EPA Must Repeal Ballast Water Exception

Northwest Env. Advocates v. EPA, 2005 U.S. Dist. LEXIS 5373 (N.D. Cal. March 30, 2005).

Emily 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.

Background
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

The Lawsuit
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 CWA’s 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 EPA’s failure to rescind 40 C.F.R. §122.3(a) in response to plaintiff’s 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 EPA’s promulgation of 40 C.F.R. §122.3(a) is inconsistent with the EPA’s 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 EPA’s denial of plaintiff’s 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.

The 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.

Conclusion
The court concluded that the EPA’s 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 nation’s 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 nation’s 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.

Regulatory 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.

Endnotes
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 .
2. Id.
3. Id..
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.
9. Id.
10. Id. at *29.