Legislation to amend the current regime of state and federal rules to control vessel ballast discharges has been reintroduced in both houses of Congress. The Senate version of the bill—the Commercial Vessel Incidental Discharge Act (S.168)—was first introduced in 2014 by Senator Marco Rubio (R-FL) and Mark Begich, the former Democratic senator for Alaska. The intent of that bill and the current version is to create a single federal program, overseen by the U.S. Coast Guard, for the regulation of ballast water discharges into waters of the United States.
 |
When untreated, discharged ballast water has been found to release nonnative invasive species into U.S. waters. Invasive species can be harmful to native species that have high economic value. Several types of invasive mussels have also clogged water-intake systems at power plants and similarly disrupted industry water systems.
But sponsors of the legislation and commercial vessel organizations have argued that the sector is over-burdened by regulations from multiple directions. Currently, both the U.S. Environmental Protection Agency (EPA) and the Coast Guard have separate programs for regulating ballast water. Sponsors of the bill have called these programs “separate, inconsistent, and sometimes directly conflicting sets of requirements.
Moreover, neither federal program preempts the rights of states to have their own regulations. Currently about 25 states regulate discharges of ballast water.
Preemption of State Rules
Accordingly, S.168 would eliminate the EPA program, although the Agency would retain an advisory role. The legislation would also ensure that the Coast Guard program would preempt state rules.
“Without [S. 168], commercial vessel operators who will spend millions of dollars installing a ballast water management system to meet the federal standard, will still be at risk of fines and charges for violating several different state standards they can’t meet,” commented the Maritime Industry Congressional Sail-In. “In addition, to comply with a 2016 court decision, the EPA will publish a new draft Vessel General Permit (VGP) in 2017 that will be very different from the Coast Guard regulations, and it may require thousands of U.S. ports and marine terminals to provide on-shore ballast water treatment. The Trump Administration will have a limited ability to mitigate this impact. If Congress doesn’t consolidate ballast water regulation before the EPA changes its VGP through the enactment of S. 168, this action by the EPA will wreak havoc on U.S. and international shipping.”
Coast Guard Not Experienced
The legislation found no support from the attorneys general of 10 states, who put their opposition on record in a letter to Senators Mitch McConnell and Charles Schumer, the majority and minority leaders of the Senate. The AGs note that the EPA is the federal agency with the greatest knowledge and experience in addressing water pollution while the U.S. Coast is an agency mainly focused on homeland security and has little water pollution expertise.
“The Clean Water Act also invests states with the authority to continuously ensure protection of state water quality standards,” add the AGs. “Many states, through the Act’s water quality certification process, have added their own protective conditions to EPA’s nationwide vessel general permit, ensuring that state water quality will not be degraded by vessel pollution.
“[S. 168’s] elimination of Clean Water Act protections, and preemption of traditional state authority for safeguarding our waters, represent a risky, and likely very costly, step backward in the effort to defend against future invasive species infestations caused by vessel discharges. This legislation fails to serve the best interests of our citizens, and the public at large, and we urge you to oppose its passage.”
The text of S. 168 is at https://www.congress.gov/bill/115th-congress/senate-bill/168/text?q=%7B%22search%22%3A%5B%22S.+168%22%5D%7D&r=1. The AG’s letter is at https://ag.ny.gov/sites/default/files/vida_ltr_senate_2_15_17_final.pdf.