Order Code RL34640
Regulating Ballast Water Discharges:
Current Legislative Issues
Updated September 8, 2008
Claudia Copeland
Specialist in Resources and Environmental Policy
Resources, Science, and Industry Division

Regulating Ballast Water Discharges:
Current Legislative Issues
Summary
Today there is wide agreement on the need for stronger measures to control
ballast water discharges from vessels which are a major pathway for introduction of
invasive species into U.S. waters, but there are differing views on how best to do
that. Current federal authority to manage ballast water, in the Nonindigenous
Aquatic Nuisance Prevention and Control Act of 1990, as amended (NANPCA), has
been criticized as inadequate. Several states (notably Michigan, California,
Minnesota, Oregon, and Washington) have passed or are considering their own
ballast water laws, creating concern that separate state programs could create a
patchwork of inconsistent regulatory requirements.
This concern is part of the rationale for Title V of H.R. 2830, the Coast Guard
Reauthorization Act of 2007, passed by the U.S. House of Representatives on April
24, 2008. It would establish a strengthened national ballast water management
program administered by the Coast Guard. This legislative approach is supported by
many in the maritime industry and by a number of environmental advocacy groups,
such as the National Wildlife Foundation. They argue, in essence, that a nationally
uniform program providing certainty to the regulated community, requiring standards
more stringent than existing Coast Guard or international rules, and specifying
compliance deadlines is the best legislative approach.
However, H.R. 2830 is opposed by other advocacy groups, such as the Natural
Resources Defense Council (NRDC), and several of the states that have moved
forward with their own ballast water programs. They contend that the legislation
largely preempts state efforts and provides a slower and less effective approach to
controlling ballast water discharges than that of the Clean Water Act.
Evaluating these differing views is complicated by a recent Environmental
Protection Agency proposal that would control ballast water and other discharges
incidental to the normal operation of vessels through the mechanism of Clean Water
Act permits.
At issue is whether the standard-setting, permit, and enforcement authorities of
the Clean Water Act (CWA) are better tools for managing ballast water discharges
than the approach in H.R. 2830. That legislation contains statutory performance
standards to be implemented by the Coast Guard which would preempt state
regulatory programs that are inconsistent or in conflict with the federal law. These
issues are reviewed in this report.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Description of Title V of H.R. 2830 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
State Role and Federal Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Clean Water Act’s Regulatory Approach Is Preferred by Some . . . . . . . . . . 6
Requirements of EPA’s Vessel General Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Concluding Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
List of Tables
Table 1. Ballast Water Treatment Performance Standards . . . . . . . . . . . . . . . . . . 3

Regulating Ballast Water Discharges:
Current Legislative Issues
Introduction
Invasive species entering U.S. waters (aquatic nuisance species, or ANS) exact
tremendous economic losses, social, recreational, and ecological disturbances and
costs. National attention was drawn to the invasive species problem with the arrival
of zebra mussels in the Great Lakes in the late 1980s. Since then, virtually all coastal
and Great Lakes states have experienced ecological change and loss from zebra
mussels and other aquatic nuisance species.1
Ballast water has been identified as a major pathway for introduction of ANS.
Ships use large amounts of ballast water to stabilize the vessel during transport.
Ballast water is often taken on in the coastal waters in one region after ships
discharge wastewater or unload cargo, and then discharged at the next port of call,
wherever more cargo is loaded, which reduces the need for compensating ballast.
Thus, the practice of taking on and discharging ballast water is essential to the proper
functioning of ships, because the water that is taken in or discharged compensates for
changes in the ship’s weight as cargo is loaded or unloaded, and as fuel and supplies
are consumed. However, ballast water discharge typically contains a variety of
biological materials, including non-native, nuisance, exotic species that can alter
aquatic ecosystems.
Federal authority to address ballast water concerns in the United States is
contained in the Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990 (NANPCA), as amended by the National Invasive Species Act of 1996 (NISA),
and is administered by the U.S. Coast Guard. Together these laws initially required
a program to prevent the introduction and spread of ANS into the Great Lakes by
managing vessel ballast water discharges and subsequently extended the Great Lakes
program to all U.S. ports and waters. The current national ballast management
program pursuant to these laws directs all ships that have operated outside the U.S.
Exclusive Economic Zone to undertake high seas (i.e., mid-ocean) ballast exchange
before entering U.S. waters. However, ballast water exchange is believed to be only
partially effective and is often not carried out due to safety considerations. The
current federal program has been criticized as inadequate, including criticism of the
Coast Guard for delays in implementing necessary rules.2
1 For more information, see CRS Report RL32344, Ballast Water Management to Combat
Invasive Species
, by Eugene Buck.
2 Ibid.

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Today there is wide agreement on the need for stronger measures to control
ballast water discharges, but there are differing views on how best to do that. Several
states (notably Michigan, California, Minnesota, Oregon, and Washington) have
passed or are considering their own ballast water laws, raising concern that separate
state programs could create a patchwork of inconsistent regulatory requirements.
This concern is part of the rationale for Title V of H.R. 2830, the Coast Guard
Reauthorization Act of 2007, passed by the House on April 24.3 It would amend
NANPCA to establish a strengthened national ballast water management program
administered by the Coast Guard. This legislative approach is supported by many in
the maritime industry and by a number of environmental advocacy groups, such as
the National Wildlife Federation.4 However, it is opposed by other advocacy groups,
such as the Natural Resources Defense Council (NRDC),5 and several of the states
that have moved forward with their own ballast water programs. Evaluating these
differing views is complicated by a recent Environmental Protection Agency (EPA)
proposal that would control ballast water and other discharges incidental to the
normal operation of vessels through the mechanism of Clean Water Act (CWA)
permits.
At issue is whether the standard-setting, permit, and enforcement authorities of
the CWA are better tools for managing ballast water discharges than the approach in
H.R. 2830. That legislation contains statutory performance standards to be
implemented by the Coast Guard which would preempt state regulatory programs
that are inconsistent or in conflict with the federal law. These issues are discussed
in the remainder of this report.
Description of Title V of H.R. 2830
Title V of H.R. 2830, as passed, mandates ballast water management
requirements for U.S. and foreign vessels that carry ballast water and use ports or
places in waters subject to U.S. jurisdiction. It would strengthen the existing
provisions of law by amending NANPCA Section 1101 to require that such vessels
have a ballast water management plan, maintain record books, comply with ballast
water exchange requirements, and comply with ballast water treatment requirements;
the last of these is the central feature of the legislative proposal.
3 Ballast water management also is the subject of S. 1578, reported by the Senate
Commerce, Science, and Transportation Committee in March 2008 (S.Rept. 110-269). The
provisions of that legislation are similar but not identical to Title V of H.R. 2830. They are
not discussed in this report, because recent discussion among interested parties has focused
on H.R. 2830.
4 A large number of national and regional environmental groups support H.R. 2830,
including the Union of Concerned Scientists, Great Lakes United, National Audubon
Society, Defenders of Wildlife, Natural Areas Association, Healing Our Waters-Great Lakes
Coalition, and The Nature Conservancy.
5 A similarly large number of national and regional environmental groups oppose H.R. 2830,
including Clean Water Action, Earthjustice, Friends of the Earth, Sierra Club, Northwest
Environmental Advocates, the Environmental Law and Policy Center, Friends of Detroit
River, San Diego Coastkeeper, and Washington Invasive Species Coalition.

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Under the legislation as passed by the House, vessels that enter drydock6
between January 1, 2009, and December 31, 2011, would have to meet ballast water
treatment standards for living organisms specified in the International Maritime
Organization’s (IMO’s) 2004 International Convention for the Control and
Management of Ships’ Ballast Water and Sediment
(see column 2 of Table 1).
Further, all vessels subject to the legislation would have to meet specific performance
standards contained in the legislation during the first drydocking after December 31,
2011, but no later than December 31, 2013. After that date, these statutory standards
(see column 3 of Table 1) would apply to all ships subject to the law, whether or not
they have drydocked for needed repairs or construction by then. The statutory
standards are modeled after but are 100 times more stringent than the IMO standards.
Table 1. Ballast Water Treatment Performance Standards
H.R. 2830
Organism Size
IMO
Existing California
Proposed
Class
Regulationa
Standards
Standards
Organisms greater
< 10 viable
< 0.1 living
No detectable living
than 50
organisms per
organisms per
organisms
micrometers in
cubic meter
cubic meter
minimum
dimension
Organisms 10 - 50
< 10 viable
< 0.1 living
< 0.01 living
micrometers in
organisms per
organisms per ml
organisms per ml
minimum
milliliter (ml)
dimension
Organisms less
No provision
No provision
< 103 bacteria/100 ml
than 10
< 104 viruses/100 ml
micrometers in
minimum
dimension
Escherichia coli
< 250 colony-
< 126 cfu/100 ml
< 126 cfu/100 ml
forming-units
(cfu)/100 ml
Intestinal
< 100 cfu/100 ml
< 33 cfu/100 ml
< 33 cfu/100 ml
enterococci
Toxicogenic Vibrio
< 1 cfu/100 ml or
<1 cfu/100 ml or
< 1 cfu/100 ml or < 1
cholerae (serotypes
< 1 cfu/gram of
<1 cfu/gram of wet
cfu/gram of wet
01 & 0139)
wet weight
weight zoological
weight zoological
zooplankton
samples
samples
samples
a. Standards in the IMO ballast water convention will enter into force 12 months after ratification by
30 nations, representing 35% of the world merchant shipping tonnage. As of June 30, this
6 A drydock is a dock that can be drained of water and that is used in the repair and
construction of ships.

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convention had been ratified by 14 nations, representing 3.55% of the world merchant shipping
tonnage. The United States has not ratified the convention.
However, vessels would not be required to install any treatment technology until
the Coast Guard approves and certifies it, even technology to meet the IMO’s
minimal standards. By January 1, 2010, the Coast Guard and EPA would be required
to complete a feasibility review of the statutory standards to determine whether
appropriate technologies are available for compliance. One or more 24-month delays
may be granted, if technology is not available. At the same time, the Coast Guard
and EPA are required to revise the statutory standards sooner to be more stringent,
if technology is available.
Under H.R. 2830, as passed by the House, vessels would be allowed to continue
using technologies that comply with whichever of these standards applies to them for
10 years. Thus, if a vessel begins using systems to meet the less stringent IMO
standards by December 31, 2011, it could use that technology for 10 years and not
be required to meet alternative, more stringent statutory standards before December
31, 2021. Similarly, a vessel using innovative ballast water treatment technology
approved by the Coast Guard would have a 10-year grace period allowing use of that
technology in lieu of meeting the statutory standards.
Existing ballast water requirements that apply to vessels operating solely in
Great Lakes waters (called “lakers”) call for mid-ocean exchange of ballast before
ships first enter the lakes. The statutory standards in H.R. 2830 would not apply to
vessels operating exclusively there, unless the Coast Guard and EPA were to so
require, because it is assumed that “lakers” do not transport invasive species.
However, critics point out that “lakers” can spread invasive species among the Great
Lakes through contaminated ballast water that is taken on in the lakes and transported
between Great Lakes ports.
Under H.R. 2830, the Coast Guard and EPA would be directed to review the
statutory standards every three years, beginning in December 2012, and revise them
as necessary. Title V also contains administrative provisions and enforcement
provisions authorizing civil and criminal judicial penalties and administrative actions
for violations of NANPCA Section 1101 and regulations issued pursuant to it.
State Role and Federal Preemption
Preemption of state regulatory programs is one of the key issues in dispute
between supporters and critics of H.R. 2830. Under current law, within the
framework of the ballast water management program now implemented by the Coast
Guard, state and local programs to control ANS are permitted.7 This general non-
preemption has allowed states like Michigan, California, and others to develop
ballast water management programs with performance standards or technology
requirements that are more comprehensive than the Coast Guard’s rules require.
7 16 U.S.C. § 4725.

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H.R. 2830, as passed by the House, envisions a program that would be
implemented by federal agencies (principally the Coast Guard and EPA). The
intention is to establish nationally uniform requirements that would protect all U.S.
waters from ballast water discharges of ANS, replacing the minimal Coast Guard
rules and handful of state laws that are more protective of those states’ waters, but
not all waters. Under H.R. 2830, states could apply to the Coast Guard for approval
to administer their own inspection and enforcement authority for ballast water
discharges, to determine vessel compliance with the federal law’s requirements.
Otherwise, the role of states under the legislation’s ballast water treatment provisions
would be limited.8
H.R. 2830 would not alter the general non-preemption provision described
above that was enacted in 1990, but it would add new language specifically
preempting states or localities from adopting alternative or more stringent treatment
requirements or ballast water exchange requirements that are inconsistent with or that
conflict with the requirements in the legislation concerning ballast water exchange
and performance standards (new NANPCA Section 1101(q), titled “Preemption”).
However, states could impose greater fines or penalties for violations of the federal
law and could adopt alternative incentive programs to encourage rapid adoption of
ballast water treatment technology. Also, any more stringent standard under federal,
state, or local law concerning land- or water-based facilities to receive ballast water
would not be preempted.
The key element of the preemption provision in H.R. 2830, as passed by the
House, states that, as of January 1, 2012, the legislation’s requirements concerning
ballast water exchange and standards supersede any provision of state or local law
that is inconsistent with or conflicts with NANPCA, as amended, or regulations.
Specifically, state rules requiring ballast water treatment that were in effect on
January 1, 2007 (such as Michigan’s) could continue until January 1, 2012. But after
that date, the preemption in H.R. 2830 presumably would take effect, barring the
state’s program if it is inconsistent with or in conflict with the statute. Questions of
inconsistency could be germane to the regulatory approach in Michigan’s program,
enacted in 2005 state legislation, because it differs from that in H.R. 2830. The
Michigan program requires vessels to use one of four specified types of ballast
treatment technology (rather than numeric performance standards) and requires
vessels to obtain a state-issued permit in order to discharge into state waters.
California has a regulatory program, pursuant to legislation enacted in 2006, that
requires ships entering California ports to treat ballast water to meet specific
performance standards beginning January 1, 2009. The performance standards
adopted by the California State Lands Commission in response to this law also are
modeled after, but are more stringent than, the IMO ballast water convention
standards. They are shown in column 4 of Table 1. The California standards are
1,000 times more stringent than the IMO standards that would initially apply under
8 Under proposed paragraphs 1101(f)(9) and (10), states may identify a list of vessels that
pose a relatively high risk of introducing ANS in their waters, and they may consult with the
Coast Guard about exempting certain vessels from performance standards if the risk of
introducing ANS is considered insignificant.

CRS-6
H.R. 2830, as passed, and they also are more stringent than the statutory numeric
standards in the bill in certain respects (i.e., California prohibits discharge of
detectable living organisms greater than 50 micrometers in size). Because
California’s standards were not in effect on January 1, 2007, enactment of H.R. 2830,
as passed by the House, apparently would preempt them even in the interim before
January 1, 2012.
H.R. 2830, as passed by the House, is supported by the maritime industry and
a number of environmental advocacy groups (such as the National Wildlife
Federation, see footnote number 4) who argue, in essence, that a nationally uniform
program providing certainty to the regulated community, requiring standards more
stringent than existing Coast Guard or international rules, and specifying compliance
deadlines is the best approach.
During House consideration of H.R. 2830, California state officials proposed
that the bill be amended to change the January 1, 2007 grandfathering date to January
1, 2009, and to allow the Coast Guard to delay the January 1, 2012 date. They also
proposed that the numeric standards in the legislation be made consistent with and
as stringent as California’s regulatory standards (see column 4 of Table 1). Thus,
California’s existing standards could remain in effect until January 1, 2012, and then
would apply nationally after that date. California officials also proposed that the bill
be amended to allow states to impose fees on vessels in order to implement state
ballast water management programs. None of these proposals was adopted, but they
reportedly have been under recent discussion in order to overcome opposition to the
bill. However, environmental groups that oppose House-passed H.R. 2830 contend
that the proposed changes are relatively minor and do not overcome serious
deficiencies in the bill, namely that the legislation largely preempts state efforts,
could override CWA authorities, and provides a slower and less effective approach
to controlling ballast water discharges than that of the CWA.9
The Clean Water Act’s Regulatory Approach Is
Preferred by Some
States often want to have the flexibility to require standards more stringent than
federal, and thus it is not surprising that Michigan and California oppose H.R. 2830,
as passed, because of its preemption provision. Also opposing federal preemption
are NRDC and some other environmental advocacy groups (see footnote number 5).
Preemption of state programs is one of the reasons why critics of H.R. 2830 would
prefer addressing ballast water treatment through an alternative approach, specifically
the Clean Water Act. As discussed below, EPA has authority under the CWA to
address ballast water discharges, but it has declined to do so.
The CWA is administered by EPA, not the Coast Guard, and it has aspects that
differ from H.R. 2830. First, CWA Section 510 allows states to adopt standards
9 Henry Henderson, program director, Natural Resources Defense Council, Midwest Office,
et al., letter to Honorable Richard Durbin, July 25, 2008.

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more stringent than federal rules, which H.R. 2830 likely would prohibit.10 The
language in CWA Section 510 provides that states may adopt discharge, effluent
limitation, or other requirements so long as they are not less stringent than a federal
requirement under the CWA. This provision is arguably more generous than H.R.
2830, which would allow a state or local law that is not inconsistent with or does not
conflict with the federal law. Under the CWA, federal requirements are the floor,
while under H.R. 2830, federal requirements arguably would be the ceiling for a state
law.
Second, under CWA Section 505, a wide range of entities may bring “citizen
suits” in federal court against the Administrator of EPA for failure to carry out a
nondiscretionary duty under the act. They also may bring a citizen suit in U.S.
district court against persons who violate a prescribed effluent standard or limitation.
By comparison, H.R. 2830, as passed, would provide that citizens may petition the
Coast Guard to take an enforcement action and, if it fails to do so, can sue in federal
court to require the Coast Guard to take the actions required under the law. Critics
of the legislation argue that this is a more restrictive and cumbersome enforcement
approach than the citizen suit provision of the CWA.
Third, the critics of H.R. 2830 argue it would be preferable that EPA have
responsibility for dealing with vessel discharge issues, including ballast water
management, because EPA’s primary mission is to protect public health and welfare.
According to this view, the Coast Guard, which has multiple missions, has shown
insufficient interest in pollution control generally, and ballast water management
specifically. Under the CWA, EPA could, for example, issue scientifically based
national performance standards (called effluent limitation guidelines) requiring a
minimum level of treatment or pollution control to assure protection of public health
and the environment.
CWA performance standards are implemented through discharge permits which
are issued by EPA or an authorized state for five-year terms and must be renewed
thereafter. Permit issuance requires opportunities for public participation.
Opponents of H.R. 2830 note that EPA could use the CWA authority to promulgate
stringent ballast water management standards with uniform minimum treatment
standards based on technology. On the other hand, the legislation’s supporters
contend that while the CWA’s permit-based approach works well for industrial plants
and other fixed, stationary dischargers, it would not work well for mobile sources,
such as vessels, particularly if state-issued permits were to call for requirements that
could vary from one location to another.
The federal courts have recently held that EPA already could have promulgated
effluent limitation guidelines for ballast water and other vessel discharges. The
Clean Water Act prohibits the discharge of pollutants from a point source into the
navigable waters of the United States without a permit. Vessels are defined in the
10 H.R. 2830 does not prohibit more stringent state standards in so many words. Rather, it
prohibits a state or local law that is “inconsistent with” or “conflicts with” the federal law.
It is not a foregone legal conclusion that a state standard more stringent than its federal
counterpart is “inconsistent with” or “conflicts with” the federal law.

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law as point sources. In 1973, EPA promulgated a regulation that excluded
discharges incidental to the normal operation of vessels (including ballast water, but
not including sewage vessel discharges, which are regulated under CWA Section
312) from CWA permitting requirements. This long-standing regulation was
challenged in federal district court by environmental advocacy groups who wanted
EPA to address ballast water as a source of ANS. In 2005 the court found that
Congress had directly expressed its intention that discharges from vessels be
regulated under the CWA, and that the regulation at issue contradicted that intention.
In September 2006 the court issued a final order that will vacate (revoke) the
regulatory exclusion as of September 30, 2008. The Ninth Circuit U.S. Court of
Appeals upheld the district court’s ruling on July 23, 2008.11 On June 17, while
waiting for the court of appeals or Congress to provide relief from the district court’s
order, EPA proposed two CWA permits in order to respond to the court.12 They are
general permits that apply to categories of vessels whose discharges are generally
similar. On August 31, the federal district court agreed to EPA’s request to delay
vacatur of the regulatory exemption until December 19, 2008, to ensure that permits
can be issued before the exemption is eliminated.
Requirements of EPA’s Vessel General Permit
One of the proposed permits, called the Vessel General Permit (VGP), would
give permit coverage to commercial vessels and large recreational vessels, including
tankers, freighters, barges, and cruise ships, many of which do use ballast water in
their normal operations.13 The VGP prescribes technology-based effluent limits for
28 effluent streams or discharge types, including ballast water discharges.
The only available evidence of how EPA would approach ballast water
management, under its CWA authority, is reflected in this proposed permit. Its
ballast water requirements are minimal, as EPA proposes to meet the federal court’s
order largely by requiring what current Coast Guard rules require.14 Like H.R. 2830,
11 Northwest Environmental Advocates v. U.S. Environmental Protection Agency, No.
03-74795, 2008 WL 2813103 (9th Cir. July 23, 2008).
12 U.S. Environmental Protection Agency, “Draft National Pollutant Discharge Elimination
System (NPDES) General Permits for Discharges Incidental to the Normal Operation of
Vessels,” 73 Federal Register 117, June 17, 2008, pp. 34296-34304.
13 The other proposed general permit would apply to small recreational vessels, which
generally do not utilize ballast water. Thus, this group of vessels is not of interest in
connection with ballast water management policy. However, in July, Congress passed S.
2766, a bill which exempts small recreational vessels and commercial fishing vessels from
new CWA permitting requirements, which eliminates the need for EPA to issue this permit.
President Bush signed the bill on July 29 (P.L. 110-288).
14 Separately, under CWA Section 312(n), EPA and the Navy are developing national
performance standards (Uniform National Discharge Standards, or UNDS) for discharges
incidental to the normal operation of Armed Forces vessels. Ballast water releases from
Armed Forces vessels have been identified for inclusion in UNDS requirements, and in
2004, EPA and the Navy began collecting data and performing necessary technical analyses.
(continued...)

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the VGP mandates mid-ocean ballast water exchange for ships traveling outside the
200-nautical-mile exclusive economic zone (EEZ) of the United States. This
requirement already applies under the Coast Guard’s 2004 mandatory ballast water
management rule (codified at 33 CFR Part 151). EPA’s draft VGP also requires
ballast water exchanges at least 50 nautical miles from shore for vessels engaged in
Pacific nearshore voyages, which are not covered by the Coast Guard’s mandatory
exchange procedures. Further, like H.R. 2830, the VGP requires saltwater flushing
for vessels declaring “no ballast on board” or for vessels with some proportion of
their ballast tanks empty. If H.R. 2830 or other similar legislation were not enacted,
regulated vessels would be subject to these requirements in the VGP, essentially
mirroring existing Coast Guard rules.
Like H.R. 2830, the VGP includes requirements that vessels maintain a log book
and records of ballast water management and submit reports of noncompliance to
EPA annually (H.R. 2830 would require that reports be submitted monthly to the
Coast Guard). Vessels would be required to comply with these requirements upon
the effective date of the permit. As proposed, the effective date of the VGP would
be September 30, 2008, the original effective date of the federal court’s vacatur of
EPA’s regulatory exemption of vessel discharges. However, in July, Congress
passed and the President signed legislation (S. 3298, P.L. 110-299) that provides a
two-year moratorium on CWA permits for commercial fishing vessels of any size and
other commercial vessels less than 79 feet. During that period, EPA is to study
vessel discharges, in order to have a better basis for future regulation.15 Non-fishing
commercial vessels larger than 79 feet (totaling about 50,000) are unaffected by the
temporary delay in permit requirements. As noted above, on August 31, the district
court agreed to EPA’s request to delay the September 30 vacatur until December 19,
2008.
Significantly, unlike H.R. 2830, the VGP does not include numeric limits on
living organisms or pathogenic discharges. EPA explained this position in a fact
sheet accompanying the draft VGP.16
EPA is not requiring any numeric treatment standards for the discharge of
living organisms as part of this permit issuance and is instead requiring
management practices (e.g. ballast water exchange) that decrease the risk of ANS
introduction. EPA is proposing this approach because treatment technologies
that effectively reduce viable living organisms in a manner that is safe, reliable,
and demonstrated to work onboard vessels are not yet commercially
14 (...continued)
No information is available on when these rules will be proposed, or details of what they
might require.
15 H.R. 2830 includes no similar moratorium for commercial fishing vessels or other
commercial vessels less than 79 feet. If that bill were enacted, any of these vessels that
utilize ballast water would be subject to its requirements under the schedule in the
legislation.
16 U.S. Environmental Protection Agency, National Pollutant Discharge Elimination System
(NPDES) Vessel General Permit (VGP) for Discharges Incidental to the Normal Operation
of Commercial and Large Recreational Vessels Fact Sheet,
June 2008, p. 65.

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available...[R]equiring a numeric effluent limit for the discharge of living
organisms is not practicable, achievable, or available at this time....EPA will
consider establishing treatment requirements in the next generation of permits
[i.e., no sooner than 2013] that will provide for compliance with treatment
standards that will be expressed as units of living or viable organisms per unit of
volume in ballast water discharge.
There is no way of knowing today what kind of treatment requirements EPA
might adopt at a later date, how they would compare with the standards in H.R. 2830,
with the IMO ballast water convention standards which are unlikely to come into
force for some time, or even with California’s more stringent standards.
The VGP includes no special enforcement provisions, but would use existing
provisions of the CWA. That act authorizes administrative (civil) and judicial (civil
and criminal) enforcement of the law, including permit violations. In addition, as
noted above, persons may bring a citizen suit in U.S. district court against persons
who violate a prescribed effluent standard or limitation. Proponents of H.R. 2830
point out that CWA citizen suits will be limited to demonstrating noncompliance
with the minimal provisions of the VGP. Also as previously described, individuals
may bring CWA citizen suits against the Administrator of EPA for failure to carry
out a nondiscretionary duty under the act.
Groups that are critical of H.R. 2830 take the position that the VGP is a good
first step toward regulating ballast water discharges through the CWA, but in
comments submitted to EPA, they recommended improvements in a number of
areas.17
Concluding Thoughts
Two existing provisions of NANPCA expressly state that regulations governing
ballast water discharges in the Great Lakes and voluntary national guidelines issued
pursuant to current law shall “not affect or supersede any requirements or
prohibitions pertaining to the discharge of ballast water into waters of the United
States under the Federal Water Pollution Control Act [CWA].”18 H.R. 2830 would
delete those two provisions. There is no similar language in H.R. 2830; the bill is
facially silent regarding the CWA.19 As discussed previously, until it recently
proposed the draft VGP, in response to the federal court’s order, EPA had not used
the CWA or any other statutory authority to address ballast water.
17 Northwest Environmental Advocates, et al., Comments on Docket ID No. EPA-HQ-OW-
2008-0055 (VGP), July 31, 2008.
18 16 U.S.C. § 4711(b)(2)(C) and (c)(2)(J).
19 Critics of H.R. 2830 say that the bill is not really silent with respect to the CWA, because
it would replace an affirmative statement in federal law that preserves the CWA with
legislation that gives no congressional directive about whether the CWA would continue to
apply.

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CWA Section 303 is a central part of the statute. It authorizes states to adopt
water quality standards that include criteria which are necessary to protect the use or
uses of particular waterbodies. These standards are the basis for establishing water
quality-based treatment controls and for determining specific limits in CWA
discharge permits. Although few have apparently done so, states arguably could use
this authority to adopt water quality standards to protect waters from aquatic invasive
species. It is arguable that the preemption language in H.R. 2830 — for “any
provision of state or local law this is inconsistent with” or “conflicts with” the
legislation’s requirements concerning ballast exchange and treatment standards —
would also preempt inconsistent or conflicting state water quality standards.
Some who favor H.R. 2830, as passed by the House, contend that if the
legislation were enacted, arguably it would not bar EPA from using CWA authority
to address ballast water discharges — at least in a way not inconsistent with
NANPCA, as amended by H.R. 2830. The specific preemption language in the bill,
described above, addresses state or local laws that are inconsistent with H.R. 2830.
It does not address potentially separate federal requirements under other authority
which could raise a different question of reconciling overlapping federal statutes.
First, H.R. 2830 does not explicitly prohibit EPA from finalizing the draft VGP for
vessels that do not benefit from the two-year moratorium in P.L. 110-299. Second,
H.R. 2830 does not explicitly prohibit EPA from including ballast water
requirements for the exempted vessels (e.g., commercial fishing vessels) in the VGP
after the two-year moratorium expires. As noted, the ballast water requirements in
the current draft VGP are minimal, but H.R. 2830 does not expressly prohibit EPA
from re-issuing the VGP later with more stringent requirements, or from taking other
actions that EPA determines are appropriate. And third, H.R. 2830 — which focuses
on harmful living microorganisms and sediment in ballast water — does not
explicitly prohibit EPA from addressing other contaminants that could be present in
the discharge (e.g., toxic chemicals, oil, or particulates that were found in the waters
where the ballast was brought on board).
However, uncertainty about these points is central to the current debate. Critics
of H.R. 2830 assert that, by superseding NANPCA’s existing savings clause, the
legislation could be read as limiting the application of the CWA to invasive species
in ballast water discharge. If it were read in that manner, they contend, it would
backtrack from longstanding provisions of law previously adopted by Congress in
NANPCA and NISA, thus weakening existing law. The result could exclude states
and the public from participating in most regulatory decisions, place environmental
decisions in the hands of the Coast Guard rather than EPA, preclude EPA and citizen
enforcement actions under the CWA, and freeze development of improved
technology-based treatment standards.20
Finally, it should be noted that the federal court’s order that EPA must regulate
“discharges incidental to the normal operation of vessels” (discussed previously)
continues to apply, even if H.R. 2830 or other similar ballast water legislation were
20 Henry Henderson, program director, Natural Resources Defense Council, Midwest Office,
et al., letter to Honorable Richard Durbin, July 25, 2008.

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enacted.21 Thus, except for categories of vessels exempted or covered by a temporary
delay pursuant to congressional action (e.g., P.L. 110-288 and P.L. 110-299), EPA
still is required to regulate vessel discharges such as deck runoff, bilge water releases,
and graywater (laundry and sink wastewater) discharges through general permits or
some other CWA mechanism.
21 If H.R. 2830 or other legislation were enacted, presumably EPA could petition the federal
court to rescind its order, in light of congressional action.