Stephanie Showalter, J.D./M.S.E.L.

In September, a second state began asserting authority over ballast water discharges. Ballast water is a significant vector for the introduction of invasive species into coastal waters. Ships take on water, which is held in ballast tanks, to provide stability when they are not fully loaded. Some ships will then discharge that water at port as they are loading cargo. Since water contains a variety of organisms, including viruses, ballast water discharges can introduce non-native species to coastal environments which may flourish at great expense to the natural environment. The zebra mussel, for example, most likely entered the Great Lakes through ballast water.

Minnesota Permit
Vessels wishing to discharge ballast water into Minnesota state waters must now obtain a permit from the Minnesota Pollution Control Agency (MPCA).1 Michigan was the first state to require a ballast water permit, but its permit only applies to ocean-going vessels. Minnesota has gone a step further requiring both ocean-going and Great Lakes-only (“lakers”) vessels to obtain permits. Minnesota has also set treatment standards, as opposed to Michigan’s requirements for specific technology.
      Under state law, the MPCA has the authority to develop permitting programs for the prevention of pollution.2 The MPCA’s new State Disposal System (SDS) general permit applies to all vessels transiting the Minnesota state waters of Lake Superior that are (1) designed, constructed, or adapted to carry a minimum ballast water capacity of 8 cubic meters or more and (2) 50 meters in length or more. Vessels that carry ballast water in permanently sealed tanks, discharge ballast water directly to an on-shore treatment facility or another vessel, or implement flow-through or flush ballast water management techniques approved by the MPCA do not need to obtain permit coverage. Vessels of the Armed Forces and vessels operating within the Duluth Captain of the Port Zone are also exempt.
      To qualify for coverage under the general permit, vessels must maintain a Ballast Water and Sediment Management Plan and a ballast water log book, employ best management practices to minimize the discharge of aquatic invasive species, submit annual discharge monitoring reports, and install treatment technology capable of meeting certain biological performance standards. MPCA’s biological performance standards are identical to the standards mandated by the International Convention for the Control and Management of Ships’ Ballast Water and Sediments,3 although MPCA chose not to set a standard for vibrio cholera. See Table 1.
      For vessels constructed prior to January 1, 2012, treatment standards are to be met by January 1, 2016. For vessels constructed after January 1, 2012, performance standards should be met prior to operation in Minnesota waters. Additional effluent limitations, such as limits on residual chlorine, and monitoring requirements may be imposed on a case-by-case basis depending on the type of treatment technology installed on each vessel.
      The permit prohibits discharges of ballast water into designated portions of Lake Superior and the discharge of non-suspended solids. Because saltwater can be toxic to freshwater organisms, the discharge of ballast water to Minnesota harbors from vessels fully ballasted with seawater is also prohibited unless the vessel can demonstrate that the discharge will not jeopardize the harbor aquatic ecosystems.

Court Challenge
On October 22, 2008, the Minnesota Center for Environmental Advocacy petitioned the Minnesota Court of Appeals for a review of the SDS permit. The MCEA claims the MPCA failed to conduct proper non-degradation review. MCEA argues the “General Permit neither protects fully the existing uses of Lake Superior water, nor contains the highest statutory and regulatory requirements, the stringent controls and protections necessary to preserve Lake Superior’s existing high qualities and special characteristics.”4
   The EPA requires states to develop statewide antidegradation policies which must, at a minimum, maintain and protect existing uses of water bodies.5 Where high quality waters constitute an outstanding national resource, water quality must be maintain and protected.6 “To preserve the value of these special waters, the [MPCA] will prohibit or stringently control new or expanded discharges from either point or nonpoint sources to outstanding resource value waters.”7 Lake Superior was designated an “outstanding resource value waters” (ORVW) in 1984.8
      Under MPCA regulations, “no person my cause or allow a new or expanded discharge of any sewage, industrial waste, or other wastes . . . to [identified] portions of Lake Superior.”9 In the remaining areas of Lake Superior, a new or expanded discharge is not allowed unless there is no prudent and feasible alternative.10 If a new or expanded discharge is permitted, MPCA is required to restrict the discharge “to the extent necessary to preserve the existing high quality, or to preserve the wilderness, scientific, recreational, or other special characteristics that make the water an outstanding resource value water.”11
      Before issuing the general permit, the MPCA determined that “most [ballast] discharges are not new or expanded.”12 A new discharge is a “discharge that was not in existence on the effective date the outstanding resource value water was designated.”13 An expanded discharge is “a discharge that changes in volume, quality, location, or any other manner after the effective date the outstanding resource value water was designated . . . such that an increased loading of one or more pollutants results.”14
   Because ships were discharging ballast water into Lake Superior in similar volumes prior to the 1984 designation of Lake Superior as an ORVW, the MPCA contends that the agency could permit these discharges without considering alternatives. The MPCA argues further that even if these discharges are considered “new or expanded,” the new treatment standards will reduce the potential for invasive species introduction and thus preserve the high quality of water in Lake Superior as required by MPCA regulations. 15

Conclusion
Legislation to address ballast water discharges on the federal level, passed by the House of Representatives in April 2008, died at the end of the year. As a result, the Coast Guard, the Environmental Protection Agency, and the coastal states will continue to wrestle with how best to manage international sources of pollution whose impacts are primarily felt on the local level. Developing a state-federal partnership to manage ballast water discharges will not be easy and more litigation is expected.

Endnotes
1.   A copy of Minnesota’s permit and additional information is available at
http://www.pca.state.mn.us/index.php/download-document/ 5077-ballast-water-general-permit-board-presentation.html
2.   Minn. Stat. A7 116.07, subd. 4a.
3.   The Ballast Water Convention has not yet entered into force.
4.   Minnesota Center for Environmental Advocacy v. Minnesota Pollution Control Agency, Petition For Writ of Certiorari at 2 (Minn. Ct. App. Oct. 22, 2008).
5.   40 C.F.R. A7 131.12(a)(1).
6.   Id. 131.12(a)(3).
7.   Minn. R. 7050.0180 subp. 1.
8.  MPCA, Discharge of Ballast Water to Minnesota State Waters of Lake Superior – Request for Approval of Findings of Fact, Conclusions of Law, and Order, and for Authorization to Issue State Disposal System General Permit No. MNG300000 at 5 (Sept. 23, 2008).
9.   Minn R. 7050.0180 subp. 3.
10. Id. subp. 6.
11. Id.
12. MPCA, supra note 8, at 5.
13. Minn. R. 7050.0180 subp. 2B.
14. Id. subp. 2C.
15. MPCA, supra note 8, at 5.