9th Circuit Court tells EPA to close loophole for ballast water

In 1991, the strain of bacteria that causes cholera hitched a ride aboard a ship to kill 10,000 people in Latin America. A small striped Zebra mussel took a similar ocean voyage in the ballast of ships from Russia to become a major nuisance in North America's Great Lakes.

Despite these and hundreds of other cases of problems from invasive species, the U.S. Environmental Protection Agency has exempted ocean-going ships from laws that forbid the discharge of ballast water that just happen to bring critters to America from around the globe.

But today, the U.S. 9th Circuit Court of Appeals upheld a lower court decision that the EPA had exceeded its authority under the federal Clean Water Act to allow the exemption.

"This is a critical victory that will help protect our waters from invasive species and their damaging impacts to our environment and economy," said Pete Grannis, commissioner of the New York State Department of Environmental Conservation.

"We're reviewing the decision to determine next steps," said Benjamin H. Grumbles, EPA's assistant administrator for Water. "It's common sense and good environmental policy not to require millions of boaters and vessel owners to get federal clean water permits. We will continue to work with the public to develop a practical general permit for the vessel discharges Congress and the courts choose not to exempt from permitting."

An estimated 21 billion gallons of ballast water are released into U.S. waters each year, mostly from large ships criss-crossing the seas. Cargo vessels use ballast water to compensate for changes in their weight, filling up when empty and discharging when laden with cargo -- an action important to maintain a ship's stability.

In its 39-page ruling, Northwest Environmental Advocates v. U.S. EPA, the three-judge panel quoted the lower court's summation of the problem sourced largely on the EPA's own studies:

"With a lack of natural predators, invasive species can multiply rapidly and quickly take over an ecosystem, threatening native species. Indeed, invasive species 'are a major or contributing cause of declines for almost half of the endangered species in the United States.' Once established, invasive species become almost impossible to remove, leading "[s]cientists, industry officials and land managers [to] recogniz[e] that invasive species are one of the most serious, yet least appreciated, environmental threats of the 21st century.'"

The EPA has drafted new rules on ship charges and is taking public comment. Corry Westbrook, legislative director of the National Wildlife Federation, called the new proposal "weak" and said it "fails to fully protect U.S. waters from the serious threat of aquatic invasive spices." Westbrook called on Congress to toughen the law.

-- Kenneth R. Weiss

Photo credit: Jens Buettner