Ballast Water and Aquatic Invasive Species: The Unintended Consequences of Merchant Vessels

Texas Lawyer

A cargo vessel’s center of gravity, and thus its stability, alters as it loads and unloads cargo.  During unloading, the center moves upward as the vessel gradually rises in the water, and so the vessel takes on ballast water to compensate (to an extent) to keep the center of gravity within acceptable safety parameters. During loading operations, the opposite process occurs and the vessel discharges ballast water as the vessel’s freeboard (the distance between the vessel’s deck amidships and the water level) lowers.

Merchant vessel cargo operations result in the exchange of billions of gallons of ballast water between ports across the globe and thousands of aquatic species likely are transported in the process. Ballast water may contain sediment and microscopic organisms (larvae, eggs, plankton) that left untreated could create havoc with a recipient country’s ecosystem.

For example, in the late 1980s, an invasive species, Zebra mussels (native to the Black and Caspian Seas), entered the Great Lakes through the discharge of ballast water from cargo vessels traveling from overseas. Not having a natural predator to stop their spread, these mussels have proliferated throughout the Great Lakes and entered the eastern Mississippi River basin seriously damaging those ecosystems by over absorbing phytoplankton needed by native species and suffocating native mussels, not to mention attacking man-made underwater structures.

Billions of dollars have been spent cleaning and repairing the damage inflicted, including removing toxic algae and cleaning water intake pipes for power and water-treatment facilities.  Believe it or not, Zebra mussels now threaten Lake Texoma and the Trinity River Basin.

Zebra mussels are but one example. Numerous invasive species threaten North American and Texas waters. European green crabs have infiltrated both North American coasts damaging salmon and shellfish populations. Burgeoning within Texas rivers, Asian clams contain parasites and diseases that adversely affect native aquatic species and clog power-plant-water systems. Giant Salvinia, native to South America, is an aquatic fern that now thrives in Texas freshwater lakes and streams and spreads so rapidly that it can cover small ponds within a matter of weeks, shading out native species and reducing available oxygen.

The United States and the international community have taken different approaches over the last few decades to stop the spread of aquatic invasive species, starting with voluntary measures and now mandatory regulations at the state, federal, and international levels. Those approaches, not always consistent, have created predicaments for vessel operators about how to comply and which ballast water management systems (“BWMS”) to install. Recently enacted federal legislation should eventually alleviate this dilemma.

U.S. Coast Guard (“USCG”) ballast-water regulations, promulgated in 2012, gradually require the installation of USCG type-approved BWMS designed to kill all live organisms. However, the creation of such systems and their type-approval by the USCG have taken years to implement, with the first BWMS being type-approved in late 2016.

Meanwhile, the International Maritime Organization’s (“IMO’s”) Ballast Water Management Convention entered into force on Sept. 8, 2017.  Rather than requiring BWMS that kill all organic material, the IMO test method limits the number of organisms permitted in ballast-water discharges and requires those organisms to be “non-viable.” Importantly, the United States is not party to the IMO Convention; rather the United States unilaterally implemented ballast-water regimes through the USCG and EPA that are similar, but not identical.

In 2018, the United States enacted the Vessel Incidental Discharge Act of 2018 (“VIDA”). VIDA required the EPA to promulgate standards for managing incidental discharges by December 2020. In October 2020, the EPA issued a notice of proposed rulemaking to promulgate those regulations governing discharges incidental to normal vessel operations.

As yet, those regulations have not been promulgated and the EPA does not anticipate finalizing them until November 2023, nearly three years after VIDA’s statutory mandate. Once the EPA sets those standards, the USCG will have two years to develop regulations to implement them through best-management practices and regulatory enforcement. Once implemented, VIDA will replace EPA’s 2013 Vessel General Permit (“VGP”) and generally preempt current state regulations.

The VGP currently requires all non-recreational, non-military vessels greater than 79 feet in length to submit a Notice of Intent to be covered by the VGP, and implement VGP requirements before they can discharge ballast water and operate in U.S. waters. The ballast-water-discharge provisions also apply to non-recreational vessels of less than 79 feet in length and fishing vessels of any size discharging ballast water.

The failure to have coverage under the VGP carries potentially significant civil and criminal penalties under the Clean Water Act. Until the new VIDA standards are promulgated by the EPA and implementing regulations created by the USCG, the EPA’s VGP requirements and existing state regulations govern the discharge of ballast water in state waters. While the EPA is nearly two years overdue in promulgating its VIDA standards, its VGP enforcement efforts nevertheless have risen over the past two years, especially concerning the failure to comply with the VGP’s routine and annual inspection, biological sampling, and equipment calibration requirements.

VIDA requires the USCG to create a working group, including states with ballast-water-management programs (Texas is not one of them) and the National Ballast Information Clearinghouse (“NBIC”), to develop a process for compiling federal and state commercial vessel reporting and enforcement data. The NBIC will disseminate ballast-water-management reports to interested states. As well, VIDA requires the USCG to provide vessel global positioning system data gathered through the Automated Information System (“AIS”) to state governors who request it.

Once the EPA and USCG regulations are promulgated, VIDA gives Texas the opportunity to enforce VIDA’s requirements in state waters in concert with the USCG, including the right to petition the USCG to implement “no incidental discharge zones.” VIDA also includes provisions to create a coastal aquatic invasive species mitigation grant program, as well as a Great Lakes and Lake Champlain Invasive Species Program.

Merchant vessel ballast-water discharges have created the unintended consequence of proliferating the spread of invasive aquatic species worldwide. While federal and state governments have grappled ad hoc with the consequences, VIDA seeks to create a more uniform approach to ballast-water management that allows states to augment the federal government’s ballast water discharge oversight efforts. Given the oyster beds in Galveston Bay, the shrimp beds off the Texas coast, and the plethora of marine life in its wetlands, bays and waterways, Texas has a vested interest in these oversight efforts.

"Ballast Water and Aquatic Invasive Species: The Unintended Consequences of Merchant Vessels," by Keith Letourneau was published in Texas Lawyer on September 12, 2022.

Reprinted with permission from the September 12, 2022, edition of the Texas Lawyer © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.