Exotic Policy

An IJC White Paper
On Policies for the Prevention of
The Invasion of the Great Lakes by Exotic Organisms

July 15, 1999
Eric Reeves

§ 7. Legal regimes for controlling ballast water:
Acting locally and thinking globally

Ballast water is becoming a global issue. Although there has been considerable discussion about the need to institute technological changes allowing vessels to deal with their ballast water in a more effective and safe manner, the exclusive approach, to date, has been on the sort of exchange regime used in the Great Lakes (described in § 3.6 above). The critical limitation on exchange is the fact that it cannot always be done, absent some changes to piping systems, without endangering the safety of the vessel. All of the exchange regimes, whether voluntary or mandatory to some extent, provide some sort of exception when a master decides that it is not safe to exchange. Under the terms of most regimes, including the national regulations to eventually be instituted in the United States under NISA 96,(250) that is then the end of the issue. Little else in the way of remedial action is required in any of the regimes around the world except in the Great Lakes.

As policymakers in both the United States and Canada consider what the substance of their future national regimes will be, under NISA 96 and the Canada Shipping Act, there is a need to address all of the defects in the current Great Lakes regime. Those include the questionable relevance of the current delineation of the open ocean area for exchange as the area outside the arbitrary EEZ 200-mile line, the reliance on salinity as a regulatory standard, the low level of the nominal exchange required, the overall ineffectiveness of exchange with current ballast tanks and piping systems, the problem of the unpumpable slop and sediment on the bottom of the NOBOB tanks, and the problem of safety due to the same limitations of current design. No problem is more pressing than safety. This is the thing which completely undermines the prospects of further progress on ballast water in the immediate future.

Also, there is a fundamental legal and political issue to be resolved about the relationship between local, national, and international regimes. This is closely connected to the safety issue, but is broader than that. Should laws on ballast water by subordinate jurisdictions (US states, Canadian provinces, or local ports and municipalities) be preempted by national regimes for the regulation of shipping? Should those national regimes, in turn, be limited by the terms of any international regime to be developed? Preemption is an issue likely to be raised in the United States under NISA 96 as some US states, particularly California, consider concurrent regulation of ballast water which would impose stricter local standards. Although the issue is quite complex, and likely to be litigated, a close analysis of NISA 96 indicates that it would not preempt such local controls as long as the state avoids specifying design or equipment standards considered the special purview of the US Coast Guard under other long-standing marine safety statutes.(251) However, under some versions of the international convention on ballast water currently being negotiated at the International Maritime Organization (IMO), any requirement for the vessel owner or master to take remedial action to correct the situation when exchange proves to be unsafe would be specifically precluded by the terms of the convention. (See § 7.5. below.)

No one argues that a master should conduct an unsafe exchange. The question is what the master or the owners of the vessel should do about that - whether the master should be required to use an alternate exchange site where that vessel can exchange safely, the owners should be required to make modifications to the vessel allowing it to do so, or the owners should be required to otherwise treat or properly dispose of the water. In the absence of some such requirement, vessel owners will be encouraged to simply maintain vessels which might not be able to conduct safe exchanges in order to take advantage of this free pass - a situation which could lead to the extended use of older unsafe ships, and thus diminish maritime safety, as well as undermine progress on ballast water.

More generally, there is a fundamental question as to whether or not the local and regional environmental communities who have taken the lead in forcing national and global attention to the issue should surrender their ownership of it to the national bureaucracies in Washington, DC and Ottawa or the diplomatic committees in London - all venues which are strongly dominated by the shipping industry. If they do so, it is clear that a lowest common denominator of minimum and ineffective standards - accompanied by many years of delay in instituting such standards - will become the norm for everyone in the world. Unless the Great Lakes community thinks globally about the politics of this issue, we may discover that we have no more ability to act locally in the future.

§ 7.1. Ten years of activity on ballast water: A quick review of the bidding

The Great Lakes and the world. It was Canada and the United States, acting in response to the invasions of the unique freshwater system of the Great Lakes by the ruffe and the zebra mussel, and Australia, acting in response to invasions of its unique saltwater ecosystem by toxic dinoflagellate algae and other organisms, which made ballast water an issue for the world. In 1993, the United States promulgated the first mandatory legal regime requiring regular ballast water exchange for vessels entering the Great Lakes. (See the detailed description of the Great Lakes regime in § 3.6 above.) In 1998, Canada enacted the statutory authority to institute a nationwide mandatory regime, although it has not yet promulgated regulations. While keeping in mind the important role that Australia has played, particularly in demanding international attention to the issue, one can in fact say that it all began here in the Great Lakes. The following chronology sums up the history of the last ten years:

AUG 1988 In response to the detection of the ruffe and the zebra mussel in the Great Lakes, the Great Lakes Fishery Commission and the International Joint Commission request that the Governments of the United States and Canada require the exchange of ballast water on ships entering the Great Lakes.(252)

MAY 1989 The Canadian Coast Guard issues Voluntary Guidelines for the Control of Ballast Water Discharges from Ships, recommending use of exchange.(253)

FEB 1990 In response to outbreaks of toxic dinoflagellates, the Australian Quarantine and Inspection Service (AQIS) issues Voluntary Guidelines for Ballast Water and Sediment Discharge from Overseas Vessels Entering Australian Waters.(254)

SEP 1990 The International Joint Commission and the Great Lakes Fishery Commission issue a joint report recommending that the Governments of the United States and Canada require the exchange of ballast water on ships entering the Great Lakes, coordinate their programs, promote international standards, and develop a long-term research strategy, including study of redesign and retrofitting of vessels to maximize safe and effective ballast exchange.(255)

NOV 1990 The United States enacts the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA 90),(256) which applies only to the Great Lakes and connected waters, mandating the US Coast Guard to issue voluntary guidelines six months after the act and mandatory regulations two years after the act.(257)

JUL 1991 The Marine Environment Protection Committee (MEPC) of the International Maritime Organization (IMO) issues draft International Guidelines for Preventing the Introduction of Unwanted Aquatic Organisms and Pathogens from Ships' Ballast Water and Sediment Discharges, recommending ballast exchange.(258)

DEC 1991 The Canadian Great Lakes Laboratory for Fisheries and Aquatic Sciences issues a report on the effectiveness of ballast exchange in the Great Lakes under the 1989 Canadian guidelines.(259)

APR 1993 The US Coast Guard issues mandatory regulations under NANPCA 90, requiring exchange or alternative measures on all vessels entering the Great Lakes in ballast (applicable to vessels headed to both US and Canadian ports in the Great Lakes).(260)

JUL 1993 At the urging of Australia, with support from New Zealand, Canada, and the United States, the Marine Environment Protection Committee (MEPC) of the International Maritime Organization (IMO) forms a Ballast Water Working Group (BWWG).(261)

NOV 1993 The International Maritime Organization (IMO) General Assembly adopts Guidelines for Preventing the Introduction of Unwanted Aquatic Organisms and Pathogens from Ships' Ballast Water and Sediment Discharges, recommending ballast exchange.(262)

MAY 1994 The Australian Quarantine and Inspection Service (AQIS) develops a draft Australian Ballast Water Strategy for a comprehensive program of research on control measures.(263)

OCT 1996 The United States enacts the National Invasive Species Act of 1996 (NISA 96),(264) mandating the US Coast Guard to issue national voluntary guidelines one year after the act and national mandatory regulations three years after issuance of the guidelines, if the voluntary guidelines are found to be ineffective.(265)

OCT 1997 The Canadian Department of Fisheries and Oceans (DFO), the Canadian Department of Transport (Transport Canada), and the US Coast Guard adopt a Binational Ballast Water Research Strategy to support critical changes in the Great Lakes regime.(266)

APR 1998 The US Coast Guard proposes national voluntary guidelines under NISA 96, along with revisions to the existing Great Lakes mandatory regulations raising the regulatory standard for measuring the adequacy of ballast exchange.(267) Because of strong opposition by the shipping industry, those proposed improvements to the Great Lakes regulations are rejected in the interim rule issued in May 1999.(268)

OCT 1998 Canada enacts an amendment to the Shipping Act authorizing the government to issue mandatory regulations for the management of ballast water throughout Canada.(269)

MAY 1999 The US Coast Guard issues an interim rule promulgating national ballast water exchange guidelines, with mandatory reporting requirements. Proposed improvements to the Great Lakes regulations are rejected.(270)

Activity in other jurisdictions. A number of other countries, and some state and local authorities in the United States and Canada, have taken limited action. These include promulgation of voluntary guidelines, imposition of voluntary or mandatory reporting requirements, use of emergency authority to react to specific outbreaks of identifiable organisms, and some, tentative steps towards the development of a mandatory exchange regime along the lines of the Great Lakes regime.

Australian agencies have authority to act against specific identifiable outbreaks of toxic dinoflagellates (a health threat to the shellfish industry) and other identifiable organisms under various health and pest control laws, but there is a lack of clear responsibility for administration of a ballast water program among federal and state officials.(271) New Zealand promulgated Voluntary Controls on the Discharge of Overseas Ballast Water within New Zealand in March 1992.(272) The New Zealand Ministry of Agriculture has authority to take action against an identifiable infestation under the Biosecurity Act of 1993, but use of that authority has been largely limited to requesting reports of compliance with the voluntary guidelines(273) and emergency action against Tasmanian ballast carrying larvae of the North Pacific seastar (Asteria amurensis).(274)

Other regulatory action has been taken in Israel, Chile, Japan, Tasmania, the Red Sea Ports, the Ukraine, Humbolt Bay, CA, and the Port of Vancouver, BC.(275) Guidelines or advisories, sometimes backed up by limited emergency authorities, have been promulgated in the United Kingdom, Germany, and Sweden.(276) The regulation is typically tentative. For example, the Harbor Master of the Port of Vancouver, British Columbia, has issued a "standing order" under local authority, mandating ballast water exchange.(277) However, despite the fact that compliance has only been about 80%, the port has yet to test its authority to enforce the standing order.(278)

Three states of the United States on the Pacific Ocean have taken some legislative action, but only of the most tentative nature. One of those states, California, is considering potentially significant legislation.

The Alaska legislature passed a 1992 resolution requesting that the US Coast Guard prohibit all discharge of ballast from foreign coasts in Alaskan waters.(279) The US Coast Guard has no general authority over discharge of ballast in Alaska until eventual implementation of mandatory regulations under NISA 96, which is still more than three years away at best. But there is a presidential memorandum(280) imposing limited exchange requirements on tankers engaged in the export of Alaskan oil under separate statutory authority to allow such exports with "such terms and limitations…as are necessary or appropriate to ensure that such exports are consistent with the national interest."(281)

Hawaii and California have each enacted temporary measures for information-gathering and coordination. Hawaii enacted a temporary law directing state agencies to form a state "alien aquatic organism task force," in cooperation with federal agencies, in order to develop a "comprehensive plan" on preventing introductions.(282) That statutory direction already expired, by its own terms, on June 30, 1998.(283) Similarly, California enacted a state Aquatic Nuisance Prevention and Control Act (ANSPCA) in 1992,(284) which declares that the California Department of Fish and Game "shall adopt the International Maritime Organization's 'Guidelines for Preventing the Introduction of Unwanted Aquatic Organisms and Pathogens from Ships' Ballast Water and Sediment Discharges' as adopted on July 4, 1991, as the policy of this state…."(285) It is not clear what legal significance it has for a state to adopt voluntary international guidelines as "policy." The California act does not give the Department of Fish and Game any enforcement authority other than authority to demand that vessel operators return ballast water report forms distributed in cooperation with the US Coast Guard.(286) It appears that the department may not have even attempted to implement this.(287) By its own terms, the California ANSPCA expires on January 1, 2000.(288) Neither of these state enactments was calculated to test the limits of state authority over ballast water in commercial shipping.

§ 7.2. California AB 703

AB 703, a bill passed by the California Assembly and currently under active consideration in the California Senate, would be the first enactment of a substantive mandatory regime by a state in the United States.(289) It would give California water quality boards authority to institute an exchange regime similar to that used in the Great Lakes, but with some significant improvements. Instead of the salinity standard, the regulatory standard would be a 95% exchange by volume. Vessels would be granted safety exemptions when exchange is not safe. But, after several years of studies and reports, the boards would have the authority to require more. In the current version, as amended on April 6, 1999, by the California Senate:

On and after January 1, 2003, the statewide general waste discharge requirements prescribed pursuant to this section shall require management of ballast water discharges that reflects the greatest degree of reduction in the discharge of exotic ballast water organisms that the board determines, based on the best available information, to be feasible through the application of the best available technologies that are economically achievable. On and after January 1, 2003, the requirements shall include a prohibition on the discharge of exotic ballast water organisms if the board determines, based upon the best available information, that the requirement is technologically available and economically achievable.(290)
If a state becomes involved in prescribing specific technologies for shipboard use, that would likely run afoul of United States rules on federal preemption, which prohibit a state from interfering with commercial vessel design, construction, and equipment standards traditionally prescribed by the US Coast Guard under vessel safety statutes.(291) However, that does not prohibit a state from requiring a vessel to follow special operational requirements when in its local waters, including a requirement to have ballast water treated ashore if it does not meet state standards.(292)

§ 7.3. US NISA 96

The National Invasive Species Act of 1996 (NISA 96)(293) mandates a nationwide regime which is generally modeled after the regime in the Great Lakes under the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA 90),(294) but with some variations which significantly weaken it. The legislation was passed in the closing days of the 104th Congress in October of 1996 by unanimous consent motions in both houses, with very little debate or discussion, after last-minute amendments were negotiated off the record to satisfy the objections of the shipping industry.(295) Although there was a large number of cosponsors for the legislation and unanimity in the votes, this broad agreement was obtained because (1) the legislation, as originally drafted, was designed to move the nation only slowly and tentatively towards a nationwide regulatory regime, and (2) the last-minute amendments obtained by the shipping industry, particularly a sweeping safety exemption, effectively eviscerated the ability of the US Coast Guard to develop a meaningful regime. Both of those issues are discussed below.

Comparing NISA 96 with other US pollution laws. The history of environmental law is a story of legislation by disaster. Moreover, the political and legal responses to those disasters are usually incremental and incomplete. The wreck of the Torrey Cannon in Great Britain prompted the Congress of the United States to enact the Water and Environmental Quality Improvement Act of 1970.(296) Continued deterioration of water quality under that legislation, characterized by Congress and the Supreme Court as "inadequate in every vital respect,"(297) led to a total overhaul of our theory and practice of water pollution control in the Federal Water Pollution Control Act Amendments of 1972(298) (and to the first Great Lakes Water Quality Agreement of 1972(299)). The discovery of toxic waste dumps at Niagara Falls, New York, at Montague, Michigan, and at other locations around the United States led to the enactment of the US Superfund Act (CERCLA) in 1980.(300) And, finally, the Exxon Valdez oil spill led to significant changes in ship design and navigation requirements enacted in the Oil Pollution Act of 1990 (OPA 90).(301) Between the Torrey Cannon and the Exxon Valdez, while we were still struggling with the relatively simple technical matter of what should be required for moving big steel tubs of oil safely around on the water without running into rocks, the world suffered spills in excess of a million gallons, each, from the Argo Merchant, the Burmah Agate, the Georgia, the Olympic Glory, the Arkas, the Alvenus, and the Puerto Rican.(302) (The double-hull requirement for new oil tankers, required by OPA 90, is adding about 10% to 20% to new construction costs.(303)) Although the invasion of the zebra mussel via ballast water is likely to have much more severe long-term effects on the ecology of North America than the Exxon Valdez oil spill,(304) it has obviously had nothing like the same impact on the public consciousness. In terms of politics, the zebra mussel is more like the Torrey Cannon. It therefore should not be a surprise that the first piece of legislation designed to address the problem on a national level, NISA 96, is just as "inadequate"(305) as was the Water and Environmental Quality Improvement Act of 1970. NISA 96 and other tentative measures on exotics being adopted around the world only make sense if understood as the first attempts to frame a rational and effective regime.

A mandate for delay. NANPCA 90 directed the US Coast Guard to put out voluntary guidelines six months after enactment, to be followed by mandatory regulations two years after enactment on November 29, 1990.(306) The Coast Guard was able to almost meet that direction with regulations issued on April 8, 1993.(307) NISA 96 directed the US Coast Guard to put out national voluntary guidelines within one year after enactment on October 26, 1996,(308) and to follow that up with national mandatory regulations,(309) if the guidelines are found to be inadequate after a review to be conducted not less than three years after issuance of the guidelines,(310) and after a report to that effect to Congress.(311) NISA 96 also directs the US Aquatic Nuisance Species Task Force (ANS Task Force) to develop criteria for the Coast Guard to use in determining the effectiveness of the voluntary guidelines.(312)

All of these requirements may seem like minor points of administrative process. However, especially given the controversy which has already arisen over the proposed national guidelines, they are in fact prescriptions for significant delay before any national mandatory regulations go into effect. This was very much part of the original compromise built into the legislation. The primary sponsor of the legislation in the House of Representatives was Congressman Steve LaTourette.(313) He explained the overall design of the legislation on the floor of the House:

This balanced, moderate approach has broad bipartisan support. There are now 40 cosponsors for this legislation. There are some interests who want an enforceable regulatory program immediately while there are others who only want voluntary guidelines with no possibility of mandatory regulations. The bill chose to take the middle path, the compromise approach of requiring mandatory regulations only if they are necessary.(314)
The US Coast Guard has been directed to navigate a political course somewhere between the rock of industry opposition to any requirements for changes in ship design and the whirlpool of vacuous guidelines which will invite new invasions of exotics. This is not a course which the Coast Guard (or any other federal agency) can be expected to sail with any confidence or speed. It was not until April 10, 1998, six months after guidelines were to go into effect, that the Coast Guard put out proposed guidelines,(315) and not until May 17, 1999, more than another year, that the guidelines were issued in an "interim rule."(316) We may expect that there will be a considerable amount of additional delay, as well as political difficulty, in conducting the evaluation of the program, obtaining the statutorily required guidance from the ANS Task Force, framing a politically defensible report to Congress, overseeing the necessary research projects, and developing actual nationwide regulations. It is worse than that, in fact, because meaningful regulations cannot be written without returning to Congress for new statutory authority. As I explain below, the special safety exemption obtained by industry at the last minute from the Senate has made any such regulations unenforceable.

A shell game over "safety." The provisions on the Great Lakes regime and the US nationwide regime in NISA 96 (each regime is separately laid out in the current version of the statute) are just enough alike to be misleading. Both say, basically, (1) exchange your water, (2) if you can do so safely, or (3) develop some sort of alternative means for managing the problem. But there are subtle differences in the way those propositions are stated for the two regimes, an important difference between the two safety exemptions, and a critical difference between how the safety exemption relates to the development of alternative management. This calls for a detailed parsing of the language of the statute. In the following, except where otherwise noted, the subsections discussed are subsections of 16 USC § 4711 in NISA 96 as currently enacted and codified.

To begin with, although there is an analogous transition from guidelines to regulations in each regime, the structure is different. The provisions on the Great Lakes regime laid out in subsections (a) and (b) of § 4711 mandate guidelines in brief and general terms, and then provide detailed requirements for what should be contained in the subsequent regulations. The provisions on the national regime in subsections (c) and (f) of § 4711 provide separate detailed requirements for what should be contained in the national guidelines, and then mandate regulations in brief and general terms, along with a provision at (f)(3) which allows for general revision of the regulations in accordance with any "international agreement." This opens up the valuable possibility that future nationwide regulations could be much more flexible and creative than either the Great Lakes regulations or the nationwide guidelines. But that possibility is still limited by the special safety exemption.

To emphasize again, there is no question but that there must be a safety exemption in some form. No one argues that breaking ships in half is an acceptable way to prevent exotic invasions. The questions are (1) who decides that the use of the exemption is valid, and (2) what happens then, after it is determined that a certain vessel cannot safely exchange? The views of the shipping industry on this issue are clearly articulated in formal comments submitted to the Coast Guard on the proposed national guidelines, which presumably reflect many of the points raised during lobbying done off the record with the Senate. They argue (1) that it ought to be the unquestionable decision of the master of the vessel, and (2) after that, once it becomes obvious that particular vessels or fleets cannot conduct safe exchanges, the industry has absolutely no further obligation to do anything. That comes through quite clearly in the comments on the proposed national guidelines. A comment by the International Chamber of Shipping begins as follows with the inarguable proposition that safety must come first:

... there should be much greater emphasis on the need for the absolute acceptance of the master's decision on whether to commence the process, suspend operations when in progress, or abandon the process, if he feels that safety is or may be jeopardized, that machinery is in doubt, or crew fatigue demands it.(317)
Accordingly, the International Chamber of Shipping urges the adoption of a clause in the regulation which specifies that the master "retains absolute discretion"(318) to forgo any exchange, subject to no requirement of evidence of reasonableness or review by the Coast Guard. Even more, the Chamber argues that any requirement to exchange in an alternate site will be dangerous:
In the very early stages of discussion at IMO [the International Maritime Organization]…. It was recognized that if a master knew that there was a requirement for alternative procedures and subsequent delay by diversion into a designated area or the need to discharge ballast elsewhere than the loading berth, this may create the commercial pressures that will lead to him taking a chance in mid-ocean when conditions are marginal. The tighter a bad weather schedule is, the more likely such a risk will be run.(319)
The vessel must not ever be delayed, for fear that the master will break it in half in order to avoid that delay. Why? Who sets the parameters for how close to the edge the master operates in order to avoid the cost of delay? In this manner, an otherwise legitimate concern for safety is used to negate any responsibility for the environment, using the lives of the crew as hostage.

The American Maritime Congress also urges recognition of the "absolute discretion" of the master, although in slightly more reasonable terms leaving some possible opening for a "good faith" test,(320) and then adds a critical point about the overall evolution of the regime:

And additionally, any record of compliance or non-compliance must take into account the design of the vessel. For certain vessels, it is inherently unsafe to accomplish ballast water exchange when underway on the high seas - as it may also be for any vessel under certain sea and weather conditions. Neither the master of these vessels nor the owner/operators should be penalized or given a "black mark" for non-compliance for safety reasons, or, in essence, for failing to be able to put a square peg in a round hole.(321)
No vessel, nor its owner, is to be singled out for notice on account of the fact that it is incapable of running a clean operation. Although not explicitly stated, the obvious concern is that the Coast Guard or the Congress will then begin to require the necessary design changes for making the fleets able to run clean.

Throughout the many comments from these and other industry groups, the theme of "safety first" is strongly and consistently articulated. That is a theme which resonates deeply with the ethic of the Coast Guard. What is not usually so clearly articulated is that, in fact, "safety" is a euphemism for "commercial convenience." It is as if the owners of the oil tankers announced that they should not be expected to clean up their spills because, after all, it is highly dangerous for untrained merchant seamen to go mucking about in an oil slick without specialized equipment and training in occupational health safeguards. That is certainly true. But the Clean Water Act and OPA 90 require them to develop or contract for competent and safe response capability. The industry is not allowed to say that they cannot be bothered to do the job safely. Why should they be able to say that when the threat to the environment is from ballast water? The marine industry is no doubt just as acutely aware of this obvious analogue as anyone in the environmental community, and it is for that reason that they also object to the characterization of biological spills in ballast water as "pollution."(322)

Unfortunately, the maritime industry succeeded in obtaining a poorly considered exemption for "safety" which enacted a significant portion of their demands. This occurred during the last minute action at the end of the 104th Congress as NISA 96 came up for a second try in the House, rewritten to satisfy the Senate.(323) In order to clearly understand what happened during this complex political maneuvering, it is best to take it from the beginning and work through the chronology.

What we began with was the Great Lakes regime under NANPCA 90, which contained its own provisions designed to insure safety. Subsection (b) of § 4711, originally enacted under NANPCA 90, directed the Coast Guard to insure that the regulations "(F) protect the safety of- (i) each vessel; and (ii) the crew and passengers…and (G) take into consideration operating conditions…." But that provision did not trump another provision in the same subsection, § 4711(b)(2), which authorized the Coast Guard to require an exchange in "other waters," inside the usual 200-mile limit of the exclusive economic zone, when safety permitted, or to require some environmentally sound method of alternate treatment to be used. Following that statutory guidance, the Coast Guard promulgated a provision in the Great Lakes regulations giving the master appropriate alternatives:

The master of any vessel subject to this subpart [the Great Lakes regulations in 33 CFR Part 151, Subpart C] who, due to weather, equipment failure, or other extraordinary conditions, is unable to effect a ballast water exchange before entering the EEZ [200-mile zone], must employ another method of ballast water management…or request from the COTP [the Coast Guard Captain of the Port in Buffalo] permission to exchange the vessel's ballast water within an area agreed to by the COTP at the time of the request and must discharge the vessel's ballast water within that designated area.(324)

The designated area was left open to negotiation, but as a matter of administrative practice it has been understood that a request to use the Gulf of St. Lawrence west of the 63º west line of longitude would be approved. The Coast Guard has also been attempting to obtain advice from the scientific community on other appropriate sites which might be available in more sheltered waters along the Northeast Coast of the United States.(325) In many cases, the vessel operators and the Coast Guard agreed upon an alternate treatment method, on a case by case basis, as an alternative to use of the alternate exchange site. That was not because the vessels in those cases could not have safely exchanged in the Gulf of St. Lawrence or in the open Atlantic. It was simply because they were already well up into the St. Lawrence Seaway when problems with their original exchange were detected in boardings and they had no wish to turn around.

In other words, as it became clear in the actual implementation of the regime by the Coast Guard in the Great Lakes, the Coast Guard would never force a master to conduct an exchange which the master felt was unsafe, but that did not give the vessel a free pass to dump the dirty water in the Great Lakes. They were instructed to inform the operational command at the Buffalo Marine Safety Office and some alternative was agreed to. It was an agreement under compulsion, to be sure, because the Coast Guard would not allow a vessel to discharge ballast and take on cargo otherwise. But it was very much a matter of polite negotiation over what options were reasonable, in which industry always had the option of appealing up the chain of command to Washington, DC. The alternative was either an exchange in the more sheltered waters of the Gulf of St. Lawrence, or a specially authorized alternative treatment on a case-by-case basis, before the vessel was cleared to enter and discharge.(326)

That authority remains in place for the Great Lakes. But the safety exemption now applicable to any nationwide regulations is very different. How different, unfortunately, is made clear by the comparison between the two provisions appearing in NISA 96 when it was passed twice by the House of Representatives. When it came up the first time on September 24, 1996, it contained the following provision, at subsection (k) of § 4711, set forth as a special statutory safety exemption rather than as a consideration for the Coast Guard in framing the regulations:

(k) Safety exemption
(1) Master discretion

The master of a vessel is not required to conduct a ballast water exchange if the master decides that the exchange would threaten the safety or stability of the vessel, its crew, or its passengers because of adverse weather, vessel architectural design, equipment failure, or any other extraordinary conditions.

(2) Other requirements

A vessel that does not exchange ballast water on the high seas under paragraph (1) shall not be restricted from discharging ballast water in any harbor unless the Secretary [the Coast Guard] issues requirements applicable to such vessel under subsections (b)(2)(B)(ii), (b)(2)(B)(iii), (c)(2)(D)(ii), or (c)(2)(iii).(327)

The subsections cross-referenced are the provisions mandating the Great Lakes regulations and the national guidelines which authorize the Coast Guard to require use of alternate exchange sites or alternate management methods. Thus, this provision would have authorized the same procedure already used in the Great Lakes for the nationwide regime. In case there was any doubt about that intent, Congressman Sherwood Boehlert from New York commented on the floor that "This language codifies the existing exemption found in the Great Lakes regulations…. We note that the bill authorizes the Secretary [the Coast Guard] to identify other methods of managing ballast water or other locations for ballast water exchange. If safe and available, a vessel may be required, by regulation, following notice and opportunity for comment, to conduct such other ballast water management practices as are identified by the Secretary [Coast Guard]…."(328)

This, however, was not the sort of safety exemption that industry wanted. The Senate declined to act on the legislation until the House of Representatives brought it back to the floor on September 28, 1998, with what is now the version of the special safety exemption in NISA 96. Paragraph (k)(1) was not changed. The insidious change appeared as subparagraph (k)(2)(A):

(k) Safety exemption
(1) Master discretion

The master of a vessel is not required to conduct a ballast water exchange if the master decides that the exchange would threaten the safety or stability of the vessel, its crew, or its passengers because of adverse weather, vessel architectural design, equipment failure, or any other extraordinary conditions.

(2) Other requirements

(A) In general

Except as provided in subparagraph (B), a vessel that does not exchange ballast water on the high seas under paragraph (1) shall not be restricted from discharging ballast water in any harbor.

(B) Great Lakes

Subparagraph (A) shall not apply in a case in which a vessel is subject to the regulations issued by the Secretary under subsection (b) of this section [authorizing the regulations for the Great Lakes].(329)

Subparagraph (A) gives the vessel a free pass to dump the dirty water under any national regulations. Subparagraph (B), fortunately, preserves the terms of the existing exemption and alternative procedures for the Great Lakes. The clear intent of subparagraph (A), unfortunately, is highlighted by the contrast with both the previous version rejected by the Senate and the contrast with the provision in subparagraph (B).

Although the members of the House interested in this legislation spoke in oblique terms about the "limited amendments requested by the other body,"(330) some of them did realize that a lot had been given away to industry. Congressman LaTourette noted that "Many concerns were raised about the potential impact of the Senate amendments."(331) Congressman James Oberstar(332) noted that "this bill contains certain exemptions which concern me. I intend to further examine these provisions and their impacts…."(333) That offers hope that there may in fact be time to fix this fatal defect between now and three years hence when the Coast Guard begins to propose national regulations. But it would be a strategic mistake of the highest order to wait until after those regulations are promulgated, more than three years from now, and then litigate the effect of this exemption. That battle, won by industry in the Congress, cannot be reversed by the Coast Guard or the courts. It must be fought again in the Congress.

Aside from a general interest in preserving the biodiversity of the nation and the planet, what difference does this defect in the national regime make to resource managers and environmental groups working to protect the Great Lakes? A great deal. Even though there may be legal authority to force retrofitting design changes on the vessels entering the Great Lakes through the Seaway, it will remain a political impossibility to do so as long as any such action discriminates against the Seaway trade. The costs, small as they may be, must be equal among all the ships sailing to different ports of the United States - unless, perhaps, there is a way to specially compensate the Seaway trade for the extra expense. (See § 10 below.)

An 85% solution. Because of the defects in the salinity standard discussed above (§ 3.6), the Coast Guard had proposed to replace that, in both the Great Lakes regulations and the nationwide guidelines, with a performance standard. Instead of being a regulatory standard, salinity would simply be evidence, among other things, that an adequate exchange has taken place. And in place of a nominal exchange of 85% under the old 30 ppt salinity standard, the Coast Guard had proposed that it should be set, for the present time, at 90% of volume. The Coast Guard would have called this a "reasonably complete exchange," given the current limitations in vessel designs, while emphasizing that a 100% removal or treatment of the water was the ultimate goal.(334)

Judging from the equally vehement comments from both sides - from the industry groups protesting that 90% is unreasonable, and from the environmental groups protesting that anything less than at least 95% is inadequate - it appears that the Coast Guard had struck just the sort of middle-ground compromise typical and appropriate for a government agency trying to balance environmental protection against economic cost.(335) In fact, given the fallacies of the salinity standard, the simple fact that the Coast Guard was considering moving to a performance standard - and provoking a national debate about how much is enough - was probably much more important than whether the current standard is nominally set at 85%, 90%, or 95%. Unfortunately, however, the Coast Guard completely retreated from any modification of the current salinity standard in the interim rule put out on May 17, 1999.(336)

§ 7.4. Canada Shipping Act

On October 31, 1998, Canadian Parliament enacted an amendment to the Shipping Act, roughly the equivalent of the US Clean Water Act with regard to pollution from shipping sources, providing in full that "The Governor in Council may make regulations respecting the control and management of ballast water."(337) That one sentence is the entire enactment on ballast water. That is the Canadian equivalent to the 53 pages of NISA 96 printed in bill form and the 19 sections of law making up NANPCA 90 and NISA 96 as currently codified in the US Code.(338) Such regulations have not yet been developed.

The exact language of that one sentence is of great importance. It was originally drafted to authorize regulations requiring the "exchange" of ballast water. That would have made it much more like NISA 96, which relies on exchange as the only available tool for control of ballast water. But careful study of the defects in NANPCA 90, and the loss of the Flare off the coast of Canada after apparently conducting a ballast exchange, prompted the Canadian government to request broader authority for "control and management" of ballast water.(339) This general grant of authority, not restricted by the many qualifications and restrictions in the US legislation, will allow the Canadian Department of Transport (acting for the "Governor in Council") to eventually develop a much more rational and effective ballast water control program. But that may well be many years away, as they will no doubt have to deal with the same strong opposition which shipping interests have had to the proposed US Coast Guard nationwide regulations under NISA 96.

§ 7.5. MARPOL

The issue of exotics in ballast water is now on the international agenda in the form of discussions and voluntary guidelines recommending ballast exchange developed by the International Maritime Organization (IMO) in London.(340) IMO promulgated non-binding Guidelines for the Control and Management of Ships' Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens in 1997.(341) These, very much like the US regulations and the Canadian voluntary guidelines, recommend the use of exchange when possible but caution against the risk of losing stability or incurring hull stress. A revision to these guidelines in 1997(342) added more specific guidance on safety considerations limiting the use of exchange,(343) and recognized the use of the flow-through method of exchange as a means to avoid the stability and stress problems.(344) At this time the IMO ballast water guidelines are just guidelines, not part of any legal convention. Australia had been strongly advocating that the guidelines be made into a binding international convention as an "annex" to the International Convention for the Prevention of Pollution from Ships (MARPOL),(345) which would then come into effect as international law after being adopted by a sufficient number of the maritime nations.(346) Most other nations have no noticeable enthusiasm for a ballast water convention.(347) Even Canada and the United States, despite their own domestic legislation on the subject, have some reservations about adoption of an international convention because of the issue of the safety of exchange on current vessels.(348)

As mentioned above, there is reason to be concerned that the prospective international convention under MARPOL could preclude more effective requirements at the national and local level. The central working draft of the international convention currently under consideration at the IMO Marine Environment Protection Committee (MEPC) would provide that "Parties [which means the national states, such as Canada and the United States, joining in the convention] shall not apply any requirement on a ship relating to ballast water management options where the ship's ballast water management plan indicated that it is unsafe or the master otherwise reasonably determines that undertaking such an operation would jeopardize the safety or stability of the ship, its crew, or passengers."(349) Comments from the US representatives to MEPC note some concern with this provision. "As new management techniques are developed, ships should integrate the ability to conduct such methods and therefore a ship should not be exempt from complying simply because its plan states that it is unsafe."(350) But one should not take too much comfort from this mild objection put on the record by the United States, because the US counter-draft does not clearly correct this critical provision in the MEPC draft.(351)