2nd Circuit Case Highlights Complexities Of Ballast Water Regs

Effective control of ship-borne, nonindigenous organisms has proved to be a major challenge to the maritime industry, international maritime organizations, national and local governments, environmental organizations, and, most recently, the courts.

Large ocean-going vessels use seawater as ballast to ensure stability across varying load profiles. Water is taken on board into segregated tanks and then discharged into the environment as cargo and fuel are loaded. Amounts vary with the design, function and size of the ship. In the largest vessels, millions of gallons of ballast water can be taken on in one port, transported across the globe and released into a new aquatic ecosystem along with debris, sewage, pollutants, benign and pathogenic micro-organisms, and small marine plant and animal species that are inadvertently sucked into a ship's tanks during ballasting operations.

While there are trade routes in which the environments at either end of a voyage are so disparate that plants, animals and other biota carried in ballast cannot survive, there have been numerous examples of non-native species being transported in ballast water and adapting successfully to their new surroundings, some spectacularly so to the injury of native species. Zebra mussel populations in the Great Lakes originated several decades ago in the discharged ballast water of a ship that transported them from their native Eurasian habitat. Once released into their new surroundings in the Lakes, they thrived to the point that they soon were encrusting water intakes at power plants and factories, while dining voraciously on small aquatic organisms that were important links in the food chain for larger native fish species. These mussels multiplied rapidly and spread throughout the Great Lakes region, working their filtering magic on water quality while devastating populations of local lake creatures.

Examples of other infestations traceable to ballast water transfers are numerous both in the United States and abroad. It is not controversial that inadvertent introduction of non-native species via ship ballast water can have significant negative environmental and economic effects. What is controversial is identifying effective measures to control the problem. Increasingly, the U.S. judicial system is weighing in and placing increasing demands on industry, the U.S. Environmental Protection Agency and the venerable Clean Water Act (33 U.S.C. § 1251 et seq.) to provide solutions.

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