Ballast Water Regulation

March 16, 2023 LCA

The Lake Carriers’ Association (LCA) has been proactive with addressing ways to limit and stop aquatic non-native species from entering and spreading within the Great Lakes. 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.

In the 1990’s, the LCA instituted best management practices (BMPs) for ballast water and vessel modifications to minimize uptake and discharge of viable organisms. These BMPs and vessel modifications successfully managed ballast water and later were implemented by the U.S. Environmental Protection Agency for all vessels. The LCA also partnered with the Great Lakes Protection Fund and researched the use of filters to reduce the risk of introducing non-native species into the Great Lakes.

In 2006, the LCA worked to finalize regulations to monitor and control the primary pathway for aquatic non-native species to enter the Great Lakes-St. Lawrence Seaway from oceangoing vessels (i.e., “salties”). These regulations required “salties” to flush and exchange their ballast water no less than 200 nm from the U.S. and Canadian coasts.  According to U.S. and Canadian lawmakers, this saltwater flush is 100% effective at killing or flushing any fresh or brackish water organism out of the ballast water tanks.  Since 2006, no known new non-native species have been introduced into the Great Lakes via ballast water.  Also, since 2006, no existing non-native species have been known to be spread within the Great Lakes via ballast water.

From 2008 through present day, the LCA engaged with the U.S. Coast Guard (USCG), U.S. Environmental Protection Agency (EPA), and the eight Great Lakes States to educate regulators and ensure that requirements are effective but do not impede U.S.-flagged Laker operations. Unfortunately, confusing requirements from the USCG, U.S. EPA, and seven of the eight Great Lakes states complicate vessel operations.

Due to the confusing U.S. ballast water regulatory framework, the LCA worked to pass the Frank LoBiondo Coast Guard Authorization Act of 2018 that included Title IX – the Vessel Incidental Discharge Act (VIDA) with a purpose to establish uniform, environmentally-sound standards and requirements for vessel discharges.  The U.S. EPA would be responsible for the development of performance standards, while the USCG would be responsible for the compliance and enforcement of those standards.  State regulations would no longer be applicable, but VIDA included provisions for the eight Great Lakes States to modify or add ballast water management BMPs or amend the ballast water discharge standards.  Five of the eight Great Lakes States must approve the modification of BMPs.  All eight Great Lakes States must approve any change to the ballast water discharge standards.

According to VIDA, the U.S. EPA was to set national standards of performance within two years of VIDA’s enactment (i.e., December 4, 2020).  On October 26, 2020, the U.S. EPA proposed Vessel Incidental National Standards of Performance for public comment.  The comment period closed on November 25, 2020.  The U.S. EPA proposed that all vessels (i.e., U.S. and Canadian) operating exclusively on the Great Lakes would be exempt from the ballast water discharge standards.  On January 19, 2023, the U.S. EPA announced that a Supplemental Notice would be published in Fall 2023 and that the final regulation is anticipated by Fall 2024.  The Supplemental Notice will provide “clarification on the proposed rule, share new ballast water data that EPA is receiving from the U.S. Coast Guard, and discuss additional regulatory options”.

Meanwhile, Transport Canada further complicated ballast water regulation by publishing their final ballast water regulations on June 4, 2021. Transport Canada will require U.S.-flagged Lakers to install a ballast water management system (BWMS) even if only uptake of ballast water occurs. Vessels constructed on or after 2009 will have until September 8, 2024, to come into compliance with the performance standard, while those vessels constructed before 2009 will have until September 8, 2030, to come into compliance. This regulatory move comes as Transport Canada has publicly stated that BWMS are not able to be operated in the Great Lakes and are not achieving the discharge standards.  The Transport Canada regulation includes a “deemed compliance” provision to “address the risk that BWMS might not consistently meet the performance standard in the Great Lakes region due to the challenging water quality conditions”.  While Transport Canada states this is to “increase environmental protection”, no spread of non-native species have been identified from U.S.-flagged Lakers within the Great Lakes, including Canadian waters or ports.  The Transport Canada ballast water regulations in the Great Lakes are only being developed to provide an economic advantage to Canadian ship owners over their U.S. counterparts to dominate the cross-border trade.

As previously reported, the LCA petitioned the U.S. Federal Maritime Commission (FMC) to investigate the Transport Canada regulation as 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.  Unfortunately, the FMC will not likely make a decision until the U.S. EPA finalizes Laker ballast water requirements.

U.S. and Canadian regulations must be fair and compatible.  Mandatory use of unproven technology in the Great Lakes could halt commercial maritime operation to the detriment of the U.S. economy with little or any known environmental benefit.

The LCA has been proactive in providing information to the U.S. EPA and offering to participate in Transport Canada projects. We, as well as our members, have provided evidence that current BWMS are not designed for operation in freshwater. We continue to work for options that include proven technology and align with the operational and design limitations of Lakers while protecting the Great Lakes.

The maritime industry has a long history of establishing best management practices and technical innovations to ensure the Great Lakes ecosystem is protected.  We will continue to fight for regulations that are equitable and that protect the Great Lakes ecosystem and economy.

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