§ 3. Ballast water and standards

§ 3.1. Substantive agreement on ballast water standards. There was remarkable agreement among all participants - notably including representatives of the shipping industry as well as government and environmental groups - on the following basic propositions for dealing with the primary vector of ballast water:

The IJC should bring to the attention of the governments the need for-

1. a meaningful standard for regulating exchange or treatment of ballast water, and
2. an incentive for industry to met (or exceed) that standard.

Agreement on those basic ideas is likely to mask some significant disagreement on important details, such as what the standard should be, or how incentives and regulations should be framed. Nevertheless, this is an important consensus on a specific approach that should be taken to dealing with the primary vector for transcontinental aquatic invasions.

§ 3.2. Background. The problem of a lack of a ballast water standard is discussed in detail in §§ 3.6 & 7.3 of the white paper. The US legislation, NANPCA 90 and NISA 96, stated a general requirement for exchange of ballast on the open ocean or use of "environmentally sound alternative ballast water management methods" if the US Coast Guard "determines that such alternative methods are as effective as ballast water exchange." (16 USC § 4711(b)(2)(B)(iii).) It was left up to the US Coast Guard to specify by regulation the standard for an adequate ballast exchange or alternative methods. Although it has recognized the need for a better standard, the only one which the Coast Guard has adopted so far is a salinity test, at 30 parts per thousand, as an indirect way of verifying the fact of an open ocean exchange. There are a number of problems with that standard, including that (1) even if a vessel begins with pure fresh water, this only indicates an approximate exchange of 85% by volume, (2) in fact, many vessels begin with salty or brackish water, sometimes including highly saline water from the Mediterranean, which vitiates the validity of that standard as proof of a substantial exchange actually washing out organisms which can survive the salinity, (3) the salinity standard has little relevance to other technologies such as a filtering, heat, biocides, or treatment ashore, (4) the salinity standard says very little about the actual biological content of the water, and (5) the general assumption, which is particularly of concern to the marine industry, is that some much higher but presently unspecified standard will necessarily have to be adopted in the future.

§ 3.3. Industry comments on the lack of a standard. That last point led directly to one of the comments voiced several times, with emphasis, by at least two of the representatives of the transoceanic marine industry at the workshop. They did not disagree with the idea that something more (including things which will cost them money) is necessary before we can say that we have dealt properly with the primary vector of ballast water. And they clearly agreed with the proposition that it makes a great deal more sense to built new technologies into vessels at the time of construction rather than be forced to engage in the more expensive process of retrofitting old ships. They pointed out, however, that is unreasonable to expect the industry to take the initiative in spending money on new technologies, for either new or old vessels, when they do not know what the ultimate standard will be. They are fearful that any technology proposed for use in the near future may later found to be inadequate (just as it is widely agreed that the current exchange practice, with the limitations of current ship design, is inadequate) and this could well led to a process which is both damaging to the economy and ineffective in protecting the environment. Along these lines, one representative also voiced a concern that the Great Lakes, with its natural choke point in the St. Lawrence Seaway, seems to give the government agencies too convenient an opportunity to experiment on measures here, which can severely impact the competitiveness of the Great Lakes and Seaway trade. (She pointed out that there are only a limited number of the smaller and older "handysize" vessels which can trade through the Seaway, and they could end up going elsewhere if there is a special expense added to entry through the Seaway.) As she put it, "We should not be Guinea pigs for the nation," and there must be a "level playing field" between the Great Lakes and other regions of the United States. I take the sense of that comment to mean, among other things, that the emphasis should be on developing national standards for ballast water. It should also be mentioned that this is particularly appropriate when one considers the even more questionable applicability of the current salinity standard for the protection of saltwater coastal ecosystem around North America.

§ 3.4. Other comments on standards. Government representatives acknowledged the logic of those industry comments. Several emphasized the need for standards which prompt "market solutions," leaving the choice of specific technologies and changes in ship design to those in industry with the most expertise in managing their own business. In other words, the idea is to develop "end of the pipe" standards which specify how clean the water needs to be in terms of its biological content, rather than government requirements for specific technologies. One industry representative had warned against the tendency for government to settle on "the one solution" in terms of a favorite technology, and there was strong agreement that government should avoid that approach. How a standard should be framed was more problematic. How high should the standard be? (Our ultimate goal, of course, would be to have 100% sterile water, but that is not practicable in the foreseeable future.) Is it technically feasible to specify indicator organisms and laboratory protocols which relate in a biologically meaningful way to the actual level of biological threat in the water? (Some work along those lines has already been done by the various studies of the biological content in ballast water conducted by Canada, but there are still arguments to be resolved among biologists before a scientifically valid standard can be framed.) These questions were raised and discussed somewhat, but obviously require much more detailed work.

§ 3.5. Legal framework for a standard. Also, how should the standard be legally promulgated? (The white paper makes a detailed argument in favor of a tax-and-rebate system of market incentives tied to a biological standard.) In response to a petition received from a large number of environmental organizations, US EPA is now considering a standard for ballast water under the permitting requirements of the US Clean Water Act. (One may see some of the background to this legal issue in the Analysis of Laws & Policies Concerning Exotic Invasions of the Great Lakes prepared for Michigan DEQ Office of the Great Lakes, § 312.) A professor of law argued that the CWA provided a preferable means for setting a national US standard because of US EPA's expertise in dealing with this sort of process, the provisions for public consultation in the statute, and strong enforcement provisions. (These points, and others, are addressed in detail in a paper submitted to the workshop by Sandra B. Zellmer, Professor of Law at University of Toledo College of Law, "Using the CWA to Vanquish Exotic Species from Waters of the United States," 23 September 1999. Also, in that paper, she articulates reservations about the tax-based system of market incentives argued for in the white paper.) The idea of dealing with a whole separate system of permitting under the CWA, and the EPA, was quite disagreeable to the industry representatives. They argued that just the process of compliance administration would add significant costs. In rebuttal, it was argued that a standard might be set in an efficient way through a general nation-wide permit, perhaps worked out in cooperation with the US Coast Guard and its use of its independent authority under NISA 96. Specific legal frameworks under Canadian law were not discussed.