Ballast Water Regulation

June 16, 2020 LCA

Ballast water regulations that are protective of the environment, maintain efficient waterborne commerce, and are binationally compatible are critical to ensuring the ecologic and economic health of the Great Lakes region.  Regulating otherwise could bring down the most environmentally friendly mode of transportation in the lakes.  A trade of one for the other will not work.

Controlled and legally compliant vessel discharges, such as ballast water, are critical to maintain safe and efficient operations.  The maritime industry has a long history of establishing best management practices and technical innovations to ensure the Great Lakes ecosystem is protected.  Lake Carriers’ started addressing ways to limit and stop aquatic non-native species from entering and spreading within the Great Lakes in the 1990’s by developing and instituting best management practices on the handling of ballast water and vessel modifications to minimize uptake and discharge of viable organisms.  However, ensuing legal battles opened the door for many states and multiple federal agencies to establish their own regulatory regimes that can be difficult or impossible to meet and often conflict.  This resulted in two federal agencies and seven of the eight Great Lakes states differently regulating ballast water.  Great Lakes stakeholders pushed for a better way.

In 2006, regulations were finalized to monitor and control the primary pathway for aquatic non-native species to enter the Great Lakes-St. Lawrence Seaway from oceangoing vessels, known as “salties,” from coastal and foreign ports headed for Great Lakes destinations.  From that point forward, all of these vessels were required to flush and exchange their ballast water taken on at their last port of call no less than 200 nautical miles from the U.S. and Canadian coasts.  That exchange process is required to bring the salinity content of their ballast water to no less than 30 parts per thousand.  This so called “osmotic shock” kills or flushes any fresh or brackish water organism thus rendering the ballast water they now carry in the tanks safe for discharge in the Great Lakes.  Since 2006, according to U.S. and Canadian federal agencies and researchers, this process has been 100 percent effective.  Yes, 100 percent, meaning that there have been no known new non-native species introduced into the Great Lakes via ballast water since 2006.

However, no good deed goes unpunished as they say.  Some vocal opponents of responsible and proven effective control of “closing the door” pushed for even further regulation but focused on the U.S. and Canadian Great Lakes fleet, known as “lakers.”  It was demanded that all vessels install treatment systems for their ballast water to essentially kill all organisms, including those native to the Great Lakes, whether or not they were tested and shown to be effective in the Great Lakes (which they haven’t), exceed drinking water standards (which they do), or were operationally compatible with the lakers (which they aren’t).

No matter which side of the issue, the arguments for or against rational ballast water regulation, the common theme was uniform and harmonious regulation on both sides of the Great Lakes in the U.S. and Canada.  After years of discourse, planning, advocacy, and research, both the U.S. and Canada were heading toward a uniform regulation of ballast water …. with one catch, Canada decided to go its own way from not only the U.S., but the entire world by not only regulating what is discharged from vessels into the Canadian waters of the Great Lakes but also what is taken up in Canada into the ballast water tanks of U.S.-flag lakers to maintain safe operations.  This is like saying that of course you can’t throw a stone through somebody’s window, it’s just plain wrong and against the law.  But Canada decided to forbid anyone from picking up that rock.

Gazette I of Canada’s ballast water regulation, essentially equivalent to draft regulations issued by the U.S. for public comments, was published by Transport Canada on June 8, 2019, under the auspices of the 2001 Canadian Shipping Act and supposedly the International Maritime Organization’s 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments.  Canada’s proposal takes another step away from the International Convention by introducing the concept of “deemed compliance,” which gives a pass from meeting the discharge standard for equipment installed before September of 2024. In September 2019, Lake Carriers’ submitted their comments on Gazette I, vehemently opposed to regulating uptake of ballast water in Canadian waters and all but eliminating the U.S.-flag laker fleet from moving U.S. exports into Canadian ports, an economic power grab by Transport Canada on the behalf of Canadian and non-U.S-flag vessel operators.  Lake Carriers’ does not deny Canada’s right to regulate discharges in their waters of the Great Lakes, but it does take umbrage against Canadian regulation of U.S. waters in the Great Lakes.  Ironically, Canada raised the same objection to a New York State regulation that was later changed to accommodate Canada’s complaint.

Because of this, on March 6, 2020, Lake Carriers’ petitioned the U.S. Federal Maritime Commission (FMC) that this proposed regulation by Canada was a violation of Section 19 of the Merchant Marine Act of 1920, commonly known as the Jones Act.  On May 20, 2020, the FMC Commissioners voted unanimously to pursue an investigation into Canada’s ballast water regulation.  Don’t take this lightly, the FMC does not accept many petitions and rarely do they vote unanimously, some even posting their own comments explaining their vote.

The process has just begun and a decision will take time.

Meanwhile, on the U.S. side of the border the Vessel Incidental Discharge Act (VIDA), included in the Frank LoBiondo Coast Guard Authorization Act of 2018, establishes that long-sought process on the U.S. side of the lakes to establish uniform federal discharge requirements jointly regulated by the U.S Environmental Protection Agency (EPA) and the U.S. Coast Guard (USCG).  The regulatory result of VIDA promises to end the years of the sometimes contentious debate over regulation of vessel discharges, in particular ballast water, in U.S. waters.  The U.S. EPA is expected to finalize their portion of VIDA, establishing discharge standards, by December 2020.  The USCG will then have until December 2022 to issue their final regulations on implementing enforcement requirements on those discharges.

All we ask is that the U.S.-flag Great Lakes fleet of lakers, restricted to navigation solely in the Great Lakes and St. Lawrence River and mostly restricted to navigation in the upper four lakes, unable to transit the Welland Canal between Lakes Erie and Ontario because of their size, be regulated appropriately, taking into consideration the limitations of ballast water management systems, the inherent difficulty to treat Great Lakes freshwater, unproven technology in the Great Lakes, and the operational limitations imposed by these systems on U.S.-flag lakers that could bring commercial maritime to its knees to the detriment of the U.S. economy.

U.S. and Canadian regulations must be fair and compatible.

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