Pollutants without half-lives: the role of federal environmental laws in controlling ballast water discharges of exotic species.

• Author: Foster, Brent C.

Used by ships to increase stability, ballast water is the largest source of aquatic exotic (i.e., nonindigenous) species in the United States today. Despite the catastrophic effects on native ecosystems, and the billions of dollars in economic damage caused by exotic species, ballast water discharges of exotic species are virtually unregulated by the federal government. Surprisingly, this lack of federal regulation is not due to a lack of federal law to apply. This Article asserts that the Clean Water Act, Ocean Dumping Act, and Rivers and Harbors Act of 1899 all restrict unpermitted ballast water discharges. In addition, because exotic species now represent the largest threat facing threatened and endangered species after habitat loss, federal actions that will result in ballast water discharges must also meet obligations under the Endangered Species Act and National Environmental Policy Act. This Article argues that application of these statutes' clear requirements would be a significant step toward controlling one of the nation's greatest pollution threats. If federal agencies are unwilling to enforce existing laws, ample opportunities for citizen enforcement exist. I. INTRODUCTION

Imagine an entire class of pollutants that has ability to grow once released into an aquatic ecosystem. Unlike dioxins, these pollutants do not dilute when added to large quantities of water. Unlike oil, they never break down or become less noticeable over time. Unlike radioactivity, these pollutants have no half-life.

From the moment these pollutants are released, they do nothing but grow. As they grow, so does the magnitude of their impact. These quickly spreading pollutants alter the fundamental structures, functions, and processes within aquatic ecosystems, affecting a great number of species. The exact mechanisms vary, but in a short amount of time, these devilish contaminants can degrade an ecosystem to the point that many historically present species no longer exist. As these pollutants are released into aquatic ecosystems across the world, global biodiversity is similarly affected.

Introduction of this class of pollutants also comes with a high economic cost. Their expansion causes commercial and sport fisheries to crash and clogs municipal and industrial water intake pipes. There is no Superfund to pay for their cleanup. Unlike untreated sewage or even many types of industrial waste, the presence of these resilient pollutants will not decrease over time, even after their source is eliminated. Once released, these pollutants are largely here to stay.

Members of this "hypothetical" class of pollutants are not commonly considered "pollutants" at all. However, exotic, or nonindigenous, species are among the pollutants that pose the greatest threat to American ecosystems in the twenty-first century(1) and may have some of the largest economic consequences.(2) A nonindigenous species (NIS) is best described as a species that enters an ecosystem outside its historic range.(3) Because not all NISs released into a given area will survive and become established, the subset of NISs that becomes established and prevalent in aquatic ecosystems is more specifically referred to as "aquatic nuisance species" (ANSs).(4)

Despite the ecological and economic costs of ANSs, commercial ships' ballast water--the largest source of aquatic NISs today(5)--is almost completely unregulated.(6) Ships use ballast water to increase vessel stability.(7) Ballast water is typically pumped into a vessel at one port before a voyage if the vessel has a light load or is empty and then released when the ship reaches another port prior to taking on cargo.(8) When ballast water is released, so is a rich collection of species from the ballast water's port of origin.(9) Because ballast water tanks are known to transport everything from small fish and jellyfish to sponges, bacteria, and viruses, ballast tanks have been appropriately described as "floating aquariums."(10)

Every year, more than twenty-one billion gallons of completely untreated ballast water is released into the waters of the United States from commercial vessels.(11) Some vessels may carry up to seventy-four million gallons of ballast water at a given time,(12) while more typical vessels carry between three and five million gallons.(13) These numbers are especially impressive given that just one milliliter of ballast water contains up to one hundred thousand bacteria and one million viruses.(14) The diversity of species in ballast water is high. Studies have found at least 367 distinctly identifiable species in a survey of cargo ships arriving in Coos Bay, Oregon.(15) According to recent estimates, ballast water may transport more than three thousand species of plants and animals around the world every day.(16)

ANSs have caused billions of dollars in economic damage and continue to seriously degrade many United States ecosystems.(17) NISs also pose the second greatest threat to endangered and threatened species after habitat destruction,(18) and are among the top causes of human-induced extinctions.(19) At least forty-five hundred NISs are already established in the United States today,(20) and some researchers estimate that there may be as many as fifty thousand.(21) In San Francisco Bay, a new exotic species establishes itself on average of once every fourteen weeks, and the rate of NIS introductions appears to be increasing.(22)

The impact from ballast water-caused introductions extends far beyond the United States's borders. Because the safe operation of ships requires the use of ballast water,(23) ships are likely exchanging foreign species at every commercial port in the world. Just as aquatic nonindigenous species from Europe and Asia are degrading North American ecosystems, species from the United States are causing incalculable damage to areas like the Black and Azov Seas.(24) This high-speed exchange of biotic resources presents a serious threat to unique aquatic ecosystems across the world.(25)

Although the United States does not presently regulate ballast water discharges, this Article asserts that federal environmental statutes require strict regulation of ballast water discharges containing NISs, and that federal agencies must assess how their actions affect the spread and introduction of ANSs and the resulting effects on native ecosystems. Specifically, this Article explores how the Federal Water Pollution Control Act (Clean Water Act or CWA),(26) the Marine Protection, Research, and Sanctuaries Act (Ocean Dumping Act or ODA),(27) and the Rivers and Harbors Act of 1899 (RHA)(28) apply to ballast water discharges of NISs. This Article also considers how the Endangered Species Act (ESA),(29) the National Environmental Policy Act (NEPA),(30) and section 404 of the Clean Water Act(31) apply to the transfer of NISs in ballast water. The legal mechanisms provided by these laws are not especially complex. They do, however, contain clear requirements that federal agencies implementing these statutes are largely ignoring. A number of legal articles have concluded that existing federal laws are not adequate to protect against ANS invasions,(32) While this is true for many invasion vectors,(33) applying existing federal laws to ballast water discharges of NISs would result in a significant reduction--if not a virtual elimination--of NISs in ballast water discharges in the United States.

Part II of this Article briefly reviews some of the ecological, economic, and human health threats posed by ANSs. Part III demonstrates that federal officials recognize ANS invasions as a serious problem. Part IV contrasts this federal recognition with the lack of federal actions to actually address these invasions. Part V considers how the Clean Water Act, Ocean Dumping Act, and the Rivers and Harbors Act of 1899 apply to ballast water discharges containing NISs. Part VI evaluates how the National Environmental Policy Act, the Endangered Species Act, and section 404 of the Clean Water Act are all relevant to actions that facilitate the discharge of NISs in ballast water. Both Parts V and VI review the potential environmental benefits of applying these statutes to ballast water discharges, opportunities for citizen enforcement, and current enforcement efforts. Part VII concludes that while federal agencies are largely ignoring the requirements of the federal statutes pertaining to ballast water discharges of NISs, the statutes provide important opportunities for reducing the threat of ANS invasions caused by ballast water and should be enforced, either by the federal government, interested citizen groups, or by industry associations economically affected by ANSs.

2. NONINDIGENOUS SPECIES: THEIR ECOLOGICAL AND ECONOMIC THREATS

   They are called nuisance species, nonindigenous species, exotic species, and weeds. Regardless of what they are called, mussels, fish, parasites, plankton, bacteria, and viruses from across the world are wreaking havoc on aquatic ecosystems--both in the United States and globally.(34) ANSs have the ability to fundamentally change the ecosystems they invade.(35) ANSs can reduce the diversity of native species in an ecosystem, reduce the population levels of native species, change the food web structure, and alter sedimentation regimes.(36) Consequently, the unprecedented rate of ANS invasions occurring throughout the world has been appropriately described as a "significant component of global environmental change."(37)

   NIS introductions can negatively affect native aquatic species through various mechanisms, including direct predation; competition for space, light, or nutrients; and parasitism.(38) The zebra mussel (Dreissena polymorpha), one of the most notorious ANSs, was introduced to the Great Lakes via ballast water in the mid-1980s and affects native species through competition for nutrients and space.(39) The zebra mussel is a highly effective filter feeder and has...