Milwaukee Journal Sentinel file photo

Dan Egan of the Milwaukee Journal Sentinel - Tuesday, April 17, 2018

The U.S. Senate is set to vote on a measure this week that conservation groups say could have devastating — and permanent — consequences for the Great Lakes.

The legislation attached to the U.S. Coast Guard Authorization Act calls for giving the Coast Guard the exclusive authority to regulate the shipping industry when it comes to discharging ship-steadying ballast water that can harbor invasive species.

As the law currently works, both the Environmental Protection Agency and the Coast Guard share management of ballast water discharges. The shipping industry contends this situation, along with varying state ballast regulations, has created a regulatory quagmire and that the new measure will streamline things for the industry and still protect the Great Lakes and other U.S. waters.

Conservationists contend ballast water management belongs in the hands of the EPA, and stripping the agency of that authority means significantly weaker protections for the Great Lakes that have been ravaged for decades by contaminated ballast water discharges.

“The measure exempts ballast water from the Clean Water Act, and that’s a real problem because the Clean Water Act is the best protection for our waters that we have,” said Rebecca Riley, an attorney for the Natural Resources Defense Council.

“The stakes could not be higher,” the National Wildlife Federation said in a news release that said a vote on the measure in the U.S. Senate could come as early as Wednesday. “The passage of the Vessel Incidental Discharge Act will be ‘game over’ in our efforts to effectively protect U.S. waters, businesses, and communities from invasive species.”

The push to loosen the regulations is the latest chapter in an environmental saga that started in the early 1970s, when the EPA made a decision that had momentous consequences for the Great Lakes: It quietly removed contaminated ballast discharges from the list of industrial pollutants to be regulated under the newly adopted Clean Water Act. The rationale at the time was that ship-steadying ballast tanks weren't a form of pollution because they held nothing but seawater.

“This type of discharge generally causes little pollution,” the EPA explained when it published the regulation granting the shipping industry exemption in 1973, “and the exclusion of vessel wastes from the (Clean Water Act) will reduce administrative costs drastically.”

The Great Lakes have suffered dozens of species invasions since the exemption. None of this “biological pollution” has done more damage to the world's largest freshwater system than the quagga and zebra mussels, which have decimated fish populations and helped spawn chronic algae outbreaks, including a poisonous one that knocked out Toledo's public drinking water supply for two days in 2014.

Conservation groups first successfully sued the EPA in 2006 to force the agency to begin regulating ballast under the Clean Water Act, and in the subsequent decade the environmental groups, unsatisfied that the agency was actually doing enough to protect the lakes and other U.S. waters from new invasions, continued to press the agency in court to do more — and continued to win.

The final court ruling came in 2015, when the Second Circuit Court of Appeals ruled unanimously that the EPA had acted “arbitrarily and capriciously” in setting its ballast discharge regulations. It ordered the agency to evaluate stiffer standards in terms of the number of living organisms allowed to be discharged from ship ballast tanks.

That won’t happen if the new measure, known as the Vessel Incidental Discharge Act, or VIDA, becomes law.

How the Laws Work Now

Both the Coast Guard and EPA currently require foreign ships sailing into U.S. waters to first flush their ballast tanks out in the ocean and refill them with saltwater. Shipping advocates contend this eliminates up to 99% or more of invasive foreign organisms in a ship's network of ballast tanks.

The problem, studies have shown, is that just one ballast tank can harbor hundreds of millions of living organisms, which means millions of living creatures in each tank can still survive a flush. All it takes is two organisms to launch a new invasion.

The weakness in flushing-only protections for U.S. waters has long been known, and because of this both the Coast Guard and EPA have plans to eventually require all ships sailing into U.S. waters be equipped with ballast water treatment systems that kill unwanted hitchhikers, using things like heat, chemicals, filters or UV light to disinfect ballast water.

Both agencies initially adopted similar treatment standards, in terms of the number of living organisms that could be discharged per cubic meter of ballast water — the very standards that the court has said are not protective enough.

The EPA explained it adopted those standards in 2013 because existing treatment technology could do no better in terms of killing organisms inside ballast tanks. The court, however, disagreed and said the EPA didn't adequately consider all treatment options, and it ordered the agency to do so and come up with a better plan by the end of this year.

That court order will essentially be nullified if ballast regulation is turned over to the Coast Guard. Conservationists also contend that if VIDA becomes law, the Coast Guard and EPA’s existing standards will be locked in for years, if not forever.

The reason: the EPA’s Clean Water Act is designed to force ever-stricter pollution reductions on industry. Polluting industries are typically required to receive a permit every five years that allows them to discharge a certain level of pollutants into a water body. The idea is that the permits will become stricter and stricter over time, as pollution control technology continually improves.

Think of it as turning a screw. The Clean Water Act is designed to continually tighten that screw until an industry gets to zero discharges, which is the ultimate goal of the law. Because the Coast Guard isn't required to follow those Clean Water Act requirements, conservationists fear that screw will never tighten once the EPA is removed from regulating ballast discharges.

The shipping industry sees the situation differently.

 “Without VIDA there is no end in sight this multijurisdictional morass,” the Lake Carriers Association stated in news release earlier this year. 

Dan Egan is the Brico Fund Senior Water Policy Fellow in Great Lakes Journalism at the University of Wisconsin- Milwaukee School of Freshwater Sciences. In this role, he will report on pressing issues facing the Great Lakes. Editorial content is controlled by Egan and Journal Sentinel editors