When promulgating their final rule on the National Pollutant Discharge Elimination Act (NPDES) in May 1973, the United States Environmental Protection Agency (EPA) specifically excluded “a discharge incidental to the normal operations of a vessel” (38 Fed. Reg. at 13,528, [b][ii]), as these traditionally had been the domain of the United States Coast Guard (USCG) without complaint.
In 1990, Congress enacted the Non-Indigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA), and later amended it in 1996 with the National Invasive Species Act (NISA). NANPCA specifically delegated authority to the United States Coast Guard (USCG) to regulate ballast water.
In a 1999 response to a petition submitted by the Pacific Environmental Advocacy Center and others, EPA declined to reverse its 1973 exclusion, saying there were “many ongoing activities within the federal government related to control of invasive species in ballast water [NANCPA and NISA] . . . more effective and efficient than reliance on NPDES permits under the Clean Water Act (CWA).”
However, in 2005 the U.S. District Court for the Northern District of California (in Northwest Environmental Advocates et al. v. EPA) ruled that the EPA regulation at 40 CFR Part 122.3(a) excluding discharges incidental to the normal operation of a vessel from NPDES permitting exceeded the EPA's authority. In 2006 the Court issued an order revoking the regulatory provision excluding incidental discharges from permitting as of 2008.
Now, ballast water discharge is regulated at the federal level by the USCG under NISA [16 U.S.C. § 4701 et seq.] and by the EPA under NPDES [33 U.S. Code § 1342]. Individual states can also add their own requirements. Most of the eight Great Lakes states can and have issued their own general permit requirements and separately enforce ballast water discharges.
The Best Management Practices (BMPs) required of vessels operating only on the Great Lakes and St. Lawrence River (Lakers) by the EPA’s 2013 Vessel General Permit are founded on the BMPs Lake Carriers’ Association (LCA) developed in 1993 for its members and to this day they represent the best available technology and common sense approach to managing ballast water discharges for such vessels.
Under its authority in NISA, in 2006 the USCG mandated all ocean-going vessels (Salties) entering the Great Lakes exchange ballast water taken up in foreign ports for mid-ocean saltwater no closer than 200 nautical miles from the North American coast. In the decade since this BMP was fully implemented, coupled with the long-standing BMPs for Lakers, the introduction and spread of aquatic non-native species by ballast water in the Great Lakes has been stopped dead in its tracks.
To formalize this proven and effective deterrent strategy of Saltie exchange and treatment and Laker BMPs, the Vessel Incidental Discharge Act (VIDA) is critical to fixing the fractured system of conflicting and onerous regulations that hinders maritime commerce, stifles business investment, and wastes taxpayer money on duplicative and overlapping regulations.
Vessel operators need the regulatory certainty that ballast water management will be uniformly regulated. VIDA:
- Retains the USCG’s 2006 and 2012 ballast water regulations requiring ocean-going vessels entering the St. Lawrence River and Great Lakes to exchange ballast water in the ocean and install ballast water treatment systems;
- Consolidates authority to set ballast water discharge standards under the USCG. The EPA and states will participate in the development of these standards, resulting in a single nation-wide standard;
- Requires that as the technological capability to eliminate aquatic non-native species in ballast water improves, the national ballast water discharge standard will be updated in an orderly manner to reflect the capabilities of the best available technology; and
- Exempts vessels serving exclusively in geographically limited areas, such as the Great Lakes and St. Lawrence River, from ballast water treatment requirements; understanding that Lakers never leave this system and have never introduced aquatic non-native species into it, and letting highly protective BMPs remain in place.
Lake Carriers’ Association fully supports retaining the VIDA legislation in the National Defense Authorization Act to ensure VIDA’s enactment this year.