The Source of Invasive Species: Ballast Water Discharges
Ships regularly discharge dozens of different waste streams, from ballast water teaming with invasive species to nutrient-laden “greywater” from ship laundries. Ballast water is of particular concern because, unlike all other forms of pollution, invasive species not only do not dissipate, they multiply and spread like a wildfire. It is virtually impossible to destroy invasive species once they take root; the only questions are how much they will upend the ecology of a waterbody, how far they will spread, and how much they will cost native species and citizens.
The poster children of invasive species are the zebra and quagga mussels, native to Eurasia. First discharged in ballast water to the Great Lakes in the 1980s, these mussels have rapidly spread across the country. Both mussels have caused major ecological and economic problems. They consume the phytoplankton that are the food source for native species, increase pollutant levels, and clarify the water so greatly that entire ecosystems have been changed, with disastrous results. Mussels also block human infrastructure such as water intakes, dams and locks, costing an estimated $6.4 billion ($2010) in annual costs.
Although Congress included such ship discharges under the Clean Water Act (CWA), in 1975 the U.S. Environmental Protection Agency (EPA) passed a rule that exempted them from discharge permits. In January 1999, Northwest Environmental Advocates (NWEA) petitioned EPA to remove its illegal rule and, after two separate court cases, in 2006 a federal court ruled that EPA was required to regulate ship discharges under CWA permits starting in 2008.
The Shipping Industry Takes Aim . . . Over and Over
Ever since NWEA’s 2006 success in placing ship discharges under the Clean Water Act, the shipping industry has attempted to overturn that win in Congress and to deregulate ship discharges of ballast water as well as other ship waste streams that contain such pollutants as toxic chemicals, oils, and nutrients. The most recent versions of these bills have been called the Vessel Incidental Discharge Act (“VIDA”). In each case, the VIDA bills have proposed to:
• remove ship discharges from under the Clean Water Act;
• freeze treatment technology at unprotective levels;
• transfer responsibility from EPA to the Coast Guard; and
• preempt states from passing their own laws to control ship pollution.
EPA Has Been a Lax Regulator of Ballast Discharges
Despite the sky-is-falling concerns of the shipping industry, EPA has not used the Clean Water Act to control ballast water discharges of invasive species. Its first Vessel General Permit (VGP) was issued in 2008 and did little more than require ships to follow the treatment standards set out in the as-then-unratified International Maritime Organization’s (IMO) treaty. These IMO requirements are weak, do not reflect the best treatment technology that currently exists, and are not adequate to protect US waters from invasive species. NWEA challenged the VGP in 2009 and in a settlement EPA agreed to seek the advice of two expert panels of scientists. EPA issued a second VGP in 2013, which NWEA again challenged. In 2015, NWEA won a precedent-setting decision in the Second Circuit Court of Appeals that EPA had violated numerous aspects of the CWA in issuing its lax permit.
