After years of inaction, the federal government has finally taken a major step towards regulating ballast water discharges to prevent the spread of aquatic invasive species. The U.S. House passed HR 2830, titled the Coast Guard Authorization for 2008, by a vote of 395 to 7 (with 29 members not voting). Title V of the legislation, which would be called the Ballast Water Treatment Act of 2008, establishes a “national goal that ballast water discharged into the waters of the United States will contain no living (viable) organisms by the year 2015” and a “national policy that the introduction of nonindigenous aquatic nuisance species in the waters of the United States be prohibited.” Great statements, but the tough question is whether the terms of the legislation will live up to this stated goal and policy.
It’s not a coincidence that Congress is finally taking ballast water pollution and invasive species seriously just as state initiatives and court victories make new regulations a certainty. Because recent state and litigation developments will lead to ballast water regulation even without any Congressional action, it’s fair to question whether this federal legislation is a good deal for the Great Lakes. There are at least three major concerns with the federal legislation as passed by the House:
(1) Enforcement: Under the Clean Water Act (which currently applies to ballast water discharges, according to recent federal and state court rulings), both the government and citizens may bring an enforcement action for an illegal discharge. The new legislation leaves enforcement exclusively to the federal government, which does not always vigorously enforce environmental laws.
(2) Scope: The legislation exempts ships that operate exclusively with the Great Lakes (these ships are called ‘lakers’). While invasive species are introduced into the Great Lakes by ocean-going vessels (‘salties’), invasive species are often spread from one lake to another by lakers. This is why the state of Minnesota, concerned with the spread of the invasive fish disease Viral Hemorrhagic Septicemia (VHS) into Lake Superior from other Great Lakes, would require treatment of ballast water from both lakers and salties under its draft permit.
(3) State preemption: Under the Clean Water Act, states have the authority to go beyond the minimum federal standards and require greater protections for their waters. This is similar to most other federal environmental laws which typically establish a floor, but not a ceiling, for state environmental standards. However, as a concession to the shipping industry, states would not be able to put in place stricter ballast water treatment standards under the House legislation.
Despite these concerns, federal legislative action to address the problem of ballast water discharges and invasive species is significant. Now the legislation goes to the Senate, and if these concerns can be addressed, then the resulting federal law would be a tremendous victory for the Great Lakes.