Halting the hitchhikers: challenges and opportunities for controlling ballast water discharges and aquatic invasive species.

• Author: Bostrom, Suzanne

1. INTRODUCTION II. BALLAST WATER AS A CONDUIT FOR INVASIVE SPECIES TRANSFERS A. Dispersal of Invasive Species Through Ballast Water Discharges B. The Technology Gap III. THE INTERNATIONAL FRAMEWORK FOR ADDRESSING BALLAST WATER DISCHARGES A. Deficiencies in Current International Law for Addressing Ballast Discharges 1. The Convention on Biological Diversity 2. The United Nations Convention on the Law of the Sea B. The Ballast Water Convention as a Binding Regulatory Mechanism 1. Key Provisions of the Ballast Water Convention 2. Moving Forward with the Ballast Water Convention IV. THE MANAGEMENT OF BALLAST WATER DISCHARGES IN THE UNITED STATES A. Federal Responses to Aquatic Invasive Species B. Northwest Environmental Advocates--Potential for Change or More of the Same? 1. The Clean Water Act as a Tool for Controlling Ballast Water Discharges 2. The Ninth Circuit's Holding in Northwest Environmental Advocates 3. Significance of the Ninth Circuit Holding 4. EPA's Response to Northwest Environmental Advocates C State Action in the Absence of Federal Action 1. California on the Frontline 2. West Coast Alliances as a Catalyst for Change 3. Great Lakes Developments 4. State Attempts to Spur the Adoption of Treatment Technologies V. LOOKING TOWARD A BRIGHTER FUTURE FOR BALLAST WATER CONTROLS A. Choosing Between Policy Options B. A New Federal Framework IV. CONCLUSION I. INTRODUCTION

   In January 1991, the Ministry of Health in Lima, Peru, started receiving reports of an illness later identified as cholera. (1) Over the course of the next several years, the epidemic spread to all but one Latin American country, infecting at least 100,000 and killing approximately 10,000 individuals. (2) Evidence indicates ballast water from ships moving between Asia and South America was the most likely source of the outbreak--the first in the Western hemisphere in over a century. (3) Ultimately, the cholera outbreak cost Peru $770 million, primarily as a result of trade embargoes on food and decreased tourism. (4)

   Unfortunately, the cholera epidemic in Peru is just one example of a non-native species causing harm internationally to the environment, human health, and the economy. Non-native species are species of plants, animals, and microbes that do not occur naturally in a particular habitat. (5) Approximately 50,000 non-native species are located in the United States. (6) Some non-native species, including corn, wheat, rice, poultry, and cattle, are utilized for agriculture and other purposes in the United States. (7) However, when the species are introduced into new. environments, their natural predators are often absent and the species "can compete with native biota; displace them; predate upon them; parasitise and transmit or cause diseases; reduce growth and survival rates; cause decline, extirpation (local extinction) of populations, or extinction." (8) These invasive species are a destructive subset of non-native species that cause environmental damage and lead to adverse economic consequences in agriculture, forestry, and other industries. (9) Internationally, governments and other entities have already spent billions of dollars to remove and control invasive species. (10) Invasive species also cause damage to the environment and other species, with "[a]pproximately 35-46 percent of the species on the endangered species list [present either] partly or entirely because of the effects of invasive species." (11)

   The International Maritime Organization (IMO) (12) considers invasive marine species to be one of the four greatest threats to the world's oceans. (13) However, "[u]nlike other forms of marine pollution, such as oil spills, where ameliorative action can be taken and from which the environment will eventually recover, the impacts of invasive marine species are most often irreversible." (14) In marine environments, ballast water from ships is the primary mechanism for distribution of species between aquatic ecosystems. (15) Ships often introduce invasive species into new habitats when releasing ballast water, which vessels take on for balance and stability. (16) Despite the tremendous risk posed internationally to the economy, public health, and the environment, current regulations for ballast water are limited in scope and effectiveness. (17)

   Recently, in Northwest Environmental Advocates v. US. Environmental Protection Agency, (18) the Ninth Circuit invalidated a. long-standing Environmental Protection Agency (EPA) regulation that exempted all vessel discharges from permitting requirements under the Clean Water Act (CWA). (19) In light of the potential repercussions from Northwest Environmental Advocates, this Chapter argues that the reactions by EPA, Congress, and the states to the Ninth Circuit's decision have the potential to trigger the adoption of ballast water treatment technologies on an international scale. Further, this Chapter proposes that the responses to Northwest Environmental Advocates could bolster efforts to ratify the International Convention for the Control and Management of Ships' Ballast Water and Sediments, a binding international framework adopted in 2004 by the IMO, by driving the adoption of treatment technologies. (20)

   Part II begins with an explanation of the problems created by untreated ballast water and provides an overview of the current status of treatment technologies. Part III describes the current international regimes that address invasive species and ballast water discharges, and argues that current, binding standards are insufficient to drive adoption of the technology necessary to prevent introductions of aquatic invasive species. Part IV further analyzes the lack of effective controls for ballast water in the United States and asserts that EPA's ineffective response to the decision in Northwest Environmental Advocates could spur states to adopt individual and regional frameworks that require ships to install effective ballast water treatment systems. The Chapter claims that because individual states in the United States are taking the initiative to develop technology requirements that are as stringent, if not more stringent, than the IMO convention, the United States could still trigger the adoption of effective treatment technologies on an international scale. Finally, the Chapter offers suggestions on how the United States could reconcile the conflicts between state, federal, and international regulatory mechanisms.

2. BALLAST WATER AS A CONDUIT FOR INVASIVE SPECIES TRANSFERS

   Ships use ballast to ensure safe operation at sea. Ballast is "any solid or liquid placed in a ship to increase the draft, to change the trim, to regulate the stability, or to maintain stress loads within acceptable limits." (21) The uptake and discharge of ballast water leads to the inadvertent transport of thousands of organisms around the globe on a daily basis. (22) This Part begins with an overview of the harm caused by aquatic invasive species and ballast water discharges and ends with a review of the current status of ballast water treatment technologies.

   1. Dispersal of Invasive Species Through Ballast Water Discharges

      Before the late 1800s, ships typically carried heavy materials such as rocks and sand as ballast. (23) Today, ships pump water into holds to maintain balance, to relieve stress on the ship, and to fulfill other functions required for safe operation of the vessel. (24) Ships typically load ballast water when discharging their cargo, carry the ballast water while their cargo holds are empty or low, and discharge the water when filling the cargo hold. (25) The loading and unloading of the ballast water in relation to ship cargo allows the ship to maintain equilibrium in the vessel's stability. (26)

      The shipping industry oversees the transport of over 90% of the world's goods and commodities (27) and is the primary distributor of aquatic invasive species around the world. (28) Overall, experts estimate that shipping is responsible for approximately 80% of the invertebrate and algae introductions into North America, with ballast water and hull fouling accounting for 90% of the introductions. (29) As such, ballast water "is widely regarded as the leading modern-day vector of marine bioinvasions." (30) Shipping vessels transport over ten billion tons of ballast water each year, with each vessel containing anywhere from "[s]everal hundred litres to more than 100,000 tons, depending on the size and purpose of the vessel." (31) While the use of water for ballast is efficient and convenient for ships, the water typically carries a wide variety of small species, "including bacteria, microbes, small invertebrates, and the eggs and larvae of larger species." (32) Ballast water carries an estimated 7000 different species of animals and plants around the world each day. (33) Although the majority of these hitchhiking species do not survive the harsh conditions during their ballast water journey, those species that do survive can "become invasive, out-competing native species and multiplying into pest proportions." (34)

      Ballast water discharges are the source of many of the most damaging invasive species problems around the world. (35) One famous example of the threat posed by invasive species in ballast water is the damage caused by the zebra mussel in the Great Lakes. (36) Although scientists do not know the exact time and place of the first zebra mussel establishment, evidence indicates that ballast water discharges caused the first zebra mussel introduction into Lake St. Clair and the Great Lakes in the 1980s. (37) By 1993, zebra mussel populations stretched from Quebec to Louisiana. (38) Recently, states discovered zebra mussels as far west as Lake Mead in Nevada. (39) Additionally, the first confirmed zebra mussel in California appeared in early 2008. (40) Within twenty years, scientists expect the zebra mussel to infest most freshwater habitats throughout the nation, (41) thereby...