The Observer, September 2007

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Congress debates new ballast-water law as EPA acts under older statute

This summer saw movement on two fronts on one of the citizens’ council’s key issues: the risk of Alaska being invaded by alien species arriving in oil-tanker ballast water.

One front is at the Environmental Protection Agency. As ordered by a federal judge in California, EPA has taken the first steps to develop ballast water regulations that would go into effect in September of next year, and the council has already submitted comments.

In Congress, meanwhile, companion bills on ballast water management have been introduced in the House and Senate, the latter with Alaska Sen. Ted Stevens as a cosponsor. Stevens was one of the legislators with whom council representatives discussed ballast water issues during a visit to Washington, D.C., earlier this year. That bill would give authority for regulating ballast water to the Coast Guard, rather than EPA.

The EPA’s call for input on ballast-water regulation (and on other issues raised by the California court decision) was very general. That was a reflection of the sweeping nature of the ruling. The court overturned a long-standing EPA position that ballast-water discharges, deck runoff, and many other types of discharges from many types of vessels (not just oil tankers) weren’t covered by the Clean Water Act, and so did not have to be regulated. As a result, EPA is now starting the regulatory process for what it estimates could be more than 13 million recreational boats, fishing vessels, freighters, barges, and tankers. At the same time, the government is appealing the court decision in hopes of a reversal.

In June, EPA started the regulatory process by seeking comment on such things as the number of vessels that might be covered by the ruling, how their owners could be informed, where the vessels travel and what type of operations they conduct, the nature and environmental impacts of discharges from these vessels, and what can be done to control the discharges.

The council’s comments were limited to the question of tanker ballast water. As in the past, the council warned that continuing to allow untreated ballast water discharges into Prince William Sound could lead to a devastating invasion by non-indigenous species and urged immediate action.

Oil tankers take on ballast water in West Coast ports like San Francisco and Long Beach to provide navigational stability during the trip to Alaska, when they aren’t carrying oil. As these ports of origin are known to be infested with invasive species, this ballast water can become a threat when the tankers discharge it into Prince William Sound before loading oil in Valdez.

Some ballast water is carried in the empty oil tanks, and poses no invasion threat, as the oily remnants in the water kill any organisms present. This water is cleaned on shore in Valdez before being released into the Sound.

However, much of the ballast water is carried in segregated tanks that never contain oil. Organisms in this water readily survive the short trip to Valdez and are discharged alive into the Sound, which is the reason for the council’s concern.

If the government loses its appeal, “EPA should regulate ballast water from crude oil tankers serving the Valdez Marine Terminal as a national priority,” Executive Director John Devens wrote in the council’s Aug. 6, 2007, comments. “Prince William Sound Alaska not only serves as a major oil terminal for our nation, but this region provides our nation with high quality seafood and pristine recreational opportunities, unmatched elsewhere in the United States.”

Unlike the EPA’s regulatory notice, the legislation introduced in Congress is very specific about what tanker operators would have to do to manage ballast water. Until technology was developed to treat ballast water and remove non-indigenous species in accordance with standards set out in the legislation, tanker operators would be required to exchange ballast water at sea, starting a year from the date the law was passed.

At-sea exchange involves discharging ballast water taken on in port and replacing it with water from the high seas. This is a fairly effective deterrent to non-indigenous species invasions for two reasons. For one, the high seas are relatively low in nutrients and not many micro-organisms can live in the surface water there. For another, organisms that can live on the high seas usually cannot survive when discharged in near-shore waters and so pose little invasion risk. (Similarly, near-shore species discharged on the high seas do not survive well there.)

When or if Congress will act on the ballast-water legislation is unclear, but the council will continue to monitor it, as well as EPA’s regulatory process.

“It’s good to see legislators and agencies starting to pay attention to this issue at the same time,” Devens said. “We’ve seen flurries of interest in the ballast water problem before, without anything actually getting done. We’re hoping this time will be different.”