Aquatic invasive species (also known as aquatic nuisance species) are one of the biggest threats facing the Great Lakes and their fisheries and wildlife. Invasive species like the zebra mussel are causing unacceptable environmental and economic damage. New invasive diseases, such as Viral Hemorrhagic Septicemia (VHS) threaten to devastate Great Lakes fisheries. Aquatic invasive species in the Great Lakes can often be traced to ships’ ballast water discharges. The problem is both historic and ongoing, as the Great Lakes are now infested with over 180 aquatic invasive species and a new invasive species comes into the Great Lakes, on average, about once every six months. The costs of aquatic invasive species to the Great Lakes region are staggering, as the region is spending tens of millions of dollars to combat the billions of dollars in damage they cause.
The federal government has recognized the problem but failed to solve it. Federal law gives the U.S. Coast Guard regulatory authority to address ballast water discharges, but exemptions in the regulatory program have undermined its success. More recently, a federal court in California held that ballast water discharges are subject to the Clean Water Act, but the ruling is being appealed and the US EPA has not yet exercised its regulatory authority.
So states and conservation groups are taking legal action to stop the spread of invasive species in the Great Lakes. Michigan passed a law that took effect in January 2007 requiring vessels that discharge ballast water to use specified technologies to prevent the introduction of invasive species into the Great Lakes. Shipping companies challenged the law, but a federal district court upheld it. The case is now on appeal (and full disclosure – I’m representing a group of state lawmakers including the primary sponsor and author of the law, Michigan State Senator Patty Birkholz, in the litigation).
This week, a state court in Minnesota ruled that the Minnesota Pollution Control Agency (MPCA) must take steps to regulate ballast water discharges pursuant to state and federal law, building on the federal court ruling from California. The case was brought by the Minnesota Center for Environmental Advocacy, one of the most effective environmental groups in the country. Even before the court’s ruling, the MPCA had issued a draft permit to regulate ballast water discharges into the Minnesota waters of Lake Superior and associated harbors. The MPCA recognized that “federal law does not regulate ballast water discharges and existing federal ballast water management requirements and policies have not been effective in preventing biological invasions in the Great Lakes.” The court’s ruling makes clear that the MPCA has the authority and the duty to regulate ballast water discharges to protect the Great Lakes from aquatic invasive species.