is loaded.

Unfortunately, ballast water contains organisms native to the waters where the water is taken onboard, and is often discharged in areas where such organisms are not native.

The chief danger of ballast water is that these non-native organisms, or aquatic invasive species, “constitute a significant threat to biodiversity in the world’s coastal waters because they often have no natural predators and may out-compete native species for food in their new environment.”  They can cause major environmental and economic harm to the communities located near the waters that they inhabit.

Pursuant to the Clean Water Act, the EPA issued a Vessel General Permit (“VGP”) in 2008, requiring shippers to either exchange their ballast water in the sea, or in the alternative, to rinse the empty tanks with salt water before entering the waters of the United States.  The new standards go one step further, requiring commercial vessels to install technology that will kill at least some fish, mussels and microorganisms that are in the ballast water before the ballast water is discharged.

The shortcoming of the proposed standards stems from the fact that while EPA’s proposed standards apply to commercial ships more than 79 feet long (with exemptions for recreational and military ships), the standards as currently drafted do not apply to Great Lakes cargo ships, which often reach up to 1,000 feet in length.  The rationale behind this exemption is that these ships always remain within the Great Lakes and would not transport ballast water from overseas.

This rationale seems faulty for two reasons.  First, it presumes that a relatively uniform organism composition exists across the Great Lakes.  However, it is unclear why a species unique to one portion of the Great Lakes cannot be considered an invasive species if transported to another portion of Great Lakes where such species did not exist.  One EPA Report makes clear that at least some organisms are unique to only certain areas of the Great Lakes.  Secondly, as one attorney for the Natural Resources Defense Council points out, these Great Lakes vessels haul ballast water between the Great Lakes, which helps to scatter the invasive species already present in some of the Great Lakes but not others.

The new standards will be subject to a public comment period; it is very likely that at least some environmental organizations will fight this exemption.  EPA has discretion, of course, to include this exemption in its final rule, but it will have to respond to objections raised.  For the two reasons discussed above, the current rationale behind the exemption will not be an adequate response to the objections raised, and EPA will need to come up with something better to sustain the exemption.

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

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