Ballast Water Management to Combat Invasive Species
Ballast Water Management to
Combat Invasive Species
Updated June 10, 2008
Eugene H. Buck
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
Ballast Water Management to Combat Invasive Species
In recent years, many people have become increasingly aware that the
globalization of trade, the increased speed of travel, the massive volume of cargo
shipments, and rising tourism have combined to increase the chance of accidental
introductions of foreign species into the United States. Aquatic species arrive
through a variety of mechanisms — unintentionally when attached to vessel hulls or
carried in vessel ballast water and intentionally when imported for aquaria display,
as live seafood for human consumption, or as a transplant to increase sport fishing
The arrival of zebra mussels in the Great Lakes and their subsequent damage to
city water supplies and electric utilities has focused significant attention on ballast
water discharge by cargo ships as a high-risk mechanism for species invasion. New
management efforts attempt to address this concern. Congress is considering
legislative proposals to amend and reauthorize the Nonindigenous Aquatic Nuisance
Prevention and Control Act, including specific provisions that would modify how
ballast water is managed. This report provides background on various approaches
to ballast water management and reviews current ballast water management laws and
programs. This report will be updated as this issue evolves.
Ballast Water Management......................................2
Current U.S. Law..............................................4
Ballast Water Management to Combat
With increases in the number of people traveling, the speed and methods of
travel, the types and volume of trade, the ability to move living plants and animals
so that more of them survive the journey, and the different modes of transport for
hitch-hiking organisms, invasive species have become a global concern. Although
there are many ways in which species may invade,1 this report focuses on ballast
water discharge by cargo ships as one of the more significant mechanisms for biotic
invasion of coastal and estuarine habitats as well as inland navigable waters.
The arrival of zebra mussels in the Great Lakes in the late 1980s and their
subsequent damage to city water supplies and electric utilities2 focused initial
attention on ballast water as a source of invasive species. Reflecting the scope of the
problem, the San Francisco Bay-Delta ecosystem is considered to be one of the most
disrupted aquatic ecosystems in the United States, with colonization by more than
230 non-native species.3 Compounding the problem, species that invaded via other
mechanisms (e.g., mitten crabs that are believed to have been an illegal seafood
introduction) may be further spread through ballast water transport and vice versa
(e.g., zebra mussels are spreading to new drainages via boats transported on trailers).
In the Gulf of Mexico, ballast water has been implicated in the contamination of
commercial oyster beds.4 Globally, it is estimated that more than 10,000 marine
species each day may be transported across the oceans in the ballast water of cargo
ships.5 The ctenophore Mnemiopsis leidyi was transported in ballast water from
estuaries along the Atlantic coast of North America to the Black Sea, where it is
blamed for a massive collapse of the commercial fish harvest. Around 1978, the
1 For an in-depth discussion of invasive species generally and their various mechanisms of
invasion, see CRS Report RL30123, Invasive Non-Native Species: Background and Issues
for Congress, by M. Lynne Corn, Eugene H. Buck, Jean Rawson, Alex Segarra, and Eric
Fischer. Zebra mussels and other species arriving in ballast water are specifically discussed
in “A Gallery of Harmful Non-Native Plants and Animals” in that report.
2 Colonies of zebra mussels accumulate and block water-intake pipes and screens of drinking
water facilities, industrial facilities, power-generating plants, golf course irrigation pipes,
and cooling systems of boat engines.
3 Information from the Natural Resources Defense Council webpage at [http://www.nrdc.
org/ gr eengate/wildlife/invasivef.asp].
4 Fred C. Dobbs and Andrew Rogerson, “Ridding Ships’ Ballast Water of Microorganisms,”
Enivornmental Science & Technology, v. 39, no. 12 (June 15, 2005): 259A-264A.
5 G. Tracy Mehan, Assistant Administrator for Water, U.S. Environmental Protection
Agency, testimony before the Senate Committee on Environment and Public Works,
Subcommittee on Fisheries, Wildlife, and Water, June 17, 2003.
American jack-knife clam, Ensis directus, was introduced through ballast water in
the German Bight and has spread rapidly over the North Sea coast, where it has
become one of the most common bivalves, replacing many native species.
The economic, social, recreational, and ecological losses/costs attributable to
aquatic invasive species are difficult to quantify. While some costs have been
estimated, such as the $5 billion in damages to water pipes, boat hulls, and other hard
surfaces by zebra mussels in the Great Lakes,6 others, such as the losses of native
species and environment restoration to pre-invasion quality, are unknown. Congress
is considering legislative proposals to reauthorize and amend the Nonindigenous
Aquatic Nuisance Prevention and Control Act of 1990,7 including specific provisions
that would modify how ballast water is managed.
Ballast Water Management
Ballast water is held in tanks and/or cargo holds of ships to provide stability and
maneuverability during a voyage when ships are not carrying cargo, are not carrying
heavy enough cargo, or require more stability due to rough seas.8 Ballast water may
be either fresh or saline. Ballast water may also be carried so that a ship rides low
enough in the water to pass under bridges and other structures. Ballast water
management (BWM) for vessels includes all measures that aim to prevent unwanted
aquatic nuisance species from being transported between ports in the ballast.
Seaports in which ships exchange ballast water daily are at severe risk of invasions.
Organisms transported to U.S. ports from foreign harbors with similar
physiochemical characteristics (e.g., water temperatures, salinity regimes) pose an
especially high risk of invasion. Even if only a tiny proportion of newly arriving non-
native species survive in new habitats, such as San Francisco Bay, Chesapeake Bay,
or Boston Harbor, the actual number of successful invasive species can be very large.
There are several different ways of managing ballast water. Currently, the most
widely used is ballast water exchange. Ballast water exchange means that ships on
their way to the next port release the lower-salinity coastal water they brought aboard
in their last port and replace it with higher-salinity open-ocean water. Although this
measure is not perfect, it reduces the number of potentially invasive species in the
ballast tanks and replaces them with oceanic organisms that are less likely to survive
in the lower-salinity near-shore waters of the ship’s next port.9 However, organisms
with a wide tolerance for differing salinities may survive ballast water exchange,
especially any such organisms that may reside in the unpumpable residual water and
sediment remaining in the tanks during any ballast water exchange.
6 16 U.S.C. §4701(a)(4).
7 Title I of P.L. 101-646; 16 U.S.C. §§4701-4741.
8 Massachusetts Institute of Technology Sea Grant, Marine Bioinvasions Fact Sheet: Ballast
Water, Cambridge, MA, Dec. 4, 2002; available at [http://massbay.mit.edu/exoticspecies/
9 National Ballast Information Clearinghouse, Present Ballast Water Management Practices;
available at [http://invasions.si.edu/nbic/managementpract.html].
Another approach to BWM is treatment.10 Ballast water treatment is the subject
of extensive current research and development, and several technologies and
methodologies have been proposed. These include mechanical methods (e.g.,
filtration and separation), physical methods (e.g., sterilization by ultraviolet light,
ozone, heat, electric current, or ultrasound), and chemical methods (using biocides).
In addition, treatment may combine several of these methods.11
Treatment may be an appropriate management option on occasions when vessels
temporarily operate without ballast — a “no-ballast-on-board” (NOBOB) situation.
When a ship is carrying no ballast water, it presents unique treatment problems
because large numbers of organisms can reside in the unpumpable residual water and
sediment remaining in the ballast tanks. Few of the tested methodologies have been
applied to the control of organisms in NOBOB situations.12 The treatment option
favored by many ship operators because of its intrinsic simplicity and relatively low
cost is biocide application, whereby chemical agents are added to the ballast water
to minimize the number of (i.e., kill) viable organisms. This approach also has the
potential to address the NOBOB condition.13 Concerns remain relating to
establishing and enforcing standards for the appropriate disposal of biocide-treated
ballast water and sediments.
Although estimates of the costs of ballast treatment may be imprecise and vary
from vessel to vessel, there is some general agreement on average costs.14 For
example, it may cost an estimated $400,000 per vessel for modification of
container/bulk vessels to use onshore ballast water treatment facilities at California
ports. More generally, the cost of retrofitting vessels to treat ballast water has been
estimated at between $200,000 and $310,000 per vessel for mechanical treatment and
around $300,000 for chemical treatment.15 Most of this expense will be borne by
10 A detailed discussion and evaluation of various ballast water treatment options is
presented in Chapter 4 (“Shipboard Treatment Options”) of Commission on Engineering and
Technical Systems, Stemming the Tide: Controlling Introductions of Nonindigenous Species
by Ships’ Ballast Water, National Academy of Sciences (Washington, DC: 1996), 141 pp.
11 For example, Australian researchers established a pilot plant to sterilize ballast water
using a combination of filtration, ultraviolet light, and sonic disintegration. For more
information, see David Salt, “Shipboard Pests get Sterile Treatment,” ABC Science Online,
Sept. 30, 2003; available at [http://www.abc.net.au/science/news/enviro/EnviroRepublish_
12 The Coast Guard is studying methods to address NOBOB concerns; for more information,
see 70 Fed. Reg. 1448-1449 (Jan. 7, 2005).
13 David T. Stocks, “Biocides Testing in the Great Lakes,” BMT Focus (Summer 2002): 12;
available at [http://www.bmt.org/brochures/Focus%20Summer%202002.pdf].
14 State Water Resources Control Board, Evaluation of Ballast Water Treatment Technology
for Control of Nonindigenous Aquatic Organisms, California Environmental Protection
Agency (December 2002); available at [http://www.calepa.ca.gov/Publications/Reports/
15 Frans J. Tjallingii, Market Opportunities for Ballast Water Treatment, Royal Haskoning,
International Ballast Technology Investment Fair, Chicago, IL, Sept. 21, 2001, available at
foreign shipping companies, as the U.S. flag fleet is a small percentage of the global
fleet,16 and likely passed along to consumers of products imported on these ships.
The likelihood of compliance by the foreign flag fleet was increased by the February
2004 conclusion of an international agreement on ballast water management (see
International Efforts, below).
Current U.S. Law
Attempts to address ballast water concerns in the United States began with the
Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA),17
which established a federal program to prevent the introduction and to control the
spread of unintentionally introduced aquatic nuisance species. The U.S. Coast
Guard, U.S. Environmental Protection Agency (EPA), U.S. Fish and Wildlife Service
(FWS), Army Corps of Engineers, and National Oceanic and Atmospheric
Administration (NOAA) shared responsibilities for implementing this effort, acting
cooperatively as members of an Aquatic Nuisance Species (ANS) Task Force to
conduct studies and report to Congress to (1) identify areas where ballast water
exchange can take place without causing environmental damage; and (2) determine
the need for controls on vessels entering U.S. waters other than the Great Lakes.
Under §1101 of NANPCA, a Great Lakes BWM program (voluntary in its first two
years) became mandatory in 1992. This section directed the Coast Guard to issue
regulations (33 CFR Part 151) to prevent the introduction and spread of aquatic
nuisance species into the Great Lakes through the ballast water of vessels and
established civil and criminal penalties for violating these regulations. NANPCA
also encouraged the Secretary of Transportation (but now the Secretary of Homeland
Security) to negotiate with foreign countries, through the International Maritime
Organization, to prevent and control the unintentional introduction of aquatic
In 1996, the National Invasive Species Act (NISA) amended NANPCA to create
a national ballast management program modeled after the Great Lakes program
wherein all ships entering U.S. waters (after operating outside the U.S. Exclusive
Economic Zone) are directed to undertake high seas (i.e., mid-ocean) ballast
exchange or alternative measures pre-approved by the Coast Guard as equally or
more effective. While not initially enforced on a ship-by-ship basis, this national
program was to have become mandatory within three years of the date the Coast
Guard issued its voluntary guidelines18 if ships did not show adequate compliance
with the program19 in the absence of enforcement.
[http://www.nemw.org/ fairtj allingii.pdf].
16 As of July 2003, U.S. flag vessels comprised 1.65% of the global merchant fleet tonnage,
according to statistics from U.S. Maritime Administration, available at [http://www.marad.
dot.gov/Marad_Statistics/mf w-7-03.htm] .
17 Title I of P.L. 101-646; 16 U.S.C. §§4701, et seq.
18 64 Fed. Reg. 26672-26690 (May 17, 1999). These voluntary guideline regulations were
effective July 1, 1999.
19 If the voluntary program did not result in sufficient compliance, reporting of BWM
The National Ballast Information Clearinghouse (NBIC) was developed jointly
by the Coast Guard and the Smithsonian Environmental Research Center to
synthesize, analyze, and interpret national data concerning BWM. During the first
two years (July 1999 through June 2001), the NBIC found that nationwide
compliance with ballast exchange reporting requirements was low, with only 30.4%
of vessels entering the U.S. Exclusive Economic Zone (EEZ) filing reports with the
NBIC.20 In addition, a Coast Guard Report to Congress concluded that reporting
compliance was insufficient to allow an accurate assessment of voluntary BWM.21
On January 6, 2003, the Coast Guard proposed penalties for those who failed to
submit BWM reports required by 33 U.S.C. §151 Subpart D for most vessels entering
U.S. waters.22 The Coast Guard published final regulations on June 14, 2004.23
NISA encouraged negotiations with foreign governments to develop and
implement an international program for preventing the introduction and spread of
invasive species in ballast water. NISA also required a Coast Guard study and report
to the Congress on the effectiveness of existing shoreside ballast water facilities used
by crude oil tankers in the coastal trade off Alaska, as well as studies of Lake
Champlain, the Chesapeake Bay, San Francisco Bay, Honolulu Harbor, the Columbia
River system, and estuaries of national significance.24 Under NISA, a Ballast Water
Management Demonstration Program was authorized to promote the research and
development of technological alternatives to ballast water exchange.
NISA has been criticized as inadequate and faulted for several alleged
shortcomings, including agency weakness or delay in implementing some of its
provisions.25 Since NISA exempted most coastwise vessel traffic from ballast water
exchange guidelines, vessels traveling short distances between U.S. ports (e.g., from
San Francisco Bay, which is highly invaded, to Puget Sound, which is less so) are
exempt from controls. Others are critical of the provisions of 16 U.S.C.
§4711(k)(2)(A) giving the vessel owner a blanket exemption to ignore any mandatory
regulations if the master determines that the vessel might not be able to safely
conduct a ballast water exchange on the open ocean. Whereas earlier provisions
applicable to the Great Lakes provided a safety exemption, the master/captain of a
practices would become mandatory for nearly all vessels entering U.S. waters (33 CFR
20 G. M. Ruiz, et al., Status and Trends of Ballast Water Management in the United States:
First Biennial Report of the National Ballast Information Clearinghouse (Edgewater, MD:
Smithsonian Environmental Research Center, Nov. 16, 2001), p. 4.
21 U.S. Coast Guard, Report to Congress on the Effectiveness of the Voluntary BWM
Program, June 3, 2002.
22 68 Fed. Reg. 523-530 (Jan. 6, 2003).
23 69 Fed. Reg. 32864-32871 (June 14, 2004).
24 As defined for the National Estuary Program in 33 U.S.C. §1330.
25 Letter of Feb. 11, 1999, to Hon. Carol Browner, Administrator of the U.S. Environmental
Protection Agency, from Representatives George Miller, Jim Saxton, and 16 other Members
of the U.S. House of Representatives.
vessel was required to report the problem to the Coast Guard and conduct alternate
BWM measures, often negotiated on a case-by-case basis. Critics believe the NISA
language has eliminated any incentive to change ballast water piping systems or
adopt other management or treatment options to deal with the problem safely.
Finally, NISA has been criticized for its apparent failure to actually prevent
additional introductions of damaging organisms into the Great Lakes, despite this
being the one area where the requirements for managing ballast water have been the
most stringent for the longest time.26
Under NANPCA, the Coast Guard is responsible for developing and
implementing a BWM program to prevent the unintentional introduction and
dispersal of nonindigenous aquatic species into waters of the United States from ship
ballast water.27 Initially this was accomplished through a mandatory BWM program
for the Great Lakes ecosystem and voluntary guidelines for the remainder of U.S.
waters. Relevant regulations, published at 33 CFR Part 151, Subparts C and D, went
into effect in 1993. Under these regulations, the Coast Guard enforced mandatory
requirements for ballast water management only for the Great Lakes. Ballast water
reporting data for inbound vessels was submitted via fax either directly to the Captain
of the Port (COTP) Buffalo or U.S. Coast Guard’s Marine Safety Detachment (MSD)
Massena, or via the Saint Lawrence Seaway Development Corporation (SLSDC) to
MSD Massena at least 24 hours before arrival (33 CFR 151.2040). Compliance with
these requirements was essentially 100%. Every vessel that reports that it is carrying
ballast water on board (BOB) while transiting to the Great Lakes underwent ballast
water inspections by either MSD Massena at the locks in Massena, NY, or by the
SLSDC in Montreal. Compliance with the mandatory ballast water requirements
averaged approximately 92% in the late 1990s and early 2000s for those vessels
declaring BOB. Those vessels found to not have conducted proper exchange were
ordered not to discharge ballast water in the Lakes. For these vessels, or if the vessel
declared that it intended to retain its ballast water on board while in the Great Lakes
system, then MSD Massena again boarded the vessel after it has made port calls in
the Lakes and passed the lock in Massena on its outbound transit to ensure the vessel
had not discharged while in the Lakes. Vessel compliance with the order not to
discharge has been excellent.28
As stated in the Secretary of Transportation’s November 2001 United States
Coast Guard Report to Congress on the Voluntary National Guidelines for Ballast
26 Union of Concerned Scientists, The National Invasive Species Act: An Information
Update (Cambridge, MA: August 2002); available at [http://www.ucsusa.org/assets/
27 An April 29, 2008 lawsuit by the Izaak Walton League and several other environmental
groups in a Minnesota federal district court seeks to require the Coast Guard to prevent
vessels from taking on and moving ballast water from waters of the Great Lakes to prevent
the spread of viral hemorrhagic septicemia to Lake Superior from adjacent lakes. For
additional information, see [http://www.greatlakeslaw.org/blog/files/vhs_complaint.pdf].
28 Personal communication with Jill R. Teixeira, Lieutenant Junior Grade, U.S. Coast Guard,
Office of Congressional & Governmental Affairs, Washington, DC, Mar. 30, 2004.
Water Management,29 the Coast Guard began developing regulations requiring active
BWM of all ships that enter U.S. waters after operating beyond the EEZ, including
sanctions for failure to comply. On July 30, 2003, the Coast Guard proposed
mandatory BWM practices for all vessels with ballast tanks bound for ports or places
within the United States or entering U.S. waters, but excluding domestic port-to-port
voyages.30 The Coast Guard published final regulations on July 28, 2004, extending
BWM requirements already in place for vessels entering the Great Lakes and Hudson
River to all U.S. ports and waters.31 The Coast Guard requested comments on
potential revisions to mandatory ballast water management reporting requirements
in early 2007.32
The Coast Guard also has taken action to establish a quantitative ballast water
treatment performance standard; protocols for testing, verifying, and reporting on
treatment technologies; and a program to facilitate experimental shipboard
installation and operation of promising technologies. On March 4, 2002, the Coast
Guard published an advance notice of proposed rulemaking, seeking comments on
development of a ballast water treatment goal and an interim ballast water treatment
standard as part of regulations that would make guidelines for ballast exchange
mandatory.33 On September 26, 2003, the U.S. Coast Guard announced its intent to
prepare a Programmatic Environmental Impact Statement for proposed regulatory
action to establish a ballast water discharge standard.34 Such a standard would
establish the required level of environmental protection necessary to prevent
introductions and combat the spread of invasive species from ballast water
discharges. Comments were accepted on this proposal through December 26, 2003.
On May 2, 2006, the U.S. Coast Guard published a request for public comment on
the status of research and development of ballast water management systems and
analytical technologies for testing such systems.35
On January 2, 2004, the U.S. Coast Guard announced the beginning of a
program to facilitate the installation of experimental shipboard ballast water
treatment systems on both foreign and domestic vessels.36 This Shipboard
Technology Evaluation Program (STEP) aims to promote research and development
of shipboard ballast water treatment systems through regulatory incentives, creating
more options for vessel owners seeking alternatives to ballast water exchange.
Regulatory incentives would grant conditional equivalencies for accepted vessels in
the STEP that might not meet discharge standards mandated by future regulations.
On August 5, 2004, the U.S. Coast Guard announced its interest in establishing a
29 This report is available at [http://dmses.dot.gov/docimages/pdf84/211672_web.pdf].
30 68 Fed. Reg. 44691-44696 (July 30, 2003).
31 69 Fed. Reg. 44952-44961 (July 28, 2004).
32 72 Fed. Reg. 2536-2537 (Jan. 19, 2007).
33 67 Fed. Reg. 9632-9638 (Mar. 4, 2002).
34 68 Fed. Reg. 55559-55563 (Sept. 26, 2003).
35 71 Fed. Reg. 25798-25799 (May 2, 2006).
36 For additional information, see [http://www.uscg.mil/hq/g-m/nvic/04/NVIC_01-04.pdf].
program to approve ballast water treatment systems to assure that approved systems
meet ballast water discharge standards the Coast Guard anticipates implementing.37
The Department of State participated in negotiations through the International
Maritime Organization to develop an international convention to control the spread
of invasive species from the exchange of ships’ ballast water. (See “International
Through both the National Sea Grant College program and a BWM technology
development program, NOAA has funded research on alternatives to ballast water
exchange as methods of BWM.38 NOAA’s Great Lakes Environmental Research Lab
(GLERL) targets prevention and control to stop the inflow and spread of new aquatic
organisms, with particular emphasis on ship ballast. GLERL, with combined funding
from NOAA and several other agencies, developed and provides leadership for the
Great Lakes NOBOB and Ballast Exchange research program, focusing on the
biological assessment of ballast tank residuals and the experimental determination
of effectiveness of ballast exchange. In this program, GLERL scientists collaborate
with scientists at several universities and the Smithsonian Environmental Research
Center. In a related project, scientists at GLERL and the University of Michigan are
evaluating two chemicals for use on residuals in NOBOB tanks. In addition, GLERL
has been working on developing a model of ballast tank flow during ballast tank
exchange. NOAA also manages the Ballast Water Management Demonstration
Program grant competition.39
The Department of Defense (DOD) is promulgating joint regulations with the
EPA covering discharges from DOD vessels (40 CFR 1700) to implement §312(n)
of the Clean Water Act (33 U.S.C. §1322(n)). When complete, they will set
discharge standards for vessel ballast water to address the environmental effect of
non-native species introduction via that ballast water (as well as addressing chemical
pollution from other Armed Forces vessel discharges). The regulations are being
developed in three phases. The first, completed in May 1999, determined which
ballast water discharges would require control. The second, currently in progress,
will set performance standards, and the third will promulgate regulations for meeting
The Smithsonian Environmental Research Center performs research to examine
patterns of ballast water delivery and measures species transfer associated with
shipping. In cooperation with the Coast Guard, the center established the National
Ballast Information Clearinghouse (NBIC)40 to measure the changing patterns of
ballast water delivery and management for vessels arriving in U.S. ports and to
37 69 Fed. Reg. 47453-47454 (Aug. 5, 2004).
38 The most recent request for proposals for ballast water treatment technology testing and
demonstration projects was published by NOAA at 71 Fed. Reg.33898-33929 (June 12,
39 A notice of grant funding available for FY2008 was published at 72 Fed. Reg. 73325-
40 For more information on the NBIC, see [http://invasions.si.edu/NBIC/ballast.html].
synthesize national data on patterns and impacts of alien species in coastal
The EPA establishes water quality standards and regulates discharges under the
Clean Water Act.41 On September 9, 2003, the EPA announced that it was denying
a 1999 petition by the Pacific Environmental Advocacy Center, Center for Marine
Conservation, San Francisco Bay Keeper, and a number of other concerned groups
to require regulation of vessel ballast water discharges through Clean Water Act
permits, arguing that the Coast Guard was the more appropriate regulatory agency.42
This decision did not alter the development and implementation of the joint EPA-
DOD regulations covering discharges from DOD vessels (discussed above) because
this DOD effort is specifically authorized in statute. In late December 2003, three
Pacific Coast environmental groups filed suit, seeking to force the EPA to regulate
ballast water discharges under the Clean Water Act.43 On September 18, 2006, the
federal district court ruled that EPA’s regulation exempting ballast water discharges
from the Clean Water Act was contrary to congressional intent and ordered EPA to
promulgate new regulations within two years (i.e., September 30, 2008).44 This
ruling, which the government has appealed to the U.S. Court of Appeals for the Ninth
Circuit, directs EPA to ensure that shipping companies and other vessels comply with
the Clean Water Act by restricting the discharge of invasive species in ballast water
under that act’s permit program. In light of this ruling, concern has arisen in the 110th
Congress as to what extent legislation proposing national standards for ballast water
management to be administered by the Coast Guard, such as those outlined in H.R.
2830 and S. 1578, might conflict with EPA regulation of ballast water discharges as
water pollutants under the Clean Water Act.45 Additional legislation in the 110th
Congress intends to exempt recreational boats from permitting requirements as a
result of the Northwest Environmental Advocates litigation.46
In addition to federal programs and sometimes in response to perceived
deficiencies in federal regulation, several states have chosen to regulate aspects of
41 33 U.S.C. §§1251, et seq.
42 68 Fed. Reg. 53165-53166 (Sept. 9, 2003). A copy of the EPA decision was available at
[http://www.epa.go v/ npdes/pubs /ballast_report_petition_response.pdf].
43 Cathy Zollo, “Environmental Groups Seek EPA Rules for Ballast Water,” Naples Daily
News, Dec. 24, 2003, available at [http://www.naplesnews.com/news/2003/dec/24/ndn_
envi ronmental_gr oups_seek_epa_rules_for_ballas/].
44 Northwest Environmental Advocates, et al. v. U.S. Environmental Protection Agency,
Case No. C 03-05760 SI (N.D. Cal., decided Sept. 18, 2006).
45 Updated information on bills addressing BWM issues in the 110th Congress can be found
in CRS Report RL33813, Fishery, Aquaculture, and Marine Mammal Legislation in theth
46 See CRS Report RS22878, Clean Water Act: Legislation Concerning Discharges from
Recreational Boats, by Claudia Copeland.
ballast water management, including Maryland,47 California,48 Oregon,49
Washington,50 and Michigan.51 In light of this state action, provisions in some of the
measures under consideration in the 110th Congress, such as H.R. 2830 and S. 1578,
would preempt state ballast water discharge standards that are more stringent than
federal standards, while continuing to allow states to inspect and enforce federal
ballast water standards.
In July 1991, the International Maritime Organization’s (IMO’s) Marine
Environmental Protection Committee (MEPC) issued voluntary International
Guidelines for Preventing the Introduction of Unwanted Aquatic Organisms and
Pathogens for Ships’ Ballast Water and Sediment Discharges, adopted in Resolution
(50) 31 by a diplomatic conference of the IMO in November 1993. IMO members
were requested to follow these guidelines, which also called for exchange of ballast
water in the open ocean (to reduce transfer of species from port to port). A review
conducted by Australia in 1993 revealed that few countries had implemented the
guidelines. In 1994, the MEPC established a ballast water working group to draft
regulations for the control and management of ships’ ballast water. These draft
regulations were debated at the November 1998 and June 1999 MEPC meetings.
IMO subsequently proposed these management protocols as a formal IMO
instrument. This instrument requires all ratifying member nations to follow the
regulations, which would include open-ocean exchange.
On February 13, 2004, an International Convention for the Control and
Management of Ships’ Ballast Water and Sediments was adopted at the International
Conference on Ballast Water Management for Ships in London, England. This
Convention will enter into force 12 months after ratification by 30 nations,
representing 35% of the world merchant shipping tonnage.52 The United States was
one of the major proponents of this convention, which requires all ships to implement
a Ballast Water and Sediments Management Plan. In addition, all ships must carry
a Ballast Water Record Book and will be required to conduct BWM procedures in
conformity with a specified standard. These standards will be phased in for various
47 See [http://www.mde.state.md.us/businessinfocenter/pollutionprevention/ballast%20water
%20management/index.asp] for details on Maryland’s program.
48 See [http://www.slc.ca.gov/division_pages/depm/depm_programs_and_reports/shore_
terminals/text/40%20appendix%20e.doc] for details on California’s program.
49 See [http://www.deq.state.or.us/wmc/pubs/factsheets/cu/oregonballastwatermanagement.
pdf] for details on Oregon’s program.
50 See [http://www.wdfw.wa.gov/fish/nuisance/ballast.htm] for details on Washington’s
51 See [http://www.olemiss.edu/orgs/SGLC/National/Ballast%20Water.pdf] for details on
52 As of May 31, 2008, this Convention had been ratified by 14 nations, representing 3.55%
of the world merchant shipping tonnage. Updated status information can be found at
[ ht t p: / / www.i mo.or g/ Convent i ons/ mai nf r a me .asp?t opi c_i d=247] .
vessels, depending upon when they were constructed.53 Resistence by vessel owners
to the new international requirements for ballast water treatment is tempered by their
interest in global standards under the IMO Convention as opposed to the increasing
number of national ballast water programs developed around different approaches for
addressing this concern. However, U.S. legislation under consideration by the 110th
Congress could mandate ballast water treatment standards as much as 100 times more
stringent than those required by the IMO Convention, possibly making the IMO
Convention irrelevant, if the more stringent standards could be met with readily
available treatment technology at no substantially greater expense.54
Bilaterally with Canada, the United States is cooperating through the North
American Commission for Environmental Cooperation (CEC),55 the Great Lakes
Commission, and the International Joint Commission to better understand,
coordinate, and address ballast water management concerns. Improved ballast water
management is one component of the CEC’s project on “Closing the Pathways of
Aquatic Invasive Species across North America.”56 The Great Lakes Commission
convened the “Great Lakes Panel on Aquatic Nuisance Species” in late 1991 to
coordinate efforts, including ballast water management.57 In addition, the
International Joint Commission (IJC) views invasive species management as an
important component of water quality.58 Furthermore, the Saint Lawrence Seaway
Development Corporation jointly administers regulations and seeks to harmonize
ballast water regulations for vessels transiting U.S. waters of the Seaway after having
operated outside the U.S. EEZ with those required by Canadian authorities for transit
in waters under Canadian jurisdiction.59
Congressional hearings on ballast water issues and implementation of NISA
were held in the 107th, 108th, and 109th Congresses.60 Certain testimony at these
53 Details on this new Convention were available at [http://globallast.imo.org/index.asp?
54 Rajesh Joshi, “New US Ballast Water Plan a Threat to IMO Convention,” Lloyd’s List,
May 1, 2008, available at [http://www.lloydslist.com/ll/news/new-us-ballast-water-plan-a-
threat-t o-imo-convention/1209460697594.htm] .
55 Established under the authority of the North American Free Trade Agreement.
56 Additional information on this project was available at [http://www.cec.org/programs_
proj ects/conserv_biodiv/ proj ect/index.cfm?proj ectID=20&varlan=english].
57 Additional information on this panel was available at [http://www.glc.org/ans/].
58 Additional information on these concerns was available from the IJC’s annual report,
available at [http://www.ijc.org/php/publications/html/11br/english/report/chapter3/].
59 73 Fed. Reg. 9950-9954 (Feb. 25, 2008).
60 U.S. Congress, Committee on Resources, Subcommittee on Fisheries Conservation,
Wildlife, and Oceans and Committee on Science, Subcommittee on Environment,th
Technology, and Standards, H.R. 5395 and H.R. 5396, Joint legislative hearing, 107 Cong.,
2d sess., (Washington, DC: Nov. 14, 2002), 80 pp.; U.S. Congress, Committee on
hearings has been particularly critical of the slow progress in promulgating
regulations to implement NISA. Information on bills introduced and legislative
action to address various aspects of BWM issues in the 110th Congress can be found
in CRS Report RL33813, Fishery, Aquaculture, and Marine Mammal Legislation in
the 110th Congress, by Eugene H. Buck, under the “Invasive Species” heading.
Resources, Subcommittee on Fisheries Conservation, Wildlife, and Oceans, and
Subcommittee on National Parks, Recreation, and Public Lands, The Growing Problem ofthst
Invasive Species, joint legislative hearing, 108 Cong., 1 sess. (Washington, DC: Apr. 29,
Subcommittee on Fisheries, Wildlife, and Water, National Aquatic Invasive Species Act ofthst
an as-yet-unpublished joint hearing of Mar. 25, 2004, by the House Committee on
Transportation and Infrastructure, Subcommittees on Coast Guard and Maritime
Transportation and on Water Resources and Environment, on Ballast Water Management:
New International Standards and National Invasive Species Act Reauthorization; U.S.
Congress, Committee on Government Reform, Subcommittee on Regulatory Affairs,
Protecting Our Great Lakes: Ballast Water and the Impact of Invasive Species, oversightthst
field hearing, 109 Congress, 1 sess. (Fair Haven, MI: Sept. 9, 2005), 133 pp.; and an as-
yet-unpublished legislative hearing of June 15, 2005, by the Senate Committee on
Commerce, Science, and Transportation, National Ocean Policy Study, on Ballast Water
Invasive Species Management and Threats to Coral Reefs.