Pollutants without half-lives: the role of federal environmental laws in controlling ballast water discharges of exotic species.
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.
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.
II. 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 caused significant reductions in nutrient levels within the Great Lakes, thus affecting a fundamental ecosystem process.(40) Additionally, the zebra mussel's ability to quickly disperse allows it to rapidly colonize new habitats formerly occupied by native species.(41) While the zebra mussel's toll on native species is significant, it may be most famous for its ability to foul ship hulls and clog industrial and municipal water intake and outflow pipes.(42) Efforts to control the zebra mussel are expected to cost up to $5 billion by the year 2000.(43)
Another ANS, the Asian clam (Potamocorbula amurensis), first found in San Francisco Bay in 1986, has very quickly become a serious threat.(44) Similar to the zebra mussel, the Asian clam is a voracious filter feeder that occupies areas with an average density of two hundred clams per square foot in the northern part of San Francisco Bay, where it has become the most abundant clam.(45) The Asian clam can filter the entire water column in northern San Francisco Bay more than twice a day, which has led to reduced phytoplankton populations and an associated reduction in important prey species for fish.(46) Additionally, Asian clams accumulate high concentrations of selenium and cadmium that negatively affect species of ducks and fish that feed on the clams.(47)
American species have also caused serious problems overseas. One such organism is the carnivorous American comb jellyfish (Mnemiopsis leidyi). Since its introduction via ballast water to the Black and Azov Seas, this species has decimated local fisheries and caused more than $250 million in damage.(48)
Aside from problems with those species visible to the human eye, there is growing concern about the role of ballast water in the spread and introduction of both human and nonhuman pathogens. For example, a number of researchers believe that ballast water from Asian ships caused a South American cholera epidemic in the early 1990s that infected more than 730,000 people and resulted in more than 6000 deaths.(49) In 1991 federal researchers found the same strain of cholera in Mobile Bay, Alabama and linked it to ballast water releases from ships arriving from South America.(50) After this discovery, Mobile Bay was closed to oyster harvesting, although no one was infected from the incident.(51) However, in 1998 in Galveston Bay, Texas, over four hundred people who had eaten raw oysters became sick from a virulent strain of bacteria closely related to cholera that had never before been detected in that bay, but that is common in Japan, Taiwan, and India.(52) Again, the suspected link was ships' ballast water.(53)
Recent studies conducted by the Smithsonian Environmental Research Center have also found that cholera is far more prevalent in ballast water than previously believed.(54) In sampling ballast water from fifteen vessels entering Chesapeake Bay, researchers found that one strain of cholera (Vibrio cholerae 01) was present on every ship surveyed.(55) Additionally, a different strain of cholera (Vibrio cholerae 0139), previously unidentified in the United States, was found in the ballast water of fourteen of the fifteen vessels.(56)
III. FEDERAL RECOGNITION OF THE NONINDIGENOUS SPECIES CRISIS
Leaders within the United States Environmental Protection Agency (EPA) and the United States Fish and Wildlife Service (FWS) seem well aware of the serious threat that ANSs pose to the health, productivity, and diversity of U.S. waters and the potential for these species to cause billions of dollars in economic damage. For example, in congressional testimony, David Davis, EPA's Deputy Director in the Office of Wetlands, Oceans, and Watersheds warned that "[t]he unintentional introduction of exotic species affects almost all of our Nation's economically vital and fragile coastal, estuarine, and inland waters. These nonindigenous species have had severe economic impacts locally, and seriously threaten ecosystems nationwide."(57) Similarly, Rowan Gould, the Deputy Assistant Director of Fisheries for the United States Fish and Wildlife Service testified that "[i]ntroductions of nonindigenous species, both aquatic and terrestrial, continue to occur at an accelerating rate. Many of these introductions are likely to become nuisances and will have substantial impacts on the Nation's fish and wildlife resources as well as other human interests and activities."(58)
When the United States Congress passed the National Invasive Species Act (NISA),(59) it also recognized the significant ecological and economic impacts from NISs in ballast water, finding that
(1) the discharge of untreated water in the ballast tanks of vessels and through other means results in unintentional introductions of nonindigenous species to fresh, brackish, and saltwater environments; (2) when environmental conditions are favorable, nonindigenous species become established, may compete with or prey upon native species of plants, fish, and wildlife, may carry diseases or parasites that affect native species, and may disrupt the aquatic environment and economy of affected near-shore areas.(60)
More recently, President Clinton acknowledged the serious human health, ecological, and economic threats from exotic species. In February 1999 Clinton issued an executive order directing federal agencies not to fund, authorize, or implement actions likely to cause the introduction or spread of invasive species unless the agency publicly acknowledges that the benefits of such an action "clearly outweigh the potential harm caused by invasive species."(61) The order also calls for the creation of an Invasive Species Council that will prepare an Invasive Species Management Plan that will be the federal government's first nationwide plan to respond to NISs.(62)
A month before the advent of Clinton's executive order, Secretary of the Interior Bruce Babbitt was the keynote speaker at the First National Conference on Marine Bioinvasions, which gathered scientists working on marine ANS invasions from around the world.(63) In his address, Secretary Babbitt called for a mandatory requirement that ships exchange their ballast water on the open ocean to reduce the potential for ANS introductions through ballast water.(64) While this type of tough rhetoric has come from all branches of the federal government, it is in sharp contrast to the federal government's actual response to ANSs.
IV. THE GENERAL FAILURE OF THE FEDERAL GOVERNMENT TO IMPLEMENT, ADOPT, OR FUND LAWS AIMED AT CONTROLLING THE SPREAD AND INTRODUCTION OF NONINDIGENOUS SPECIES THROUGH BALLAST WATER
The federal response to the problem of ANS invasions, thus far, has been weak and ineffective. The National Invasive Species Act, passed by Congress in 1996, took some restrained but potentially important steps toward controlling ballast water. The Act requires mandatory ballast water exchange in the open ocean for ships entering the Great Lakes region, initiates a national ballast water reporting program, and outlines a voluntary ballast water exchange program for the rest of the country that could become mandatory should the Coast Guard determine that shippers are not complying with the voluntary standards.(65)
The potential effectiveness of NISA, however, has likely been undermined by the fact that although Congress passed NISA with an authorized annual budget of $29 million, it has allocated little more than $1 million per year to implement the Act.(66) Similarly, while federal agency officials may acknowledge to congressional committees the threats posed by ANSs, federal agencies often fall to consider how federal actions that aid commercial navigation facilitate the release of NISs and the establishment of ANSs.(67) While President Clinton's recent executive order is encouraging, President Jimmy Carter issued a very similar executive order more than twenty years ago that failed to have any significant effect.(68) Whether the same will be true of President Clinton's order is yet to be seen.
A number of reviewers have aptly described why federal statutes specifically directed at exotic species invasions have failed to provide adequate protection, and this Article will not review those reasons in detail here. Critiques have generally focused on why statutes such as the Lacey Act,(69) the Federal Noxious Weed Act of 1974,(70) the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA),(71) and the National Invasive Species Act do not offer effective solutions for controlling ballast water's role in spreading NISs.(72) Several reviewers have also considered applying the federal common law of nuisance or other tort-based schemes for deterring NIS invasions.(73) Surprisingly, however, few have analyzed how the statutes that form the backbone of environmental law in the United States, such as the Clean Water Act, Endangered Species Act, National Environmental Policy Act, Ocean Dumping Act, or Rivers and Harbors Act of 1899, could be used to reverse the steady stream of aquatic nuisance species being introduced to the United States through ships' ballast water.(74) Although federal agencies have failed to apply these statutes to ballast water, these statutes are not only relevant, but actually mandate significant reforms of current ballast water practices.
V. CONTROLLING BALLAST WATER DISCHARGES OF NONINDIGENOUS SPECIES UNDER THE CLEAN WATER ACT, OCEAN DUMPING ACT, AND RIVERS AND HARBORS ACT OF 1899
A. Application of the Clean Water Act
Congress passed the Clean Water Act in 1972 with the goal of "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters."(75) Congress also declared as a "national goal that the discharge of pollutants into the navigable waters be eliminated by 1985."(76) Although neither Congress nor federal agencies have had the political will to achieve this ambitious level of protection for United States waters, these goals symbolize the aggressive and comprehensive nature of the CWA.
There are at least three potential legal strategies for directly addressing ballast water discharges of NISs under the CWA. The first strategy aims to enforce the CWA's mandate under section 402 that all point source(77) discharges of a pollutant require a permit under the National Pollution Discharge Elimination System (NPDES).(78) In order to be lawful, ballast water discharges would have to meet strict water quality and technological standards that would substantially reduce--if not virtually eliminate--NISs in ballast water discharges. The second strategy is to use section 303(d) of the CWA to designate water bodies as water quality limited for NISs.(79) Such a designation would require states to establish the total amount of NISs that could be discharged into a designated water body on a daily basis while still meeting applicable water quality standards.(80) Finally, the strategy of requiring federal agencies--as well as private entities--to obtain a section 404 permit(81) under the Act in order to engage in activities that facilitate commercial navigation, would significantly reduce the potential introduction and spread of NISs.
1. Section 402 of the Clean Water Act
a. Section 402 of the Clean Water Act and the National Pollution Discharge Elimination System
More than twenty-five years ago, the CWA prohibited the point source discharge of any pollutant into the navigable waters of the United States unless the discharge was permitted through section 402's NPDES permit program.(82) Any discharges made into ocean waters within three miles from shore must also meet the CWA's ocean discharge criteria.(83) The plain language of the CWA, legislative history, and case law support the contention that ballast water releases of NISs qualify as a point source discharge of a pollutant that requires an NPDES permit.
First, the CWA explicitly states that vessels are point sources under the Act.(84) The CWA also specifically includes "biological materials" in its expansive definition of the term "pollutant."(85) Consistent with the intent of Congress in adopting the CWA, courts have broadly construed the CWA's definition of biological pollutants in a manner that would include NISs.(86) Additionally, EPA recognized that NISs meet the CWA's definition of pollutants when it approved listing San Francisco Bay as water quality limited for NISs.(87) Finally, because the CWA and its implementing regulations broadly define navigable waters to include virtually every natural water body in the United States, as well as ocean waters extending out to three miles at sea,(88) any ballast water discharge inside that three mile zone should be covered by the Act.
Despite the fact that ballast water discharges of NISs qualify as discharges of pollutants that must be regulated under CWA sections 402 and 403 (ocean discharge requirements), EPA regulations purport to exempt ballast water discharges from the NPDES permit requirements.(89) Therefore, neither EPA nor the states regulate ballast water discharges under the NPDES permit system. One author recently recognized the relevance of the CWA's permit requirement to ballast water discharges, but concluded that EPA's regulatory exemption for ballast water meant that "[b]allast water is excluded from the reach of the [CWA's] NPDES permit system."(90) EPA's regulatory permit exemption, however, is directly contrary to a clear statutory requirement in the CWA and therefore does not legitimately place ballast water outside the reach of the NPDES permit system.(91) While administrative agencies are entitled to substantial deference in interpreting the statutes they implement,(92) the first question when considering whether an agency regulation is valid is whether the face of the statute is clear on the issue the regulation seeks to address.(93) If the statute is unambiguous, its requirements are absolute, and a regulation inconsistent with those requirements is invalid.(94)
In this case, the CWA's requirement that all point source discharges of pollutants necessitate a permit could hardly be more clear. In fact, the District of Columbia Circuit Court of Appeals in Natural Resources Defense Council v. Costle held that in light of the plain language of the CWA, EPA does not have the authority to exempt a class of point source discharges from the CWA's permit requirements.(95) The court overturned EPA's exemption of agricultural return flows from the CWA's permit requirements, stating that "[t]he wording of the statute, legislative history, and precedents are clear, the EPA Administrator does not have authority to exempt categories of point sources from the permit requirements of [sections] 402."(96) Other circuit courts have agreed with the D.C. Circuit that EPA does not have the authority to exempt a given class of discharges under the CWA.(97)
The contention that the CWA applies to ballast water discharges was further bolstered when Congress passed the Uniform National Discharge Standards for Armed Forces Vessels Act (UNDSAFVA) in 1996,(98) which amended the CWA to exempt from the NPDES permit requirements ballast water discharges from armed services vessels, but not commercial vessels in general. In adopting this narrow exemption for armed services vessels, Congress acknowledged that "[v]essels are point sources of pollution under the Clean Water Act. Any discharge of a pollutant from a point source, including a vessel, into the waters of the United States is prohibited unless specifically permitted under section 402 or 404 of the Act."(99) Congress also recognized that this CWA requirement was not being enforced because of EPA's regulatory exemption for ballast water, but nonetheless crafted the statutory exemption so that it applied only to armed services vessels.(100)
Additionally, the Ninth Circuit has already held that ballast water can be regulated under the CWA.(101) In Chevron U.S.A., Inc. v. Hammond, the Ninth Circuit ruled that Alaska could prohibit the untreated discharge of ballast water that had been held in a vessel's oil cargo tanks, because such regulation is consistent with the CWA and is not superseded by other federal legislation.(102) The court recognized that the CWA is "intended to subject all polluters to a comprehensive, detailed permit process directed at the pollutants sought to be discharged."(103) The court also noted that, although Congress had specifically exempted several types of discharges from the NPDES permit system, "[t]he fact that Congress did not do the same for the discharge of pollutants from tankers demonstrates its intent to regulate deballasting under both the effluent limitations and permit sections of the CWA."(104) While the court was addressing ballast water that had been tainted with oil, nothing in the opinion suggests that the same would not be true for ballast water tainted with NISs.
The notion that the CWA's permit requirements apply to ballast water discharges is strongly supported by the plain language and legislative history of the CWA, as well as by case law construing the statute. In fact, there is no applicable case law, legislative history, or statutory interpretation suggesting that the CWA does not apply to ballast water. Indeed, use of the Clean Water Act to prevent the introduction and spread of ANSs provides several benefits.
b. The Benefits of Applying the Clean Water Act
In adopting a regulatory permit exemption for ballast water discharges, EPA has foregone an important tool for protecting aquatic ecosystems from ballast-water-caused ANS introductions. The NPDES permit requirement has been one of the principal mechanisms through which EPA has been able to reduce the presence of pollutants in the nation's waters, because a discharge may only be permitted if it is consistent with both the CWA's water quality and technological standards.(105) In order for either EPA or an authorized state(106) to permit a discharge, the discharge must be consistent with water quality standards established to protect "designated uses" within a given water body.(107) Designated uses are set by the states with EPA oversight and may include uses such as municipal water supply, fish and wildlife propagation, or shellfish production, but they must at least include all existing uses of the water body.(l08) Similarly, NPDES permits must be consistent with the CWA's antidegradation policy, which requires states to maintain existing water uses, maintain the water quality necessary to protect these existing uses, and prevent the degradation of high quality waters.(109) NPDES permits must also include technological requirements that ensure that the permitted discharge will be treated to the level that could be achieved through use of the best available technology.(110) Finally, ocean discharges within three miles from shore must also meet requirements almost identical to those contained in the Ocean Dumping Act for the discharge of pollutants.(111)
The most significant environmental benefit of requiring NPDES permits for ballast water discharges is that EPA would have to ensure that discharges were consistent with water quality standards that protect designated uses. Given the serious and adverse effects of NISs on designated uses such as fish and wildlife propagation, it would be seemingly impossible for a state or EPA to reasonably support a conclusion that the discharge of millions of gallons of ballast water containing NISs was consistent with the protection of designated uses in most water bodies.(112) Consequently, EPA would arguably have to require treatment to significantly reduce NISs in ballast water before it could permit a discharge.
Because NISs have the ability to reproduce and spread, however, it may be difficult to allow a discharge of any quantity of NISs and still remain consistent with water quality standards. How many zebra mussels, for example, could be discharged into a zebra-mussel-free Columbia River watershed consistent with the protection of designated uses in that waterbody? Given the potentially catastrophic effects on salmon and other threatened and endangered species in the Columbia River, the only reasonable answer may be none.(113)
Meeting the technological requirements necessary to issue an NPDES permit would also trigger major changes in the handling of ballast water. While the CWA does not mandate that dischargers use a specific type of technology, it does require that discharges be treated to the level that could be achieved by using the best available technology (BAT).(114) BAT is a stringent technological standard under the CWA.(115) In order for EPA to establish what constitutes BAT for a given type of pollutant discharge, it must only show that the technology is available and that it is economically achievable.(116) BAT need not be economically achievable for every discharger, but only for the class of dischargers as a whole.(117)
By defining BAT in this manner, Congress clearly accepted that requiring treatment to BAT levels could force some dischargers out of business. Even the Supreme Court has weighed in on the strict nature of BAT, stating that BAT should represent "a commitment of the maximum resources economically possible to the ultimate goal of eliminating all polluting discharges."(118) While it is doubtful that strict ballast treatment requirements alone would be enough to drive any shipper out of business, it is nonetheless important to recognize the technological requirements linked to an NPDES permit.
There are currently a number of ongoing efforts to develop technology to remove or kill NISs in ballast water, but requiring NPDES permits for ballast water would likely spur a significantly greater amount of work in this area.(119) Additionally, because of the cost of ballast water treatment technology, few shippers are likely to make such expenditures unless there is some legal requirement to install ballast treatment devices. Nevertheless, aside from the CWA, few discussions about requiring technological treatments for ballast discharges are occurring at the federal level.(120)
There are a number of potential options for using ultraviolet light,(121) micro-filtration,(122) heat, ozonation, or biocides(123) to significantly reduce or virtually eliminate NISs in ballast water.(124) While further testing of these technologies is needed, ballast water treatment methods could be a large step toward eliminating ballast water transfers of NISs. Regardless of which technologies prove to be the most effective and efficient, requiring ballast water discharges to meet the CWA's water quality and technology requirements would result in substantial improvements in treatment technology.
In addition to meeting water quality and technological requirements, any discharges into ocean waters within three miles from shore must meet a number of other requirements before EPA or a state can issue an NPDES permit.(125) Specifically, under the CWA, EPA or the state must assess the effects of the pollutants to be discharged on human health and welfare, fish, shellfish, wildlife, esthetics, and recreation before it may issue a permit.(126) Additionally, the persistence and permanence of the pollutants must be assessed and the pollutants' effects on marine ecosystem diversity must be evaluated.(127) Based on these assessments, EPA or the state must determine whether the discharge would cause an "unreasonable degradation" of the marine environment.(128) Importantly, the statute is clear that if there is insufficient information on which to base this determination, no permit can be issued.(129)
c. Current Efforts to Enforce the Clean Water Act
In January 1999 a diverse coalition including conservation groups, commercial fishing interests, Native American tribes, California water agencies, and recreational fishing groups filed an Administrative Procedure Act (APA)(130) petition with EPA calling for the repeal of the agency's CWA permit exemption for ballast water.(131) The Pacific Environmental Advocacy Center (PEAC) in Portland, Oregon filed the petition on behalf of fifteen groups located throughout the country.(132) If successful, the petition would have the effect of bringing twenty-one billion gallons of ballast water discharge annually into the NPDES permit program.(133) The petition urges EPA to require vessels to obtain NPDES permits prior to ballast water discharges that would require permit holders to ensure that their discharges were consistent with the CWA's water quality and technological requirements.(134) Citizens would also have the ability to challenge any permit that is inconsistent with the maintenance of water quality standards and BAT requirements.(135)
EPA's initial response to the petition acknowledged that the CWA "could be extended to the control of ballast water," and that the agency would prepare a report to "explore options" for regulating ballast water under the CWA.(136) Although this response is moderately encouraging, EPA did not state that it would repeal its regulatory exemption for ballast water.(137) If EPA does not repeal the ballast water exemption, petitioners could file suit and place the validity of EPA's regulation before a court.(138) Even while the petition is pending before EPA, the fact remains that the CWA requires permits for ballast water discharges regardless of a baseless regulatory exemption. Because violations of the CWA are punishable by fines of up to twenty-five thousand dollars per day,(139) shippers would be wise to consider the potential economic consequences of continuing illegal discharges of ballast water without an NPDES permit.
Because of the comprehensive nature of the CWA's permit requirements, requiring permits for ballast water discharges is the mechanism most likely to trigger substantial changes in ballast water practices in the near future. Enforcing this requirement would hold ballast water to the same standards that have been applied to other industrial discharges for the past twenty-seven years. Moreover, additional sections of the CWA also present important opportunities for controlling the release of NISs.
2. Section 303(d) of the Clean Water Act
The CWA requires that each state develop water quality standards for every body of water within its borders.(140) Water quality standards for a given water body must include both the designated uses of that water body, such as fish or wildlife propagation, and any numeric or narrative criteria established to protect those designated uses.(141) Section 303(d) of the CWA requires a state to identify waters within its boundaries that are not meeting water quality standards.(142) If a certain pollutant is threatening or impairing a designated or existing use in a given water body, then the water body is violating water quality standards and must be listed under section 303(d) as "water quality limited."(143) As a result, if NISs are impairing a designated use, such as fish and wildlife production, in a given water body, then that water body should be listed as water quality limited for NISs. (144)
a. The Benefits of Listing a Water Body as Water Quality Limited for Nonindigenous Species
Once a state lists a water body as water quality limited for a given pollutant, the state or EPA is required to establish the maximum level of that pollutant that can be released into that water body consistent with the protection of water quality standards.(145) This maximum level of pollutants is called the "total maximum daily load" (TMDL).(146) In setting a TMDL, states must determine the maximum quantity of pollutants that can be released from both point and nonpoint sources(147) and must also determine a "margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality."(148)
A TMDL for NISs would have to identify the maximum level of NIS discharges that could be released into a given water body while ensuring that the water body will meet water quality standards. The principal benefit of a TMDL is that states and EPA must ensure that future NPDES permits do not allow discharges in excess of the TMDL for that pollutant.(149) For this reason, the potential of section 303(d) to effect reductions in NIS releases through ballast water is closely linked to the success of efforts to require NPDES permits for ballast water discharges.
In considering TMDLs for NISs, it is interesting to consider how a state would establish the maximum quantity of NIS releases that would be consistent with maintenance of water quality standards. If existing and designated uses, such as shellfish production, are already degraded in a given waterbody by existing ANS populations that are on the rise, could the TMDL allow for any additional NIS releases? How would a TMDL account for the growth rate and range expansion of established ANSs? How could a TMDL establish any safe level of NIS releases given the unpredictable--but potentially catastrophic--nature of NIS invasions?
All of these questions remain to be answered. However, a TMDL for ANSs would be fundamentally different from any other TMDL, because once established, NISs essentially become permanent features in the water body. Unlike other types of industrial wastes, which become diluted or can be flushed through a given segment of river, the impacts from NISs would not decrease even if the total input of NISs was halted completely. Instead, the impact from every release of an NIS accumulates along with the ongoing (and likely increasing) impacts of existing ANS populations. Given these factors, it is difficult to see how a TMDL could allow for any discharge of NISs.
Despite historic problems with the adoption and implementation of TMDLs,(150) the significant ecological and economic threats posed by ANSs may provide some states with the incentive to create and enforce effective TMDLs for NISs. Because the CWA's citizen suit provision allows citizens to enforce a state's duty to adopt and implement TMDLs, the potential for those concerned with NIS effects to force compliance also exists.(151) As a result, in areas where ANSs are significantly affecting fish and wildlife, municipal water supplies, or other designated uses, local efforts to list water bodies as water quality limited could be an important step toward restricting the release of untreated ballast water and could also increase awareness about the problem of ANS invasions.
b. Current Efforts to List Water Bodies as Water Quality Limited for Nonindigenous Species
San Francisco Bay has been called the most biologically polluted water body on the planet.(152) In light of this notoriety, it is not surprising that the first efforts to control ballast water discharges using section 303(d) of the Clean Water Act occurred there.(153) In May 1997 San Francisco BayKeeper petitioned the San Francisco Region Water Quality Control Board to list San Francisco Bay as water quality limited for NISs.(154) The Regional Board, the State of California Water Resources Control Board, and EPA have approved the designation.(155)
Consequently, the regional water quality control board is now charged with establishing a TMDL for NISs. Raising hopes that the TMDL process could be a useful mechanism for restricting ballast-water-caused NIS invasions, a spokesperson from the regional board has already stated that the likely result of the TMDL process will be a finding that no additional NISs could be discharged consistent with CWA requirements.(156) Because established NIS populations are already degrading designated uses in the Bay to a significant extent, this is likely the only legally defensible conclusion that the Board could reach.
3. Section 404 of the Clean Water Act
a. The Requirements of Section 404
The CWA regulates the discharge of dredged or fill material into the navigable waters of the United States through a permit system under section 404 of the Act.(157) The Army Corps of Engineers administers this system,(158) which applies to both private and governmental entities.(159) Therefore, many actions that facilitate commercial navigation, such as the development or expansion of ports, navigational channel deepening, maintenance dredging, and lock construction, must be consistent with section 404 of the CWA if they involve dredging or filling activities.
To issue a section 404 permit, the Corps must ensure that a number of regulatory requirements are met. A dredge or fill action 1) must not "cause or contribute to significant degradation of the waters of the United States,"(160) 2) must not cause or contribute to a water quality violation,(161) 3) and must be in the public interest.(162) Although the Corps does not issue section 404 permits to itself for dredge or fill activities that it implements,(163) Corps projects must generally comply with EPA's regulatory requirements for dredge and fill permits, commonly referred to as the "404(b))(1) guidelines."(164) Meeting the 404(b)(1) guidelines could present a substantial obstacle to dredge or fill projects that indirectly result in the release of NISs in ballast water.
The regulatory requirement that section 404 permits may not allow activities that "cause or contribute" to a significant degradation of waters of the United States(165) has several potentially important ramifications for activities that facilitate the spread or introduction of NISs via ballast water discharges. First, in determining whether a project requiring a dredge or fill permit will cause or contribute to a significant degradation of U.S. waters,(166) the Corps must consider the indirect effects of a planned fill.(167) As with NEPA, because the indirect effects of a dredging project that facilitates the continued use of a waterway by shipping vessels include the release of ballast water containing NISs, the Corps must evaluate the potential effects of NISs on United States waters.(168)
EPA regulations implementing section 404 also provide guidance as to the type of impacts that would justify the finding that a proposed dredge or fill would cause or contribute to the significant degradation of United States waters.(169) Under these guidelines, dredge or fill activities that would have "significantly adverse" effects on human health or welfare, including "effects on municipal water supplies, plankton, fish, shellfish, wildlife, and special aquatic sites," or have significantly adverse effects on "aquatic ecosystem diversity, productivity, and stability," or "recreational, aesthetic, and economic values," should be considered by the Corps as contributing to the significant degradation of U.S. waters.(170) Aquatic nuisance species introduced via ballast water clearly have many "significantly adverse" effects on human health,(171) aquatic ecosystem diversity,(172) and local economies.(173) This fact, combined with the requirement that the Corps may not permit a dredge or fill activity that directly or indirectly(174) "contributes" to the significant degradation of United States waters,(175) raises the question of whether an activity that facilitates the release of ballast water into a water body where there is the high potential for a successful invasion can be consistent with this requirement. Could the Corps issue a fill permit that would likely introduce zebra mussels into a watershed that is now zebra-mussel-free? Or what if the water body that would be affected by the releases of NISs is already significantly degraded by ANSs? In that situation, there would be no need to predict whether continued ballast releases would cause significant degradation; the only question would be whether the dredge or fill activity would contribute to the ongoing significant degradation.
Because ballast water is the largest source of NISs,(176) and because the rate of invasions is thought to be increasing,(177) the Corps would have a difficult time explaining how a dredge or fill activity that increased releases of ballast water into an aquatic ecosystem already degraded by ANSs would not at the very least "contribute" to the ongoing degradation of that water body.(178) After all, with every load of ballast water released comes an inoculation of NISs.(179) Over time, these releases likely will result in yet another costly invasion.(180)
The Corps may have an equally difficult time explaining how a dredge or fill that would facilitate the continued or increased release of NISs in ballast water discharges would be unlikely to cause or contribute to a water quality violation.(181) For example, if the Corps were to consider implementing a channel-dredging project in a water body listed as water quality limited for NISs, on what basis could the Corps assert that navigational channel dredging would not at least contribute to the ongoing water quality violation caused by NISs? Because the channel dredging would facilitate the discharge of millions of gallons of ballast water from ships using the channel, it would seem difficult for the Corps to reasonably find that the dredging would not at least contribute to water quality violations by ANSs.(182)
In determining whether to issue a dredge or fill permit, the Corps must also conduct a public interest review.(183) As a part of the public interest determination, the Corps must engage in a "careful weighing" of a project's expected benefits versus its reasonably foreseeable detriments.(184) In this balancing test, "[a]ll factors which may be relevant to the proposal must be considered including the cumulative effects" on wetlands, water quality, fish and wildlife values, economics, aesthetics, and recreation.(185)
How a project affects the spread of ANSs must be considered as a part of the Corps's public interest review because of the significant impact of ANSs on many of these values. A finding by the Corps that a proposed wetland fill or dredging project would create a serious threat of ANS introductions could substantially change the nature of a public interest review. Instead of the more typical review where the Corps weighs a project's environmental detriments against its economic benefits, the Corps would have to consider the potentially significant economic damage associated with ANS invasions. If, for example, a new port that requires a section 404 permit were proposed in an area with productive shellfish beds, a thriving sport fishery, or rich lobster populations, the potential economic impacts of ANSs could be significant and would need to be considered during the public interest review.
b. The Benefits of Applying Section 404
Section 404's mandate to consider the indirect and cumulative effects of a dredge or fill project on the spread of NISs is largely duplicative of NEPA's requirements. The substantive restrictions of section 404's implementing regulations could provide an important, and as of yet untried, protection against dredge and fill projects that may indirectly cause catastrophic ecological and economic damages. Short of derailing a project, section 404's implementing regulations could be used to require mitigation measures, such as ballast water treatment, that may substantially decrease the likelihood of ANS invasions.(186) Equally important may be the increased recognition of the ways in which federal and nonfederal activities aimed at improving and maintaining the commercial shipping infrastructure in the United States affect the spread and introduction of aquatic nuisance species.
Still, the Corps has a significant amount of discretion in determining whether a given dredge or fill project is within the public interest(187) and whether it would cause or contribute to the significant degradation of U.S. waters or a water quality violation.(188) Absent an egregious factual situation, courts would be unlikely to reverse a finding made by the Corps where the agency properly considered the potential indirect effect of NISs but found them to be outweighed by a project's benefits.(189) On the other hand, if the Corps failed to even consider or reasonably assess a project's effect on the introduction of ANSs and the potential impacts of these ANSs, there would be a significantly greater likelihood of successfully challenging an approved dredge or fill permit.(190) Consequently, there is an opportunity for the public to use the section 404 permit process to ensure that the Corps begins to evaluate how the navigational projects it permits and implements affect ballast water discharges associated ANS invasions and the effect of these invasions on native ecosystems. Additionally, in water bodies where there are already serious ANS invasions, or where invasions are highly likely to occur, section 404 and its implementing regulations may provide opportunities to prevent dredge or fill projects that would cause or contribute to damaging ANS invasions. The Corps clearly has the authority to take such steps on its own initiative.(191) EPA also has this ability through its power to veto Corps-issued permits.(192) If these federal agencies are not up to the task, them is also an opportunity for citizen challenges.(193)
B. The Ocean Dumping Act of 1972
1. The Requirements of the Ocean Dumping Act
The Marine Protection, Research, and Sanctuaries Act, commonly known as the Ocean Dumping Act, was adopted to "regulate the dumping of all types of materials into ocean waters and to prevent or strictly limit the dumping into ocean waters of any material which would adversely affect human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities."(194) The ODA prohibits the dumping of "any material transported from a location outside the United States" into the territorial sea of the United States, or into the zone contiguous to the territorial sea, without a permit.(195) This includes the waters between the shore and twelve miles seaward,(196) but does not cover point source discharges within three miles of shore that are regulated under the CWA.(197)
The ODA defines "dumping" very broadly as "a disposition of material" regardless of whether the disposition is made for the purpose of disposal or some other purpose.(198) The definition of "material" is similarly broad, and includes "matter of any kind or description, including, but not limited to, dredged material, solid waste, incinerator residue, garbage, [and] sewage."(199) While the ODA requires a permit for the actual dumping of material regardless of the purpose, the Act also prohibits any person from transporting from the United States "material for the purpose of dumping it into ocean waters" without a permit.(200) Like the CWA, the ODA exempts only a few types of discharges from the Act's permit requirement.(201)
In order to issue a dumping permit under the ODA, EPA must find that the dumping will not "unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities."(202) In making this determination, EPA must consider a number of factors, including the need for the proposed dumping, the effect of the dumping on the marine ecosystem (including the effects on everything from plankton to fish), and potential changes in the diversity and productivity of the marine ecosystem.(203) EPA must also evaluate the persistence and permanence of the effects of the dumping and the effect on species and community population dynamics.(204) Additionally, EPA must hold a public hearing if any member of the public or an agency requests one.(205) Finally, in order to grant a dumping permit under the ODA, EPA must ensure that the dumping will not violate applicable water quality standards.(206)
The ODA provides for both civil and criminal penalties(207) of up to fifty thousand dollars per violation and includes a citizen suit provision.(208) Because of its comprehensive nature, the ODA has had a significant amount of influence in limiting general ocean dumping.(209) It has not, however, been applied to ballast water discharges.
2. Application of the Ocean Dumping Act
Although EPA has not applied the ODA's permit requirements to ballast water discharges, two factors support the contention that ballast water discharges made between three and twelve miles from shore without an ODA permit are in violation of the Act. First, the ODA requires permits for dumping "any material" within twelve miles of shore.(210) Second, the Act does not contain an exemption for ballast water.(211) Consistent with the plain language of the ODA, NISs and ballast water qualify as "matter of any kind,"(212) and deballasting is clearly a "disposition" covered by the Act.(213)
Section 1411(b) of the ODA also prohibits the dumping within twelve miles of shore of any material that has been transported from a location outside the United States.(214) Consequently, this section requires permits for vessels that are discharging ballast water taken on board from a location outside the United States. Although one district court opinion has stated in dicta that the ODA only applied to the purposeful disposal of waste,(215) this is inconsistent with the plain language of the statute and is not supported by the facts of that case.
The fact that the ODA provides explicit exemptions for a limited number of discharges that are clearly not for the purpose of disposal further supports the view that the ODA's coverage in general is not limited to dispositions made for the purpose of disposal. For example, the ODA exempts "discharges incidental to the propulsion of ... vessels"(216) and the deposition of oyster shells for the purpose of cultivating oyster beds.(217) If the ODA was only intended to cover dumping made for the purpose of disposal, then Congress would have had no reason to create exemptions for these depositions. Any dumping for a purpose other than disposal would not be regulated by the Act.
Congress could have included language that restricted the ODA's coverage to dumping for the purpose of disposal. Instead, Congress defined the word "dumping" to include "a disposition of material"(218) and defined "material" just as broadly to include "matter of any kind or description,"(219) regardless of whether the disposition was made for the purpose of disposal. As a result, when a discharge involves ballast water from outside the United States, and the discharge occurs between three and twelve miles from U.S. shores, the ODA requires a permit for that discharge.
3. The Benefits of Applying the Ocean Dumping Act
Applying the ODA's permit requirements to ballast water releases made between three and twelve miles from shore would be an important complement to requiring CWA permits for ballast discharges made within three miles from shore.(220) In order to meet the ODA's permit requirement that a discharge not "unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities,"(221) EPA would likely need to require treatment of ballast water for NISs. If ships could avoid the reach of the CWA by releasing untreated ballast water just outside three miles from shore, the possibility that currents could move NISs into coastal ecosystems would remain.(222) While vessels could still try to avoid the ODA's requirements by deballasting just outside twelve miles from shore, such a strategy would be unrealistic for many shippers given the many complicated variables that determine where and when a ship ballasts and deballasts.(223)
It is important to recognize that, as with the CWA, the plain requirements of the ODA apply to ballast water discharges. Again, the failure to protect the United States from ANS invasions is not due to a lack of legal authority, but rather a failure to treat NISs as serious pollutants. The requirements of the Rivers and Harbors Act of 1899 further highlights this assertion.
C. The Rivers and Harbors Act of 1899
1. The Requirements of the Rivers and Harbors Act of 1899
One of the federal government's earliest efforts to control water pollution was the Rivers and Harbors Act of 1899 (RHA).(224) Section 13 of the Act states that, absent a permit from the Army Corps of Engineers, "it shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind ... any refuse matter of any kind or description whatever ... into any navigable water of the United States."(225) The RHA specifies that the Secretary of the Army "may permit" the deposition of refuse matter into navigable waters when the Chief of Engineers determines that anchorage and navigation will not be injured as a result.(226) In adopting the CWA, however, Congress subsumed the RHA permit process into the CWA so that a permit under the CWA is now necessary to comply with the RHA.(227)
While the permit requirement of section 13 of the RHA clearly overlaps with the requirements of the CWA, these two statutes provide separate and distinct prohibitions against the discharge of material into navigable waters.(228) As with violations of the CWA, violations of the RHA are punishable by fines of up to twenty-five thousand dollars per day, up to a year in jail, or both.(229) Although the RHA does not contain a citizen suit provision, the RHA does allow courts to award anyone who reports a violation of the act up to behalf of any fine that is levied against the violator.(230)
2. Application of the Rivers and Harbors Act of 1899
Two observations support the contention that ballast water releases of NISs fall within section 13's prohibition on discharges into the navigable waters of the United States. First, the Corps defines navigable waters as "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce."(231) This includes any port or river in the United States where ballast water is regularly discharged.
Second, the Supreme Court has twice found that the RHA's prohibition on the discharge of "refuse" broadly applies to the discharge of "all foreign substances and pollutants."(232) In 1966 the Supreme Court ruled that because of the broad language of the RHA that refers to "any refuse matter of any kind or description whatever," the RHA prohibits the unpermitted discharge of aviation fuel.(233) In 1973 the Supreme Court reiterated that the RHA applies to all foreign substances and pollutants, stating that
section 13 [of the RHA] declares in simple absolutes that have been characterized as "almost an insult to the sophisticated wastes of modern technology" that "(i)t shall not be lawful" to discharge or deposit into navigable waters of the United States "any refuse matter of any kind or description whatever" except as permitted by the Secretary of the Army.(234)
Subsequent cases have applied this expansive definition of "refuse" to the discharge of a number of different pollutants, including peeled bark,(235) sunken logs,(236) and even red-brown-colored sediment.(237) The broad definition that courts have given to "refuse" under the RHA, and the fact that NISs are both a "foreign substance" and a biological pollutant under the CWA,(238) supports the contention that unpermitted ballast discharges of exotic species violate the RHA.
3. The Benefits of Applying Section 13 of the Rivers and Harbors Act and Opportunities to Compel Compliance
Recognizing that the RHA prohibits the discharge of NISs in ballast water without a permit is important, because such recognition further supports the contention that the federal government already possesses the legal mechanisms necessary to regulate NIS-polluted ballast water. Because of the more comprehensive and inclusive nature of the CWA, however, the only practical benefit of the RHA is that it may create the opportunity to impose greater penalties against violators should the federal government ever wish to do so. Prosecutors could charge someone who discharged ballast water into navigable waters without a permit for violations of both the CWA and the RHA, effectively doubling the potential penalties for unpermitted discharges.(239) Because there is no citizen suit provision or private right to bring an action under the RHA,(240) however, there is no opportunity for citizens to sue to enforce the Act's requirements. Of course, should the federal government ever desire an additional tool for controlling ballast water discharges, the Rivers and Harbors Act of 1899 will be available--just as it has been for the last one hundred years.
VI. APPLYING THE NATIONAL ENVIRONMENTAL POLICY ACT AND THE ENDANGERED SPECIES ACT TO FEDERAL ACTIONS THAT FACILITATE BALLAST WATER DISCHARGES OF NONINDIGENOUS SPECIES
The Clean Water Act sections 402, 303(d), and 404, the Ocean Dumping Act, and the Rivers and Harbors Act of 1899 can all be used to control ballast water discharges of NISs. In addition to these laws, the National Environmental Policy Act and section 7 of the Endangered Species Act can be used to regulate federal actions or projects that result in the release of NISs. Given the serious consequences of inaction, these statutes should be used to mitigate a problem that has already caused billions of dollars in economic and ecosystem damage.
A. The National Environmental Policy Act and Federal Actions that Facilitate the Release of Nonindigenous Species
1. The Role of the Federal Government
Unlike the CWA, the ODA, and the RHA, the National Environmental Policy Act(241) applies only to federal agency actions.(242) For more than one hundred years, the federal government has been heavily involved in the funding, construction, and operation of countless locks, dams, channels, and ports that serve as the infrastructure for national and international shipping.(243) Federal agencies, such as the Army Corps of Engineers, have led the effort to convert the nation's free-flowing rivers into navigation highways.(244) In fact, because of its extensive role in developing and maintaining the navigation system in the United States, the federal government may have done more to facilitate the introduction and spread of ANSs via ballast water than any other single entity.
While the Corps has largely succeeded in taming most major U.S. rivers for navigational purposes, it continues today to focus a significant amount of resources toward the maintenance, operation, and expansion of the national shipping infrastructure.(245) For example, the Corps is presently planning major channel- or harbor-deepening projects throughout the country, including projects in the Columbia River,(246) San Francisco Bay,(247) Puget Sound,(248) the Delaware River,(249) and the Great Lakes.(250) Because of these continuing federal actions, which facilitate commercial navigation as well the spread of ANSs, NEPA could serve as a useful mechanism for addressing the effects of ballast water releases and ANS invasions.
2. The Requirements of the National Environmental Policy Act
In 1969 Congress adopted NEPA "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man."(251) Despite these lofty goals, NEPA does not contain any substantive environmental protections.(252) Instead, the Act provides procedural requirements that mandate that federal agencies assess the impacts of theft proposed actions and consider alternatives to those actions.(253) Although NEPA only applies to federal agency actions, the definition of a "major federal action" is very broad and includes projects that are implemented, funded, or permitted by a federal agency.(254) This definition is important, because it extends NEPA's reach to many nonfederal projects.
NEPA is intended to supply both federal agencies and the public with accurate evaluations of how federal agency actions will affect the natural environment.(255) Specifically, NEPA requires that agencies make this evaluation in an environmental impact statement (EIS) for any major federal action that significantly affects the environment.(256) Despite this requirement, the Army Corps of Engineers and other federal agencies appear unwilling to consider how theft actions affect ballast water discharges and associated ANS invasions.
3. Application of the National Environmental Policy Act to Agency Actions
Many federal agencies are familiar with assessing how habitat loss and modification affect threatened and endangered species. These agencies appear less accustomed to evaluating environmental threats from NISs. In their NEPA reviews, agencies consequently often fail to consider the impacts of NIS releases resulting from federal agency actions that facilitate shipping.(257)
NEPA's implementing regulations clearly require federal agencies to assess both the direct and indirect effects of proposed or ongoing federal actions.(258) Because an indirect effect of almost any action that facilitates shipping is the release of NISs in ballast water, NEPA would seemingly require agencies to consider both the manner in which a project will affect the release of NISs and the impact that NISs may have on the aquatic environment.(259) Moreover, NEPA requires agencies to assess the cumulative effects of their actions.(260) NEPA regulations define "cumulative impacts" as the impact of the proposed action combined with the impacts from past, present, and reasonably foreseeable future federal and nonfederal actions.(261) Consequently, agencies cannot narrowly consider only the effects of a given proposed action.
NEPA also requires that agencies evaluate how past actions, such as a port construction, have affected the spread and introduction of ANSs. When considering the application of NEPA to ballast water discharges, it is also important to remember that NEPA applies to ongoing actions such as maintenance dredging or operation of navigational locks.(262) In fact, were potential plaintiffs interested in bringing an action to require the Corps to conduct a cumulative assessment of how its actions affect the introduction and spread of NISs in a given water body, they would have little difficulty finding an ongoing Corps action to challenge in most major ports or rivers.(263)
4. The Benefits of Applying NEPA
Requiring a NEPA analysis of federal actions that facilitate ballast water discharges of NISs would have several benefits. First, a NEPA assessment must include a description of the existing conditions within an area that would be affected by the proposed agency action.(264) A reasonable description of existing conditions should include an analysis of the existing ANSs present, their distribution, and the effect ANSs are having on the planning area.(265) This type of analysis would be important to give both agencies and the public an understanding of baseline conditions in an area.(266)
Second, a NEPA analysis should consider the potential for a given action to cause the introduction of ANSs and the potential impacts to the natural environment if such an introduction occurs.(267) Although NEPA does not require that agencies prepare a "worst case analysis,"(268) agencies must still evaluate the likely effects of their actions.(269) There is no clear recipe for what this type of analysis would contain. The analysis should, however, at least consider the likelihood of specific NIS invasions and the magnitude of the consequences if a successful invasion did in fact occur. While it would be infeasible to analyze the invasion potential for every known ANS, a NEPA analysis at the very least should consider the potential invasion consequences for species that have a significant likelihood of invading as a result of the planned federal action.
Third, NEPA compels an agency to consider alternative methods of implementing a proposed agency action.(270) Consequently, agencies should consider alternatives that would decrease potential threats from ANSs, and in some cases agencies could be required to implement such alternatives.(271) Finally, a NEPA analysis should include consideration of potential mitigation measures that could be implemented to reduce or limit the impacts of ballast water discharges.(272)
So long as NEPA's procedural requirements are satisfied, NEPA cannot be used to stop an agency action--even if that action is likely to have catastrophic effects.(273) However, the recognition of the potential threats of NISs could by itself provide an incentive for the public to request, and for an agency to adopt, alternatives that have a reduced risk of NIS invasions. Additionally, if an agency does fail to evaluate the potential effects of an action that would indirectly affect the spread and introduction of ANSs, then the agency could be challenged under the APA for a violation of NEPA.(274)
At least one circuit court has plainly recognized that agencies must evaluate a project's indirect impacts on the spread and introduction of NISs under NEPA.(275) In Hughes River Watershed Conservancy v. Glickman (Hughes River), the Fourth Circuit rejected the adequacy of a NEPA analysis prepared by the Army Corps of Engineers because the analysis failed to consider the significance of the effects of the construction of a dam on the introduction of exotic zebra mussels into the watershed.(276) In Hughes River, the Corps dismissed concerns from the Fish and Wildlife Service, EPA, and local experts that a dam permitted by the Corps under section 404 would facilitate zebra mussel introduction into the proposed reservoir and downstream river habitats, as recreational boaters unintentionally introduced mussels into the reservoir on the bottoms of recreational boats.(277) The Corps's principal argument was that because a zebra mussel infestation would likely occur in all waters independent of the dam, the dam's effect on zebra mussel infestation would be minimal.(278) The court soundly rejected this reasoning and found that the Corps had not taken a "hard look" at the potential indirect impacts of a zebra mussel infestation on the North Fork of the Hughes River.(279) Consequently, the court remanded the case with the instruction that the Corps reconsider the preparation of a supplemental environmental impact statement that would closely consider the effects of a potential zebra mussel invasion.(280)
The Hughes River case did not involve ballast water, but the court's recognition that the introduction of NISs can be an indirect effect of federal actions sends an important message. This decision should have been a wakeup call to agencies whose actions affect the spread of ANSs. The Army Corps and other agencies, however, have been slow to react to the lessons of Hughes River.
5. Current Efforts to Apply NEPA
There are several current efforts underway to require federal agencies to assess the effects of agency actions on ballast-water-caused releases of NISs under NEPA. In San Francisco, the Center for Marine Conservation and San Francisco BayKeeper have repeatedly questioned the adequacy of an environmental impact statement on a project that would expand both shipping channels and port facilities at the Port of Oakland.(281) Although the EIS for the project acknowledged the seriousness of the invasive species problem, it failed to consider how the port development would affect NIS invasions from ballast water in conjunction with the cumulative impacts of current port operations.(282) Similarly, conservation groups are arguing that the Corps's refusal to consider the impacts of ANSs from ballast water discharges related to a channel-deepening project on the Columbia River violates NEPA.(283)
The failure of federal agencies to recognize the clear link between federal activities that facilitate shipping and the establishment of ANSs is a serious problem. Their failure to closely consider this connection during the NEPA process keeps the public, as well as decision makers, in the dark about the real effects of federal actions. Moreover, this willful ignorance likely threatens many species that are on the brink of extinction.
B. Section 7 of the Endangered Species Act
1. The Requirements of Section 7 of the Endangered Species Act
Like NEPA, section 7 of the Endangered Species Act applies only to federal agency actions.(284) Similarly, the ESA broadly defines "agency action" to include proposed and ongoing actions that are authorized, funded, or implemented by federal agencies.(285) In contrast to NEPA, however, section 7(a)(2) of the ESA includes a substantive prohibition against agency actions that are likely to jeopardize a listed species or adversely modify critical habitat.(286) Section 7(a)(2) also contains a procedural requirement that federal agencies consult with either the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) whenever a federal agency action, such as an Army Corps of Engineers dredging project, "may affect" a threatened or endangered species or the designated critical habitat for a listed species.(287) After a federal agency initiates consultation, the agency is prohibited from making any irreversible or irretrievable commitment of resources related to that action until consultation is complete.(288)
During consultation, FWS or NMFS is required to determine whether the given agency action is likely to jeopardize the continued existence of a listed species(289) or cause the adverse modification of designated critical habitat.(290) and issue this Finding in a biological opinion.(291) As part of this determination, FWS or NMFS must evaluate a proposed or ongoing action's direct, indirect, and cumulative effects that relate to state and private (but not federal) actions.(292) Accurately identifying and evaluating these effects is important, because the evaluation helps determine whether a given action is consistent with section 7(a)(2)'s prohibition against agency actions that jeopardize a listed species or adversely modify the designated critical habitat for that species.(293) When an agency fails to consult under section 7 even though the federal agency action may affect a listed species, or if FWS or NMFS issues a biological opinion that does not evaluate the effects on listed species of the spread of ANSs triggered by a project, there is an opportunity for a citizen challenge.(294)
Because ANSs present significant risks to listed species,(295) there is always the possibility that federal actions that facilitate the establishment of exotic species could jeopardize a listed species or adversely modify critical habitat.(296) Examples of such projects include a federally funded proposal to construct a navigational lock that would allow ships to deballast higher up into a watershed, a Corps dredging project that would allow larger ships with more ballast to enter a river system, or a Corps permit for the development of a new commercial harbor. Whatever the nature of the federal action, if it facilitates the new, continued, or increased release of ballast water, then agencies must consider how that action will affect listed species in the context of section 7 of the ESA.
2. Current Efforts to Use the ESA
San Francisco Bay, home to a number of species listed as threatened or endangered,(297) is a good example of an area where listed species are being affected by a flood of ballast-water-introduced ANSs.(298) However, even there the Army Corps of Engineers is falling to acknowledge or take actions to mitigate its role in the continued introduction of ANSs.(299) Conservationists in San Francisco have given the Corps a sixty-day notice of intent to sue in light of the Corps's failure to consult with FWS and NMFS on how a channel-deepening project in San Francisco Bay and the expansion of the Oakland port will affect threatened and endangered species as a result of increased ballast water releases.(300) The action, which is likely the first of its kind, is led by the Center for Marine Conservation and San Francisco BayKeeper.(301) The notice principally alleges that the Corps failed to consider the impact of ballast water discharges of NISs on threatened and endangered species in its biological assessment for the project and failed to initiate consultation with FWS and NMFS.(302)
As this action is progressing, conservationists and commercial interests have already seen benefits in both the NEPA and ESA context from pushing the Corps and the Port of Oakland to address the effects of the project on ballast water discharges of NISs. In the wake of criticism that the planned port expansion would exacerbate ANS invasions already devastating the San Francisco Bay, the Port of Oakland has agreed to require all vessels to exchange their ballast water at sea prior to docking.(303) While this is a positive step that is likely aimed at avoiding ANS-oriented challenges to the project, it does not eliminate the Corps's obligation to comply with NEPA and the ESA. However, it does support the contention that in the battle to protect against ballast-water-caused invasions, the ESA and NEPA can be important tools that compliment efforts to regulate ballast discharges under the CWA, the ODA, and the RHA.
ANSs have the characteristics of the worst kind of enemy. They are persistent, virtually impossible to eliminate, often invisible to the untrained eye, continually increasing in abundance, and capable of causing catastrophic damage. ANSs are unlike the industrial pollutants humans have become accustomed to cleaning up. Once established, unintentional introductions of ANSs usually cannot be undone. With every additional introduction, the ecological and evolutionary history that has shaped present ecosystems is unraveled.
As world trade continues to increase, so will the exchange of species.(304) Both aquatic and terrestrial NISs will be among the greatest threats to the world's biodiversity in the twenty-first century.(305) While this Comment focused on the threats of aquatic NISs from ballast water, other vectors of aquatic and terrestrial exotics are also fundamentally changing the world's ecosystems(306) and warrant immediate and focused attention.(307) Without an aggressive and consistent effort to control the spread of exotic species in all habitat types, the uniqueness of ecosystems across the globe will be lost as will the diversity of species they support.
Ballast water is the principal vector for aquatic nuisance species.(308) Serious efforts to control ballast water discharges should have been initiated more than twenty-five years ago with the adoption of the Clean Water Act. Unfortunately, EPA's exemption for ballast water discharges has delayed the application of the Act to ballast discharges. Consequently, untreated ballast water has caused countless invasions of U.S. waters by aquatic nuisance species, such as the infamous zebra mussel. However, the CWA still holds great promise for requiring shippers to significantly restrict, if not eliminate, the presence of nonindigenous species in ballast water. EPA should acknowledge the error it made in exempting ballast water from the CWA permit requirements, begin requiring ships to use the best available technology for ballast water control, and require that ballast discharges meet applicable water quality standards.
EPA should similarly begin applying the Ocean Dumping Act to ballast water discharges that are outside the reach of the Clean Water Act. To effectively respond to the threats posed by ballast water, a number of federal agencies must be involved. Agencies need to recognize the serious threats posed by aquatic nuisance species when assessing the effects of federal actions on threatened and endangered species. Similarly, as required by section 7 of the Endangered Species Act,(309) section 404 of the Clean Water Act,(310) and the National Environmental Policy Act,(311) the Army Corps of Engineers should begin taking a close look at how its relentless pursuit of "improving" United States waterways for shipping has facilitated the spread and introduction of aquatic nuisance species. The Corps must consider these effects--along with the impacts of any proposed actions--so that decision makers and the public are conscious of how Corps actions will affect the spread of exotic species, and of the associated effects on endangered species, water dependent uses, and native ecosystems.
If federal agencies continue to neglect their responsibilities to control nonindigenous species in ballast water as they have over the last several decades, there will be realistic opportunities for citizens to use the legal system to compel agency action. Short of legal action, local groups concerned about the effects of ANSs could petition for the listing of highly invaded waters as water quality limited for ANSs under section 303(d) of the Clean Water Act,(312) and insist that agencies consider how their actions facilitate the discharge of NISs in ballast water in the context of NEPA review,(313) section 7 consultation under the Endangered Species Act,(314) and Corps section 404 permitting procedures under the Clean Water Act.(315) Ensuring that an action agency has ample information about the effects of ANSs for a given project will also help preserve potential legal options in the event litigation becomes necessary.
If the federal government properly applies the Clean Water Act, Ocean Dumping Act,(316) Rivers and Harbors Act of 1899, National Environmental Policy Act, and the Endangered Species Act, there will be no pressing need for new federal legislation to control ballast water discharges of NISs. Instead, it is time to focus on using the legal mechanisms that already exist to stop the discharge of pollutants that truly have no half-life. Careful contemplation of the potential effects of even another ten years of ballastwater-caused invasions allows nothing less.
BRENT C. FOSTER(*)
(*) Public interest environmental attorney, Portland, Oregon; J.D. and Certificate in Environmental and Natural Resources law 1999, Northwestern School of Law of Lewis & Clark College; B.S. 1995, Evolution and Ecology, and B.A. 1995, Environmental Science, University of California, Santa Barbara. The author thanks Professor Craig Johnston for his extensive guidance and enthusiasm; Linda Sheehan for her help, insight, and review; the many biologists who have made the author appreciate the scope and nature of the exotic species crisis; Susan Jane Brown for her hard work and patient editing; and his parents for their support, understanding, and of course, wisdom.
(1) Edward Mills et al., Exotic Species and the Integrity of the Great Lakes, BIOSCIENCE, Nov. 1994, at 666.
(2) David Pimentel et al., Environmental and Economic Costs Associated with Nonindigenous Species in the United States 9 (June 1999) (estimating that control and damages from exotic species exceed $122 billion .annually in the United States) (manuscript in review, available at <http://www.news.cornell.edu/releases/Jan99/species_costs.html>).
(3) See Nonindigenous Species Act, 16 U.S.C. [sections] 4702(11) (Supp. IV 1998).
(4) The Nonindigenous Species Act (NISA) defines an "aquatic nuisance species" as a "[n]onindigenous species that threatens the diversity or abundance of native species or the ecological stability of infested waters, or commercial, agricultural, or recreational activities dependent on such waters." Id. [sections] 4702(1).
(5) MARINE BD., NATIONAL RESEARCH COUNCIL, STEMMING THE TIDE: CONTROLLING INTRODUCTIONS OF NONINDIGENOUS SPECIES BY SHIPS' BALLAST WATER 11 (1996).
(6)The Nonindigenous Species Act requires vessels entering the Gmat Lakes to first exchange their ballast water at sea to reduce the numbers of NISs brought into the Great Lakes, but the Act contains significant exceptions and does not set any standards for the ballast water that is ultimately released. 16 U.S.C. [sections] 4711(c)(2)(L), (g)(4) (Supp. IV 1998). The Coast Guard regulates ballast water discharges from oil cargo tanks within 50 miles of shore unless the
ballast water released is "clean ballast." 33 C.F.R. [subsections] 157.29, 157.43(a) (1999). Clean ballast is defined as ballast water that "if discharged from a vessel that is stationary into clean, calm water on a clear day would not produce visible traces of oil on the surface of the water or on adjoining shore lines." Id. [sections] 157.03(1)(i).
(7) GLASGOW BROWN, THE PRINCIPLES OF SHIP STABILITY 63 (1968); MARINE BD., supra note 5, at 22.
(8) This description greatly oversimplifies the process of ballasting and deballasting, which is dependent on many factors, such as weather conditions, vessel types, and the weight and nature of the cargo. Most ships carry some ballast water even when loaded with cargo. See MARINE BD., supra note 5, at 22-31.
(9) JAMES T. CARLTON ET AL., SHIPPING STUDY: THE ROLE OF SHIPPING IN THE INTRODUCTION OF NONINDIGENOUS AQUATIC ORGANISMS TO THE COASTAL WATERS OF THE UNITED STATES (OTHER THAN THE GREAT LAKES) AND AN ANALYSIS OF CONTROL OPTIONS 19 (1995).
(10) See Sharonne O'Shea & Allegra Cangelosi, Trojan Horses in Our Harbors: Biological Contamination from Ballast Water Discharge, 27 U. TOL. L. REV. 381,381 (1991).
(11) CARLTON ET AL., supra note 9, at 87.
(12) Id. at 55.
(13) Id. at 77.
(14) GREGORY M. RUIZ & ANSON H. HINES, THE RISK OF NONINDIGENOUS SPECIES INVASION IN PRINCE WILLIAM SOUND ASSOCIATED WITH OIL TANKER TRAFFIC AND BALLAST WATER MANAGEMENT: PILOT STUDY 26 (1997).
(15) Jonathan B. Geller & James T. Carlton, Ecological Roulette: The Global Transport of Nonindigenous Marine Organisms, SCIENCE, July 2, 1993, at 78.
(16) MARINE SD., supra note 5, at 11.
(17) U.S. OFFICE OF TECH. ASSESSMENT, HARMFUL NONINDIGENOUS SPECIES IN THE UNITED STATES 68-69 (1993) (finding that nonindigenous species have caused over $97 billion in damages over the last one hundred years); Gregory M. Ruiz et al., Global Invasions of Marine and Estuarine Habitats by Nonindigenous Species: Mechanisms, Extent, and Consequences, 37 AM. ZOOLOGY 621, 626 (1997); see also Pimentel et al., supra note 2, at 9 (estimating that, including control costs, exotic species cause approximately $122 billion in damages each year).
(18) See David S. Wilcove et al., Quantifying Threats to Imperiled Species in the United States, BIOSCIENCE, Aug. 1, 1998, at 607-15.
(19) Michael E. Soule, Tactics for a Constant Crisis, SCIENCE, Aug. 16, 1991, at 744, 745.
(20) U.S. OFFICE OF TECH. ASSESSMENT, supra note 17, at 3.
(21) Pimentel et al., supra note 2, at 1.
(22) Andrew N. Cohen & James T. Carlton, Accelerating Invasion Rate in a Highly Invaded Estuary, SCIENCE, Jan. 23, 1998, at 555, 556.
(23) MARINE BD., supra note 5, at 22.
(24) Ruiz et al., supra note 17, at 626.
(25) Id. at 621.
(26) 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).
(27) 33 U.S.C. [subsections] 1401-1445 (1994 & Supp. III 1997).
(28) 33 U.S.C. [subsections] 401-426 (1994 & Supp. III 1997).
(29) Endangered Species Act of 1973, 16 U.S.C. 88 1531-1544 (1994).
(30) 42 U.S.C. [subsections] 4321-4370d (1994 & Supp. III 1997).
(31) 33 U.S.C. [sections] 1344 (1994).
(32) See, e.g., John L. Dentler, Noah's Force: The Regulation and Control of Exotic Fish and Wildlife, 17 U. PUGET SOUND L. REV. 191, 192 (1993) ("Current federal and state law is poorly equipped to prevent the introduction of harmful exotic species or remedy damages caused by them."); Daniel P. Larsen, Combating the Exotic Species Invasion: The Role of Tort Liability, 5 DUKE ENVTL. L. & POL'Y F. 21, 21 (1995) ("Thus far ... modern federal legislation enacted in response to damage caused by exotic species inadequately confronts the threat."); John A. Ruiter, Combating the Non-Native Species Invasion of the United States, 2 DRAKE J. AGRIC. L. 259, 271 (1997) ("The federal statutory approach ... [is] full of gaping holes, which allow nonnative aquatic species to continue to invade U.S. waters and damage our environment and economy."); Steven A. Wade, Stemming the Tide: A Plea for New Exotic Species Legislation, 10 J. LAND USE & ENVTL. L. 343, 352 (1995) ("[P]resent Federal efforts only partially match the problem at hand.").
(33) A "vector" is "a method of introduction of an invasive species." Vicki Nadol, Aquatic Invasive Species in the Coastal West: An Analysis of State Regulation Within a Federal Framework, 29 ENVTL. L. 339, 341 n. 15 (1999).
(34) Geller & Carlton, supra note 15, at 78; Ruiz et al., supra note 17, at 626.
(35) Peter M. Vitousek et al., Biological Invasions as Global Environmental Change, AM. SCIENTIST, Sept.-Oct 1996, at 468, 473.
(36) Id. at 474.
(37) Id. at 468.
(38) U.S. Office OF TECH. ASSESSMENT, supra note 17, at 5.
(39) Ladd E. Johnson & James T. Carlton, Post-Establishment Spread in Large-Scale Invasions: Dispersal Mechanisms of the Zebra Mussel Dreissena polymorpha, ECOLOGY, Sept. 1996, at 1686, 1687; Mills et al., supra note 1, at 672.
(40) Johnson & Carlton, supra note 39, .at 1686.
(42) Mills et al., supra note 1, at 672.
(44) ANDREW N. COHEN, SAN FRANCISCO ESTUARY INSTITUTE, SHIPS' BALLAST WATER AND THE INTRODUCTION OF EXOTIC ORGANISMS INTO THE SAN FRANCISCO ESTUARY: CURRENT STATUS OF THE PROBLEM AND OPTIONS FOR MANAGEMENT 13 (1998).
(46) Janet Thompson, Address at the National Conference on Marine Bioinvasions, Massachusetts Institute of Technology Sea Grant College Program (Jan. 27, 1999).
(48) Ruiz et al., supra note 17, at 626.
(49) Id.; Laura Tangley, Unwelcome Sea Voyagers Marine Stowaways Take Advantage of Increased Global Trade and Travel, U.S. NEWS & WORLD REP., Oct. 26, 1998, at 2, 2.
(50) Rebecca Voelker, Deadly Cholera Bug Hitches a Ride into U.S. Waters, AM. MED. NEWS, June 29, 1992, at 4, 4; see also Susan A. McCarthy & Farukh M. Khambaty, International Dissemination of Epidemic Vibrio cholerae by Cargo Ship Ballast and Other Nonpotable Waters, APPL'D & ENVTL. MICROBIOLOGY, July 1994, at 2597, 2600.
(51) Voelker, supra note 50, at 4.
(52) Cindy Horswell, Shell Shocked/Tainted Ballast Water Suspected as Source of Bacteria in Oysters, HOUSTON CHRON., Sept 6, 1998, at A1; Telephone Interview with Po Chang, Section Chief, Division of Microbiological Services for the State of Texas (Aug. 19, 1999).
(53) Telephone Interview with Po Chang, supra note 52.
(54) Tonya K. Rawlings, Address at the National Conference on Marine Bioinvasions, Massachusetts Institute of Technology Sea Grant College Program (Jan. 25, 1999).
(57) Reauthorization of the 1990 Nonindigenous Aquatic Nuisance Prevention and Control Act: Hearings on H.R. 3217 Before the Subannm. on Water Resources and Environment and the Subcomm. on Coast Guard and Maritime Transportation of the House Comm. on Transportation and Infrastructure, 104th Cong. 106-14 (1996) (testimony of David G. Davis, Deputy Director Office of Wetlands, Oceans and Watersheds, Office of Water, United States Environmental Protection Agency).
(58) Reauthorization of the 1990 Nonindigenous Aquatic Nuisance Prevention and Control Act: Hearings on S. 1660 Before the Subcomm. on Drinking Water, Fisheries, and Wildlife, Senate Environment and Public Works Comm. Regarding Nonindigenous Species, 104th Cong. 113-21 (1996) (testimony of Rowan W. Gould, Deputy Assistant Director of Fisheries, Fish and Wildlife Service, Department of the Interior).
(59) National Invasive Species Act of 19.96, 16 U.S.C. [sections] 4701-4751 (Supp. IV 1998).
(60) Id. [sections] 4701(a)(1), (2).
(61) Exec. Order No. 13,112, 64 Fed. Reg. 6184, 6184 (Feb. 3, 1999).
(63) Lori Valigra, Alien Marine Life Eats Locals for Lunch, CHRISTIAN SCI. MONITOR, Feb. 11, 1999, at 13, 13.
(64) Bruce Babbitt, Address at the National Conference on Marine Bioinvasions, Massachusetts Institute of Technology Sea Grant College Program (Jan. 26, 1999); see Tim Sansbury, Ballast Water Plans Get Qualified Support, J. OF COMM., Feb. 8, 1999, available in 1999 WL 6371663.
(65) 16 U.S.C. [sections] 4711 (b)(2), (c) (Supp. IV 1998). Ballast water exchanges in the open ocean can reduce the presence of NISs in ballast tanks, but even after such exchanges, significant quantities of NISs can remain in ballast tanks. COHEN, supra note 44, at 25; RUIZ & HINES, supra note 14, at 29 (reporting NIS reductions of 90% after ballast exchange). Consequently, experts generally do not see ballast exchange alone as a viable long-term solution for addressing NISs in ballast water. Andrew Cohen, Address at the National Conference on Marine Bioinvasions, Massachusetts Institute of Technology Sea Grant College Program (Jan. 26, 1999).
(66) David P. Eldridge, Leviathan Lurks: Might the National Invasive Species Act of 1996 Actually Authorize Invasion by Proscribed Species?, 6 S.C. ENVTL. L.J. 47, 58 (1997).
(67) See Letter from Deborah A. Sivas, attorney representing Center for Marine Conservation and San Francisco BayKeeper, to Lt. Gen. Joe Ballard, Chief of Engineers and Commander, U.S. Army Corps of Engineers (Jan. 4, 1999) (on file with author) (providing a sixty-day notice of intent to sue the Corps for failure to consult under the ESA on how the increase in NISs that would result from the Oakland port expansion will affect endangered and threatened species).
(68) Exec. Order No. 11,987, 3 C.F.R. 116 (1976-1980), reprinted in 42 U.S.C. 4321 (1994); see also Wade, supra note 32, at 349-50.
(69) 16 U.S.C. [subsections] 3371-3378 (1994 & Supp. IV 1998).
(70) 7 U.S.C. [subsections] 2801-2814 (1994).
(71) 16 U.S.C. [subsections] 4701-4751 (1994 & Supp. IV 1998).
(72) See, e.g., Dentler, supra note 32, at 209 (addressing shortcomings of the Lacey Act and NANPCA); Eldridge, supra note 66, at 50-52 (discussing Lacey Act and NANPCA); Wade, supra note 32, at 345, 348, 350-52 (addressing: shortcomings of the Lacey Act, Federal Noxious Weed Act, and NANPCA).
(73) Despite the difficulty of showing causation, successful tort claims could provide an incentive for shippers to modify their ballast practices. See Dentler, supra note 32, at 203-10; Larsen, supra note 32, at 56.
(74) David Whalin's September 1998 article assesses the potential application of the CWA's permit requirement as a means of addressing ballast water discharges. David Whalin, The Control of Aquatic Nuisance Nonindi41enous Species, 5 ENVTL. LAW. 65 (1998). John Dentler's article addresses the potential use of NEPA when federal agencies intentionally introduce exotic species, but does not consider the application of NEPA in the significant number of federal actions that unintentionally cause the spread of NISs. Denfier, supra note 32, at 212-15. Dentler's and Larsen's articles also generally consider the potential application of section 9 of the ESA, which prevents federal agencies from "taking" endangered "species'" habitats, but do not consider how section 7 of the ESA may be applied to agency actions that facilitate the release or spread of NISs through batlast water. Dentler, supra note 32, at 216-17; Larsen, supra note 32, at 29. No authors appear to have evaluated the potential relevance of the Ocean Dumping Act, Rivers and Harbors Act of 1899, or section 7 of the ESA to ballast water discharges of MSs.
(75) 33 u.s.c. [sections] 1251(a) (1994).
(76) Id. [sections] 1251(a)(1).
(77) A point source is "any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged." Id. [sections] 1362(14).
(78) See id. [sections] 1342.
(79) See id. [sections] 1313(d)(1)(A).
(80) Id. [sections] 1313(d)(1)(C).
(81) See id. [sections] 1344.
(82) Id. [subsections] 1311(a), 1362(12), 1342.
(83) Id. [sections] 1343.
(84) Id. [sections] 1362(14).
(85) Id. [sections] 1362(6). Webster's Dictionary defines "biological" to mean "relating to biology or to life and living things." WEBSTER'S THIRD INTERNATIONAL DICTIONARY 218 (3d ed. 1986).
(86) In National Wildlife Federation v. Consumers Power Co., 862 F.2d 580, 585 (6th Cir. 1988), for example, the court acknowledged that live fish, if added to a water body, would qualify as pollutants under the CWA. Similarly, in DuBois v. United States Department of Agriculture, 102 F.3d 1273, 1299 (1st Cir. 1996), the First Circuit found that the transfer of water from one water body to another constituted a discharge of pollutants that required an NPDES permit, because the water being transferred had different biological and chemical components than the receiving waters. The State of Washington Pollution Control Hearings Board also recently held that Atlantic salmon are biological pollutants under the meaning of the Clean Water Act when released into the waters of the Pacific Northwest. Washington Envt'l Consortium, P.C.H.B. Nos. 96-257, 96-258, 96-259, 96-260, 96-261, 96-262, 96-263, 96-264, 96-265, 96-266, 1997 WL 394651, at *4 (Wash. Pol. Control Bd. May 27, 1997).
(87) See EPA Adds S.F. Bay Dioxins and Other Pollutants and Streams to State's Section 303(d) List, CAL. ENVTL. INSIDER, Nov. 17, 1998, at 3.
(88) 33 U.S.C. [sections] 1362(7)-(8) (1994); 33 C.F.R. [sections] 328.3 (1999).
(89) See 40 C.F.R. [sections] 122.3(a) (1999). This regulation states that "the following discharges do not require NPDES permits: (a) Any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel." Id. (emphasis added). The CWA defines "discharge incidental to normal operation of a vessel" to include ballast water discharges. 33 U.S.C. [sections] 1322(a)(12)(A)(i) (Supp. III 1997).
(90) Whalin, supra note 74, at 99.
(91) See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842 (1984).
(92) Id. at 844.
(93) Id. at 842.
(95) 568 F.2d 1369, 1376 (D.C. Cir. 1977).
(96) Id. at 1377.
(97) See Natural Resources Defense Council v. United States Envtl. Protection Agency, 966 F.2d 1292, 1305 (9th Cir. 1992); Carr v. Alta Verde Indus. Inc., 931 F.2d 1055, 1060 (5th Cir. 1991); Sierra Club v Abston Constr. Co., 620 F.2d 41, 44 (5th Cir. 1980); United States v. Earth Sciences, Inc., 599 F.2d 368, 372 (10th Cir. 1979).
(98) Pub. L. No. 104-106, [sections] 325, 110 Stat. 254 (1996) (codified at 33 U.S.C. [subsections] 1322(n), 1362(6)(A) (Supp. III 1997)).
(99) S. REP. NO. 104-113, at I (1995).
(100) Id. at 7. The Senate Report stated that the amendment to section 312 made by this bill is intended to address discharges that are currently subject to the Federal Water Pollution Control Act as vessels are point sources of discharge, but have been exempt from permit requirements under section 402 of the Act because of provisions of the regulation published at part 122.3 of title 40, Code of Federal Regulations.
Id. While it could be argued that by acknowledging EPA's current exemption for incidental discharges from vessels, Congress implicitly approved of EPA's exemption, this is unsupportable in light of an amendment that clearly restricts the exemption to incidental discharges of armed services vessels. See 33 U.S.C. [sections] 1322(n)(1) (Supp. III 1997).
(101) Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 489 (9th Cir. 1984).
(102) Id. at 486.
(1003) Id. at 490 n.8.
(104) Id. at 493 n. 13.
(105) Oliver Houck, The Regulation of Toxic Pollutants Under the Clean Water Act, [21 News & Analysis] Envtl. L. Rep. (Envtl. L. Inst.) 10,528, 10,541 (Sept. 1991).
(106) The vast majority of states are authorized to issue NPDES permits under 33 U.S.C. [sections] 1342(b). Drew Caputo, A Job Half Finished: The Clean WaterAct After 25 Years, [27 News & Analysis] Envtl. L. Rep. (Envtl. L. Inst.) 10,574, 10,581 (Nov. 1997).
(107) 33 U.S.C. [sections] 1311(b)(1)(C) (1994).
(108) 40 C.F.R. [sections] 131.10(h)(1) (1999).
(109) Id. [sections] 131.12(a)(1). States may not allow degradation of high quality waters "[w]here the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation" unless a state makes specific findings that permitting the lower water quality level "is necessary to accommodate important economic or social development." Id. [sections] 131.12(a)(2).
(110) 33 U.S.C. [sections] 1311(b)(2)(A) (1994).
(111) Compare id. [sections] 1343(c), with 33 U.S.C. [sections] 1412(a) (1994).
(112) See Mills et al., supra note 1, at 666; Vitousek et al., supra note 35, at 473.
(113) See LT. SEAN P. REGAN, U.S. COAST GUARD, INFORMATION AND TECHNOLOGY REPORT: THE NATIONAL INVASIVE SPECIES ACT OF 1996, NONINDIGENOUS SPECIES PREVENTION TECHNOLOGIES AND THEIR EFFECTS ON THE COLUMBIA RIVER 5 (1997) (stating that the establishment of zebra mussels in the Columbia River could largely undermine efforts to prevent the extinction of salmon).
(114) 33 U.S.C. [sections] 1311Co)(2)(A) (1994).
(115) Texas Oil & Gas Ass'n v. United States Envtl. Protection Agency, 161 F.3d 923, 928 (5th Cir. 1998).
(116) 33 U.S.C. [sections] 1314Co)(2)(B) (1994).
(117) See Association of Pacific Fisheries v. United States Envtl. Protection Agency, 615 F.2d 794, 816-17 (9th Cir. 1980) (citing 33 U.S.C. [sections] 1311Co)(2)(A) (1994)).
(118) Environmental Protection Agency v. National Crushed Stone Ass'n, 449 U.S. 64, 74 (1980).
(119) Telephone Interview with Craig Johnston, Professor of Law, Northwestern School of Law of Lewis & Clark College (Mar. 29, 1999).
(120) California Assemblyman Ted Lempert has introduced a bill in California that would require ballast water treatment. Dorothy Korber, California Ports Shudder at Costs of Stopping Crab Invasion, Knight Ridder News Serv., Apr. 29, 1999, available in 1999 WL 17334720.
(121) See James Coogan, Address at the National Conference on Marine Bioinvasions, Massachusetts Institute of Technology Sea Grant College Program (Jan. 26, 1999) (discussing the application of ultraviolet light to kin bacterial and viral organisms in ballast water).
(122) See Allegra Cangelosi, Address at the National Conference on Marine Bioinvasions, Massachusetts Institute of Technology Sea Grant College Program (Jan. 26, 1999) (reporting on the success of tests in the Great Lakes that used micro-filtration technology to filter NISs from ballast water).
(123) While some in the shipping industry have advocated the use of biocides to kill NlSs, adding biocides to ballast water could have obvious negative environmental effects and potentially result in more costly NPDES requirements than would be needed merely to treat ballast water for NISs. MARINE BD., supra note 5, at 71.
(124) There is a lively controversy even among ballast water experts as to whether on-board or on-shore treatment is preferable. James Coogan, Address at the National Conference on Marine Bioinvasions, supra note 121. Treatment of ballast water in on-shore facilities may be less costly than retrofitting each vessel with ballast water treatment devices, but on-board treatment would provide greater flexibility as to where vessels could deballast. Ships with on-board treatment could deballast in the same manner they presently do and would not need to dock at a treatment facility. On-board treatment strategy could also benefit the international effort to stop the spread of NISs in ballast water. While it is unlikely that many developing countries would build capital-intensive on-shore ballast treatment facilities, on-board ballast treatments could reduce NISs in ballast water regardless of where deballasting occurs.
There are some potential monitoring benefits to on-shore facilities since effluent discharge would be concentrated. On-board treatment that keeps NIS from even entering ballast tanks might also help facilitate monitoring and enforcement, because if the NIS treatment technology is operating properly, ballast tanks should be virtually free of NISs. While more research is clearly needed, both on-board and shore-side treatment technologies could likely play a role in future ballast water treatment. Id.
(125) See 33 U.S.C. [sections] 1343 (a), (c) (1994); 40 C.F.R. [sections] 125.124 (1999).
(126) 33 U.S.C. [sections] 1343 (c) (1994).
(127) Id. [sections] 1343 (c)(1)(B).
(128) 40 C.F.R. [sections] 125.122 (1999).
(129) 33 U.S.C. [sections] 1343 (c)(2) (1994).
(130) 5 U.S.C. [subsections] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. IV 1998).
(131) The petition was filed pursuant to APA sections 553(e) and 555(e). Id. [subsections] 553(e), 555(e).
(132) Petitioners included Northwest Environmental Advocates, the Center for Marine Conservation, San Francisco BayKeeper, the Association of California Water Agencies, Pacific Coast Federation of Fishermans' Associations, Great Lakes United, Chippewa-Ottawa Treaty Fishery Management Authority, Great Lakes Sportfishing Council, People for the Puget Sound, Coastal Waters Project, Dogwood Alliance, Friends of the San Juans, Quoddy Spill Prevention Group, Sacramento DeltaKeeper, and Ted Lempert, California State Assembly member. Attorney Craig Johnston of the Pacific Environmental Advocacy Center represents these groups.
(133) See CARLTON ET AL., supra note 9, at 87.
(134) One can only speculate about the details of how a permit program would be applied to such a large number of point sources. While general permits may be an option, they would have to be strict enough to ensure that ballast water discharges would not violate water quality standards.
(135) A citizen could sue under the Administrative Procedure Act if the permit was issued by EPA in a state that had not adopted its own NPDES program, or under state law in states that had their own NPDES program. See 5 U.S.C. [sections] 706(2)(A) (1994); 33 U.S.C. 88 1342, 1344 (1994) (giving states the authority to implement the NPDES program).
(136) Letter from J. Charles Fox, Assistant Administrator, United States Environmental Protection Agency, to Craig Johnston, Attorney, Pacific Environmental Advocacy Center (Apr. 6, 1999) (on file with author).
(137) See id.
(138) See 5 U.S.C. [subsections] 702, 704 (1994).
(139) 33 U.S.C. [sections] 1319(d) (1994).
(140) Id. [sections] 1313(a).
(141) Id. [sections] 1313(c)(2)(A); 40 C.F.R. [sections] 130.2(d) (1999).
(142) 33 U.S.C. [sections] 1313(d)(1)(A); 40 C.F.R. [sections] 130.7(c) (1999).
(143) 40 C.F.R. [sections] 130.2 0) (1999).
(144) See 33 U.S.C. [sections] 1313(d)(1)(A) (1994); 40 C.F.R. [sections] 130.2(j) (1999).
(145) 33 U.S.C. [sections] 1313(d)(1)(C) (1994); 40 C.F.R. [sections] 130.7(c)(1) (1999).
(146) 40 C.F.R. [sections] 130.7(a) (1999).
(147) Id. [sections] 130.2(i).
(148) Id. [sections] 130.7(c)(1).
149 See 33 U.S.C. [sections] 1313(d) (1994) (requiring states to identify water bodies with "insufficient controls" for pollutants and setting limits on future emissions of pollutants). While TMDLs could have an effect on how a state regulates nonpoint discharges of NISs, there have been few attempts to use TMDLs for nonpoint source control. Oliver A. Houck, TMDLs III: A New Framework for the Clean Water Act's Ambient Standards Program, [28 News & Analysis] Envtl. L. Rep. (Envtl. L. Inst.) 10,415, 10,435 (Aug. 1998). This is likely because the CWA does not appear to give EPA the same authority over state implementation of measures to prevent nonpoint source pollution as it does over measures to prevent point source pollution. See 33 U.S.C. [subsections] 1311, 1329 (1994); 40 C.F.R. [sections] 130.6(c)(4) (1999).
(150) See Robert W. Alder, Integrated Approaches to Water Pollution: Lessons From the Clean Air Act, 23 HARV. ENVTL. L. REV. 203, 204 (1999).
(151) In Scott v. City of Hammond, 741 F.2d 992, 997 (7th Cir. 1984), the Seventh Circuit found that a state's prolonged failure to adopt a TMDL triggered EPA's statutory duty to adopt a TMDL for the state. Alaska Center for the Environment v. Reilly, 762 F. Supp. 1422, 1429 (W.D. Wash. 1991), similarly established that EPA had to develop TMDLs for Alaska after the state failed to initiate the TMDL process.
(152) Cohen & Carlton, supra note 22, at 556.
(153) See Petition from San Francisco BayKeeper and DeltaKeeper to the Bay Area Regional Water Quality Control Board and the Central Valley Regional Water Quality Control Board (May 21, 1997) (seeking control of ballast water discharges in the San Francisco Bay-Delta region) (on file with author).
(155) SAN FRANCISCO REGION WATER QUALITY CONTROL BO., SECTION 303(D) LIST OF IMPAIRED WATER BODIES AND PRIORITIES FOR DEVELOPMENT OF TOTAL MAXIMUM DAILY LOADS FOR THE SAN FRANCISCO BAY REGION: FINAL STAFF REPORT (1998); EPA Adds S.F. Bay Dioxins and Other Pollutants and Streams to State's Section 303(d) List, supra note 87, at 3.
(156) See SAN FRANCISCO REGION WATER QUALITY CONTROL BD., supra note 155.
(157) 33 U.S.C. [sections] 1344 (1994).
(158) Id. [sections] 1344(c), (d). EPA has authority to veto a Corps-issued permit if a proposed discharge "will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas." Id. [sections] 1344(c).
(159) Id. [sections] 1344(h) (allowing a state to administer a section 404 permit "within its jurisdiction").
(160) 40 C.F.R. [sections] 230.10(c) (1999).
(161) Id. [sections] 230.10Co)(1).
(162) 33 C.F.R. [sections] 320.4(a) (1999). Other regulatory requirements for issuing a section 404 permit include consideration of whether there are practicable alternatives to the proposed dredge or fill, potential mitigation measures, 40 C.F.R. [sections] 230.10(a), Co)(3) (1999), and consideration of whether the action will jeopardize threatened or endangered species or adversely modify critical habitat, 33 C.F.R. [sections] 320.4(r) (1999). 163 33 C.F.R. [sections] 335.2 (1999).
(164) Id. [subsections] 335.2, 337.6. Section 404(r), however, does contain a limited exemption, for "the construction of a Federal project," if the federal agency submits an environmental impact statement to Congress before Congress either authorizes or funds the dredge and fill project and before the discharge of the dredged or fill material actually occurs. 33 U.S.C. [sections] 1344(r) (1994). For a good synopsis of how the Corps and other federal agencies must comply with section 404, see Michael D. Blumm & D. Bernard Zaleha, Federal Wetlands Protection Under the Clean Water Act: Regulatory Ambivalence, Intergovernmental Tension, and a Call for Reform, 60 U. COLO. L. REV. 695, 723 (1989).
(165) 40 C.F.R. [sections] 230.10(c) (1999).
(166) Id. [sections] 230.11(c) (stating that the Corps must make "factual determinations" in deciding whether significant degradation will occur).
(167) Id. [sections] 230.11(h)(1) (establishing that factual determinations include consideration of the secondary effects of a fill and that "secondary effects are effects on an aquatic ecosystem that are associated with a discharge of dredged or fill materials, but do not result from the actual placement of the dredged or fill material"). In Fox Bay Partners v. United States Corps of Engineers, 831 F. Supp. 605 (N.D. Ill. 1993), for example, a district court held that the Corps could deny a fill permit that would facilitate increased recreational boating, not because of the impact that the actual fill would have, but because of the negative indirect effects that would result from the increased boating on an already crowded river. Id. at 609.
(168) Additionally, the Corps must consider the cumulative effects of the proposed dredge and fill activity. Cumulative effects include "the collective effect of a number of individual discharges of dredged or fill material." 40 C.F.R. [sections] 230.11(g) (1999).
(169) Id. [sections] 230.10(c).
(171) Voelker, supra note 50, at 4.
(172) Soule, supra note 19, at 745.
(173) Pimentel et al., supra note 2, at 9.
(174) 40 C.F.R. [subsections] 230.10(c), 230.11(h) (1999).
(175) Id. [sections] 230.10(c).
(176) MARINE BD., supra note 5, at 11.
(177) Cohen & Carlton, supra note 22, at 556.
(178) Because of the significant and widespread negative impacts that ballast discharges containing NISs have had on U.S. waters, and the potential for such discharges to continue to cause damage, it is also difficult to see how the Corps could justify a finding that a given dredge or fill project that facilitated the discharge of untreated ballast water would be unlikely to actually result in the significant degradation of U.S. waters, regardless of whether the affected water body is already significantly invaded.
(179) MARINE BD., supra note 5, at 11, 15.
(180) CARLTON ET AL., supra note 9, at 101.
(181) See 40 C.F.R. [sections] 230.10(b)(1) (1999). As discussed previously, water quality standards consist of both designated uses and the numeric or narrative criteria necessary to protect those uses. Id. [sections] 130.2(d); see also 33 U.S.C. [sections] 1313(c)(2)(A) (1994).
(182) In areas that are not yet seriously invaded by ANSs, it may be more difficult to establish with reasonable certainty that 1) ANSs would become established as a result of ballast discharges made possible by a dredge or fill activity, and 2) that these ANSs would cause water quality violations because of their effects on designated or existing uses. If establishment of a known ANS, such as the zebra mussel, is likely to occur as a result of a given dredge or fill activity, there may be a good argument that such an action could not be permitted because of its impact on water quality.
(183) 33 C.F.R. [sections] 320.4(a)(1) (1999).
(186) Id. [sections] 320.4(r).
(187) See Alaska Ctr. for the Env't v. West, 157 F.3d 680, 683 (9th Cir. 1998) (applying an arbitrary and capricious standard of review to the Corps's public interest review).
(188) California Trout v. Schaefer, 58 F.3d 469, 475 (9th Cir. 1995) (rejecting a challenge to the Corps's finding that permitted activity would not cause or contribute to a significant degradation of U.S. waters); Town of Norfolk v. United States Army Corps of Engineers, 968 F.2d 1438, 1448-50 (1st Cir. 1992) (rejecting a challenge to the Corps's finding of no significant degradation to U.S. waters and finding that project was in the public interest).
(189) See generally Water Works & Sewer Bd. v. United States Dep't of Army, Corps of Engineers, 983 F. Supp. 1052, 1083 (N.D. Ala. 1997) (rejecting challenges to the Corps's public interest review of a water intake structure and pipeline).
(190) For example, in Friends of the Earth v. Hall, 693 F. Supp 904 (W.D. Wash. 1988), the court rejected the Corps's determination that a permitted activity would not contribute to a significant degradation--largely based on the failure of the Corps's environmental analysis to adequately assess the project's environmental effects. Id. at 946. 191 See 33 U.S.C. 1344(c) (1994).
(193) See 5 U.S.C. [sections] 702 (1994). A plaintiff interested in challenging a dredge or fill permit based on this claim could focus on an area that is already heavily invaded by ANSs; this would substantially reduce the burden of shorting that a future dredge or fill would cause significant degradation. Without these facts, a showing that future invasions would have a detrimental effect could be difficult to establish with certainty.
(194) 33 U.S.C. [sections] 140 l(b) (1994) (emphasis added). For a review of the ODA, see Steven J. Moore, Troubles in the High Seas: A New Era in the Regulation of U.S. Ocean Dumping, 22 ENVTL. L. 913, 928-35 (1992).
(195) 33 U.S.C. [sections] 1411Co) (1994).
(197) Id. [subsections] 1411(b), 1402(0. Because the CWA only applies to discharges from vessels within three miles from shore, regulation of point source discharges from vessels are regulated by the CWA three miles out from shore and then by the ODA between three and twelve miles out from shore. See id.
(198) Id. [sections] 1402(0.
(199) Id. [sections] 1402(c).
(200) Id. [sections] 1412(a).
(201) The materials not covered by the ODA's dumping permit requirement include fish wastes, oyster shells, discharges incidental to the propulsion of vessels or the operation of motor-driven equipment on vessels, and the construction of fixed structures or other "intentional placement[s]" that are regulated by other federal or state laws or are part of a federal or state authorized program. Id. [sections] 1402(f). Ballast water is not included in the Act's exemptions. See/d.
(202) Id. [sections] 1412(a). These requirements are almost identical to the requirements for ocean discharge under the CWA, which apply to pollutant discharges within three miles from shore. See 33 U.S.C. [sections] 1343(c) (1994).
(203) 33 U.S.C. [sections] 1412(a)(A), (C), (D) (1994).
(204) Id. [sections] 1412(a)(E), (D)(iii).
(205) 40 C.F.R. [sections] 222.4(a) (1999).
(206) 33 U.S.C. [sections] 1412(a) (1994). Because MSs released in ballast water have the potential to be swept by currents to shore, EPA would have to consider not only the effects on the area where the ballast was released outside the three-mile limit, but also the potential impacts to on-shore aquatic ecosystems. See MARINE BD., supra note 5, at 17.
(207) 33 U.S.C. [sections] 1415(a), (b) (1994).
(208) Id. [sections] 1415(g).
(209) Moore, supra note 194, at 927.
(210) 33 U.S.C. [sections] 1411(a)-(b) (1994).
(211) See id. [subsections] 1411(b), 1402(c).
(212) See id. [sections] 1402(c).
(213) See id. [subsections] 1402(f).
(214) Id. [sections] 1411(b). Section 1411(a), the other major component of the ODA's dumping restriction, makes it illegal to transport materials from the United States without a permit "for the purpose of dumping it into ocean waters." Id. [sections] 1411(a) (emphasis added). Arguably, because ballast water is not being transported for the purpose of dumping, but for other purposes, such as ship stabilization, this section would not apply to ballast discharges. In contrast to section 1411(a), however, section 1411(b) makes no mention of the purpose behind the dumping. Additionally, section 1411Co) only prohibits the dumping of materials being transported from outside the United States and therefore does not appear to apply to ballast water coming from ports within the United States.
(215) Barcelo v. Brown, 478 F. Supp. 646, 667 (D.P.R. 1979), vacated in part on other grounds sub nom. Romero-Barcelo v. Brown, 643 F.2d 835 (1st Cir. 1981), rev'd on other grounds sub nom. Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982). At issue in Barcelo was whether the ODA required the military to obtain a dumping permit before it could shoot missiles into the ocean as part of a training exercise. Barcelo, 478 F. Supp. at 667. The ODA definition of dumping excludes the intentional placement of any device in ocean waters ... for a purpose other than disposal, when ... such placement ... occurs pursuant to an authorized Federal ... program." Id. at 667 (emphasis added) (citing 33 U.S.C. 8 1402(f) (19'78)). The court was correct in holding that the military did not need an ODA permit because the bombing was 1) "for a purpose other than disposal," 2) conducted "pursuant to an authorized Federal ... program," and 3) was "an intentional placement of [a] device." Id. The fact that this narrow exception was met, however, does not support the court's subsequent and overly broad conclusion that any dumping for a purpose other than disposal is exempt from the ODA. The only other evidence cited by the court was an EPA report prepared prior to passage of the ODA that also appears to have confused the narrow exception as applying broadly. 478 F. Supp. at 667 (citing WILLIAM D. RUCKELSHAUS, SECTION-BY-SECTION ANALYSIS OF THE PROPOSED MARINE PROTECTION ACT OF 1971, S. REP. NO. 92-451 (1972), reprinted in 1972 U.S.C.C.A.N. 4234, 4255).
(216) 33 U.S.C. [sections] 1402(f) (1994) (emphasis added). The ODA's exemption for the "routine discharge of effluent incidental to the propulsion of ... vessels" does not reasonably apply to ballast water, but instead appears aimed at discharges from boat motors. See/d.; RICHARD G. HILDRETH & RALPH W. JOHNSON, OCEAN AND COASTAL LAW 341 (1983) (referring to the ODA's exemption for routine discharges from boat motors). EPA's regulations implementing the ODA simply restate that "routine discharge of effluent incidental to the propulsion of... vessels" is not covered by the Act, but they do not suggest that this exemption applies to ballast discharges. 40 C.F.R. [sections] 220.1(c)(3)(i) (1999). Webster's Dictionary, which defines "propulsion" as "the action of driving forward or ahead" and the "process of propelling of ships by steam turbine," also supports the conclusion that this exemption only applies to discharges from ships' engines. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1820 (3d ed. 1986).
(217) 33 U.S.C. [sections] 1402(f) (1994).
(219) Id. [sections] 1402(c).
(220) Compare 33 U.S.C. [sections] 1362(8), (12) (1994), with 33 U.S.C. [sections] 1411(b) (1994).
(221) 33 U.S.C. [sections] 1412(a) (1994).
(222) MARINE BD., supra note 5, at 17.
(223) Strict limitations on releasing untreated ballast water beyond the current twelve-mile limit contained in the ODA also should be imposed--either by an act of Congress or by international agreement.
(224) See HILDRETH & JOHNSON, supra note 216, at 362.
(225) 33 U.S.C. [sections] 407 (1994) (emphasis added).
(227) 33 U.S.C. [sections] 1342(a)(5) (1994). An illegal discharger who lacks a permit, however, is technically in violation of both statutes.
(228) Compare 33 U.S.C. [sections] 407 (1994), with 33 U.S.C. [sections] 1311(a) (1994).
(229) 33 U.S.C. [sections] 411 (1994).
(230) Id. The report must lead to a conviction, however. See id.
(231) 33 C.F.R. [sections] 329.4 (1999).
(232) See United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 669 (1993); United States v. Standard Oil Co., 384 U.S. 224, 230 (1966).
(233) Standard Oil, 384 U.S. at 230.
(234) Pennsylvania Indus. Chem. Corp., 411 U.S. at 669 (quoting 33 U.S.C. 407 and William H. Rodgers, Jr., Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U. PA. L. REV. 761, 766 (1971)) (finding a violation of the RHA for the unpermitted discharge of industrial pollutants into the Mononghela River).
(235) United States v. Kennebec Log Driving Co., 491 F.2d 562, 570 (1st Cir. 1973).
(237) United States v. United States Steel Corp., 482 F.2d 439, 442 (7th Cir. 1973). Interestingly, the Supreme Court in Standard Oil looked at the language of several statutes that the RHA was intended to consolidate, 384 U.S. at 226-27, and three of the statutes specifically prohibited the unpermitted release of "ballast" into navigable waters: "An 1886 Act (24 Stat. 329) made it unlawful to empty 'any ballast, stone, slate, gravel, earth, slack, rubbish, wreck, filth, slabs, edgings, sawdust, slag, or cinders, or other refuse or mill-waste of any kind ...' [; an] 1890 Act (26 Stat. 453) made unlawful emptying into navigable waters 'any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind ...' [; and an] 1894 Act also prohibited deposits ... of 'ballast, refuse, dirt ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind.... '" 384 U.S. at 226-27. While these statutes were obviously aimed at the rocks, bricks, and other heavy solids historically used as ballast, it is interesting to note that the effort to regulate ships' ballast was initiated more than one hundred years ago in some of the first pollution control statutes in the United States.
(238) See supra notes 85 & 86 and accompanying text
(239) For example, in United States v. Lambert, 915 F. Supp. 797, 801 (S.D. Va. 1996), EPA successfully brought an enforcement action alleging violations of both section 301 of the CWA and section 407 of the RHA. Id. at 801.
(240) California v. Sierra Club, 451 U.S. 287 (1981).
(241) 42 U.S.C. [subsections] 4321-4370d (1994 & Supp. III 1997).
(242) 40 C.F.R. [sections] 1508.18(a) (1999).
(243) As early as 1824 the Army Corps of Engineers began working to develop ports on the Great Lakes. BILL M. BAKKE ET AL., THE NORTHWEST SALMON CRISIS: A DOCUMENTARY HISTORY 99, 109 (Joseph Cone & Sandy Ridlington eds., Oregon State Univ. Press 1996); Nancy Sticht, Historical Overview: Buffalo District, U.S. Army Corps of Engineers (visited Feb. 10, 1999) <http://www.lrb.usace.army.mil/history.htm>; Patti Lee, Missouri River Master Management Plan, Northwest Division, U.S. Army Corps of Engineers (visited Feb. 10, 1999) <http://www.nwd-mr.usace.army.mil/mmanual/mast-man.htm>. 244 BAKKE ET AL., supra note 243, at 109.
(245) Sticht, supra note 243.
(246) See PORTLAND DISTRICT, U.S. ARMY CORPS OF ENGINEERS, DREDGED MATERIAL MANAGEMENT PLAN SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT: COLUMBIA RIVER AND LOWER WILLAMETTE RIVER FEDERAL NAVIGATION CHANNEL (1998).
(247) See PORT OF OAKLAND, BERTHS 55-58 PROJECT: DRAFT ENVIRONMENTAL IMPACT REPORT (1999).
(248) Interview with Scott Smith, Aquatic Nuisance Species Coordinator, Washington Department of Fish and Wildlife, in Portland, Or. (Apr. 2, 1999).
(249) U.S. Army Corps of Engineers, Philadelphia District (visited Mar. 21, 1999) <http://www/nap.usace.army.mil/sb/nav.htm>.
(250) Sticht, supra note 243.
(251) 42 U.S.C. [sections] 4321 (1994).
(252) Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558 (1978).
(253) 42 U.S.C. [sections] 4332(2)(C)(i), (iii) (1994).
(254) 40 C.F.R. [sections] 1508.18(a) (1999).
(255) Robert,son v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
(256) 42 U.S.C. [sections] 4332(2)(C) (1994). If an agency believes that a given project will have no significant environmental impacts, the agency can prepare a less comprehensive analysis called an environmental assessment. 40 C.F.R. [sections] 1508.9 (1999).
(257) For example, even in San Francisco Bay, which is recognized as the most invaded aquatic ecosystem in the world, the Corps refuses to consider in either an ESA section 7 consultation or in the project EIS how a port expansion and dredging project may affect NIS invasions and also refuses to consider the effects of those invasions. Suit Threatened Over Port of Oakland Ballast Discharge, CAL. ENVTL INSIDER, Jan. 15, 1999, at 9-10; Whalin, supra note 74, at 82.
(258) 40 C.F.R. [sections] 1508.8(b) (1999).
(259) See CARLTON ET AL., supra note 9, at 15 (stating that virtually every ballast water sample taken in Canada, the United States, and Australia contains NISs). However, section 1371(c)(2)(a) of the Clean Water Act states that nothing in NEPA authorizes a federal agency conducting a NEPA assessment for an activity that may result in a discharge of pollutants into navigable waters to "review any effluent limitation or other requirement established pursuant [to the Clean Water Act]." 33 U.S.C. [sections] 1371(c)(2)(A) (1994). This section is most reasonably read as meaning that during NEPA project review, a federal agency cannot review the substantive provisions of an NPDES permit or state certification, rather than a requirement that federal agencies ignore the effects of permitted discharges. See DuBois v. United States Dep't of Agric., 102 F.3d 1273 (1st Cir. 1996) (applying section 1371(c)(2) consistent with this assessment).
(260) 40 C.F.R. [sections] 1508.7 (1999).
(262) Id. [sections] 1508.18(a) ("[A]ctions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies.").
(263) For example, the Army Corps of Engineers Buffalo District spends $20 million annually to maintain 100 miles of federal channels, Great Lake ports, and 38 miles of breakwaters and dikes. Sticht, supra note 243.
(264) 40 C.F.R. [sections] 1502.15 (1999).
(265) See id.
(266) While some parts of the country, such as the San Francisco and Chesapeake Bays, have been the subject of extensive surveys for NISs, current information about NISs in many other locations is limited. The need to analyze the impacts of NISs under NEPA or the ESA could be a mechanism for providing funding to conduct studies that otherwise would not occur.
(267) 42 U.S.C. [sections] 4332(2) (1994); 40 C.F.R. [sections] 1502.16 (1999).
(268) Robertson v. Methow Valley Citizens. Council, 490 U.S. 332, 354-55 (1989).
(269) Analyzing the cumulative and indirect effects that an action may have on the spread or introduction of ANSs and the resulting effect on native ecosystems will not be an easy task. However, falling to prepare such analyses is clearly contrary to NEPA's intent that both decision makers and the public understand the consequences of federal actions before such actions are taken. See 42 U.S.C. [sections] 4332(B) (1994).
(270) Id. [sections] 4332(C)(iii), (E); 40 C.F.R. [sections] 1502.16(h) (1999).
(271) See Vermont Yankee Nuclear Power v. Natural Resources Defense Council, 435 U.S. 519, 554 (1978).
(272) See 40 C.F.R. [sections] 1508.20 (1999).
(273) Robertson v. Methow Valley Citizens Council, 490 U.S. at 350.
(274) See 5 U.S.C. [sections] 706(2)(A) (1994).
(275 See Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 446 (4th Cir. 1996).
(277) Id. at 444.
(279) Id. at 445.
(280) Id. at 446.
(280) Letter from Linda Sheehan, Pollution Program Manager, Center for Marine Conservation, to Richard Sinkoff, Supervisor, Environmental Planning Dep't, Port of Oakland (Jan. 28, 1999) (on file with author).
(283) Letter from James Bassingwaite, Northwest Environmental Defense Center, to U.S. Army Corps of Engineers, Portland District (Mar. 13, 1998). Final decision notices have not been issued for either project.
(284) 16 U.S.C. [sections] 1536 (1994).
(285) 50 C.F.R. [sections] 402.02 (1999) (stating that, under the ESA, "action means all activities or programs of any kind authorized, funded, or, carried out, in whole or part, by Federal agencies").
(286) 16 U.S.C. [sections] 1536(a)(2) (1994).
(287) If the listed species is a terrestrial species, consultation with FWS is required. If the species is a marine species, consultation with NMFS is required. Id.
(288) Id. [sections] 1536(d); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1056 (9th Cir. 1994).
(289) FWS regulations state that to "'jeopardize the continued existence of means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. [sections] 402.02 (1999).
(290) FWS regulations state that
"[d]estruction or adverse modification" means a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical. Id.
(291) Id. [sections] 402.14(g)(4). If the federal action is "likely to adversely affect" a listed species, then the consultation must be "formal," but If the action is "not likely to adversely affect" a listed species, then the consultation may be "informal." Id. [sections] 402.14(b). For informal consultation, FWS or NMFS is not required to prepare a biological opinion, but need only concur with an action agency's determination that a given project would not adversely affect a listed species. Id. [sections] 402.13(b).
(292) Id. [sections] 402.14(g)(3).
(293) See 16 U.S.C. [sections] 1536(a)(2) (1994). The ESA does provide for a very seldom used exception whereby the Endangered Species Committee, commonly known as the "God Squad," may grant an exception to section 7(a)(2)'s prohibition against jeopardy or adverse modification of critical habitat. Id. [sections] 1536(h).
(294) A biological opinion by NMFS or FWS could be challenged under the APA, and an agency's failure to consult could be challenged under the ESA's citizen suit provision. See Bennett v. Spear, 520 U.S. 154, 173-74 (1997); see also 5 U.S.C. [sections] 706(2)(A) (1998); 16 U.S.C. [sections] 1540(g)(1)(A) (1994).
(295) Wilcove et al., supra note 18, at 609.
(296) Id. at 613. Additionally, both federal and private actions related to the discharge of NISs in ballast water could result in an actual "take" of listed species or their habitat in violation of section 9 of the ESA. 16 U.S.C. [sections] 1538(a) (1994). While the Supreme Court has established that the intentional grazing of exotic goats could violate section 9's take prohibition, Palila v. Hawaii Dep't of Land & Nat. Resources, 852 F.2d 1106, 1110 (9th Cir. 1988), application of section 9 to ballast discharges of NISs would be difficult and therefore section 9 is not considered extensively here. See also Larsen, supra note 32, at 29-31 (discussing how ESA section 9 may apply to NISs). It would likely be difficult to show with a high level of certainty that releases of ballast water would result in the taking of a listed species or its habitat However, in cases where ballast water is known to contain NISs that pose a known threat to a listed species, a section 9 challenge may be viable. For example, the continued release of ballast water known to contain zebra mussel larvae into an area with threatened or endangered mussel populations could constitute a section 9 taking given the high likelihood that the ballast water releases would result in zebra mussel colonization and loss of native mussel populations. Telephone Interview with Craig Johnston, supra note 119.
(297) MICHAEL MONROE & JUDY KELLEY, UNITED STATES ENVTL. PROTECTION AGENCY & ASS'N OF BAY AREA GOVERNMENTS, STATE OF THE ESTUARY: SAN FRANCISCO ESTUARY PROTECT 80-81 (1992).
(298) COHEN, supra note 44, at 13.
(299) Letter from Deborah A. Sivas to Lt. Gen. Joe Ballard, supra note 67.
(302) Id. The 60-day notice also cited the Corps's failure to consult with FWS and NMFS to develop programs to conserve threatened and endangered species as required by section 7(a)(1) of the ESA. Id.
(303) Dennis Cuff, Port Aims to Protect .Bay Species, SAN JOSE MERCURY NEWS, Oct. 6, 1998, at B1.
(304) MARINE BD., supra note 5, at 22 (finding that ships transport 80% of the world's commodities).
(305) Mills et al., supra note 1, at 666; Wilcove et al., supra note 18, at 615.
(306) Vitousek et al., supra note 35, at 472-74 (listing shipments of foreign tires for retreading in the United States, importation of normative supplemental food sources, and natural dispersal of normative seeds via wildlife as examples of vectors of exotic species introduction).
(307) Mills et al., supra note 1, at 666.
(308) MARINE BD., supra note 5, at 11.
(309) 16 U.S.C. [sections] 1536(a)(2) (1994).
(310) 33 U.S.C. [sections] 1344 (1994).
(311) 42 U.S.C. [sections] 4332(2)(C) (1994).
(312) 33 U.S.C. [sections] 1313(d)(1)(C) (1994).
(313) See 42 U.S.C. [sections] 4332(2)(C) (1994).
(314) See 16 U.S.C. [sections] 1536 (a)(2) (1994).
(315) See 33 U.S.C. [sections] 1344(e)(1) (1994).
(316) Ideally, the ODA should be expanded to cover ballast discharges regardless of the origin of the ballast water. The ODA antidumping ban currently applies only to the discharge of materials taken on board outside the United States. 33 U.S.C. [sections] 1411(b) (1994). Additionally, the ODA should be expanded to cover discharges made outside the current twelve-mile limit.
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|Author:||Foster, Brent C.|
|Date:||Jan 1, 2000|
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