Ballast Water Management to Combat Invasive Species

Congressional research reportApr 10, 2012

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Ballast Water Management to Combat

Invasive Species

Eugene H. Buck

Specialist in Natural Resources Policy

April 10, 2012

Congressional Research Service

7-5700

www.crs.gov

RL32344

CRS Report for Congress

Prepared for Members and Committees of Congress

Ballast Water Management to Combat Invasive Species

Summary

The 112th Congress may consider legislation to amend and reauthorize the Nonindigenous

Aquatic Nuisance Prevention and Control Act of 1990 to further study vessel ballast water

management standards and modify how ballast water is handled.

In recent years, people have become increasingly aware that the globalization of trade, the

increased speed of travel, the massive volume of cargo shipments, and rising tourism have

combined to increase the chance of accidental introductions of foreign species into the United

States. Aquatic species arrive through a variety of mechanisms—unintentionally when attached to

vessel hulls or carried in vessel ballast water and intentionally when imported for aquaria display,

as live seafood for human consumption, or as a transplant to increase sport fishing opportunities.

The arrival of zebra mussels in the Great Lakes and their subsequent damage to city water

supplies and electric utilities focused significant attention on ballast water discharge by cargo

ships as a high-risk mechanism for species invasion. New management efforts attempt to address

this concern.

On March 23, 2012, the U.S. Coast Guard published a final rule establishing quantitative

standards for ballast water treatment. The new standards initially follow standards developed by

the International Maritime Organization (IMO). In a subsequent phase, the quantitative standards

would become much more stringent, given sufficient technological development to support

achievement of the higher standards. The Coast Guard standards do not preempt existing state

ballast water management standards.

In response to litigation, the Environmental Protection Agency (EPA) published regulations on

December 28, 2008, to regulate ballast water discharge under the Clean Water Act through vessel

general permits (VGPs). Environmental groups expressed concern over the effectiveness of the

EPA regulations and filed a court challenge. In a March 2011 settlement, EPA was required to

revise its VGP program to require numeric limits on organisms in ballast water discharges as well

as additional monitoring and reporting of vessel discharges. Under the terms of this settlement,

EPA proposed two new VGP programs on November 30, 2011. Meanwhile, P.L. 110-299

provided a two-year moratorium from the VGP program for commercial fishing vessels and nonrecreational vessels less than 79 feet in length, and the 111th Congress enacted legislation (P.L.

111-215) to further extend this moratorium through December 18, 2013. EPA expects to take final

action on the draft permits by November 30, 2012.

In addition to federal programs and sometimes in response to perceived deficiencies in federal

regulation, several states have chosen to regulate aspects of ballast water management. Concerns

have arisen over particularly stringent state ballast water regulations as to whether the technology

exists to meet their standards. In the 112th Congress, Section 459 of H.R. 2584, as reported by the

House Committee on Appropriations, would prohibit EPA from providing funds to any Great

Lakes state that has a more stringent performance or ballast water exchange standard than either a

revised Coast Guard standard or the IMO standard.

This report provides background on various approaches to ballast water management and reviews

current ballast water management laws and programs. This report will be updated as this issue

evolves.

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Ballast Water Management to Combat Invasive Species

Contents

Ballast Water Management .............................................................................................................. 2

Current U.S. Law............................................................................................................................. 3

Federal Agency Programs................................................................................................................ 5

U.S. Coast Guard....................................................................................................................... 5

Department of State................................................................................................................... 7

National Oceanic and Atmospheric Administration .................................................................. 7

Department of Defense.............................................................................................................. 8

Smithsonian Institution.............................................................................................................. 8

Environmental Protection Agency............................................................................................. 8

State Programs ............................................................................................................................... 10

International Efforts....................................................................................................................... 10

Congressional Action..................................................................................................................... 12

Contacts

Author Contact Information........................................................................................................... 13

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ith increases in the number of people traveling, the speed and methods of travel, the

types and volume of trade, the ability to move living plants and animals so that more of

them survive the journey, and the different modes of transport for hitch-hiking

organisms, invasive species have become a global concern. Although there are many ways in

which species may invade,1 this report focuses on ballast water discharge by cargo ships as one of

the more significant mechanisms for biotic invasion of coastal and estuarine habitats as well as

inland navigable waters.

The arrival of zebra mussels in the Great Lakes in the late 1980s and their subsequent damage to

city water supplies and electric utilities2 focused initial attention on ballast water as a source of

invasive species. Reflecting the scope of the problem, the San Francisco Bay-Delta ecosystem is

considered to be one of the most disrupted aquatic ecosystems in the United States, with

colonization by more than 230 non-native species.3 Compounding the problem, species that

invaded via other mechanisms (e.g., mitten crabs that are believed to have been an illegal seafood

introduction) may be further spread through ballast water transport and vice versa (e.g., zebra

mussels are spreading to new drainages via recreational boats transported by highway on trailers).

In the Gulf of Mexico, ballast water has been implicated in the contamination of commercial

oyster beds.4 Globally, it is estimated that more than 10,000 marine species each day may be

transported across the oceans in the ballast water of cargo ships.5 The ctenophore Mnemiopsis

leidyi was transported in ballast water from estuaries along the Atlantic coast of North America to

the Black Sea, where it is blamed for a massive collapse of the commercial fish harvest. Around

1978, the American jack-knife clam, Ensis directus, was introduced through ballast water in the

German Bight and has spread rapidly over the North Sea coast, where it has become one of the

most common bivalves, replacing many native species.

The economic, social, recreational, and ecological losses/costs attributable to aquatic invasive

species are difficult to quantify. While some costs have been estimated, such as the $5 billion in

damages to water pipes, boat hulls, and other hard surfaces by zebra mussels in the Great Lakes,6

others, such as the losses of native species and environment restoration to pre-invasion quality,

are unknown. The 112th Congress may consider legislative proposals to reauthorize and amend

the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990,7 including specific

provisions that would modify how ballast water is managed.

For an in-depth discussion of invasive species generally and their various mechanisms of invasion, see CRS Report

RL30123, Invasive Non-Native Species: Background and Issues for Congress, by M. Lynne Corn et al. Zebra mussels

and other species arriving in ballast water are specifically discussed in “A Gallery of Harmful Non-Native Plants and

Animals” in that report.

Colonies of zebra mussels accumulate and block water-intake pipes and screens of drinking water facilities, industrial

facilities, power-generating plants, golf course irrigation pipes, and cooling systems of boat engines.

Information from the Natural Resources Defense Council webpage at http://www.nrdc.org/greengate/wildlife/

invasivef.asp.

Fred C. Dobbs and Andrew Rogerson, “Ridding Ships’ Ballast Water of Microorganisms,” Environmental Science &

Technology, v. 39, no. 12 (June 15, 2005): 259A-264A.

G. Tracy Mehan, Assistant Administrator for Water, U.S. Environmental Protection Agency, testimony before the

Senate Committee on Environment and Public Works, Subcommittee on Fisheries, Wildlife, and Water, June 17, 2003.

16 U.S.C. §4701(a)(4).

Title I of P.L. 101-646; 16 U.S.C. §§4701-4741.

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Ballast Water Management

Ballast water is water that is held in tanks and/or cargo holds of ships to provide stability and

maneuverability during a voyage when ships are not carrying cargo, are not carrying heavy

enough cargo, or require more stability due to rough seas.8 Ballast water may be either fresh or

saline. Ballast water may also be carried so that a ship rides low enough in the water to pass under

bridges and other structures. Ballast water management (BWM) for vessels includes all measures

that aim to prevent unwanted aquatic nuisance species from being transported between ports in

the ballast. Seaports in which ships exchange ballast water daily are at severe risk of invasions.

Organisms transported to U.S. ports from foreign harbors with similar physiochemical

characteristics (e.g., water temperatures, salinity regimes) pose an especially high risk of

invasion. Even if only a tiny proportion of newly arriving non-native species survive in new

habitats, such as San Francisco Bay, Chesapeake Bay, or Boston Harbor, the actual number of

successful invasive species can be very large.

There are several different ways of managing ballast water. Currently, the most widely used is

ballast water exchange. Ballast water exchange means that ships on their way to the next port

release the lower-salinity coastal water they brought aboard in their last port and replace it with

higher-salinity open-ocean water. Although this measure is not perfect, it reduces the number of

potentially invasive species in the ballast tanks and replaces them with oceanic organisms that are

less likely to survive in the lower-salinity near-shore waters of the ship’s next port.9 However,

organisms with a wide tolerance for differing salinities may survive ballast water exchange,

especially any such organisms that may reside in the unpumpable residual water and sediment

remaining in the tanks during any ballast water exchange.

Another approach to BWM is treatment.10 Ballast water treatment is the subject of extensive

current research and development, and several technologies and methodologies have been

proposed. These include mechanical methods (e.g., filtration and separation), physical methods

(e.g., sterilization by ultraviolet light, ozone, heat, electric current, or ultrasound), and chemical

methods (using biocides). In addition, treatment may combine several of these methods.11

Treatment may be an appropriate management option on occasions when vessels temporarily

operate without ballast—a “no-ballast-on-board” (NOBOB) situation. When a ship is carrying no

ballast water, it presents unique treatment problems because large numbers of organisms can

reside in the unpumpable residual water and sediment remaining in the ballast tanks. Few of the

tested methodologies have been applied to the control of organisms in NOBOB situations.12 The

Massachusetts Institute of Technology Sea Grant, Marine Bioinvasions Fact Sheet: Ballast Water, Cambridge, MA,

December 4, 2002; available at http://massbay.mit.edu/exoticspecies/ballast/fact.html.

National Ballast Information Clearinghouse, Present Ballast Water Management Practices; available at

http://invasions.si.edu/nbic/managementpract.html.

A detailed discussion and evaluation of various ballast water treatment options is presented in Chapter 4 (“Shipboard

Treatment Options”) of Commission on Engineering and Technical Systems, Stemming the Tide: Controlling

Introductions of Nonindigenous Species by Ships’ Ballast Water, National Academy of Sciences (Washington, DC:

1996), 141 pp.

For example, Australian researchers established a pilot plant to sterilize ballast water using a combination of

filtration, ultraviolet light, and sonic disintegration. For more information, see David Salt, “Shipboard Pests get Sterile

Treatment,” ABC Science Online, September 30, 2003; available at http://www.abc.net.au/science/news/enviro/

EnviroRepublish_956770.htm.

The Coast Guard is studying methods to address NOBOB concerns; for more information, see 70 Fed. Reg. 1448(continued...)

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treatment option favored by many ship operators because of its intrinsic simplicity and relatively

low cost is biocide application, whereby chemical agents are added to the ballast water to

minimize the number of (i.e., kill) viable organisms. This approach also has the potential to

address the NOBOB condition.13 Concerns remain relating to establishing and enforcing

standards for the appropriate disposal of biocide-treated ballast water and sediments.

Although estimates of the costs of ballast treatment may be imprecise and vary from vessel to

vessel, there is some general agreement on average costs.14 For example, it may cost an estimated

$400,000 per vessel for modification of container/bulk vessels to use onshore ballast water

treatment facilities at California ports. More generally, the cost of retrofitting vessels to treat

ballast water has been estimated at between $200,000 and $310,000 per vessel for mechanical

treatment and around $300,000 for chemical treatment.15 Most of this expense will be borne by

foreign shipping companies, as the U.S. flag fleet is a small percentage of the global fleet,16 and

likely passed along to consumers of products imported on these ships. The likelihood of

compliance by the foreign flag fleet was increased by the February 2004 conclusion of an

international agreement on ballast water management (see “International Efforts,” below).

Current U.S. Law

Attempts to address ballast water concerns in the United States began with the Nonindigenous

Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA),17 which established a federal

program to prevent the introduction and to control the spread of unintentionally introduced

aquatic nuisance species. The U.S. Coast Guard, U.S. Environmental Protection Agency (EPA),

U.S. Fish and Wildlife Service (FWS), Army Corps of Engineers, and National Oceanic and

Atmospheric Administration (NOAA) share responsibilities for implementing this effort, acting

cooperatively as members of an Aquatic Nuisance Species (ANS) Task Force to conduct studies

and report to Congress to (1) identify areas where ballast water exchange can take place without

causing environmental damage; and (2) determine the need for controls on vessels entering U.S.

waters other than the Great Lakes. Under §1101 of NANPCA, a Great Lakes BWM program

(voluntary in its first two years) became mandatory in 1992. This section directed the Coast

Guard to issue regulations (33 CFR Part 151, Subpart C) to prevent the introduction and spread of

aquatic nuisance species into the Great Lakes through the ballast water of vessels and established

civil and criminal penalties for violating these regulations. NANPCA also encouraged the

Secretary of Transportation (now the Secretary of Homeland Security) to negotiate with foreign

(...continued)

1449 (January 7, 2005).

David T. Stocks, “Biocides Testing in the Great Lakes,” BMT Focus (Summer 2002): 12; available at

http://www.bmt.org/brochures/Focus%20Summer%202002.pdf.

State Water Resources Control Board, Evaluation of Ballast Water Treatment Technology for Control of

Nonindigenous Aquatic Organisms, California Environmental Protection Agency (December 2002); available at

http://www.calepa.ca.gov/Publications/Reports/Mandated/2002/BallastWater.pdf.

Frans J. Tjallingii, Market Opportunities for Ballast Water Treatment, Royal Haskoning, International Ballast

Technology Investment Fair, Chicago, IL, September 21, 2001.

As of October 2010, U.S. flag vessels comprised 0.81% of the global merchant fleet tonnage, according to statistics

from U.S. Maritime Administration, available at http://www.marad.dot.gov/library_landing_page/data_and_statistics/

Data_and_Statistics.htm.

Title I of P.L. 101-646; 16 U.S.C. §§4701, et seq.

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countries, through the International Maritime Organization, to prevent and control the

unintentional introduction of aquatic nuisance species.

In 1996, the National Invasive Species Act (NISA) amended NANPCA to create a national ballast

management program modeled after the Great Lakes program wherein all ships entering U.S.

waters (after operating outside the U.S. Exclusive Economic Zone) are directed to undertake high

seas (i.e., mid-ocean) ballast exchange or alternative measures pre-approved by the Coast Guard

as equally or more effective. While not initially enforced on a ship-by-ship basis, this national

program was to have become mandatory within three years of the date the Coast Guard issued

interim voluntary guidelines18 if ships did not show adequate compliance with the program19 in

the absence of enforcement.

The National Ballast Information Clearinghouse (NBIC) was developed jointly by the Coast

Guard and the Smithsonian Environmental Research Center to synthesize, analyze, and interpret

national data concerning BWM.20 During the first two years (July 1999 through June 2001), the

NBIC found that nationwide compliance with ballast exchange reporting requirements was low,

with only 30.4% of vessels entering the U.S. Exclusive Economic Zone (EEZ) filing reports with

the NBIC.21 In addition, a Coast Guard Report to Congress concluded that reporting compliance

was insufficient to allow an accurate assessment of voluntary BWM.22 On January 6, 2003, the

Coast Guard proposed penalties for those who failed to submit BWM reports required by 33

U.S.C. §151 Subpart D for most vessels entering U.S. waters.23 On June 14, 2004, the Coast

Guard published final regulations establishing penalties for failure to comply with reporting

requirements.24 On July 28, 2004, the Coast Guard published final regulations changing the

voluntary ballast water management program to a mandatory one.25

NISA encouraged negotiations with foreign governments to develop and implement an

international program for preventing the introduction and spread of invasive species in ballast

water. NISA also required a Coast Guard study and report to the Congress on the effectiveness of

existing shoreside ballast water facilities used by crude oil tankers in the coastal trade off Alaska,

as well as studies of Lake Champlain, the Chesapeake Bay, San Francisco Bay, Honolulu Harbor,

the Columbia River system, and estuaries of national significance.26 Under NISA, a Ballast Water

Management Demonstration Program was authorized to promote the research and development of

technological alternatives to ballast water exchange.

64 Fed. Reg. 26672-26690 (May 17, 1999). The voluntary guideline interim regulations were effective July 1, 1999.

Final regulations were published in 66 Fed. Reg. 58381-58393 (November 21, 2001).

If the voluntary program did not result in sufficient compliance, reporting of BWM practices would become

mandatory for nearly all vessels entering U.S. waters (33 CFR 151.2040).

For an analysis of some of the data, see A. Whitman Miller et al., “Geographic Limitations and Regional Differences

in Ships’ Ballast Water Management to Reduce Marine Invasions in the Contiguous United States,” BioScience, v. 61,

no. 11 (November 2011): 880-887.

G. M. Ruiz, et al., Status and Trends of Ballast Water Management in the United States: First Biennial Report of the

National Ballast Information Clearinghouse (Edgewater, MD: Smithsonian Environmental Research Center, November

16, 2001), p. 4.

U.S. Coast Guard, Report to Congress on the Effectiveness of the Voluntary BWM Program, June 3, 2002.

68 Fed. Reg. 523-530 (January 6, 2003).

69 Fed. Reg. 32864-32871 (June 14, 2004).

69 Fed. Reg. 44952-44961 (July 28, 2004).

As defined for the National Estuary Program in 33 U.S.C. §1330.

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NISA has been criticized as inadequate and faulted for several alleged shortcomings, including

agency weakness or delay in implementing some of its provisions.27 Since NISA exempted most

coastwise vessel traffic from ballast water exchange guidelines, vessels traveling short distances

between U.S. ports (e.g., from San Francisco Bay, which is highly invaded, to Puget Sound,

which is less so) are exempt from controls. Others are critical of the provisions of 16 U.S.C.

§4711(k)(2)(A) giving the vessel owner a blanket exemption to ignore any mandatory regulations

if the master determines that the vessel might not be able to safely conduct a ballast water

exchange on the open ocean. Whereas earlier provisions applicable to the Great Lakes provided a

safety exemption, the master/captain of a vessel was required to report the problem to the Coast

Guard and conduct alternate BWM measures, often negotiated on a case-by-case basis. Critics

believe the NISA language has eliminated any incentive to change ballast water piping systems or

adopt other management or treatment options to deal with the problem safely. Finally, NISA has

been criticized for its apparent failure to actually prevent additional introductions of damaging

organisms into the Great Lakes, despite this being the one area where the requirements for

managing ballast water have been the most stringent for the longest time.28

Federal Agency Programs

U.S. Coast Guard

Under NANPCA, the Coast Guard is responsible for developing and implementing a BWM

program to prevent the unintentional introduction and dispersal of nonindigenous aquatic species

into waters of the United States from ship ballast water.29 Initially this was accomplished through

a mandatory BWM program for the Great Lakes ecosystem and voluntary guidelines for the

remainder of U.S. waters. Relevant regulations, published at 33 CFR Part 151, Subpart C, went

into effect in 1993.30

Under these regulations, the Coast Guard enforced mandatory requirements for ballast water

management only for the Great Lakes. Ballast water reporting data for inbound vessels was

submitted via fax either directly to the Captain of the Port (COTP) Buffalo or U.S. Coast Guard’s

Marine Safety Detachment (MSD) Massena, or via the Saint Lawrence Seaway Development

Corporation (SLSDC) to MSD Massena at least 24 hours before arrival (33 CFR 151.2040).

Compliance with these requirements was essentially 100%. Every vessel that reports that it is

carrying ballast water on board (BOB) while transiting to the Great Lakes underwent ballast

water inspections by either MSD Massena at the locks in Massena, NY, or by the SLSDC in

Montreal. Compliance with the mandatory ballast water requirements averaged approximately

92% in the late 1990s and early 2000s for those vessels declaring BOB. Those vessels found to

Letter of February 11, 1999, to Hon. Carol Browner, Administrator of the U.S. Environmental Protection Agency,

from Representatives George Miller, Jim Saxton, and 16 other Members of the U.S. House of Representatives.

Union of Concerned Scientists, The National Invasive Species Act: An Information Update (Cambridge, MA: August

2002); available at http://www.ucsusa.org/assets/documents/invasive_species/nisa-1.pdf.

An April 29, 2008 lawsuit by the Izaak Walton League and several other environmental groups in a Minnesota

federal district court seeks to require the Coast Guard to prevent vessels from taking on and moving ballast water from

waters of the Great Lakes to prevent the spread of viral hemorrhagic septicemia to Lake Superior from adjacent lakes.

For additional information, see http://www.greatlakeslaw.org/blog/files/vhs_complaint.pdf.

58 Fed. Reg. 18330-18335 (April 8, 1993). Regulations were extended to include vessels entering the Hudson River

in 59 Fed. Reg. 67632-67634 (December 30, 1994).

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not have conducted proper exchange were ordered not to discharge ballast water in the Lakes. For

these vessels, or if the vessel declared that it intended to retain its ballast water on board while in

the Great Lakes system, then MSD Massena again boarded the vessel after it has made port calls

in the Lakes and passed the lock in Massena on its outbound transit to ensure the vessel had not

discharged while in the Lakes. Vessel compliance with the order not to discharge has been

excellent.31

As stated in the Secretary of Transportation’s November 2001 United States Coast Guard Report

to Congress on the Voluntary National Guidelines for Ballast Water Management, the Coast

Guard began developing regulations requiring active BWM of all ships that enter U.S. waters

after operating beyond the EEZ, including sanctions for failure to comply. On July 30, 2003, the

Coast Guard proposed mandatory BWM practices for all vessels with ballast tanks bound for

ports or places within the United States or entering U.S. waters, but excluding domestic port-toport voyages.32 The Coast Guard published final regulations on July 28, 2004, extending BWM

requirements already in place for vessels entering the Great Lakes and Hudson River to all U.S.

ports and waters.33 The Coast Guard requested comments on potential revisions to mandatory

ballast water management reporting requirements in early 2007.34

The Coast Guard also has taken action to establish a quantitative ballast water treatment

performance standard; protocols for testing, verifying, and reporting on treatment technologies;

and a program to facilitate experimental shipboard installation and operation of promising

technologies. On March 4, 2002, the Coast Guard published an advance notice of proposed

rulemaking, seeking comments on development of a ballast water treatment goal and an interim

ballast water treatment standard as part of regulations that would make guidelines for ballast

exchange mandatory.35 On September 26, 2003, the U.S. Coast Guard announced its intent to

prepare a Programmatic Environmental Impact Statement for proposed regulatory action to

establish a ballast water discharge standard.36 Such a standard would establish the required level

of environmental protection necessary to prevent introductions and combat the spread of invasive

species from ballast water discharges. Comments were accepted on this proposal through

December 26, 2003. On May 2, 2006, the U.S. Coast Guard published a request for public

comment on the status of research and development of ballast water management systems and

analytical technologies for testing such systems.37 On August 28, 2009, the Coast Guard

published proposed regulations to establish standards for ballast water treatment.38 On March 23,

2012, the Coast Guard published its final rule.39 The new standards initially follow standards

developed by the International Maritime Organization (see “International Efforts,” below), and

would become much more stringent in a subsequent phase, given sufficient technological

Personal communication with Jill R. Teixeira, Lieutenant Junior Grade, U.S. Coast Guard, Office of Congressional &

Governmental Affairs, Washington, DC, March 30, 2004.

68 Fed. Reg. 44691-44696 (July 30, 2003).

69 Fed. Reg. 44952-44961 (July 28, 2004).

72 Fed. Reg. 2536-2537 (January 19, 2007).

67 Fed. Reg. 9632-9638 (March 4, 2002).

68 Fed. Reg. 55559-55563 (September 26, 2003).

71 Fed. Reg. 25798-25799 (May 2, 2006).

74 Fed. Reg. 44632-44672 (August 28, 2009).

77 Fed. Reg. 17254-17320 (March 23, 2012). Updated Coast Guard information is available at http://www.uscg.mil/

hq/cg5/cg522/cg5224/bwm.asp.

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development to support compliance with higher standards.40 The new ballast water discharge

standard is effective 90 days after publication, or June 21, 2012. The Coast Guard standards do

not preempt state ballast water management standards (see “State Programs,” below).

On January 2, 2004, the U.S. Coast Guard announced the beginning of a program to facilitate the

installation of experimental shipboard ballast water treatment systems on both foreign and

domestic vessels.41 This Shipboard Technology Evaluation Program (STEP) aims to promote

research and development of shipboard ballast water treatment systems through regulatory

incentives, creating more options for vessel owners seeking alternatives to ballast water

exchange. Regulatory incentives would grant conditional equivalencies for accepted vessels in the

STEP that might not meet discharge standards mandated by future regulations. On August 5,

2004, the U.S. Coast Guard announced its interest in establishing a program to approve ballast

water treatment systems to assure that approved systems meet ballast water discharge standards

the Coast Guard anticipates implementing.42 On August 28, 2009, the Coast Guard published

proposed regulations that would establish an approval process for ballast water management

systems.43 In September 2010, the Coast Guard, EPA, and U.S. Navy published Generic Protocol

for the Verification of Ballast Water Treatment Technology.44

On August 31, 2005, the Coast Guard published a notice of policy establishing best management

practices for NOBOB vessels entering the Great Lakes that have residual ballast water and ballast

tank sediment.45

Department of State

The Department of State participated in negotiations through the International Maritime

Organization to develop an international convention to control the spread of invasive species

from the exchange of ships’ ballast water. (See “International Efforts,” below.)

National Oceanic and Atmospheric Administration

Through both the National Sea Grant College program and a BWM technology development

program, NOAA has funded research on alternatives to ballast water exchange as methods of

BWM.46 NOAA’s Great Lakes Environmental Research Lab (GLERL) targets prevention and

control to stop the inflow and spread of new aquatic organisms, with particular emphasis on ship

ballast. GLERL, with combined funding from NOAA and several other agencies, developed and

provides leadership for the Great Lakes NOBOB and Ballast Exchange research program,

focusing on the biological assessment of ballast tank residuals and the experimental determination

Descriptive material on the Coast Guard proposal is available at http://www.uscg.mil/hq/cg5/cg522/cg5224/docs/

White%20Paper%20-%20Ballast%20Water%20Discharge%20Standard%20v3B.pdf.

For additional information, see http://www.uscg.mil/hq/g-m/nvic/04/NVIC_01-04.pdf.

69 Fed. Reg. 47453-47454 (August 5, 2004). A generic protocol for verification of ballast water treatment

technology is published at http://www.epa.gov/nrmrl/pubs/600r10146/600r10146.pdf.

74 Fed. Reg. 44632-44672 (August 28, 2009).

Available at http://www.epa.gov/nrmrl/pubs/600r10146/600r10146.pdf.

70 Fed. Reg. 51831-51836 (August 31, 2005).

The last request for proposals for ballast water treatment technology testing and demonstration projects was

published by NOAA at 71 Fed. Reg.33898-33929 (June 12, 2006).

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of effectiveness of ballast exchange. In this program, GLERL scientists collaborate with scientists

at several universities and the Smithsonian Environmental Research Center. In a related project,

scientists at GLERL and the University of Michigan are evaluating two chemicals for use on

residuals in NOBOB tanks. In addition, GLERL has been working on developing a model of

ballast tank flow during ballast tank exchange. NOAA also has managed a Ballast Water

Management Demonstration Program grant competition,47 but no recent grant announcements

have been published.

Department of Defense

The Department of Defense (DOD) is promulgating joint regulations with the EPA covering

discharges from DOD vessels (40 CFR 1700) to implement §312(n) of the Clean Water Act (33

U.S.C. §1322(n)). When complete, they will set discharge standards for vessel ballast water to

address the environmental effect of non-native species introduction via that ballast water (as well

as addressing chemical pollution from other Armed Forces vessel discharges). The regulations are

being developed in three phases. The first, completed in May 1999, determined which ballast

water discharges would require control. The second, currently in progress, will set performance

standards, and the third will promulgate regulations for meeting those standards.

Smithsonian Institution

The Smithsonian Environmental Research Center performs research to examine patterns of

ballast water delivery and measures species transfer associated with shipping. In cooperation with

the Coast Guard, the center established the National Ballast Information Clearinghouse (NBIC)48

to measure the changing patterns of ballast water delivery and management for vessels arriving in

U.S. ports and to synthesize national data on patterns and impacts of alien species in coastal

ecosystems.

Environmental Protection Agency

The EPA establishes water quality standards and regulates discharges under the Clean Water

Act.49 On September 9, 2003, the EPA announced that it was denying a 1999 petition by the

Pacific Environmental Advocacy Center, Center for Marine Conservation, San Francisco Bay

Keeper, and a number of other concerned groups to require regulation of vessel ballast water

discharges through Clean Water Act permits, arguing that the Coast Guard was the more

appropriate regulatory agency.50 This decision did not alter the development and implementation

of the joint EPA-DOD regulations covering discharges from DOD vessels (discussed above)

because this DOD effort is specifically authorized in statute. In late December 2003, three Pacific

Coast environmental groups filed suit, seeking to force the EPA to regulate ballast water

discharges under the Clean Water Act.51

A notice of grant funding available for FY2008 was published at 72 Fed. Reg. 73325-73335 (December 27, 2007).

For more information on the NBIC, see http://invasions.si.edu/NBIC/ballast.html.

33 U.S.C. §§1251, et seq.

68 Fed. Reg. 53165-53166 (September 9, 2003). A copy of the EPA decision was available at http://www.epa.gov/

npdes/pubs/ballast_report_petition_response.pdf.

Cathy Zollo, “Environmental Groups Seek EPA Rules for Ballast Water,” Naples Daily News, December 24, 2003,

(continued...)

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Ballast Water Management to Combat Invasive Species

On September 18, 2006, the federal district court ruled that EPA’s regulation exempting ballast

water discharges from the Clean Water Act was contrary to congressional intent and ordered EPA

to promulgate new regulations within two years (i.e., September 30, 2008).52 This ruling, which

the government appealed to the U.S. Court of Appeals for the Ninth Circuit,53 directs EPA to

ensure that shipping companies and other vessels comply with the Clean Water Act by restricting

the discharge of invasive species in ballast water under that act’s permit program.54 In response,

EPA published regulations for vessel general permits (VGPs) on December 29, 2008.55

Environmental groups expressed concern over the effectiveness of the EPA regulations and filed a

court challenge. In a March 2011 settlement, EPA was required to revise its VGP program to

require numeric limits on organisms in ballast water discharges as well as additional monitoring

and reporting of vessel discharges.56 Under the terms of this settlement, EPA proposed two new

VGP programs on November 30, 2011, with final action on the draft permits anticipated by

November 30, 2012.57

In light of EPA action, concern arose in the 110th Congress as to what extent legislation proposing

national standards for ballast water management to be administered by the Coast Guard might

conflict with EPA regulation of ballast water discharges as water pollutants under the Clean Water

Act.58 In response to these concerns, the 110th Congress enacted P.L. 110-299 to provide a twoyear moratorium on Clean Water Act VGP permitting for discharges (except for ballast water

discharges) from commercial fishing vessels and non-recreational vessels less than 79 feet in

length in response to the Northwest Environmental Advocates litigation.59 During the

moratorium, EPA studied the discharges from these vessels and submitted a report to Congress.60

The 111th Congress, in P.L. 111-215, extended this moratorium through December 18, 2013.

EPA’s Science Advisory Board’s Ecological Processes and Effects Committee has met several

times to provide advice on technologies and systems to minimize the impacts of invasive species

in vessel ballast water management, including the issue of whether to support the development of

onshore ballast water treatment options. In addition, EPA and Coast Guard have jointly

(...continued)

available at http://www.naplesnews.com/news/2003/dec/24/ndn_environmental_groups_seek_epa_rules_for_ballas/.

Northwest Environmental Advocates, et al. v. U.S. Environmental Protection Agency, Case No. C 03-05760 SI (N.D.

Cal., decided September 18, 2006).

The appellate court upheld the lower court decision; 9th Circuit Court, on appeal from the U.S. District Court for the

District of Northern California, July 23, 2008.

EPA estimated that approximately 61,000 domestically flagged commercial vessels and approximately 8,000 foreign

flagged vessels may be affected by this permit.

73 Fed. Reg. 79473-79481; a fact sheet is available at http://www.epa.gov/npdes/pubs/vgp_factsheet_english.pdf.

See http://blogs.law.stanford.edu/newsfeed/files/2011/03/03-08-11-BallastWaterSettlementFINAL.pdf.

For detailed information on the EPA’s proposed permits, see CRS Report R42142, EPA’s Proposed Vessel General

Permits: Background and Issues, by Claudia Copeland.

Detailed information on legislation addressing BWM issues in the 110th Congress can be found in CRS Report

RL34640, Regulating Ballast Water Discharges: Legislative Issues in the 110th Congress, by Claudia Copeland.

See CRS Report RS22878, Clean Water Act: 110th Congress Legislation on Discharges from Recreational Boats.

EPA, Report to Congress: Study of Discharges Incidental to Normal Operation of Commercial Fishing Vessels and

Other Non-Recreational Vessels Less Than 79 Feet; available at http://www.epa.gov/npdes/pubs/

vesselsreporttocongress_all_final.pdf.

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commissioned two studies, including one by the National Research Council, to improve

understanding of ballast water discharges.61

State Programs

In addition to federal programs and sometimes in response to perceived deficiencies in federal

regulation, several states have chosen to regulate aspects of ballast water management, including

California,62 Oregon,63 Washington,64 Wisconsin,65 Minnesota,66 New York,67 and Michigan.68

Particular concerns have arisen over New York State ballast water regulations, called the toughest

in the world by some, as to whether the technology exists to meet the standards.69 In light of state

action, several bills in the 110th Congress proposed to preempt state ballast water discharge

standards that are more stringent than federal standards, while continuing to allow states to

inspect and enforce federal ballast water standards. In the 112th Congress, Section 459 of H.R.

2584, as reported by the House Committee on Appropriations, would prohibit EPA from

providing funds to any Great Lakes state that has a more stringent performance or ballast water

exchange standard than either a revised Coast Guard standard or the IMO standard.

International Efforts

In July 1991, the International Maritime Organization’s (IMO’s) Marine Environmental

Protection Committee (MEPC) issued voluntary International Guidelines for Preventing the

Introduction of Unwanted Aquatic Organisms and Pathogens for Ships’ Ballast Water and

Sediment Discharges, adopted in Resolution (50) 31 by a diplomatic conference of the IMO in

November 1993. IMO members were requested to follow these guidelines, which also called for

exchange of ballast water in the open ocean (to reduce transfer of species from port to port). A

review conducted by Australia in 1993 revealed that few countries had implemented the

guidelines. In 1994, the MEPC established a ballast water working group to draft regulations for

the control and management of ships’ ballast water. These draft regulations were debated at the

November 1998 and June 1999 MEPC meetings. IMO subsequently proposed these management

protocols as a formal IMO instrument. This instrument requires all ratifying member nations to

follow the regulations, which would include open-ocean exchange.

Links to copies of these studies and supporting documentation are available at http://cfpub.epa.gov/npdes/vessels/

programdevelopment.cfm.

See http://www.slc.ca.gov/division_pages/depm/depm_programs_and_reports/shore_terminals/text/

40%20appendix%20e.doc for details on California’s program.

See http://www.deq.state.or.us/lq/cu/emergency/ballast.htm for details on Oregon’s program.

See http://wdfw.wa.gov/ais/ballast/ for details on Washington’s program.

See http://dnr.wi.gov/news/BreakingNews_Lookup.asp?id=1500 for details on Wisconsin’s program.

See http://www.pca.state.mn.us/index.php/water/water-permits-and-rules/water-permits-and-forms/vessel-dischargeballast-water-program.html?menuid=&redirect=1 for details on Minnesota’s program.

See http://www.dec.ny.gov/permits/72399.html for details on New York’s program.

See http://www.michigan.gov/deq/0,1607,7-135-3313_3682_3713-153446—,00.html for details on Michigan’s

program.

For example, see http://www.northcountrypublicradio.org/news/story/18090/20110727/new-york-s-tough-ballastwater-rules and http://www.jsonline.com/news/wisconsin/129777183.html.

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On February 13, 2004, an International Convention for the Control and Management of Ships’

Ballast Water and Sediments was adopted at the International Conference on Ballast Water

Management for Ships in London, England. This convention will enter into force 12 months after

ratification by 30 nations, representing 35% of the world merchant shipping tonnage.70 The

United States was one of the major proponents of this convention, which requires all ships to

implement a Ballast Water and Sediments Management Plan. In addition, all ships must carry a

Ballast Water Record Book and will be required to conduct BWM procedures in conformity with

a specified standard. These standards will be phased in for various vessels, depending upon when

they were constructed.71 Resistance by vessel owners to the new international requirements for

ballast water treatment is tempered by their interest in global standards under the IMO convention

as opposed to the increasing number of national ballast water programs developed around

different approaches for addressing this concern. However, proposed U.S. Coast Guard

regulations could mandate ballast water treatment standards as much as 100 times more stringent

than those required by the IMO convention, possibly making the IMO convention irrelevant, if

the more stringent standards could be met with readily available treatment technology at no

substantially greater expense.72 A Global Industry Alliance—a partnership among IMO, the

United Nations Development Program, the Global Environment Facility, and four private

shipping corporations—was formed in March 2009 to coordinate international research and

development of cost-effective BWM technologies.73 The United States has neither signed nor has

become a contracting party to this IMO convention.

Bilaterally with Canada, the United States is cooperating through the North American

Commission for Environmental Cooperation (CEC),74 the Great Lakes Commission, and the

International Joint Commission to better understand, coordinate, and address ballast water

management concerns. Improved ballast water management is one component of the CEC’s

project on “Closing the Pathways of Aquatic Invasive Species across North America.”75 The

Great Lakes Commission convened the “Great Lakes Panel on Aquatic Nuisance Species” in late

1991 to coordinate efforts, including ballast water management.76 In addition, the International

Joint Commission (IJC) views invasive species management as an important component of water

quality.77 Furthermore, the Saint Lawrence Seaway Development Corporation jointly administers

regulations and seeks to harmonize ballast water regulations for vessels transiting U.S. waters of

the Seaway after having operated outside the U.S. EEZ with those required by Canadian

authorities for transit in waters under Canadian jurisdiction.78

As of March 2012, this convention had been ratified by 33 nations, representing 26.46% of the world merchant

shipping tonnage. Updated status information can be found at http://www.imo.org/OurWork/Environment/

BallastWaterManagement/Pages/Default.aspx#5.

Details on this new convention were available at http://globallast.imo.org/index.asp?page=mepc.htm&menu=true.

Rajesh Joshi, “New US Ballast Water Plan a Threat to IMO Convention,” Lloyd’s List, May 1, 2008.

IMO, United Nations Agencies Partner with Shipping Corporations to Minimize Global Environment Threat,

IMO/UNDP Joint Press Release, March 2, 2009.

Established under the authority of the North American Free Trade Agreement.

Additional information on this project was available at http://www.cec.org/programs_projects/conserv_biodiv/

project/index.cfm?projectID=20&varlan=english.

Additional information on this panel was available at http://www.glc.org/ans/.

Additional information on these concerns was available from the IJC’s annual report, available at http://www.ijc.org/

php/publications/html/11br/english/report/chapter3/.

73 Fed. Reg. 9950-9954 (February 25, 2008).

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Congressional Action

Numerous congressional hearings on ballast water issues and implementation of NISA were held

in recent Congresses.79 Certain testimony at these hearings has been particularly critical of the

slow progress in promulgating regulations to implement NISA. Information on legislative action

to address various aspects of BWM issues in the 110th Congress can be found in CRS Report

RL34640, Regulating Ballast Water Discharges: Legislative Issues in the 110th Congress, by

Claudia Copeland.

In the 112th Congress, on July 13, 2011, the House Committee on Transportation and

Infrastructure, Subcommittees on Coast Guard and Maritime Transportation and on Water

Resources and Environment, held a joint hearing on ballast water discharge regulation.

Legislation has been introduced in the 112th Congress relating to ballast water:

•

Section 5 of S. 1430 would authorize a “green ships” program, with one element

focusing on identifying, evaluating, testing, demonstrating, and improving

marine technologies for controlling aquatic invasive species; on December 7,

2011, the Senate Committee on Commerce, Science, and Transportation reported

(amended) this bill (S.Rept. 112-99).

•

H.R. 2840 would amend the Clean Water Act to add a new Section 321 to

implement ballast water management and standards related to discharges from

commercial vessels; on November 3, 2011, the House Committee on

Transportation and Infrastructure reported (amended) this bill (H.Rept. 112-266).

On November 4, 2011, the House, by floor amendment, added the language of

H.R. 2840 as Title VII of H.R. 2838; the House passed H.R. 2838 (amended) on

November 15, 2011.

•

Section 459 of H.R. 2584, as reported by the House Committee on

Appropriations on July 19, 2011 (H.Rept. 112-151), would have prohibited the

Environmental Protection Agency (EPA) from providing funds to any Great

Lakes state that has a more stringent performance or ballast water exchange

standard than either a revised Coast Guard standard or the International Maritime

For example, U.S. Congress, Committee on Resources, Subcommittee on Fisheries Conservation, Wildlife, and

Oceans and Committee on Science, Subcommittee on Environment, Technology, and Standards, H.R. 5395 and H.R.

5396, Joint legislative hearing, 107th Cong., 2d sess., (Washington, DC: November 14, 2002), 80 pp.; U.S. Congress,

Committee on Resources, Subcommittee on Fisheries Conservation, Wildlife, and Oceans, and Subcommittee on

National Parks, Recreation, and Public Lands, The Growing Problem of Invasive Species, joint legislative hearing,

108th Cong., 1st sess. (Washington, DC: April 29, 2003), 133 pp.; U.S. Congress, Committee on Environment and

Public Works, Subcommittee on Fisheries, Wildlife, and Water, National Aquatic Invasive Species Act of 2003,

legislative hearing, 108th Cong, 1st sess. (Washington, DC: June 17, 2003), 240 pp.; an as-yet-unpublished joint hearing

of March 25, 2004, by the House Committee on Transportation and Infrastructure, Subcommittees on Coast Guard and

Maritime Transportation and on Water Resources and Environment, on Ballast Water Management: New International

Standards and National Invasive Species Act Reauthorization; U.S. Congress, Committee on Government Reform,

Subcommittee on Regulatory Affairs, Protecting Our Great Lakes: Ballast Water and the Impact of Invasive Species,

oversight field hearing, 109th Congress, 1st sess. (Fair Haven, MI: September 9, 2005), 133 pp.; an as-yet-unpublished

legislative hearing of June 15, 2005, by the Senate Committee on Commerce, Science, and Transportation, National

Ocean Policy Study, on Ballast Water Invasive Species Management and Threats to Coral Reefs; U.S. Congress,

Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, The Impact of

Aquatic Invasive Species on the Great Lakes, legislative hearing, 110th Congress, 1st sess. (Washington, DC: March 7,

2007), 256 pp.

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Organization standard. However, FY2012 appropriations for EPA, included in

P.L. 112-74, contain no similar provision.

Updated information on legislative action to address various aspects of BWM issues in the 112th

Congress can be found in CRS Report R41613, Fishery, Aquaculture, and Marine Mammal

Issues in the 112th Congress, by Eugene H. Buck and Harold F. Upton, under the “Invasive

Species” heading.

Author Contact Information

Eugene H. Buck

Specialist in Natural Resources Policy

gbuck@crs.loc.gov, 7-7262

Congressional Research Service

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.