Congress is on the verge of passing a law that would open a door for invasive species to sneak into Puget Sound from San Francisco Bay — known as the most infested waterway in the country.
The proposed legislation, supported by the shipping industry, is
focused on reducing regulations surrounding the release of ballast
water, which large ships use to maintain stability. Environmental
groups and officials from at least nine states have voiced their
opposition to the proposal, saying it could result in long-term
damage to coastal and Great
Ballast water doesn’t get much attention in the media, but it has been associated with the transfer of invasive species throughout the world. Ships often take on ballast water at ports where they unload their cargo before moving to their next destination for a new load. As ships take on cargo, they discharge ballast water from the previous location — along with any organisms that hitched a ride.
Introduced species may multiply, displace native species and disrupt the food web. Lacking natural predators, some invasive species have been known to grow out of control, taking over beaches or underwater areas.
Rules and more rules
To reduce the risk of invasive species, the U.S. Coast Guard requires vessels from foreign countries to exchange their ballast water at sea before entering U.S. waters. Studies have shown that most organisms living out in the ocean don’t survive in coastal waters, and vice versa. So it is less risky for Puget Sound to receive ballast water picked up well off the coast than from another coastal inlet.
Ships that don’t discharge ballast water don’t need to comply with the Coast Guard’s ballast-exchange rule, nor do any ships transiting the U.S. coast, such as those coming into Puget Sound from California.
For years, fears have been growing that Puget Sound will become invaded by species that could alter sea life as we know it today. San Francisco Bay is dominated by more than 200 non-native species, including the European green crab and the Asian clam — both of which have caused enormous economic losses to the shellfish industry in various locations.
In contrast, Puget Sound has become home to an identified 74 non-native marine species, although early introductions of exotic plankton — including some that produce toxins — could have gone unnoticed.
In reaction to growing concerns about invasive species, the Washington Legislature passed a law in 2000 that requires ballast exchange for ships arriving from anywhere outside a “common waters” zone. That’s an area from the Columbia River to just north of Vancouver, B.C. Consequently, ships from California that intend to release ballast water into Puget Sound must first exchange their ballast water at least 50 miles off the coast.
While the exchange of ballast water has been relatively effective in controlling the release of non-native species, the technique has always been considered an interim measure. Treating ballast water to kill organisms has been the long-term goal — and that’s where the confusion and frustration begins.
The International Maritime Organization has one treatment standard nearing final adoption for ships throughout the world. The Coast Guard says the IMO requirement to eliminate “viable” organisms — those able to reproduce — is too risky. The Coast Guard requires that organisms be killed. States may choose to issue their own standards, and California has proposed the most stringent treatment standards of all. Still, most of these standards are essentially on hold pending testing and certification of specific treatment systems.
Shipping companies say all these costly and conflicting rules are too difficult to navigate for businesses dealing in interstate and international commerce. But that’s not all the rules they may face.
The Environmental Protection Agency became involved in ballast water in 2008, after federal courts ruled that the shipping industry is not exempt from the Clean Water Act. The EPA then came up with a “vessel general permit” for ballast water and other discharges from ships, a permit that was challenged twice by environmental groups. Each time, the courts ruled against the EPA.
The latest EPA permit failed to require the “best available technology” for ballast water treatment, failed to set numerical standards, failed to require monitoring, and failed to meet other provisions of the Clean Water Act, according to a ruling handed down in October (PDF 6.4 mb) by the Second Circuit Court of Appeals in New York. A revised permit is now in the works.
Legislation and politics
That brings us to the controversial legislation, called the Vessel Incidental Discharge Act, or VIDA. The essence of the bill is to eliminate state jurisdiction and any oversight by the EPA. Upon enactment, only Coast Guard rules would apply, and ships from San Francisco would no longer need to exchange their ballast water before coming into Washington or Oregon. For an in-depth understanding of the bill, read the Congressional Research Service report (PDF 3.5 mb).
The lack of coastwise ballast exchange is the biggest concern of officials along the West Coast, where similar state requirements are in effect. In California, the problem is that VIDA would allow the spread of invasive species from San Francisco Bay to more pristine bays, such as Humboldt Bay. While the bill allows states to petition for regulations to deal with local conditions, nobody knows how that would work. The petition would need scientific proof that the local regulations are needed and feasible, and the Coast Guard would have 90 days to make a decision.
In the U.S. House of Representatives, VIDA became attached to the National Defense Authorization Act, which was approved. NDAA is a “must-pass” bill to authorize military funding and many other things associated with national defense.
The Senate version of the defense bill does not contain the VIDA provision. While the two bills are technically in a conference committee, insiders tell me that top leaders in the House and Senate must engage in political battles over the critical defense bill and try to work out a compromise to gain approval in both houses.
The shipping industry is lobbying hard for VIDA to stay in the compromise bill, while environmentalists want to take it out. We may not know which of the related and unrelated riders on the bill will survive until the bill is ready for congressional action.
In the Senate, Florida’s Sen. Marco Rubio was the original sponsor of the legislation when it was a stand-alone bill. Republicans would like him to get a win for the folks back home, where Rubio is engaged in a tight election race. (See Dan Friedman’s story in Fortune.)
President Obama, threatening a veto, lists VIDA as one of many provisions that he opposes in the House version of the National Defense Authorization Act. See Statement of Administration Policy (PDF 1.2 mb). Nobody thinks he would veto the bill over ballast water alone.
Many shipping industry officials say they don’t object to stringent treatment standards. They only wish to avoid multiple, confusing standards. They also would like some assurance that the standards are technically feasible and won’t require ongoing costly changes to equipment.
Environmentalists say they don’t want to lose the authority of the Clean Water Act, which allows average citizens to bring lawsuits to protect the environment.
“The Clean Water Act is a tried and true approach for controlling water pollution problems,” said Nina Bell of Northwest Environmental Advocates in Portland. Her group was among those that brought the lawsuit against the EPA (PDF 6.8 mb).
“I think we are poised to make some real progress,” Nina told me. “VIDA opts instead to take away authority from the Environmental Protection Agency and give it to the Coast Guard, which has no environmental expertise. The Coast Guard has a lot of priorities, such as keeping people safe on ships and protecting our waters, but this is not one of them.”
The EPA has clear authority to regulate ballast water and limit the spread of invasive species, she said. If the EPA were to issue strong requirements, the states would not need their own regulations.