Northwest Environmental Advocates--Programs

Laws that Regulate or Discourage Ballast Water Dumping

Federal law does provide a handle to prevent further encroachment by some exotic species. The Clean Water Act prohibits discrete sources from discharging pollutants into U.S. waters without a permit. Ships are explicitly covered by this requirement, unless they are military vessels. Despite the clear terms of the law, however, EPA created an exemption through its regulations. Although agencies have a great deal of discretion to carry out laws as they desire, federal courts do not allow agencies to exempt whole categories of pollution sources from the Clean Water Act's permit requirements.

In addition to the Clean Water Act, President Clinton signed an executive order in January, 1999 to address invasive species. This nation-wide effort directs federal agencies to use their existing legal authorities and programs to prevent the introduction of invasive species, monitor them accurately, research technologies to prevent their introduction and/or dispersion, and to restore native species. The permit program of the Clean Water Act, if applied to ballast water discharges, would accomplish many of these objectives. Holders of federal pollution discharge permits are required to treat the pollution in their discharges so that they do not cause violations of water quality standards. They are also required to monitor the results. The law is clear that alien species are just as much a form of pollution as the toxic chemicals, oil, and heavy metals also found in ballast water.

The order also creates an Invasive Species Council charged with developing a comprehensive plan within 18 months to address the introduction and spread of exotics. These efforts are backed up with the President's FY 2000 budget which includes an increase of over $28 million to address invasive species. This approach may be more successful than previous attempts to address the problem.

There are also laws, passed in 1990 and again in 1996, addressing non-indigenous invasive species. These laws have been largely ineffective. They encourage, but do not require, that shippers exchange their ballast water at sea, in an attempt to wash exotic species into the ocean environment where they cannot flourish. The use of ballast water exchange is a dubious proposition because it cannot be done safely by many ships, does not result in completely clean ballast water, and is based on the assumptions that exotic species will have no or little effect where they are dumped.

Research into methods of treating ballast water to remove exotic species is in the early phases of development. As EPA proceeds down the path of bringing this pollution source into compliance with the law, it must decide on the best treatment approach. There are two choices: requiring on-shore treatment facilities into which ballast water can be pumped or installation of treatment systems on individual ships. Each approach has its benefits, and its detriments. On-shore facilities would provide greater certainty that ballast water will be treated and would be more readily monitored by regulatory agencies. Government oversight will be important to ensure proper use of chemicals as well as control of the exotic species. However, on-ship treatment would help stop the spread of exotic species in ports outside the United States. Not only are exotic species a significant world-wide issue, but protection of U.S. coastlines requires attention to ports in Canada and Mexico. In both scenarios, current research is evaluating the use of combinations of ultraviolet light (UV), ozone, filtration, and/or chlorination.

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