The US Court of Appeals for the Ninth Circuit has upheld a 2005 California district court decision that the EPA’s rule exempting ballast water discharges from regulation (the rule is found at 40 C.F.R. 122.3(a)) is not consistent with the Clean Water Act. The Court of Appeals decision (Northwest Environmental Advocates v. US EPA) also upholds the district court’s order directing the EPA to regulate ballast water discharges by September 30, 2008. The decision does not come as a surprise to anyone following this issue, including the EPA. In anticipation of losing its appeal, the EPA had already proposed a general permit to regulate ballast water discharges from ships pursuant to the CWA.
While the focus of the litigation is ballast water discharges from large ships that may contain invasive species, the court’s ruling could potentially apply to millions of recreational boats. To avoid regulation of recreational boats, Congress passed the Clean Boating Act of 2008 (H.R. 5949 / S. 2766, awaiting the President’s signing) just a day before the Ninth Circuit released its decision. The legislation exempts recreational vessel discharges from Clean Water Act permit requirements.
The court’s decision could change the politics behind the effort to pass a national ballast water discharge law to prevent the spread of aquatic invasive species. Environmental groups may be less willing to sacrifice Clean Water Act regulation (and citizen enforcement) of ballast water discharges now that the law’s applicability is settled. Either way, the federal government is finally going to regulate ballast water pollution by the next Great Lakes shipping season, which is a tremendous victory.