Must Repeal Ballast Water Exception
Env. Advocates v. EPA, 2005 U.S. Dist. LEXIS
5373 (N.D. Cal. March 30, 2005).
Plett-Miyake, 3L, Vermont Law School
On March 30, 2005,
the U.S. District Court for the Northern District of California ruled
that the Environmental Protection Agency (EPA) exceeded its statutory
authority under the Clean Water Act (CWA) by issuing a regulation, 40
C.F.R. §122.3(a), that exempts discharged ballast water from CWA
pollution regulation programs. This decision marks the end of a long
struggle by environmental organizations to force the EPA to recognize
the environmental, commercial, and economic harms caused by invasive
species carried into harbors and bays via ballast water.
Ballast water is sea water that is taken on or discharged by ships in
order to accommodate changes in weight resulting from cargo loads. Tanker
ships in the Great Lakes can hold up to 14 million gallons of ballast
water, and seagoing tankers can hold twice as much. Every year, more
than 21 billion gallons of ballast water are discharged into U.S. waters
from international ports.1 Invasive aquatic plant and
animal species, including zebra mussels and Chinese mitten crabs, are
carried into harbors, bays and the Great Lakes in the greatest quantities
through ballast water.2 An estimated 10,000 marine
species are transported around the world in ballast water every day.
They have caused severe environmental harm by destroying habitat, damaging
commercial fisheries, clogging intake pipes at water treatment and power
facilities, as well as costing the United States economy estimated billions
of dollars annually.3
Six years ago, in January 1999, various environmental groups petitioned
the EPA, the agency with the primary authority to implement and enforce
the CWA, to regulate the discharge of ships ballast water into
the waters of the United States. Their petition was based on a growing
concern over the increase and impact of exotic species. Specifically,
the groups asked the EPA to withdraw its regulation, 40 C.F.R. §122.3(a).
The regulation in question states that: The following discharges
do not require NPDES permits: (a) Any discharge of sewage from vessels,
effluent from properly functioning marine engines, laundry, shower,
and galley sink wastes, or any other discharge incidental to the normal
operation of a vessel.4 The EPA has relied on
this section of the regulation to exempt ballast water, as well as a
variety of other pollutant discharges, from the CWAs National
Pollutant Discharge Elimination System (NPDES) permit program. The EPA
denied the plaintiffs petition, and the following case ensued.
In their complaint, the plaintiffs requested a declaration that
the EPAs failure to rescind 40 C.F.R. §122.3(a) in response
to plaintiffs petition was in clear violation of the CWA, and
an injunction directing the EPA to repeal and rescind 40 C.F.R. §122.3(a).5 The plaintiffs filed two specific claims against the EPA: 1) that
the EPAs promulgation of 40 C.F.R. §122.3(a) is inconsistent
with the EPAs statutory authority in the CWA and thus unlawful
and subject to review under the Administrative Procedure Act (APA),
5 U.S.C. §706(2); and 2) that the EPAs denial of plaintiffs
petition was arbitrary, capricious, and an abuse of discretion given
the CWA and subject to judicial review under §706(2) of the APA.6
The EPA argued that the District Court should not have jurisdiction
over the case and that the first claim was barred by the statute of
limitations, but the court disagreed.
Clean Water Act
The CWA prohibits the discharge of any pollutant from a point
source into navigable waters of the United States without
a NPDES permit.7 Vessels and other floating craft are
included in the definition of point sources, and the term pollutant
includes biological materials. The court found that the CWA clearly
and unambiguously supports a number of findings leading to the conclusion
that ballast water discharges must be subject to regulation and permitting.
First, the court found that ballast water discharges constitute
a discharge or addition under the CWA.8 Based on numerous reports of invasive species introduction, it has been
clearly established that ballast water discharges introduce biological
materials from outside sources. Second, the court found that the
discharged ballast water and other discharges incidental to the operation
of a vessel constitute pollutants under the CWA.9 Again, ballast water contains fish, plants, and other forms of aquatic
life that constitute biological material under the CWA.
Third, the court recognized that the EPA did not challenge the assertion
that the areas where ballast discharges occur are navigable waters
under the CWA, meaning that the CWA applies to these areas and to the
activities that affect them. Finally, the court recognized that ballast
water discharges are clearly from a point source, as the CWA makes specific
reference to vessels as point sources.
The court concluded that the EPAs regulation exempting ballast
water from the NPDES permit program should be struck down. Judge Illston
stated that, given the clear language of the CWA, the statute
requires that discharges of pollutants from . . . vessels into the nations
lakes, rivers, and harbors occur only under the regulation of an NPDES
permit. The Court found that the language of the CWA demonstrates the
clear intent of Congress to require NPDES permits before
discharging pollutants into the nations navigable waters.10 The court then stated that Congress had clearly and directly spoken
on the issues before the court, and that the EPA exceeded its statutory
authority under the APA by issuing the regulation, 40 C.F.R. §122.3(a),
exempting all ballast water discharges from the NPDES permit program
and denying the plaintiffs petition. Finally, the court issued
an order instructing the EPA to repeal the regulation.
and Political Implications
If the EPA decides not to file an appeal, or loses at the Ninth Circuit
Court of Appeals, they will likely obtain the sole policy setting control
over the ballast water issue. Congress currently has several ballast
water treatment bills pending before it, but unless one of these is
passed, the EPA will become responsible for proposing, implementing,
and enforcing ballast water regulations and permit programs.
1. Environmental News Service, Court Acts to Halt Dumping
Invasive Species in U.S. Waters, April 4, 2005. http://www.ens-newswire.com/ens/apr2005/2005-04-04-01.asp
4. 40 C.F.R. §122.3(a) (2004).
5. Northwest Environmental Advocates v. EPA,
2005 U.S. Dist. LEXIS 5373, at *6-7 (N.D. Cal. March 30, 2005).
6. Id. at *7.
7. Id. at *2.
8. Id. at *27.
10. Id. at *29.