U.S. House passes bill stripping states of authority to regulate ballast water discharges

The political, environmental and economic battle over the future of laws and regulations governing ballast water discharges has taken some new turns during the latter half of 2011.


In this region, a dispute has surfaced among some governors over how stringent state-level permitting programs can and should be.

Meanwhile, in the nation’s capital, moves are being made to take such decisions out of the hands of governors and legislatures: A proposal passed by the U.S. House in November would strip states of the authority to establish ballast water standards that are more stringent than those set at the federal level. It would also set a new national treatment standard in line with that of the International Maritime Organization.

The ballast water provisions in HR 2838, the Coast Guard & Maritime Transportation Authorization Act, have been criticized by several key Great Lakes conservation groups for “erasing states’ rights” and for derailing progress on “a national policy to stop invasive species from entering the Great Lakes.”

The legislation was passed by the U.S. House on Nov. 15 largely along partisan lines.

Earlier in the month, an amendment to HR 2838 (proposed by U.S. Rep Tim Bishop of New York) would have preserved the rights of states to impose more-stringent ballast water standards and permitting programs. (Even under his amendment, state plans would have been subject to federal approval and could not have an “unreasonable impact on the use of traditional shipping lanes” or “prohibit the discharge of ballast water in all the waters of the state.”)

That amendment was defeated largely along partisan lines; only 15 Republicans supported it and 15 Democrats opposed it. Many of the exceptions to that party-line voting came from the Great Lakes congressional delegation.

For example, all nine of Michigan’s House Republicans voted in favor of the amendment to retain state authority. (Michigan was the first state in the nation to adopt a state-level permitting program for ballast water discharges.) In contrast, five of the Democratic votes against Bishop’s proposal came from Great Lakes states — two from Indiana and one each from Ohio, Illinois and Pennsylvania.

For years, there have been calls from the Great Lakes region for a more adequate federal response to the problem of invasive species entering the Great Lakes via the ballast water of ships. (Most of the 180 invasive species in the lakes were introduced via the discharges of ballast water from ocean-going ships.).

The lack of a federal program or national discharge standard led state legislators and environmental regulators to take on the issue themselves.

But now a split has emerged among policymakers — both at the federal and state levels — over the role of states and how stringent federal requirements should be.

Split on ballast water rules among Great Lakes states

In September, the governors of Indiana, Ohio and Wisconsin sent a letter to New York Gov. Andrew Cuomo asking him to ease ballast water rules set to take effect in his state in August 2013.

If not changed, the governors wrote, New York’s regulations would “possibly force the closure of the St. Lawrence Seaway and imperil thousands of maritime-related jobs in the Great Lakes states and Canada.”

In response to the governors’ letter, Wisconsin Rep. Cory Mason wrote and circulated a letter to his legislative colleagues in support of New York’s efforts. The letter, sent in September to Gov. Cuomo, urges New York to “hold fast on its ballast water standards to prevent dangerous invasives from entering the Great Lakes basin.”

The letter was signed by 22 Wisconsin state representatives and senators. In Michigan, a resolution was introduced this month urging the state of New York to “reject appeals to weaken its ballast water standards.”

Three Great Lakes states — Michigan, Minnesota and Wisconsin — already have ballast water permitting programs up and running. But New York’s rules would be the region’s most stringent, with discharge standards exceeding those of the International Maritime Organization – 100 times more stringent than the IMO standard for existing vessels and 1,000 more times stringent for ships built after 2013.

According to the Wisconsin Journal Sentinel, New York has since offered a compromise: 1) give existing ships until 2016 to meet the standard and 2) give any ship that voluntary installs a new treatment system by June 2014 a pass on the state’s tougher 100-times standard (the new treatment standard would have to meet a standard 10 times the IMO requirement).

But Steve Fisher, executive director of the American Great Lakes Ports Association, told the Journal Sentinel that the state’s regulations are “technologically impossible.”

James Tierney of the New York Department of Environmental Conservation disputes these claims in a February 7 letter, citing a treatment system developed by Ecochlor, Inc., and adding that “more technologies will be developed to comply [with the state’s standards] … in the near future.”

In developing its own permitting program, Wisconsin had considered implementing tougher-than-IMO requirements but decided against it after a state feasibility study determined that treatment technologies did not exist to meet the 100-times standard. Wisconsin instead settled on requiring ships to meet the IMO standard.

In U.S. House debate over the Bishop amendment, New York’s proposed rules were cited by Ohio Republican Rep. Steve LaTourette as a reason for rejecting it.

He called that state’s regulations “obnoxious” and unrealistic.

“[New York’s’] vendor--the one that they were counting on for this technology--said they are not even willing to have it be tested by a third party for verification,” LaTourette said.

“So this amendment and those proposals would basically shut down waterborne commerce in the United States of America.

In his effort to stop the New York regulations, LaTourette also proposed an amendment to a Department of Interior spending bill prohibiting states from receiving Environmental Protection Agency funding if they adopt ballast water requirements more stringent than federal regulations.

H.R. 2838 now heads to the U.S. Senate for consideration.

The erosion of state authority is only one reason groups such as Alliance for the Great Lakes, the National Wildlife Federation and Great Lakes United are opposing the legislation.

They also say the measure limits the ability of federal regulators to address the environmental, ecological and economic threat posed by invasive species.

The bill, for example, explicitly exempts ballast water discharges from the federal Clean Water Act.

This exemption would strip the U.S. Environmental Protection Agency of its authority to regulate ballast water discharges from vessels under the National Pollutant Discharge Elimination System (NPDES) permit program.

The EPA already has a Vessel General Permit in place and was planning to propose a new, more stringent permitting program by the end of the month.

The U.S. Coast Guard is also expected to soon finalize its new rule on ballast water discharges. Under its proposed rule, the initial standard would be the same as the IMO’s. That standard could be raised upon completion of a “practicability review.”

H.R. 2838 calls for use of the IMO standard as well. According to Joel Brammeier of the Alliance for the Great Lakes, language in the legislation would make it more difficult to raise the standard as treatment technologies advance and become available for use.

Invasive species cost an estimated $200 million a year in the Great Lakes; for example, the annual price tag to control sea lamprey is $20 million.

Beginning in 2006, all overseas vessels entering the Great Lakes were required to conduct saltwater flushing and ballast water exchanges. Since then, there have been no reports of invasive species entering the Great Lakes via ocean-going vessels.

However, there are limits to the efficacy of exchanges and flushing. For example, the resting state of some species may be able to survive high salinity levels.