|"In this state, we came to the conclusion that we could take action within the purview of our authority."|
Michigan Department of Environmental Quality
After almost 20 years and billions of dollars spent battling the environmental and economic impacts of zebra mussels and other aquatic invasive species believed to have been brought into the U.S. in the ballast water of ships, Michigan lawmakers and coastal resource managers have grown impatient with what many consider the deliberate pace of federal-level efforts to effectively stop future invasions.
On January 1, 2007, a new Michigan law went into effect that goes beyond U.S. Coast Guard ballast management requirements for Great Lakes shippers.
While the new law is already being legally challenged by shipping companies, and legal and academic observers question how long the law will be in effect before it is struck down or superseded by national or international regulations, Michigan officials say the attention the law is bringing to the issue is exactly what they were after.
"Our goal is to try to achieve a federal solution to this," says Ken DeBeaussaert, director the Office of the Great Lakes in the Michigan Department of Environmental Quality. "We hope the discussion that we have launched here by our actions resonates with other states who will urge their [legislative] delegations to take action."
"I think this may get them what they want," says Stephanie Showalter, director of the National Sea Grant Law Center at the University of Mississippi. "It has really come out—this sense of frustration across the U.S. with the lack of progress on this issue at the federal level. Many states are considering this type of approach."
Many federal bills proposing to strengthen ballast and invasive species laws have been introduced over the past five years, but none have passed.
Invasive species is the Coast Guard's "number one environmental regulatory priority," says Bivan Patnaik, regulatory coordinator for the Environmental Standards Division in the Coast Guard's Office of Operating and Environmental Standards. "This is a Great Lakes issue, a national issue, and an international issue."
He is concerned that states trying to develop their own ballast regulations will just make it burdensome and confusing for shippers trying to comply with a variety of state laws and the federal law.
He urges coastal states to wait for the Coast Guard to complete its rule-making, setting performance standards for the quality of ballast water discharged in U.S. waters, which should be released for comment this summer.
Michigan's law is "not going to change anything we're doing," says Patnaik. "We're already moving as fast as we can."
Millions of Gallons
It is necessary for tankers to take on millions of gallons of water into large holds at the beginning of a voyage to stabilize the ships when they are traveling without cargo. Tankers in the Great Lakes can hold up to 14 million gallons of ballast water, and seagoing freighters can hold twice as much.
Once in port and ready to receive their payload, vessels may release ballast water that has traveled thousands of miles and may contain fish, plants, pollutants, parasites, or viruses. Every year, more than 21 billion gallons of ballast water are discharged into U.S. waters from international ports. An estimated 10,000 marine species are transported around the world in ballast water every day.
If the conditions of its new home are favorable, the invader may destroy habitat, damage commercial fisheries, clog intake pipes at water treatment and power facilities, or transplant foreign disease.
"There have been growing impacts to residents and businesses of this state, and the consequences of the continuing onslaught of invasive species are affecting our natural systems," says Michigan's DeBeaussaert. "Invasive species impacts have been estimated in the billions of dollars and cost millions of dollars to control once they are introduced to the Great Lakes ecosystem. Too often, trying to control them is a losing battle."
There are estimated to be more than 187 nuisance species in the Great Lakes, with new species continuing to be detected.
While ballast water is thought to be the biggest source of aquatic invasive species, it is certainly not the only one. Hull fouling, recreational fishing, aquarium owners dumping fish—all are among the avenues by which alien species are introduced, says Don Scavia, director of Michigan's Sea Grant.
The best known of the Great Lakes offenders is the zebra mussel, first found near Detroit in 1988. It fouls water intakes and is blamed for crashing the base of the Great Lakes food chain.
Now Great Lakes managers and scientists are fighting VHS—viral hemorrhagic septicemia—a disease that causes fish to bleed to death internally. So far, it has been reported in Lakes Ontario, Erie, and St. Clair, and is expected to spread to Lake Michigan.
"What we don't know," DeBeaussaert says, "is what the implications of the next invasive species will be on the system, and if it will have a cumulative effect."
Establishing the Rules
Following the zebra mussel invasion of the Great Lakes, Patnaik says the 1990 Nonindigenous Aquatic Nuisance Prevention and Control Act authorized the Coast Guard to develop regulations for a mandatory ballast water management program for the Great Lakes.
Beginning in 1993, Great Lakes vessels were required to empty and refill their ballast tanks at sea because organisms from high-salinity ocean water are less likely to survive when released into Great Lakes freshwater, or less salty coastal waters.
Ships can also refrain from discharging ballast water, or use a Coast Guard–approved method of ballast water management, although no method has received approval.
"One of the issues right now is that vessels don't have to conduct an exchange if there are safety issues, or if the voyage doesn't take them 200 miles offshore," Patnaik notes. "Treatment options would help in those situations."
Ships traveling in the Great Lakes are required to maintain onboard ballast water records.
Some ships come in fully loaded with no ballast on board, known as NOBOB, so they do not have to do the ballast exchange. However, some unpumpable material still remains in the tanks that can contain harmful organisms.
In 2005, the Coast Guard established a policy of voluntary best management practices for NOBOB vessels entering the Great Lakes, which encourages those ships to conduct saltwater flushing of their ballast tanks.
Aquatic invasions occurring in other U.S. waters prompted Congress in 1996 to authorize the Coast Guard to develop national voluntary ballast water management guidelines for all other U.S. regions, Patnaik says. The voluntary guidelines went into effect in 1999.
A congressionally mandated evaluation in 2002 found that a large percentage of vessels were not participating in the voluntary program. In July 2004, the Coast Guard established a national mandatory ballast water management program.
Since then, the Coast Guard has been developing performance standards for the quality of ballast water discharged in U.S. waters. This rule-making includes approving alternative ballast water management systems and is expected to be complete by the end of this year.
"With the development of all federal regulations, we have to conduct a thorough environmental and economic analysis," public comments are taken, and those are factored into the final regulations, Patnaik explains.
"One of the things that has not been working is there needs to be more communication between us and the states about what we are doing," Patnaik admits. "A lot of states assume we aren't doing anything. They have no idea of all the work we have done getting regulations and permits in place."
"The Coast Guard has been working on this process for some time, and we've been frustrated by the pace of action," says DeBeaussaert. "In this state, we came to the conclusion that we could take action within the purview of our authority, and encourage neighboring states to take action and protect their resources, which are under attack."
The resulting ballast legislation uses the state's Clean Water Act provision authority to require oceangoing ships to obtain a $75 permit from the Department of Environmental Quality to use Michigan ports. Permits are issued only if the applicant demonstrates that they will either not discharge ballast water or will use one of four state-approved alternative technologies and methods to prevent the discharge of aquatic invasive species.
In addition to Michigan being the first Great Lakes state to require such a permit, "what is key about this legislation," says Stephanie Showalter, "is that Michigan adopted designated treatment options for ballast water before the federal government."
Another difference of Michigan's law, which took effect January 1, is that it addresses the NOBOB vessels by requiring all oceangoing ships to obtain a permit. Of the roughly 500 oceangoing vessels entering the Great Lakes in a year, about 90 percent are exempt from federal regulations because they are cargo-laden and report no ballast on board.
So far, about 58 permits have been issued, says DeBeaussaert. State officials think this is close to the number of oceangoing ships that make up the 90 or so annual vessel calls to Michigan ports. Of those, only about four report discharging ballast in the state's waters.
"Michigan is not heavily impacted by oceangoing ships," notes Dale Bergeron, assistant professor and extension educator in maritime transportation for the University of Minnesota Sea Grant Program. "Michigan doesn't view shipping as having a major impact on their economy."
While shipping companies plying Michigan's waters are acquiring the permit, observers say it may only be a matter of time before the law is struck down in court, or national or international guidelines take precedence.
In March, four shipping companies, four shipping associations, and one dock company filed a complaint in the U.S. district court in Detroit asking a judge to declare the Michigan Ballast Water Act unconstitutional because it interferes with interstate commerce.
"Similar ballast laws are being considered in Minnesota, Wisconsin, and Indiana," says Bergeron. "What happens with the Michigan law will likely impact what these states attempt."
The Ballast Water Management Act of 2007 was introduced in the U.S. Senate in June, and Coast Guard staff members are working internationally on a ballast water treaty adopted by the International Maritime Organization (IMO), an agency of the United Nations.
The U.S. has yet to sign the International Convention for the Control and Management of Ships' Ballast Water and Sediments, which would not go into effect until 12 months after 30 countries have signed it.
Patnaik believes that "having a uniform national or federal program is the best way to prevent invasive species from further coming into U.S. waters."
"Single state action is not fully effective," agrees DeBeaussaert. "It is better to have a national approach that protects the Great Lakes. That's our ultimate goal here."He adds, "I think clearly we are on the front lines as it relates to the invasive species problem, but the implications go beyond Great Lakes waters."
For more information on Michigan's ballast water law, contact Ken DeBeaussaert at (517) 335-4056, or firstname.lastname@example.org. For information on the U.S. Coast Guard's regulations for ballast water, contact Bivan Patnaik at (202) 372-1435,
- The Michigan Department of Environmental Quality's website on ballast water reporting, www.michigan.gov/deq/
- The U.S. Coast Guard's Environmental Standards website, www.uscg.mil/hq/g-m/mso/estandards.htm
- The National Sea Grant Law Center's ballast water white paper, http://seagrant.umn.edu/downloads/ballast.pdf