Vessel Incidental Discharge Act

The Vessel Incidental Discharge Act (VIDA) is pending legislation that will untangle the regulatory quagmire that is ballast water management. It will assign oversight to the only federal agency with maritime expertise and a long history of environmental and safety regulation, the U.S. Coast Guard (USCG). VIDA will align operations now regulated inconsistently by seven of the eight Great Lakes states and the U.S. Environmental Protection Agency (U.S. EPA) under the banner of the USCG and engage U.S. EPA and the states to drive the science and implementation that protect our waters.

Since passage of the Clean Water Act (CWA) in 1972, the U.S. EPA has argued that the CWA is not the proper vehicle for treating discharges incidental to the normal operations of a commercial vessel; that the law was intended to regulate the point discharges at fixed facilities; and that U.S. EPA’s proficiency is not with vessel regulation whereas it is USCG’s expertise. In fact, USCG has been regulating the operations of vessels including their environmental footprint and safety of crew and ship since well before U.S. EPA was established.

In 1990, Congress enacted the Non-Indigenous Aquatic Nuisance Prevention and Control Act (NANPCA), delegating authority to the USCG to regulate ballast water. In 1996 the National Invasive Species Act reauthorized and amended NANCPA and specifically called out enhanced protections for the Great Lakes including requiring ocean-going vessels to exchange their ballast water mid-ocean thus discharging and killing non-native organisms before entering U.S. waters. This single practice has been so successful that no new non-native aquatic species has been introduced by ballast water in a dozen years.

After repeated attempts through litigation over decades to require U.S. EPA to include ballast water and other discharges incidental to the normal operation of vessels within their regulatory universe, in 2006, the Ninth Circuit Court issued an order revoking the regulatory provision that excluded incidental discharges from permitting as of 2008; hence two federal agencies would be regulating the same operations. In response, the U.S. EPA issued its first 5-year Vessel General Permit (VGP) which meant that all the states could also regulate these operations and to different standards.

Among other tenets, the VGP mirrored USCG regulations for vessels operating exclusively on the Great Lakes, “lakers”, to institute specific best management practices (BMPs) to minimize the potential for spread of aquatic nuisance species (ANS) but exempted lakers built before January 1, 2009 from installing ballast water management systems (BWMSs) to meet discharge standards originally envisioned for ocean-going vessels. USCG has exempted all lakers from installing BWMSs based on their determination that there is a lack of scientific research pointing to lakers as a threat to introduce or spread ANS.

In 2013, U.S. EPA issued its next 5-year VGP. In it, U.S.-flag lakers built before January 1, 2009 were still excluded from the requirement to install BWMSs. However, this and other requirements in the 2013 VGP were challenged in the Second Circuit Court which found that the laker requirements and exemptions were inadequately documented. The Court mandated that these issues be reconsidered for the next VGP to be published in late 2018. Without VIDA there is no end in sight to this multi-jurisdictional morass.

VIDA is highly protective of the Great Lakes. VIDA is comprehensive. VIDA is inclusive of all regulatory parties. VIDA is critical to the operations of the U.S.-flag laker fleet. Lake Carriers’ Association emphatically endorses its passage and implementation as quickly as possible.

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