Control Of Aquatic Nuisance Species Introductions Via Ballast Water In The United States: Is The Exemption Of Ballast Water Discharges From Clean Water Act Regulation A Valid Exercise Of Authority By The Environmental Protection Agency?

Authors

Lisa A. Brautigam

Document Type

Article

Abstract

Aquatic invaders hitchhiking in ships' ballast water tanks are far from a new environmental problem in the United States and throughout the world. Hundreds of thousands of invasions have wreaked havoc on ecosystems and native species worldwide. However, the last few years have brought renewed vigor in the United States to implement an effective national regulatory program to address the problem in the United States absent a firm regulatory framework to do so. Within this renewed uprising, there has been increased pressure to regulate ballast water discharges under existing national environmental laws. Perhaps the strongest push has been found in a petition by environmental groups in the United States addressed to the EPA to repeal the current regulatory exemption for ships discharging in the normal course of operations under the Clean Water Act, which would require ships to obtain a National Pollution Discharge Elimination System (NPDES) permit before discharging ballast water into waters subject to the Clean Water Act. The environmental groups claim that the EPA has, through the exemption, enacted a categorical exemption of a point source, which they claim is not within the EPA's authority under the Clean Water Act. The EPA has not yet issued a formal response to the petition. A report addressing the problem of aquatic nuisance species ("ANS") was due out in June 2000 for formal comments, however that deadline passed without result. In light of the assertions of the petition for the repeal of the exemption, questions arise as to whether regulation of ballast water discharges are a valid exercise of authority on behalf of the EPA. The validity of the exemption has been discussed in many forums; however, most discussions have arisen in a broad discussion of how the current environmental laws in the United States can address the ANS introductions through ballast water. While these discussions have led to conclusions that the exemption of ballast water discharges from the Clean Water Act requirements are invalid, these conclusions have been based upon a broad overview analysis with little insight regarding the additional concerns which will arise should regulation of ballast water discharges fall under the Clean Water Act, specifically within the NPDES program. This article will examine, in depth, the validity of the exemption of ballast water discharges from the NPDES program, and offer insight into the considerations that must be examined prior to any implementation of regulation of ballast water discharges under the NPDES program. The concern regarding ships discharging in their normal course of operations arises from the ecological and economic impacts of ANS on the waters of the United States. One of the most significant vectors by which aquatic nuisance species are introduced into a waterbody is through the discharge of ships' ballast water containing ANS. Once introduced, ANS have major ecological and economic impact including destruction of natural habitat, species diversity, and the natural resources upon which many coastal states heavily depend. ANS is both a national and international concern. Nationally, the United States has initiated legislative action with the United States Coast Guard having authority to regulate ballast water discharges. The international community has addressed ANS through the United Nations Convention on the Law of the Sea (UNCLOS) and voluntary guidelines issued by the International Maritime Organization (IMO). Furtherresponse may come forth on the international level if the IMO incorporates the voluntary guidelines into the International Maritime Organization Convention on Marine Pollution( MARPOL) or a distinct treaty. This article concludes that the exemption of ballast water discharges from NPDES requirements is not a valid exercise of EPA authority under the Clean Water Act. Analysis of the exemption, in light of Congressional intent within the statute and legislative history, shows that the exemption is invalid. Congress directly addressed the authority granted the EPA, mandating that pollution discharges from point sources are only permitted under a permit issued by the EPA. Since vessels are a point source under the NPDES Program, the only means by which a vessel may legally discharge ANS, a pollutant under the Act, is under authority of a permit granted by the EPA. Regulation of ballast water discharges under the NPDES Program will need to be implemented carefully to avoid internal inconsistency, federal inconsistency, and possible federal preemption issues. A repeal of the current exemption of ships ballast water from regulation under the NPDES program could have significant policy effects on national shipping and trade, as well as raise serious policy questions for the United States with regard to international shipping and trade. This article will address the EPA's authority to regulate ballast water discharges under the NPDES program and whether the current exemption for ships discharging ballast water incidental to their normal operations is valid. Part II will discuss why ANS is a problem and how ANS causes severe ecological and economic damages. Part ITmwi ll examine why ballast water is both a necessity for the safe and optimal operation of ships and a major vector, or means, by which ANS are transported around the globe. Part IV will address the national and international legal regimes already in place to control ANS introductions through ballast water. Part V will give an overview of the Clean Water Act, reviewing its history. Part VI will examine the exemption under the NPDES Program for discharges from ships incidental to their normal operation. Part VII will analyze the validity of the exemption under statutory construction and judicial interpretation of the EPA's ability to exempt classes of point sources from NPDES requirements, concluding that the exemption is not a proper exercise of EPA's authority under the Clean Water Act. Finally, Part VIII will put forth the considerations that are required and make recommendations for the implementation of regulation of ballast water discharges to control introductions of ANS under the NPDES Program.

Recommended Citation

Lisa A. Brautigam, Control Of Aquatic Nuisance Species Introductions Via Ballast Water In The United States: Is The Exemption Of Ballast Water Discharges From Clean Water Act Regulation A Valid Exercise Of Authority By The Environmental Protection Agency?, 6 Ocean & Coastal L.J. (2001).
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol6/iss1/3