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Law Center Identifies Potential Leaks in Michigan Ballast Water Legislation

As New Year’s confetti fluttered, Michigan Senate Bill 332 went into effect. This bill mandates that salties (ocean-going ships) intending to visit Michigan ports comply with legislation designed to prevent aquatic invasive species (AIS) from entering the environment through ballast water discharges. To comply, vessel operators must obtain a permit from the Michigan Department of Environmental Quality (DEQ).

Dale Bergeron, Minnesota Sea Grant’s maritime transportation extension educator, thinks the bill may cause ocean-going vessels to avoid Michigan ports and says it “has stirred up legal questions as well as issues about ballast water treatment technologies.”

The legislation shakes the status quo in two ways:

  • It is the first time international merchant vessels have been required to obtain a state permit,
  • It takes the rules and suggestions of both the U.S. and Canadian Coast Guards and ratchets them up a notch.

When Michigan’s Bill 332 passed in 2005, some wondered if states were allowed to regulate international commerce, traditionally the domain of federal governments. To explore this question, Bergeron sought council from the National Sea Grant Law Center in Mississippi. The results of his inquiry* suggest that Michigan’s bid to protect its ports from new AIS is likely to float…maybe not like a cork, but for awhile at least. Apparently, a few legal matters — including an international ballast water treaty, four Congressional bills, and several clauses in the U.S. Constitution — could preempt Michigan’s ballast water law and eventually sink it.

A Virus in the Ballast?

VHS, a fish virus that has caused massive fish die-offs in the Lower Great Lakes and the St. Lawrence Seaway, has fueled additional ballast water discussions and legal actions in the Great Lakes Basin and in Washington, D.C. In November, Michigan requested that the federal Animal and Plant Health Inspection Service (APHIS) order an emergency ban on freighters filling their ballast tanks in virus-infected waters to protect the Upper Great Lakes. This request came shortly after APHIS issued an emergency order greatly restricting the transport of most live game and baitfish from Great Lakes states and provinces in response to the virus.

The ballast ban request is unlikely to be fulfilled because of the way it would cripple shipping within the Great Lakes. Also, whether VHS could endure a free-floating ride in ballast water is unknown. However, the virus does infect round gobies, a species commonly believed to travel with ballast. Signs of an infected fish include:

  • Bulging eyes
  • Pale gills
  • Evidence of bleeding around eyes, bases of the fins, side, and head
  • Darkening overall color
  • Distended (fluid-filled) belly
  • Corkscrew swimming behavior

(From: Fisheries and Ocean Canada, July 2006)

The Tumultuous World of Ballast Law

When traveling without cargo, a ship might pump thousands of gallons of water and maybe a few aquatic organisms into its ballast tanks. This water stabilizes the ship until it is expelled as cargo replaces its weight. The economic and environmental damages wrought by zebra and quagga mussels in the Great Lakes are examples of what ballast-borne invaders can do.

According to the U.S. Constitution’s Supremacy Clause, international treaties trump federal laws, which in turn trump state laws. If Congress ratifies the existing ballast water treaty spearheaded by the United Nations’ International Maritime Organization, the treaty will become “the supreme law of the land,” meaning states like Michigan will need to defer to the agreed upon international standards. Currently, 30 more signatures and then 12 months are needed before it will go into effect. Similarly, if Congress signed one of the relevant federal bills roaming Capital Hill, any state laws regarding ballast water management would be preempted.

The Commerce Clause could also confound Bill 332 and similar legislation passed by individual states. This clause permits the federal government to preempt a valid state law if it interferes with commerce among states, tribes, or foreign nations. Since many fleet operators would need to install new equipment, retrofit existing infrastructure, and train personnel to comply, they (or others impacted by the new law) might legally challenge Bill 332 as damaging to international commerce.

No More Free Rides?

The U.S. and Canadian Coast Guards shoulder the burden of keeping AIS out of the Great Lakes. The U.S. Coast Guard requires salties carrying ballast water and operating in the Great Lakes or on the Hudson River to either:

  • Exchange ballast water at least 200 miles off shore and more than 2,000 meters deep, or
  • Retain all ballast water onboard.

A third option — using Coast Guard-approved methods to treat ballast water — will become viable when the Coast Guard approves such alternatives.

Of the roughly 500 salties entering the Great Lakes in a year, only about 10 percent come under federal ballast discharge regulations. The rest are exempt because they are cargo laden and report no ballast onboard (NOBOB). NOBOB vessels are required to submit ballast water reporting forms and encouraged to flush their ballast tanks mid-ocean (swish and spit) but they may still carry residual water or sediments into the Great Lakes.

Motivated by the number of new invasive species reports from the Great Lakes, Michigan lawmakers insist all ships with ballast tanks that have floated on salt water and then expect to use ports in the ‘wolverine state’ need scrutiny and a $150 annual permit; NOBOB vessels included. Additionally, by approving Bill 332, they indicated dissatisfaction with mid-ocean ballast flushing and its ability to purge potential AIS. The new Michigan law requires that ballast water be kept onboard, or be treated by a state-approved method before discharge.

“Michigan is taking a necessary and important step towards protecting the Great Lakes,” said Robert McCann, Press Secretary for the Michigan Department of Environmental Quality. “We’re proud to be moving forward but, to really succeed in stopping invasive species from entering the Great Lakes through ballast water, every Great Lakes state and every Great Lakes province needs to participate.”

“Similar ballast laws are being considered in Minnesota, Wisconsin, and Indiana,” said Bergeron. “What happens with the Michigan law will likely impact what those states attempt.” Among Michigan ports, Detroit and Menominee could be most affected by the new law since they handle the majority of saltwater ships in the state. However, the number of ships is very small since most of the salties on the Great Lakes are bound for Canadian ports and terminals in other states.

To date, no shipping companies have applied for a Ballast Water Control General Permit from Michigan — although there is still time, since the ocean-going shipping season doesn’t begin until late March.

*Michigan’s New Ballast Water Regime: Navigating the Treacherous Waters of States’ Rights, Federal Preemption, and International Commerce. October 2006. A white paper prepared by Stephanie Showalter and Terra Bowling, Sea Grant Law Center. Access it online here.

By Sharon Moen
February 2007

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