Last month, a letter signed by 160 organizations was sent to President Joseph Biden Jr. requesting that he take action to direct the EPA to implement discharge standards for ships’ ballast water that comply with the Clean Water Act (CWA). EPA administrator Michael Regan also received a similar request from 34 members of Congress.
“Ballast water discharges are the leading source of invasive species in U.S. waters, posing public health and environmental risks, as well as significant economic cost to industries such as water and power utilities, commercial and recreational fisheries, agriculture, and tourism,” states the letter from the Congressional members. “EPA’s compliance with the CWA here is overdue.”
Ships achieve stability in the water through ballast systems. These systems fill up and remove and transfer water from one ballast tank to another to adjust for changes in cargo weight to achieve stability for the ships’ voyage. Cargo ships haul thousands of tons in weight and require massive ballast tanks that hold a great deal of water.
The EPA historically exempted ballast water from regulations because the U.S. Coast Guard (USCG) took the lead on these types of regulations. In 2001, the USCG issued national ballast water regulations through authority given under the National Invasive Species Act of 1996.
“However, in 2003 a lawsuit was filed against the EPA because it denied a rulemaking petition aimed at getting the agency to draft regulations for ballast water,” states a blog post by The National Sea Grant Law Center. “The plaintiffs in that lawsuit argued that the EPA’s decision to exempt ballast water from its regulations was improper under the [CWA], as ballast water discharge counts as point source pollution and can be contaminated with oil, chipped paint, rust, sediments, and toxins. Additionally, ballast water discharges have been linked to the spread of many of the most invasive species in the US, including the zebra mussel. This lawsuit was ultimately successful, with the court ruling that the EPA exceeded its authority under the CWA in creating a ‘blanket exemption for discharges incidental to the normal operation of a vessel.’”
On December 4, 2018, former President Donald Trump signed the Vessel Incidental Discharge Act (VIDA) into law.
The VIDA applies to:
- Commercial vessels greater than 79 feet in length;
- Other nonrecreational, non-Armed Forces vessels, such as research and emergency rescue vessels; and
- Ballast water only from small vessels (vessels less than 79 feet in length) and fishing vessels of all sizes.
The VIDA amended CWA Section 312 by adding a new subsection (p) titled “Uniform National Standards for Discharges Incidental to Normal Operation of Vessels.” Subsection (p) requires the EPA and the USCG to develop new regulations for incidental discharges from regulated vessels into waters of the U.S. (WOTUS) and waters of the contiguous zone. The VIDA also includes other related amendments to the Act for enforcement authority, the creation of a coastal aquatic invasive species mitigation grant program and mitigation fund, and a Great Lakes and Lake Champlain Invasive Species Program.
These requirements apply to WOTUS, extending 12 miles from shore.
“The new VIDA requirements will apply once both EPA’s Vessel Incidental Discharge National Standards of Performance are finalized and the new USCG implementing regulations required under the VIDA are final, effective, and enforceable (required to be promulgated within two years after EPA’s national standards are promulgated),” states the EPA Commercial Vessel Discharge Standards website. “Until the USCG regulations are final, effective, and enforceable, non-recreational and non-Armed Forces vessels 79 feet in length and greater are subject to the existing discharge requirements established in EPA’s 2013 Vessel General Permit (VGP) and the USCG’s ballast water regulations, as well as any other applicable state and local government requirements.”
Ballast water “can carry harmful invasive organisms as well as human and animal pathogens, which have damaged ecosystems, destroyed fisheries, resulted in massive economic costs and sickened and killed people,” reports The Hill. “The health risks from these discharges are greatest in communities with substandard water or wastewater treatment services; these tend to be poor communities, whose residents are often predominantly people of color.”
These invasive organisms include:
- Zebra mussels
- Quagga mussels
- Pandemic bacterial pathogens
Zebra mussels are the size of a fingernail and are named for the dark, zig-zag stripes on their shells. These freshwater mollusks are native to Eurasia. They negatively impact ecosystems by attaching to and harming native mussels and filtering out algae that other species in that water system need for food. Zebra mollusks are thought to have first appeared in the U.S. Great Lakes in the 1980s. Since this introduction, they have continued to spread within the United States and have been found in many locations, including the Mississippi River, Texas, Colorado, Utah, Nevada, and California.
Quagga mussels are rounder and generally larger than Zebra mussels and originate from the Dnieper River drainage of Ukraine. These freshwater mollusks disrupt the food chain by removing massive amounts of phytoplankton and suspended particulate from the water. These items are food sources for zooplankton, which are vital to ecosystems, as they serve as intermediary members of a food chain, transferring nutrients from planktonic algae to larger predators and fish. Quagga mussels also first appeared in the Great Lakes and have been found in Arizona, California, Colorado, Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Missouri, Nevada, New York, Ohio, Pennsylvania, South Dakota, Texas, Utah, and Wisconsin.
Pandemic bacterial pathogens are highly transmissible bacteria, microorganisms, and viruses that spread rapidly through human populations. They are potent and known to cause significant illness and/or death.
“Despite its authority, for 36 years EPA left ballast water discharges unregulated, claiming incorrectly that they cause little harm,” adds The Hill. “Even after Zebra and Quagga Mussels had decimated native mussel populations, damaged fisheries, fouled beaches and clogged the pipelines supplying water to cities and power plants, EPA still did not regulate. Even after the U.S. Food and Drug Administration discovered the pathogen that causes pandemic cholera in fish and oysters in Mobile Bay, Alabama, and determined that it had arrived in ballast water, EPA still did not regulate. Even after EPA’s own scientists confirmed that ballast water introductions had caused entire fisheries to collapse, rendered shellfish unsafe for human consumption, disrupted water supplies, and caused hundreds of millions of dollars in damage, EPA still did not regulate.”
The letters sent by the members of Congress and the environmental groups urging action by the EPA agree.
“Ballast water discharges have also introduced harmful algal blooms; toxigenic dinoflagellates that poison clam fisheries; and several bacterial pathogens that cause human diseases, including one pandemic strain that killed over 10,000 people in South America,” both letters state.
“A pathogen introduced in ballast water killed off sea urchins needed to maintain coral reefs, thereby destroying reefs throughout the Caribbean,” states the letter to Biden from the environmental groups. “Another pathogen recently introduced into Florida and the U.S. Virgin Islands directly attacks  different coral species.”
Invasive mollusk species are biofouling organisms that clog water intake equipment, such as screens and pipes, that reduce pumping capacity for water treatment and power plants. These mollusks also impact recreational activities because docks, boats, beaches, and buoys become heavily colonized.
A report prepared by the Montana Department of Natural Resources estimated the cost of invasions of zebra and quagga mollusks to be $234 million per year in the state of Montana alone.
There are many available technologies and treatment methods to efficiently capture or kill harmful organisms and pathogens carried in ballast tanks before being released into U.S. waters.
“However, regulations must require effective treatment technology for it to be used,” states the letter sent to the EPA. “The EPA and the U.S. Coast Guard should also release to State regulators and the public all ballast water treatment system test data and supporting documents in their possession that is necessary to assess the performance of ballast water treatment systems. This is essential for States and members of the public to properly review federal management of ballast water discharges.”
The International Maritime Organization (IMO) developed guidelines for the effective implementation and uniform interpretation for the management of ballast water systems. The IMO also adopted the Ballast Water Management Systems (BWMS) Code, which establishes standards and procedures to manage ballast water and sediments.
When considering rules to manage ballast water systems, the IMO Ballast Water Management System provides a detailed set of standards that can serve as a useful template.
Those standards and procedures include:
- Ship-specific ballast water management plans that detail the safety procedures for the ship and the crew related to the management of ballast water, as well as the procedures for the evacuation of sediments at sea and on land;
- Ballast water record books for each ship;
- Ballast water treatment systems;
- Ballast water performance standards; and
- Restrictions on where ballast water exchanges can be completed.
“As we celebrate the 50th anniversary of the CWA this year, it is time for the EPA to take immediate action to finally establish ballast water standards based on the best available technology as required under the CWA,” states the letter to the EPA from the members of Congress.