New EPA Ballast Water Rule:
Where We Are and How We Got Here

In October of 2020, the Environmental Protection Agency (EPA) published a proposed rule establishing standards for incidental discharges from vessels in waters of the United States. This is the first proposed rule to come out of the Vessel Incidental Discharge Act (VIDA), which was signed into law by President Trump in December 2018. The aim of VIDA is to restructure how the EPA and the United States Coast Guard regulate incidental discharges from commercial and fishing vessels. "Incidental Discharge" refers to water that is released during the normal course of operation of a vessel, water used during biofouling management, and water used in oil management. VIDA requires the EPA to develop new national standards for commercial vessels regarding specific discharge standards. But why did Congress pass VIDA in the first place?

For many years, the EPA specifically exempted ballast water from their regulations because the Coast Guard had taken a lead role in ballast water management. The Coast Guard issued nationwide ballast water regulations in 2001 pursuant to authority provided by the National Invasive Species Act of 1996. However, in 2003 a lawsuit was filed against the EPA because it denied a rulemaking petition aimed at getting the agency to draft regulations for ballast water. The plaintiffs in that lawsuit argued that the EPA’s decision to exempt ballast water from its regulations was improper under the Clean Water Act (CWA), as ballast water discharge counts as point source pollution and can be contaminated with oil, chipped paint, rust, sediments, and toxins. Additionally, ballast water discharges have been linked to the spread of many of the most invasive species in the US, including the zebra mussel. This lawsuit was ultimately successful, with the court ruling that the EPA exceeded its authority under the CWA in creating a “blanket exemption for discharges incidental to the normal operation of a vessel.”

On December 18, 2008, the EPA issued a “Vessel General Permit” (VGP) to regulate discharges incidental to the normal operation of a vessel under the CWA. The VGP applied to discharges incidental to the normal operation of all non-recreational vessels of 79 feet or greater in length. In addition, the ballast water discharge provisions also apply to any non-recreational vessel of less than 79 feet or commercial fishing vessel of any size discharging ballast water. The VGP was amended and re-issued in 2013.

Section 401 of the CWA provides states and certain Native American tribes the authority to grant, deny, or impose conditions on proposed federal permits to discharge into the waters of the United States. Many states used this authority to impose additional, and sometimes stricter, ballast water management standards on the VGP. In response to the increasingly complicated spectrum of state laws and regulations on ballast water discharges, the boating community pushed for uniformity in the vessel regulatory regime. VIDA is the result of that lobbying effort.

VIDA’s approach to regulation is based around the idea of making the permittee’s lives simpler, in that it aims to increase uniformity, reduce redundancy, and clarify confusing permitting processes. VIDA directs the EPA to promulgate national standards for incidental discharges for non-recreational vessels. It also preempts states from establishing more stringent discharge standards once the VIDA regulations are finalized. This has been a point of contention for many states that wish to have a more active role in managing their waters. Letter from Eric T. Schneiderman, Attorney General of New York, et al., to the Hon. Mitch McConnell and the Hon. Charles E. Schumer (Feb. 15, 2017). VIDA is not deaf to these issues, however, as the law creates paths for states to work with the EPA to create additional requirements, such as the establishment of no-discharge zones (NDZs) for incidental discharges.

Once finalized, the proposed rule would establish discharge standards that are meant to prevent and minimize incidental discharge. Three general types of incidental discharges and 20 specific types of incidental discharge would be regulated. The most heavily anticipated of these changes comes to the ballast water standards, which have undergone many changes to the best management practices. The rule also applies additional ballast water exchange requirements for vessels operating in the Pacific Exclusive Economic Zone adjacent to California, Oregon, Washington, Alaska, and Hawaii. Notably, the ballast water rule does not apply any standards to vessels that operate solely within the Great Lakes, commonly referred to as “Lakers”.

While the public comment period has closed, there were over twenty-six thousand comments made by various stakeholders that the EPA will now take into consideration in crafting the final rule. Once the rule is finalized, the Coast Guard will publish corresponding implementing regulations, which are anticipated in 2022. The proposed rule and all public comments can be accessed via the following links:

• • EPA Proposed Rulemaking Notice
• • Federal Register Proposed Rule
• • Public Comments