Carp(e) diem - Current issues on ballast water regulations in the US

Ballast water requirements in the US may be turning into a "crazy quilt" of possible practical and legal disparities, making compliance very difficult.

The subject of ballast water regulations, which aim to control or prevent the introduction of unwanted invasive species into ecosystems, has been a topic of concern for quite some time, not only in the US, but practically in the entire world.  Proposals have been long discussed and controversial for many different groups: the shipping industry, environmentalists and government agencies.

Asian carps and zebra mussels
One area where recently the issue has been forced into focus is the Great Lakes region, between Canada and the US. This has occurred due to their land-locked nature, with both ocean-going and lake-bound trade and traffic, and various populated zones around the perimeter, using those bodies of water for commercial fishing and recreational purposes. The recent trigger for intense governmental interest in that region has been the issue of the possibility of invasion of the Great Lakes by the Asian carp, an invasive species that drives out native species from a lake almost in their entirety, resulting in a radical alteration of the native ecosystem, especially causing collapse of commercial and recreational fisheries.  This carp species has already invaded portions of the Mississippi River and tributaries, and its detrimental effects have been observed and documented. The Asian carp was brought to the southern United States some 40 years ago to help keep retention ponds clean at fish farms and waste water treatment plants. Heavy floods in the 1990s allowed them to escape into the Mississippi, from where they have migrated to the Missouri and Illinois rivers and now threaten to make it into Lake Michigan. Officials at the US Fish and Wildlife Service (FWS) call the Asian carp "an aquatic vacuum cleaner because they filter important food resources out of the water and turn it into carp biomass".

But one may recall it was another invasive creature, the zebra mussel, which several years ago had spurred on the US Coast Guard (USCG) to issue a set of guidelines under a voluntary programme in 1998 for ballast water management.  The rate of compliance under the programme was found by the USCG to be inadequate, so in 2004 they published a set of mandatory penalties for failure to submit ballast water management reports and for particular procedures for the Great Lakes and Hudson River areas.  This set of rules required all vessels bound for the US to conduct mid-ocean ballast water exchange or retain their ballast water on board, or use some other approved method of treatment.¹ In 2005 the USCG issued a set of best management practices for vessels calling in the Great Lakes region.

Approved ballast water management system
In August 2009 the USCG announced a set of standards for ballast water management, having concluded that the prior regulations were not adequate to address the invasive species issue.  These new proposed rules, written in conjunction with IMO standards for the subject established in 2004, include a ballast water discharge standard regarding the maximum number of organisms allowed to dwell in ballast water aboard ship, and a requirement to install and operate an approved ballast water management system (BWMS) in a second section of the rules, before discharging ballast water into US waters, with a gradual phase-in schedule and process envisioned over a period of several years.

However, while the first phase of the USCG rules are in accord with the IMO standards, the second phase would eventually result in a new level that would be 1,000 times stricter, allowing for only one organism per 100 cubic metre of ballast water. Public comments were solicited in the rulemaking process, to be sent to the USCG by 27th November 2009.  The USCG is now evaluating those comments and a response with final rule-making should occur in the near future.

Individual state regulations
In the meantime, the individual states have proceeded with their own set of regulations, which they are permitted to do under federal law, and have come up with rather stringent proposals that have drawn intense criticism from the shipping industry, as impractical or impossible to meet.  These proposals in many respects are much stricter than those within the USCG proposed regulations, which some states have said do not go far enough to ensure prevention of invasion of their waters by unwanted aquatic organisms.

Michigan was the first to issue its own guidelines, and these survived challenge in the federal courts.  More recently, on 4th February 2010, a New York state appellate court upheld New York state regulations on ballast water exchange, despite legal opposition from the shipping and port terminal industries, stating that the federal Clean Water Act allows an individual state to add its own condition to a federal vessel discharge permit.

On the other hand, on 19th January 2010 the US Supreme Court denied a request by the states of Michigan, Wisconsin and other states to order a systematic shutdown of the locks and dams leading to and between the Great Lakes, in order to stop invasive species, most particularly the Asian carp (ironically, the discovery of DNA tracings of this species in Lake Michigan was announced on the same day). It was this decision by the US Supreme Court that precipitated a political crisis on this issue with the various states bordering the Great Lakes.

Not to be outdone, in October 2009 the State of California made effective its own set of performance standards for ballast water discharge that exceed the IMO standards, including a regulation mandating eventual installation of sampling ports in the ballast water system, permitting state inspectors to board vessels and draw ballast water  samples, to then test and see if cleanliness standards are being met (these regulations only apply to vessels discharging ballast water in California; if kept aboard, then compliance is not an issue). The California performance standard, first announced by the State Lands Commission, is that by the year 2020 there will be zero detectable marine organisms in discharged ballast water.

Federal ballast water regulations
The federal ballast water regulations for ships are now contained in the Vessel General Permit framework, a relatively new programme administered by the US Environmental Protection Agency (EPA) that requires the use of "best practices" in the management of all effluents that can be emitted from a ship.²  While the EPA adopts for the most part previous USCG regulations on ballast water controls, they do go further, concerning saltwater flushing programmes and use of onshore treatment for ballast water, unless the ship has on-board ballast water treatment systems approved by the USCG.

Unfortunately, one is now poised to face a situation where compliance with both federal and state rules will be required, with potentially conflicting judicial positions taken, presenting a "crazy quilt" pattern of possible practical and legal disparities, making compliance very difficult.

Proposed federal action plan for the Great Lakes
Further aggravating the complexities of the situation is the current Great Lakes Asian carp controversy, which is pitting various state and federal interests against each other.  With the states stymied by the US Supreme Court in getting a judicial mandate for closure of the locks, dams and canals to prevent the potential spread of this fish, and the discovery of the DNA of that fish in Lake Michigan, not seen before, the political pressures for action increased dramatically (thus far, an actual fish specimen has not yet been located or caught there, but many scientists believe it is only a matter of time).

In reaction, the White House hastily arranged for an Asian carp "summit meeting", held on 8th February 2010   in Washington DC, to discuss proposals to try to block the Asian carp from gaining a permanent foothold in the Great Lakes.  What makes this particularly tricky on a political level for the Obama Administration is that part of the proposal is  to order a partial closing of the locks to the Great Lakes in the Chicago area, about which local politicians are loudly complaining as potentially ruinous to the trade and economy of that area - the area being of course the "home town" of President Obama.

On 21st February 2010 the administrator of EPA, Lisa Jackson, who attended the "summit", issued a proposed five-year action plan to improve the ecology of the Great Lakes in a variety of ways, not only regarding invasive species, but also about other types of pollutants and enhancing adjacent area wetlands.  The plan earmarks USD 78.5 million in federal funds for the construction of electrified water barriers to try to deter the advance of the Asian carp, in addition to limited lock closures and other control measures.

What remains to be seen is whether the proposed federal action plan will placate the numerous interested parties on Great Lakes issues, particularly the commercial shipping interests that ply those lakes on a regular basis and the individual states that line the Great Lakes (not to mention Canada, which is watching these developments with keen interest).  It does not address the apparent establishment of parallel, but independent, federal and state schemes on ballast water control, which will result in some areas of the US having extra regulatory standards to meet, beyond the federal mandates, so ships calling at several ports in various US states could face the daunting task of compliance with a number of different programmes on the same issue of ballast water treatment and handling.

New technology to the rescue
The good news is that regarding ballast water treatment equipment, at least six manufacturers have recently designed and produced equipment that they tout as enabling ships to comply with even the strictest regulatory regimes, and probably more such equipment will be developed in the near future. The additional question is one of price, with some reports indicating the retrofitting of such equipment to cost in excess of USD 400,000.

However, a caveat is that some of the regulations call for the use of a biocide substance to treat ballast water (Michigan, for example, calls for the use of hypochlorite or chlorine dioxide), which could be emitted outboard and itself pose a chemical pollution problem - solving one problem but creating another.

The absence of provisions in the various federal and state proposals regarding the establishment of any shore-based facilities where the ballast water could be pumped and treated shows that the approach seems to be to concentrate such efforts aboard the ship. In 2008 the State of Wisconsin Department of Natural Resources completed a feasibility study for establishing a treatment facility aboard a large tank barge, to be permanently moored at the Port of Milwaukee, and USD 6 million in funds were earmarked for a pilot plant. However, it would not appear that any further action has been taken on establishing such a facility.

Assuming that the technical, operational and effluent requirements can be met, then the remaining problem will be that of ensuring that appropriate reporting and record keeping are performed, so as not to run afoul of state and federal standards, which could still demand a significant effort on the part of vessel operators.

Footnotes
¹ See articles "More on unwanted aquatic organisms in ballast water - All ships are now potential polluters" in Gard News issue No. 155 and "Control and management of ballast water - Recent developments" in Gard News issue No. 173.
² For a detailed summary of this programme see the article "US Vessel General Permit - The case of the reluctant regulator" In Gard News issue No. 194.

Any comments to this article can be e-mailed to the Gard News Editor.