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97–448 PDF 2015

S. HRG. 114–107 

THE IMPACTS OF VESSEL DISCHARGE 

REGULATIONS ON OUR SHIPPING 

AND FISHING INDUSTRIES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OCEANS, ATMOSPHERE, 

FISHERIES, AND COAST GUARD 

OF THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 4, 2015 

Printed for the use of the Committee on Commerce, Science, and Transportation 

( 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JOHN THUNE, South Dakota, Chairman 

ROGER F. WICKER, Mississippi 

ROY BLUNT, Missouri 

MARCO RUBIO, Florida 

KELLY AYOTTE, New Hampshire 

TED CRUZ, Texas 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

DAN SULLIVAN, Alaska 

RON JOHNSON, Wisconsin 

DEAN HELLER, Nevada 

CORY GARDNER, Colorado 

STEVE DAINES, Montana 

BILL NELSON, Florida, Ranking 

MARIA CANTWELL, Washington 

CLAIRE MCCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

RICHARD BLUMENTHAL, Connecticut 

BRIAN SCHATZ, Hawaii 

EDWARD MARKEY, Massachusetts 

CORY BOOKER, New Jersey 

TOM UDALL, New Mexico 

JOE MANCHIN III, West Virginia 

GARY PETERS, Michigan 

DAVID SCHWIETERT, Staff Director 

NICK ROSSI, Deputy Staff Director 

REBECCA SEIDEL, General Counsel 

JASON VAN BEEK, Deputy General Counsel 

KIM LIPSKY, Democratic Staff Director 

CHRIS DAY, Democratic Deputy Staff Director 

CLINT ODOM, Democratic General Counsel and Policy Director 

SUBCOMMITTEE ON OCEANS, ATMOSPHERE, FISHERIES, 

AND COAST GUARD 1

MARCO RUBIO, Florida, Chairman 

ROGER F. WICKER, Mississippi 

KELLY AYOTTE, New Hampshire 

TED CRUZ, Texas 

DAN SULLIVAN, Alaska 

RON JOHNSON, Wisconsin 

CORY BOOKER, New Jersey, Ranking 

MARIA CANTWELL, Washington 

RICHARD BLUMENTHAL, Connecticut 

EDWARD MARKEY, Massachusetts 

BRIAN SCHATZ, Hawaii 

GARY PETERS, Michigan 

1On March 3, 2015 the Committee finalized Member assignments for its subcommittees. The 

list below reflects March 3, 2015 assignments. When this hearing was held, on February 4, 

2015, formal assignments had not yet been made. 

(III) 

C O N T E N T S 

Page 

Hearing held on February 4, 2015 ......................................................................... 1 

Statement of Senator Rubio .................................................................................... 1 

Statement of Senator Sullivan ............................................................................... 24 

Statement of Senator Cantwell .............................................................................. 32 

Statement of Senator Ayotte ................................................................................... 34 

Statement of Senator Nelson .................................................................................. 36 

Prepared statement .......................................................................................... 36 

Statement of Senator Wicker .................................................................................. 37 

WITNESSES

James F. Farley, President, Kirby Offshore Marine, LLC ................................... 3 

Prepared statement .......................................................................................... 4 

James H. I. Weakley, President, Lake Carriers’ Association ............................... 9 

Prepared statement .......................................................................................... 10 

Claudia Copeland, Specialist in Resources and Environmental Policy, Resources Science and Industry Division, Congressional Research Service ....... 17 

Prepared statement .......................................................................................... 19 

Robert F. Zales II, President, National Association of Charterboat Operators 

(NACO); Owner, Bob Zales Charters .................................................................. 25 

Prepared statement .......................................................................................... 27 

APPENDIX

Letter dated February 18, 2015 to Hon. Marco Rubio from Hon. Gary Doer, 

Ambassador, Canadian Embassy ........................................................................ 41 

Response to written questions submitted by Hon. Marco Rubio to James 

F. Farley ............................................................................................................... 42 

(1) 

THE IMPACTS OF VESSEL DISCHARGE 

REGULATIONS ON OUR SHIPPING 

AND FISHING INDUSTRIES 

WEDNESDAY, FEBRUARY 4, 2015 

U.S. SENATE, 

SUBCOMMITTEE ON OCEANS, ATMOSPHERE, FISHERIES, 

AND COAST GUARD, 

COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:39 p.m. in room 

SR–253, Russell Senate Office Building, Hon. Marco Rubio, presiding. 

Present: Senators Rubio [presiding], Wicker, Ayotte, Sullivan, 

Johnson, Cantwell, Nelson, and Manchin. 

OPENING STATEMENT OF HON. MARCO RUBIO, 

U.S. SENATOR FROM FLORIDA 

Senator RUBIO. This hearing will come to order. 

I would like to welcome everybody here today to our first Subcommittee hearing of the new Congress. In particular, I would like 

to welcome Captain Bob Zales, who has flown up from Florida to 

be with us here today. And thank you all for taking the time to join 

us. I really appreciate it. 

I wanted to briefly discuss a few housekeeping issues. 

First of all, Senator Nelson will be here momentarily, my colleague from Florida, our Ranking Member. He will be here at the 

hearing. 

For everyone’s awareness, it is my understanding that our colleagues on the other side of the aisle are still working to confirm 

who will serve as our Ranking Member on this subcommittee. But, 

in the interim, the Ranking Member of the full committee, Senator 

Nelson, will be here in that regard. 

And congratulations to him, of course. We have a great working 

relationship, and we look forward to working with him on these 

issues in the full committee, as well. We have always worked well 

together, especially on policies such as these that are important to 

Florida. So I am looking forward to both my leadership role on this 

subcommittee and to Senator Nelson’s leadership role on the full 

committee as we continue to address the issues such as these that 

are so important for our state. 

In fact, I am pleased to announce that we started this new Congress with a great bipartisan bill. As we know, today we are here 

to discuss vessel discharge regulations on our shipping and our 

2 

fishing industries—two very large and important industries in our 

state of Florida. 

Last year, Chairman Thune, myself, and Senator Nelson were cosponsors to the Vessel Incidental Discharge Act, legislation that 

streamlines the regulatory framework regarding incidental discharge from large commercial vessels and permanently exempts 

smaller commercial vessels from Federal regulation altogether. 

So today we will reintroduce that same legislation—legislation 

that had the support of 32 bipartisan cosponsors in the last Congress. 

Currently, commercial vessels are subject to EPA regulations regarding discharge incidental to their normal operations, Coast 

Guard regulations regarding introduction of invasive species and 

ballast water discharge, and, additionally, are subject to 25 different state regulations that require additional permit conditions, 

14 of which relate specifically to ballast water discharges. 

Thankfully, in the last Congress, we were able to secure a 3 year 

exemption from the EPA regulations for vessels smaller than 79 

feet. And I would be remiss if I didn’t thank my colleagues Senator 

Murkowski and Senator Vitter for their help in securing that exemption. 

However, I think everyone will agree that we would like to make 

that exemption permanent, while also ensuring that we address 

the regulatory duplicity for larger vessels. So, today, myself, Chairman Thune, and Ranking Member Nelson will be reintroducing the 

Vessel Incidental Discharge Act to address this regulatory quagmire, and it includes a permanent exemption for the smaller commercial vessels. 

Getting this legislation enacted into law is a top priority of this 

subcommittee, and I am thankful to both Senator Thune and Senator Nelson for their leadership roles as we work to get this legislation across the finish line this year. 

And I look forward to hearing from each of our witnesses as they 

highlight the importance of addressing this issue. 

Last, I would like just to add two things. 

Senator Schatz will be stopping by shortly after we begin and 

has asked to say a few words regarding this issue. However, due 

to scheduling conflicts, Senator Schatz will only have a few minutes, so I would ask that we just pause when the Senator arrives 

for a few comments from him, and then we will immediately resume. 

We are also expecting a roll call, one vote at 2:45. We will take 

a brief recess or, if the opportunity presents itself, perhaps rotate 

the chairmanship so all the members can go vote and then return. 

And either way, we either will keep this going or we will come back 

quickly and keep going. 

So Senator Nelson has not yet arrived. I know he is on his way, 

so we will reserve his opening statement for his arrival. And, with 

that, I will recognize the witnesses for their testimony. 

Mr. Farley, do you want to begin? Do you have testimony? 

Mr. FARLEY. I do. 

Senator RUBIO. Thank you, sir. 

3 

STATEMENT OF JAMES F. FARLEY, PRESIDENT, 

KIRBY OFFSHORE MARINE, LLC 

Mr. FARLEY. Good afternoon, Chairman Rubio and members of 

the Subcommittee. My name is Jim Farley, and I work for Kirby 

Corporation. Thank you for the opportunity to testify on behalf of 

our company and the American Waterway Operators, the national 

trade association of the U.S. tugboat, towboat, and barge industry. 

Kirby is the Nation’s largest operator of inland and coastal tank 

barges. The regulation of ballast water and other vessel discharges 

is a critical area in which the current regulatory regime serves neither the environment, our industry, the economy, or the American 

taxpayer well. 

Today, the Coast Guard and EPA regulate ballast water and 

other vessel discharges under two differing statutory authorities. 

And because neither Federal law preempts state action, 25 states 

have established their own state-specific requirements for vessel 

discharges—over 150 of them in all. 

This overlapping patchwork of Federal and state regulations 

makes compliance confusing and complicated for Kirby and all vessel operators, fishermen, and mariners. It is counterproductive to 

the goal of enhanced environmental protection, as companies, including my own, have delayed investment in costly treatment technologies because we lack assurance that such systems will be acceptable wherever a vessel calls. 

And it has forced Federal and State agencies to duplicate efforts 

and expend significant time and taxpayer money on an unsuccessful effort to harmonize these requirements. 

In the operational world, this regulatory patchwork is a nightmare for companies like Kirby that operate vessels in interstate 

commerce. Today, crewmembers on a Kirby tug barge unit moving 

petroleum from a refinery in Anacortes, Washington, to a fuel distribution center in Los Angeles must comply with requirements for 

vessel discharges established by both the Coast Guard and the 

EPA. They must also comply with 25 state-specific conditions 

added to EPA’s Vessel General Permit by the states of Washington 

and California. In addition, they must comply with state ballast 

water requirements established by Washington, Oregon, and California outside the framework of the VGP. That is five distinct Federal and State regulatory regimes over the course of a single voyage. 

Our inland tows face an even more egregious situation, traveling 

through the waters of as many as 10 states on a voyage from Minneapolis to New Orleans. 

The situation is untenable, it is unnecessary, and congressional 

leadership is badly needed to fix it. 

I hope these examples make clear why the current situation is 

such a problem for the Nation’s maritime industry. Let me explain 

why it is also unnecessary. 

There now exists a national scientific consensus about the capabilities of currently available ballast water treatment technology. 

Unfortunately, this scientific consensus does not solve the problem 

faced by vessel operators. 

Federal and state regulators have been unable to eliminate overlap and inconsistency between their regulations because they are 

4 

accountable to different laws, which they believe limit their flexibility to act. It is not too much to say that these governmental 

agencies have been set up to fail by a statutory framework that 

does not work. This should be unacceptable to all of us. 

The only way to fix this broken system is for Congress to act and 

act soon. You can establish a single national framework for the regulation of vessel discharges that preempt state regulation and 

make vessel operators such as ourselves subject to one set of scientifically based, environmentally protective, and technologically 

achievable vessel discharge rules. 

You can pass legislation that provides us with the certainty that 

our multimillion-dollar investments in ballast water treatment 

technology will be acceptable wherever our vessels call. You can 

also save the American taxpayer the wasteful expense created by 

duplication of effort among Federal and state agencies. 

Kirby and the maritime community represented by AWO is not 

interested in avoiding a high standard for incidental vessel discharges. We just need a single standard, a Federal standard, a 

standard based on the available technology. 

Chairman Rubio, we know that you understand the problem and 

the urgent need for a solution. The news you have just announced 

speaks directly to that. We thank you. 

[The prepared statement of Mr. Farley follows:] 

PREPARED STATEMENT OF JAMES F. FARLEY, PRESIDENT, KIRBY OFFSHORE MARINE, LLC 

Good afternoon, Chairman Rubio and Members of the Subcommittee. I am Jim 

Farley, President of Kirby Offshore Marine, a division of Kirby Corporation, 

headquartered in Houston, Texas. Kirby, which has been in the maritime transportation business since 1969, is now the Nation’s largest operator of inland and coastal tank barges, employing some 4,600 Americans. On behalf of Kirby and its employees, thank you for the opportunity to testify at this very important hearing. 

I am also speaking on behalf of the American Waterways Operators, the national 

trade association for the inland and coastal tugboat, towboat, and barge industry. 

Kirby is one of the almost 350 companies that enjoy membership in AWO, and 

serves on its Board of Directors and Executive Committee. 

Thank you for your leadership in holding this hearing to explore the impacts of 

vessel discharge regulations on the U.S. shipping and fishing industries so early in 

the 114th Congress. The regulation of ballast water and other vessel discharges is 

a critical area in which the current regulatory regime serves neither the economy, 

the environment, nor the American taxpayer well. Today, two Federal agencies regulate ballast water and other vessel discharges under two differing statutory authorities. And, because neither Federal statute preempts state action, more than two 

dozen states have established their own state-specific requirements for many of 

those same discharges. This overlapping patchwork of Federal and state regulations 

has made compliance complicated, confusing, and costly for vessel owners and mariners. It has been counterproductive to the goal of enhanced environmental protection as companies have delayed investment in costly treatment technologies because 

they lack assurance that such systems will be acceptable wherever a vessel calls. 

And, it has forced resource-constrained Federal and state agencies to duplicate efforts and expend significant time and taxpayer money in a well-intentioned but unsuccessful effort to harmonize their requirements. 

Your leadership is badly needed to fix this unacceptable situation. Indeed, this 

Congress has an unprecedented opportunity to enact legislation that improves the 

efficiency and effectiveness of our maritime transportation system while enhancing 

the protection of our Nation’s waterways. A scientific consensus now exists about 

the capabilities of currently available ballast water treatment technology, and there 

is strong bipartisan congressional support for legislation to resolve redundant and 

conflicting regulatory authorities in this area. The establishment of a uniform Federal framework for the regulation of vessel discharges will be good for the maritime 

industry and the men and women who work in it, good for shippers who rely upon 

5 

marine transportation, good for the marine environment, and good for the American 

taxpayer. We were pleased to see the Committee act on this issue last year when 

it reported out S. 2094, the Vessel Incidental Discharges Act. The leadership of the 

Commerce Committee will be crucial if we are to seize the opportunity to enact legislation that accomplishes these objectives in the 114th Congress. 

Let me tell you a bit about our company and our industry, which will help to explain why this legislation is so critical. The tugboat, towboat, and barge industry 

is the largest segment of the U.S. maritime fleet. Our industry operates 4,000 towing vessels and 27,000 dry and liquid cargo barges on the commercially navigable 

waterways that run through America’s heartland, along the Atlantic, Pacific, and 

Gulf coasts, on the Great Lakes, and in ports and harbors around the country. Each 

year, towing vessels and barges safely, securely, and efficiently move more than 800 

million tons of critical cargo, including agricultural products for export, coal to electrify our homes and businesses, petroleum products to fuel our cars, chemicals for 

manufacturing facilities, cement and sand for construction projects, and other building blocks of the U.S. economy. Tugboats also provide essential services in our Nation’s ports and harbors, including shipdocking, tanker escort, and bunkering. 

For our part, Kirby operates over 1,300 vessels throughout the Mississippi river 

system, on the Gulf Intracoastal Waterway, along all three U.S. coasts, and in Alaska and Hawaii. Kirby transports bulk liquid products by tank barge, including petrochemicals, black oil, refined petroleum products, and agricultural chemical products, as well as dry-bulk commodities by oceangoing tug-barge units. 

More than 30,000 American mariners are employed as crewmembers on towing 

vessels; these are good, family-wage jobs that offer great potential for career and 

economic advancement. I can testify to that from personal experience. Over half of 

Kirby’s employees—some 2,500 Americans—work as crewmembers on our vessels. 

Their salaries range from about $45,000 a year for a deckhand in our inland fleet 

to over $130,000 a year for our captains and pilots, and our company provides them 

with comprehensive benefits and training and career development opportunities. 

Kirby can hire a high school graduate with no experience and, within a span as 

short as three to five years, provide him or her with the paid training and experience needed to climb our career ladder to a job paying six figures. 

The current regulatory regime for ballast water and other vessel discharges places 

our mariners and our company in the difficult position of having to comply with 

overlapping and inconsistent regulations. The U.S. Environmental Protection Agency regulates ballast water and other vessel discharges under the Clean Water Act’s 

National Pollutant Discharge Elimination System (NPDES) permit program; the 

U.S. Coast Guard regulates discharges of ballast water and hull fouling organisms 

under the National Invasive Species Act; and more than two dozen states have established their own requirements for various vessel discharges already covered by 

the EPA and Coast Guard regulations. 

Since 2009, commercial vessels over 79 feet in length have been required to obtain 

coverage under EPA’s Vessel General Permit in order to operate in U.S. waters. The 

VGP contains Federal requirements for 27 types of vessel discharges, including ballast water, as well as federally enforceable state- and waterbody-specific discharge 

conditions added to the permit by states as part of the NPDES state certification 

process. In addition to Federal and state VGP requirements, vessels must meet Federal standards for ballast water and hull fouling discharges established by the Coast 

Guard. Vessels are also required to act in accordance with the state laws and regulations for vessel discharges applicable to the waters they transit. 

This regulatory patchwork is a nightmare for a vessel operating in interstate commerce. A Kirby tug-barge unit moving petroleum from a refinery in Anacortes, 

Washington, to a fuel distribution center in Los Angeles must traverse the waters 

of three states: Washington, Oregon, and California. In addition to EPA limits on 

ballast water and other vessel discharges found in the VGP, the tug and the barge 

must comply with 25 supplementary, state-specific conditions added to the permit 

by Washington and California. They must also comply with Coast Guard regulations 

to manage and discharge ballast water and hull fouling organisms. Finally, in each 

of the three states they transit, the vessels are subject to state laws and regulations, 

necessitating the submission of ballast water management reports to every state in 

which they will discharge ballast water (in addition to the reports required by the 

Coast Guard) and requiring the implementation of ballast water management practices in addition to those prescribed by EPA and the Coast Guard. That is five distinct regulatory regimes, and all of their attendant requirements, that the Kirby 

employees onboard the tugboat must be aware of and in compliance with over the 

course of a single voyage. Our inland tows face an even more egregious situation, 

traveling through the waters of as many as seven states on a voyage from Chicago 

to New Orleans. These examples, and the graphic attached to my testimony, underVerDate Nov 24 2008 11:30 Nov 06, 2015 Jkt 075679 PO 00000 Frm 00009 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\97448.TXT JACKIE
6 

score why clear, consistent Federal rules for ballast water and other vessel discharges are desperately needed. 

They also demonstrate why, as a matter of sound public policy, the NPDES permit program is the wrong framework for the regulation of discharges from vessels. 

The program, as EPA has acknowledged, was designed to control pollution from 

land-based, stationary sources, and has been largely administered and enforced by 

individual states—the basis of the state certification process. This process makes 

the program particularly ill-suited to regulate discharges from commercial vessels, 

which by their nature are mobile sources that operate and discharge in multiple 

states. For the first 35 years of the NPDES program’s existence, vessel discharges 

were explicitly exempted by EPA regulation. EPA went to court to defend its exclusion of vessel discharges from the program, but in 2008 the Ninth Circuit Court of 

Appeals ordered EPA to regulate vessel discharges through the issuance of NPDES 

permits. 

As a result, EPA proposed the VGP, a first-of-its-kind nationwide, general permit 

for vessel discharges to be administered and enforced by the agency and certified 

by individual states. The state certification process resulted in over 100 new, substantive requirements that were incorporated by EPA into its final permit, which 

it issued without allowing the regulated community an opportunity to comment on 

the state conditions and without considering the impact of the state conditions collectively. A group of maritime trade associations, including AWO, challenged EPA’s 

management of the VGP state certification process in court. In 2011, the U.S. Court 

of Appeals for the D.C. Circuit ruled that EPA had no authority under the Clean 

Water Act to alter or reject state conditions, even if they are infeasible or in direct 

conflict with other Federal or state requirements. Recognizing the problem, the 

Court suggested that Congress must act to provide the maritime industry with a 

viable solution. We wholeheartedly agree. 

I want to be clear that the broken regulatory regime for vessel discharges is not 

a problem of EPA’s making. It is not a problem of the Coast Guard’s making. It is 

a situation in which well-meaning agencies have been effectively set up to fail as 

they seek to harmonize regulations promulgated pursuant to different statutory authorities and, in EPA’s case, to make the square peg that is the NPDES permit program fit the round hole that is mobile sources engaged in interstate and international commerce. With no relief available from the courts, it is up to Congress 

to lead and establish a uniform Federal framework for the regulation of ballast 

water and other vessel discharges. There is no better time than now for Congress 

to take action on this very important issue. 

Several years ago, faced with overlapping Federal and state authorities and the 

absence of uniform national standards for the management and discharge of ballast 

water, the maritime industry was witnessing a competition among states to establish the most stringent ballast water treatment standards on the books. Under the 

logic of this competition, if the International Maritime Organization standard was 

good, a standard 100 or 1,000 times more stringent than the IMO standard must 

be better—even if those standards could not be achieved, or even measured, with 

existing technology. However, there is now a national consensus about the capability 

of current ballast water treatment technology. This consensus provides a strong scientific foundation for Congress to move forward with legislation to establish uniform 

national standards for vessel discharges. 

In June 2011, an independent and expert panel of the EPA Science Advisory 

Board completed its study of the efficacy of current ballast water treatment systems 

and concluded that no current treatment technology can meet a standard 100 or 

1,000 times more stringent than the IMO standard. The panel further concluded 

that wholly new treatment systems and measurement techniques would need to be 

developed to meet more stringent standards than IMO’s. 

Shortly after the EPA SAB report was published, the state of New York agreed 

to withdraw one of its state conditions to the VGP, which would have required vessels operating in New York waters to install ballast water treatment systems meeting a standard 100 times more stringent than the IMO standard beginning in 2013. 

In an October 2011 letter to the EPA Administrator, the New York Department of 

Environmental Conservation wrote that the state believes ‘‘a strong, uniform national standard is the best approach to our mutual goal of ensuring that vessels install and use achievable and cost-effective technology to treat ballast water discharges that will dramatically limit the introduction and spread of aquatic invasive 

species.’’ The letter continued, ‘‘A national approach to this ballast water issue is 

clearly preferable to a plethora of potentially conflicting state standards.’’ 

In 2012, the Coast Guard published a final rule establishing a ballast water treatment standard equivalent to the IMO standard. Citing the EPA SAB report, the 

Coast Guard wrote that ‘‘[t]he numeric limitations in today’s final rule represent the 

7 

most stringent standards that [ballast water treatment systems] currently safely, effectively, credibly, and reliably meet.’’ EPA also relied on the EPA SAB’s conclusions 

to develop the 2013 Vessel General Permit, in which it set a ballast water treatment 

standard corresponding to the IMO and Coast Guard standards. 

Since the Coast Guard and EPA aligned their ballast water treatment standards, 

the states have quickly followed suit. None of the states that certified the 2013 VGP 

with conditions added a more stringent ballast water treatment standard than that 

established by EPA within the permit. Most notably, in 2013, the California State 

Lands Commission officially acknowledged that California’s statutory ballast water 

performance standards—which called for the implementation of a standard 1,000 

times more stringent than the IMO standard beginning in 2014—could not be met 

with current ballast water treatment technology. Acting on the Commission’s recommendation, the California legislature acted to delay implementation of these 

standards. Of the states that have established or proposed to establish state-specific 

ballast water discharge standards, California was the last to concur with the findings of the EPA SAB. 

This consensus changes not only the regulatory landscape, but the legislative 

landscape as well. Congress can capitalize on this accord among the scientific community, the Federal Government, and the states to improve the regulation of vessel 

discharges by enacting a single set of uniform national standards that preempt state 

regulation, with a requirement for the Federal standards to become increasingly 

stringent as treatment technology improves over time. Such legislation would improve the maritime industry’s ability to deliver the Nation’s waterborne commerce 

efficiently and effectively by providing consistency and certainty, and would enhance 

our Nation’s commitment to the continued protection of its waterways. It would also 

benefit the American taxpayer by ending the costly duplication of effort by Federal 

and state agencies that results from the current statutory and regulatory patchwork. 

Kirby and the other member companies of AWO are partners in a shared commitment to environmental stewardship. Maritime transportation is the safest and most 

energy-efficient mode of freight transportation. AWO’s members are dedicated to 

building on these natural advantages and leading the development of higher standards of marine safety and environmental protection. Twenty years ago, AWO became the first transportation trade association to adopt a code of safe practice and 

environmental stewardship for member companies, the AWO Responsible Carrier 

Program. Since 2000, third party-audited compliance with the RCP, which exceeds 

Federal regulatory standards, has been a condition of membership in the association. 

I share this with you to emphasize that our goal in urging congressional action 

is not to avoid high standards. Our company and our industry have established a 

strong and continuously improving environmental record, and we recognize that 

making responsible environmental practice a top priority is both good policy and 

good business. The problem is not that vessel discharges are regulated; it is how 

they are regulated. The current unclear and inconsistent regulatory system makes 

compliance confusing and investment decisions uncertain. 

Let me emphasize again that the only way to fix this broken regulatory regime 

is for Congress to act, and act soon. Although the Coast Guard, EPA, and state regulators are currently in agreement about achievable standards for ballast water 

treatment, the way that they administer and enforce that standard is at best duplicative, and at worst incompatible. The strong bipartisan support for the Vessel Incidental Discharge Act introduced last Congress—which was sponsored by Chairman 

Rubio and cosponsored by more than one-third of the Senate, including the Chairman and Ranking Member of the Commerce Committee—demonstrates that the 

problem, and the urgent need for a solution, is well understood. Today’s hearing is 

another encouraging affirmation of the understanding of the leadership of this Subcommittee, and of your commitment to bring clarity and certainty to the regulation 

of vessel discharges. 

On behalf of Kirby and all of the other the businesses that operate vessels that 

carry the cargo that drives our economy, that provide high-quality jobs for men and 

women across the United States, and that seek to protect the marine environment 

in which they operate, I respectfully urge the Committee to lead the introduction 

and passage of legislation in the 114th Congress that establishes a uniform, sciencebased, consensus-driven Federal framework for the regulation of ballast water and 

other vessel discharges. 

Thank you again for the opportunity to testify today on a matter of great importance to our company, our industry, to the U.S. economy, and to the Nation’s marine 

environment. We appreciate your leadership and we look forward to working with 

you to advance our mutual goal of a safe, secure, environmentally sound maritime 

8 

transportation system that is good for America, for American businesses, and for the 

Americans who work in our industry. 

ATTACHMENT


0204FARL1.eps
9 

Senator RUBIO. Thank you. 

And I apologize for not introducing the witnesses beforehand. Mr. 

Farley is the President of Kirby Offshore Marine, headquartered in 

Houston, Texas. 

Mr. Weakley, the President of the Lake Carriers’ Association, 

from Rocky River, Ohio. 

Welcome, sir. 

STATEMENT OF JAMES H. I. WEAKLEY, PRESIDENT, 

LAKE CARRIERS’ ASSOCIATION 

Mr. WEAKLEY. Thank you. 

Lake Carriers’ Association has represented U.S.-flag vessels operating exclusively on the Great Lakes since 1880. Last year, my 

members moved more than 90 million tons of cargo on the Great 

Lakes. 

These cargos are the very foundation of America’s industrial 

economy: Michigan and Minnesota iron ore for steel produced in Indiana, Ohio, Pennsylvania, and Michigan; Michigan limestone and 

cement for construction; coal from Illinois, Wisconsin, and Ohio 

docks for power generation; Ohio salt to de-ice our wintry roads; 

and Midwest grain from Wisconsin and Minnesota docks for New 

York flour mills. 

The Army Corps of Engineers has estimated that my members 

annually save their customers billions of dollars compared to the 

next least-cost mode of transportation. 

We believe in a uniform national ballast water discharge standard. It is critical to waterborne commerce. 

Ships sailing the Great Lakes transit many states and Canadian 

waters on a single voyage. For example, iron ore mined in Minnesota and destined for a steel mill in Pennsylvania starts out in 

Minnesota waters, passes through Wisconsin, then Michigan, and 

is offloaded to a railhead in Ohio. Midwest grain loaded in Minnesota and bound for Buffalo add Pennsylvania and New York waters to that list. 

While transiting the Detroit-St. Clair River on those voyages, we 

cross the international border 17 times, in addition to the many 

international crossings in the St. Marys River, which connects 

Lake Superior to Lake Huron. 

Inflexible, inconsistent, and sometimes conflicting regulations 

have the ability to shut down shipping and the industries we support. 

Adding to the current patchwork quilt of eight state and two 

Federal regulators, the government of Canada and the province of 

Ontario have proposed invasive species regulations. 

Canada even proposes requiring vessels that only transit Canadian waters, and not discharging ballast water into Canada, to install treatment systems, which they emphatically opposed when 

New York proposed it in 2008. Canada’s transit standard would impose a regulatory blockade preventing our vessels from calling on 

Canadian ports and sailing between American ports. 

The U.S. regulatory process is mind-boggling. Every 5 years, the 

EPA and each state conduct a VGP rulemaking. Although it takes 

place simultaneously, the process and duration varies by state. 

After months of being told by one state that they would not develop 

10 

their own requirements, the Wednesday before Thanksgiving they 

published a proposal. That comment period ended the Monday after 

Thanksgiving. 

Each rulemaking is also subject to years of legal challenges. In 

many instances, we have defended the regulatory agencies against 

challenges filed by environmental organizations. 

The Great Lakes and St. Lawrence River are a single interconnected freshwater body, so aquatic nuisance species introduced 

by oceangoing vessels move freely about. Most of our vessels cannot 

leave the upper four Great Lakes, and even the smaller ones can’t 

go outside the St. Lawrence River. Vessels, such as lakers, whose 

operations are confined to a geographically limited area should not 

need to treat their ballast water, as they do not introduce aquatic 

nuisance species from other ecosystems. 

Both the EPA and the Coast Guard concluded that there are no 

treatment systems capable of operating on lakers. Our unique environmental challenges include wide temperature variations, very 

fresh water, heavy sedimentation, and strong tannins. Our engineering challenges include extremely high pumping rates, limited 

machinery space, short voyages, and icy conditions. It is clear that 

best management practices remain the most appropriate way to 

regulate our ballast water discharges. 

LCA supports ballast water regulation. We support regulation 

that sets a uniform national ballast water treatment regime. 

We recommend, consistent with the IMO ballast water convention, that legislation include the critically important distinction 

that vessels, such as lakers, that confine their operation to a geographically limited area need not treat their ballast water. 

Thank you. 

[The prepared statement of Mr. Weakley follows:] 

LAKE CARRIERS’ ASSOCIATION

Rocky River, OH, January 29, 2015 

Senator JOHN THUNE, 

Chairman, 

Senate Committee on Commerce, Science, and Transportation, 

Washington, DC. 

Executive Summary 

Lake Carriers’ Association believes a uniform, national ballast water discharge 

standard is critical to waterborne commerce. Ships sailing the Great Lakes transit 

many States’ and Canadian waters on a single voyage. Inflexible, inconsistent and 

sometimes conflicting regulations have the ability to shut down shipping and the 

industries we support. Adding to the current patchwork quilt of U.S. regulations 

(eight Great Lakes States and two Federal Agencies) both the Government of Canada and the Province of Ontario have proposed invasive species regulations on vessel operators. Canada has even proposed a ‘‘transit standard,’’ which they opposed 

when offered by the State of New York. Canada’s transit standard would put in 

place a regulatory embargo preventing our ships from calling on Canadian Great 

Lakes ports and impose a regulatory blockade preventing U.S.-flag vessels from 

trading between American Great Lakes ports. Vessels—such as lakers—that confine 

their operations to a ‘‘geographically limited area’’ should not need to treat their ballast water, as they do not introduce aquatic nuisance species (ANS) by moving from 

one ecosystem to another. The Great Lakes are a single interconnected body of 

freshwater; ANS introduced by oceangoing vessels move freely about. After ten 

years of studying the problem, both the U.S. Coast Guard and U.S. Environmental 

Protection Agency have concluded that there are no treatment systems capable of 

operating in the Great Lakes environment (wide temperature variations, very fresh, 

heavy sediment, strong tannins . . .), nor are there system meeting lakers’ operational requirements (high flow rates, limited space, short voyages, icing conditions 

11 

1Great Lakes Navigation System: Economic Strength to the Nation, February 2009. 

. . .). Best Management Practices remain the most appropriate way to regulate 

lakers’ ballast water discharges. 

Written Testimony 

I am James H.I. Weakley, President of Lake Carriers’ Association (LCA), the 

trade association that has represented U.S.-flag vessels operating exclusively on the 

Great Lakes since 1880. Last year, my members moved more than 90 million tons 

of cargo on the Great Lakes. Those cargos are the very foundation of America’s industrial economy: 

• Michigan and Minnesota iron ore for steel production in Indiana, Ohio, Pennsylvania and Michigan; 

• Limestone and cement for construction throughout the Great Lakes basin; 

• Coal from Wisconsin and Ohio docks for power generation basin-wide; 

• Salt to de-ice wintry roads throughout the region; and 

• Midwest grain from Wisconsin and Minnesota docks for New York flour mills. 

The vessels my members operate were built in the United States, are crewed by 

American mariners, and are owned by American corporations. Those are, of course, 

the tenants of the Jones Act, the foundation of America’s domestic maritime policy 

since 1920. The U.S. Army Corps of Engineers has estimated that my members annually save their customers billions of dollars in freight costs compared to the next 

least costly mode of transportation, so clearly the Jones Act has achieved its goal 

of a vibrant American merchant marine.1

Waterborne commerce, particularly that on the Great Lakes, desperately needs a 

uniform, Federal standard for the regulation of ballast water and other vessel discharges. No disrespect to the eight Great Lakes states is intended, but shipping cannot operate efficiently while trying to comply with inflexible, inconsistent and sometimes conflicting state regulations. 

Let me give you a couple of examples. An iron ore cargo mined in Minnesota and 

destined for a steel mill in Pennsylvania starts out in Minnesota waters, then 

passes through Wisconsin, Michigan, and is offloaded to an Ohio railhead. A cargo 

of Midwest grain loaded in Minnesota and bound for Buffalo adds Pennsylvania and 

New York waters to that list. While transiting the Detroit St. Clair River on those 

voyages our sailors cross the international border seventeen times, in addition to 

many border crossings in the St. Marys River, which connects Lake Superior to 

Lake Huron. 

Now, imagine having to comply with a different set of regulations each time the 

vessel enters a State’s waters, not to mention all of the times we crisscross between 

U.S. and Canadian waters during a single voyage. Assuming the regulatory requirements were achievable, and many State regimes are not, the additional expense 

would surely drive cargo to our already crowded rail lines and highways, or worse, 

bring an end to some mining and manufacturing in the Great Lakes states. 

The regulatory process is mind-boggling. Every five years, the Environmental Protection Agency (EPA) and each Great Lakes state (in addition to other states and 

jurisdictions delegated authority under the Clean Water Act) commence a full rulemaking process to reissue the Vessel General Permit (VGP). Although many of these 

rulemakings take place simultaneously, the process and duration varies for each jurisdiction. Perhaps the most frustrating process took place in Illinois. After months 

of being told that the state would not be conducting a VGP rulemaking process, we 

were informed that it was the Wednesday before Thanksgiving when the proposed 

rule was published that they were issuing state requirements. The comment period 

for the Illinois proposed rule ended the Monday after Thanksgiving. 

Each VGP rulemaking, at both the state and Federal level, is also subject to legal 

challenges. In some cases, we have challenged state and Federal requirements. In 

other instances we have intervened and defended the regulatory agencies against 

challenges filed by environmental organizations. Currently, the Canadian Shipowners Association is simultaneously challenging the EPA on some of its VGP II 

requirements and has joined LCA in its defense of the EPA in a suit brought by 

an environmental group. After the first VGP, we defended the decisions made by 

the States of Wisconsin, Minnesota and Michigan. We also challenged the EPA’s 

final rule and supported the legal challenge to the State of New York. Currently, 

we are defending New York’s VGP II decisions after our successful defense of Minnesota’s decision. 

The Canadian government has further muddied the waters by proposing ballast 

water regulations that include vessels merely transiting their waters. This is puzVerDate Nov 24 2008 11:30 Nov 06, 2015 Jkt 075679 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\97448.TXT JACKIE
12 

zling, as Canada vehemently opposed a ‘‘transit standard’’ when it was proposed by 

the State of New York. To New York’s credit, they have since dropped their requirement for vessels simply transiting their waters to have ballast water treatment systems installed. In Attachment C, the Canadian Transport Minister cites the Boundary Waters Treaty of 1909 in Canada’s opposition to the New York transit standard 

proposal and notes ‘‘that neither the Canadian nor U.S. domestic fleet is a likely 

vector for the introduction of invasive species.’’ The Canadian Foreign Minister, in 

Attachment D, states ‘‘further, as currently proposed, the state of New York’s 

amendments to the EPA’s National Pollutant Discharge Elimination System are 

contrary to the Canada-U.S. Boundary Waters Treaty of 1909.’’ He then goes on to 

point out that ‘‘New York’s proposed rules inappropriately classify Canadian ships 

operating in the St. Lawrence Seaway as foreign shippers, categorizing them with 

shippers operating outside of North America.’’ 

Please keep in mind that the International Maritime Organization (IMO) has developed a ballast water discharge standard, as have the EPA and U.S. Coast Guard 

(USCG), not a transit standard. We believe Canada is the only country in the world 

to require vessels that have no intention of discharging ballast water in that country’s waters to require ballast water treatment systems to be installed to meet a numeric discharge standard. Knowing full well that U.S.-flag lakers don’t currently the 

ability to meet the Canadian requirement, nor will our vessels in the near future, 

Transport Canada proposed their transit standard in a 2012 discussion paper. This 

would have the practical impact of denying our vessels entry into Canadian ports 

or waters on the Great Lakes, even for voyages when our vessels are not discharging ballast water in Canadian waters. In essence, the Canadian Government 

is proposing a regulatory embargo on U.S.-flag lakers sailing the Great Lakes. Since 

Great Lakes navigation channels straddle the international border, it is physically 

impossible for our vessels to make a domestic voyage without entering Canadian 

waters. We would not be able to deliver iron ore from Duluth to the steel mills of 

Indiana Harbor. We would not even be able to transport Michigan iron ore from 

Marquette to Detroit. Through its regulatory blockade, the Canadian government 

would claim the authority to control cargo movements not only between U.S. states, 

but also to halt commerce within a single state. 

Any ballast water legislation needs to make a critically important distinction, 

namely that vessels—such as ‘‘lakers’’—that confine their operations to a ‘‘geographically limited area’’ need not treat their ballast, since they do not move between ecosystems. The Great Lakes are interconnected and ANS introduced by 

oceangoing vessels can and do migrate independent of commercial navigation. For 

example, the ruffe, first discovered in Duluth/Superior Harbor at the western end 

of Lake Superior in late 1980s, is slowly migrating along Superior’s southern shore. 

This range expansion will continue even if no commercial vessels ever sail Lake Superior again. That’s why it’s appropriate that the USCG and EPA regulations governing lakers’ ballast water require Best Management Practices (BMPs) rather than 

treatment of ballast water for our vessels. LCA supports these USCG regulations. 

The Great Lakes need protection from oceangoing vessels’ ballast water, not from 

lakers. More than half of our fleet is too large to transit from Lake Erie to Lake 

Ontario via the Welland Canal and all of our vessels are prohibited by the USCG 

from sailing beyond Anticosti Island in the Gulf of St. Lawrence. As demonstrated 

in Attachment B, U.S.-flag lakers trade primarily in the upper four Great Lakes 

(Superior, Michigan, Huron and Erie) from the port of Duluth/Superior to Indiana 

Harbor or Buffalo and all points in between. On occasion, the smaller LCA vessels 

venture into Lake Ontario and the St. Lawrence River. Canadian-flag lakers trade 

between the St. Lawrence River and all five Great Lakes. Oceangoing vessels or 

‘‘salties’’ enter the St. Lawrence River and Great Lakes from the Atlantic Ocean and 

hail from ports throughout the world. 

There has been an intensive effort worldwide to develop treatment systems that 

will end the introduction of ANS via vessels’ ballast water. I am proud to say that 

LCA was among the pioneers in such efforts. Back in the late 1990s, we partnered 

with the Northeast Midwest Institute to test a ballast water treatment system that 

employed filtration and ultraviolet (UV) light and could be installed on the oceangoing vessels that trade to and from the Great Lakes. That research helped lay the 

groundwork for the ballast water treatment systems that are now coming into the 

global market and being installed on vessels sailing the oceans. 

The USCG and EPA have independently concluded, however, that if regulations 

were to require lakers to treat their ballast water to IMO discharge standards, our 

vessels would be unable to comply, and thus, waterborne commerce on the Great 

Lakes would cease to exist. There is no ballast water treatment system that has 

been proven capable of meeting U.S. lakers’ operational requirements. U.S. lakers’ 

ballast water must be pumped out at rates that approach 80,000 gallons per minute 

13 

when loading cargo. No ballast water treatment system is effective at that flow rate. 

Our vessels lack the electrical capacity to simultaneously handle cargo, operate ballast pumps and treat the ballast water. Nor do they have the machinery space necessary to install enough treatment systems and additional electrical generators to 

treat our ballast water. 

Another obstacle is that the voyages on the Great Lakes are of very short duration compared to the ocean trades. A vessel hauling iron ore from Two Harbors, 

Minnesota, to Gary, Indiana, is underway for 62 hours. A vessel moving limestone 

from Marblehead, Ohio, to Cleveland, Ohio, is underway for 6 hours. The ballast 

water treatment systems that use biocides are effective on an ocean voyage that 

stretches for weeks or a month or more, but not on the short hauls that characterize 

Great Lakes shipping. There is not sufficient ‘‘contact time’’ for the biocide to sterilize the water and then be rendered safe with a neutralizing agent prior to discharge. Many ballast water treatment systems designed for oceangoing vessels require saltwater as a catalyst to create the biocide. Our freshwater is significantly 

fresher than the IMO definition, so even systems certified for use in freshwater may 

not work in the Great Lakes. 

Other problems that would need to be solved before lakers could treat their ballast water include the frigid water temperatures and filter-destroying ice chunks at 

the opening and close of the shipping season and the high level of sediment suspended in the water at many Great Lakes ports. The levels of tannins in the Great 

Lakes impede the effectiveness of ballast water treatment systems using UV light. 

The preceding comments are largely academic because the need to treat lakers’ 

ballast water is questionable at best. Most LCA vessels confine their operations to 

Lakes Superior, Michigan, Huron, and Erie. Only a few LCA vessels occasionally 

transit the Welland Canal and trade to a Lake Ontario port. By law, none may sail 

on the oceans, so their ballast water originates in the Great Lakes. Add the fact 

that ballast water is but one of 64 vectors identified by the U.S. Geological Survey 

for introduction of ANS into the Great Lakes and there is even less reason to treat 

lakers’ ballast water. 

My members implement BMPs to lessen the risk that their ballast water might 

spread an ANS introduced by oceangoing vessels. In fact, LCA implemented those 

BMPs before they were required by USCG and EPA regulations. 

In summary, LCA shares everyone’s desire that vessel ballast water introduction 

of ANS be a thing of the past. On the Great Lakes, that goal will be best met with 

uniform Federal regulations that recognize that lakers, operating in a ‘‘geographically defined route,’’ need not treat their ballast water, as it is oceangoing vessels, 

not lakers, which introduce ANS to the Great Lakes. We ask Congress to unravel 

the patchwork quilt of ballast water regulations while recognizing the technological 

impracticability of environmentally unnecessary laker ballast water treatment. 

Very respectfully, 

JAMES H. I. WEAKLEY, 

President. 

ATTACHMENT A 

U.S.-Flag Carriage on the Great Lakes: 2009–2014 and Long-Term Average 

(net tons) 


0204WEAK1.eps
14 

ATTACHMENT C 

MINISTER OF TRANSPORT, INFRASTRUCTURE AND COMMUNITIES

Ottawa, Canada, December 4, 2008 

Mr. DAVID PATERSON, 

Governor of New York, 

State Capitol, 

Albany, NY. 

Dear Governor Paterson: 

I am writing to convey the Government of Canada’s serious concerns with the 

State of New York’s proposed amendments to the ballast water provisions of the 

United States (US) Environmental Protection Agency’s National Pollutant Discharge 

Elimination System. These amendments will have a damaging effect on the Great 

Lakes’ economy, severely impeding Canada’s domestic trade by the Canadian Fleet, 

and fail to establish a higher level of environmental protection for the Great Lakes 

Region. 

Ongoing scientific research, statistics from the enforcement of Canada’s Ballast 

Water Control and Management Regulations, and scientific advice from both Canada 

and the U.S. suggest that neither the Canadian nor U.S. domestic fleet is a likely 

vector for the introduction of invasive species. As such, Canada would like to express its concern that there is no scientific rationale for the type of measures prescribed in New York’s amendments to require Canadian-flagged vessels, which operate beyond Lake Ontario, to undergo ballast water exchange. 

The Great Lakes and St. Lawrence Seaway system is a strategic waterway, 

shared by Canada and the United States, and is an essential part of North America’s transportation system. The efficient flow of goods by ship on this system is 

vital to the economies one of both Canada and the United States, including the state 

of New York. The combined Canadian and U.S. fleets move goods worth approximately $80 billion each year, including primary resources that are essential to the 

industrial infrastructure of both countries. In 2007, Canada purchased nearly onefifth of New York’s foreign-bound goods, making it the state’s largest foreign export 

market. Statistics indicate that Canada-US trade supports nearly 500,000 jobs in 

New York State. 


0204SEA1.eps
15 

The Canadian domestic fleet when subject to the New York’s proposed ballast 

water amendments will cease to be able to continue with its domestic trade between 

Regions of Canada and to the US. These amendments will significantly increase 

costs to carry cargo across the border, resulting in possible modal shifts away from 

the most environmentally efficient means of transport, as well as in a reduction of 

capacity and competitiveness in the Great Lakes Region. New York as well as all 

other Great Lakes ports and industry will suffer a major disruption to the supply 

of raw materials: the U.S. steel and automotive sectors, for example, would be significantly affected. 

In addition, Article I of the Canada-US Boundary Waters Treaty (1909) obliges 

both countries to ensure that all navigable boundary waters are to be equally free 

and open to commercial navigation for ships from either side of the border, and both 

fleets are to be equally treated by laws and regulations of both countries. In addition to this agreement, the Great Lakes Water Quality Agreement calls for coordinated regulations in these shared waters. 

Canada’s Ballast Water Control and Management Regulations came into effect in 

June 2006. These regulations apply to all vessels entering waters under Canadian 

jurisdiction from outside Canada’s Exclusive Economic Zone. All ships entering the 

Great Lakes are targeted in the current enforcement protocol. Enforcement takes 

place before ships enter the locks of the St. Lawrence Seaway at Montreal and is 

carried out by a joint enforcement team of the United States Coast Guard, the St. 

Lawrence Seaway Development Corporation (US), the St. Lawrence Seaway Management Corporation and Transport Canada. Boarding teams test ballast tanks to 

ensure a minimum salinity of 30 parts per thousand exist in each tank onboard 

each vessel. Further, the Canada—US Joint Ballast Water Enforcement Program 

operated out of Montreal, is internationally recognized as a prime example of coordination and cooperation between both countries to harmonize regulations in the interest of protecting the Great Lakes Region while promoting the efficient flow of 

goods by ship. 

We strongly hold that the Great Lakes and the St. Lawrence Seaway are our 

shared waters and the best approach to protect them is through cooperation. As 

both our countries and your States face challenges to deal with environmental 

issues in our shared waters, I am pleased to see over the years cooperation between 

our governments and institutions has been excellent. The joint ballast water inspections in Montreal is one example, our collaboration to provide marine search and 

rescue, ice breaking, marine security and scientific research are a few other examples. 

Building on this history of cooperation, and on sharing our waterways, the Government of Canada kindly requests that your administration exempt the Canadian 

domestic fleet trading in waters under Canadian jurisdiction, from New York’s proposed amendments to the ballast water provisions of the United States (US) Environmental Protection Agency’s National Pollutant Discharge Elimination System. 

This exemption will provide an opportunity for Canada and the United States to develop harmonized ballast water provisions prior to the 2009-shipping season. Canada specifically requests the exemption be granted in the interest of protecting the 

environment of the Great Lakes Region while promoting the efficient flow of goods 

by ship between both countries. 

To this end, I am pleased to announce Canada is taking steps to ratify the International Convention for the Control and Management of Ships’ Ballast Water and 

Sediments, 2004, under the auspices of the International Maritime Organization, as 

a baseline. Canada played a key role in initiating the development of this Convention, which will require ships install equipment to treat ballast water by 2016. 

I thank you in advance for your ongoing efforts to support and protect our shared 

waterways and to continue the development of our mutually dependent economies. 

Please do not hesitate to contact me if you have any questions or concerns. 

Sincerely, 

JOHN BAIRD, 

P.C., M.P. 

c.c.: 

Dr. Stephen Johnson, Administrator of the United States Environmental Protection 

Agency 

Admiral Thad Allan, Commandant of the United States Coast Guard 

Ms. Mary E. Peters, United States Secretary of Transportation 

Mr. Collister Johnson, Jr., Administrator, St Lawrence Seaway Development 

Corporation 

16 

The Honourable Lawrence Cannon, Minister of Foreign Affairs and International 

Trade 

Mr. Jim Bradley, Minister of Transport for Ontario 

Mme. Julie Boulet, Minister of Transport for Quebec 

Mr. Richard Code, President, St Lawrence Seaway Management Corporation 

(Canada) 

Mr. Donald Morrison, President, Canadian Shipowners Association 

ATTACHMENT D 

MINISTER OF FOREIGN AFFAIRS

MINISTRE DES AFFAIRES ETRANGERES

Ottawa, Canada, December 11, 2008 

Hon. CONDOLEEZZA RICE, 

Secretary of State, 

The United States of America, 

Washington, DC. 

Dear Madam Secretary: 

I am writing to convey the Government of Canada’s serious concerns with the 

State of New York’s proposed certification of the United States Environmental Protection Agency’s (EPA) National Pollutant Discharge Elimination System. The proposed requirements for ballast water discharges will have a damaging effect on the 

highly integrated economy of the Great Lakes region as a whole by severely impeding the movement of Canadian ships, while failing to achieve environmental benefits. 

New York’s proposed rules inappropriately classify Canadian ships operating in 

the St. Lawrence Seaway as foreign shippers, categorizing them with shippers operating from outside North America. Under these amended requirements, Canadian 

domestic ships entering the Great Lakes from the Seaway, all of which must pass 

through New York waters, will be forced to undergo ballast water exchange in the 

Atlantic Ocean before each entry. This would cause illogical and untenable situations. 

Of additional concern to Canada is the patchwork of ballast water regulations 

emerging in the Great Lakes, as each state in the region introduces differing requirements under the EPA’s permit system. The Government of Canada shares the 

U.S. Great Lakes States’ concerns regarding the impact of invasive species on our 

shared waters. Canada has a comprehensive national regulatory regime for ships 

that addresses environmental issues. This regime includes rules that ships must follow to prevent both pollution and the introduction of invasive species, consistent 

with global rules under the International Maritime Organization. We support the 

development of compatible rules in the United States and in the Great Lakes States. 

The Great Lakes and St. Lawrence Seaway system is one of the world’s greatest 

and most strategic waterways. It has always been an essential part of North America’s transportation infrastructure and is critical for the economies of both Canada 

and the United States. It is a landmark achievement of our two countries working 

together. In 2007, the St. Lawrence Seaway handled an estimated 43 million tonnes 

of cargo, and it is particularly important for the transport of bulk commodities, such 

as iron ore, steel and coal. If Canadian ships were subjected to the proposed measures, it would significantly increase costs to carry cargo across the border, resulting 

in possible modal shifts away from the most environmentally efficient means of 

transport, as well as in a reduction of capacity and competitiveness in Great Lakes 

shipping. 

Further, as currently proposed, the state of New York’s amendments to the EPA’s 

National Pollutant Discharge Elimination System are contrary to the Canada-US 

Boundary Waters Treaty (1909). Article I of the treaty obliges both countries to ensure that all navigable boundary waters are to be equally free and open to commercial navigation for ships from either side of the border, and both fleets are to be 

equally treated by laws and regulations of both countries. In addition, the binational 

Great Lakes Water Quality Agreement calls for compatible regulations in these 

shared waters. 

The Government of Canada supports continued and enhanced cooperation with 

U.S. authorities to combat invasive species in our shared waters. As both our countries face challenges to deal with environmental issues in our shared waters, I am 

pleased to see that over the years cooperation between our governments and instituVerDate Nov 24 2008 11:30 Nov 06, 2015 Jkt 075679 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\97448.TXT JACKIE
17 

tions has been excellent. The Great Lakes and St. Lawrence is a shared waterway 

and the best approach for effective environmental management is through cooperation, not through unilateral measures, especially those which unfairly penalize one 

party. 

Accordingly, the Government of Canada requests United States Federal engagement on this issue, to seek an exemption of Canadian domestic shippers from these 

regulations and to ensure that regulations compatible with international standards 

are adopted to the maximum extent possible in the Great Lakes. I thank you in advance for your ongoing efforts to support the Canada-U.S. relationship and to continue the development of our mutually dependent economies and the protection of 

our shared waterways. Please do not hesitate to contact us if you have any questions or concerns. 

Sincerely, 

Honourable LAWRENCE CANNON, P.C., M.P. 

Senator RUBIO. Thank you. 

Next is Ms. Claudia Copeland, Congressional Research Service, 

Washington, D.C. 

Welcome. 

STATEMENT OF CLAUDIA COPELAND, SPECIALIST IN 

RESOURCES AND ENVIRONMENTAL POLICY, 

RESOURCES SCIENCE AND INDUSTRY DIVISION, 

CONGRESSIONAL RESEARCH SERVICE 

Ms. COPELAND. Thank you. 

Mr. Chairman and members of the Subcommittee, I am Claudia 

Copeland, a Specialist in Environmental Policy with the Congressional Research Service. Thank you for the opportunity to testify 

about issues concerning regulation of ballast water and other discharges from vessels. 

Today there is wide agreement on the need for strong measures 

to manage vessel discharges that may harm marine environment, 

especially ballast water, but differing views on how best to do that. 

As my written statement describes, two Federal agencies regulate vessel discharges. The first is the Coast Guard, which, pursuant to the National Invasive Species Act, regulates ballast water 

discharges from about 3,000 vessels. And the second is EPA, which, 

pursuant to the Clean Water Act, regulates ballast water and other 

discharges from about 70,000 vessels under a national permit. 

My statement also describes how 25 states also regulate vessel 

discharges. It is the combination of Federal and state requirements 

that is at issue, and I would like to highlight four aspects of the 

topic. 

The first is overlapping Federal requirements. 

The Coast Guard’s rule and EPA’s vessel permit are similar but 

not identical. Both include numeric ballast water discharge standards, generally the same numeric standards, but, among the differences, the Coast Guard can grant temporary exemptions from its 

standards if technology isn’t available, while EPA doesn’t have that 

authority. EPA’s permit regulates many types of discharges in addition to ballast water. 

The maritime industry, some states, and some environmental 

groups favor a uniform national ballast water discharge standard 

out of concern that the overlapping requirements make implementation costly and confusing. Many industry groups want to centralize responsibility with the Coast Guard. 

18 

Now, centralizing with the Coast Guard might reduce confusion 

about ballast water, but questions would still remain. For one, 

what would happen to regulation of the more than two dozen nonballast water discharges that are also covered by EPA’s permit? 

Options could include eliminating regulation of them entirely or 

centralizing everything with the Coast Guard or having EPA continue to regulate non-ballast water discharges. However, if the 

Coast Guard regulated ballast water and EPA regulated other discharges, vessel owners and operators would still be dealing with 

two agencies. 

Most environmental groups want EPA to continue with a role of 

some sort for all types of discharges, because, in their view, EPA’s 

sole mission is protecting the environment, while the Coast Guard 

has multiple missions. 

A second related issue is the role of states. Minnesota, Wisconsin, 

Michigan, and Hawaii have enacted their own ballast water permits, separate from EPA’s permit. And California and New York 

have adopted numeric ballast water discharge standards that are 

more stringent than the Coast Guard’s and EPA’s. And, in addition, as you have heard, 25 states, including Alaska, Connecticut, 

Missouri, Nebraska, New Hampshire, and Washington, have adopted non-ballast water requirements that also are enforceable conditions of EPA’s permit. 

Industry groups object to the additional requirements that are 

imposed by states, which, they argue, create a patchwork of inconsistent requirements that are problematic for vessels that travel 

between jurisdictions. While many of them would favor Federal 

preemption of the states in this area, the courts so far have supported the states’ actions. 

Not surprisingly, the states that have adopted additional requirements strongly oppose proposals to preempt their authority, arguing that this would be contrary to Congress’s intention in both the 

Clean Water Act and the National Invasive Species Act. 

A third issue is the ballast water discharge standards themselves. The Coast Guard and EPA have adopted similar requirements, but questions do remain. First is whether the current 

standards are even achievable and affordable. 

In addition, there is the view of some states and environmental 

groups that more stringent standards should be required. For example, New York argues that its uniform national standard would 

be desirable, as that is more stringent than the Coast Guard and 

EPA rule. And California continues to support its standards, which 

are the most stringent in the country. 

The final issue concerns commercial fishing and small vessels. In 

2008, Congress enacted legislation to restrict the types of vessels 

that are subject to EPA’s permit and provided a temporary moratorium for all commercial fishing vessels and nonrecreational vessels 

less than 79 feet in length. That moratorium will expire in 2017. 

Many believe that the discharges from these vessels don’t significantly harm marine life and that they should be permanently exempted from permitting. However, others believe that even if there 

is a small potential risk of environmental harm, discharges from 

these vessels should still be regulated. 

19 

1The IMO, a body of the United Nations, sets international maritime vessel safety and marine 

pollution standards. 

My final point is that the issues that I have discussed are complicated, and while CRS can’t recommend solutions, we can help 

you analyze the options for them. 

This concludes my remarks, and thank you for the opportunity 

to testify. 

[The prepared statement of Ms. Copeland follows:] 

PREPARED STATEMENT OF CLAUDIA COPELAND, SPECIALIST IN RESOURCES AND

ENVIRONMENTAL POLICY, RESOURCES SCIENCE AND INDUSTRY DIVISION, 

CONGRESSIONAL RESEARCH SERVICE

Mr. Chairman and Members of the Subcommittee, on behalf of the Congressional 

Research Service, thank you for the opportunity to appear before you. I am Claudia 

Copeland, Specialist in Resources and Environmental Policy. The Committee requested that CRS discuss the legislative and regulatory history of vessel discharge, 

the current regulatory schemes, and issues addressed in recent vessel discharge legislation. In serving the U.S. Congress on a non-partisan and objective basis, CRS 

takes no position on legislation. 

Introduction 

As part of their normal activities, vessels may discharge a wide range of wastes 

and contaminants into U.S. and international waters, including nutrients, pathogens, oil and grease, metals such as copper, toxic chemical compounds, and non-native aquatic nuisance, or invasive, species. The discharges can include shower and 

laundry facility water, deck washdown and runoff, bilgewater, motor fuel, machinery wastewater, and ballast water, among others. Contaminants in these discharges 

can have a broad array of effects on aquatic species and human health, many of 

which can be harmful. 

Similarly, the universe of vessels that may release these discharges is diverse and 

includes commercial fishing vessels, cruise ships, ferries, barges, mobile offshore 

drilling units, tankers, cargo ships, container ships, research vessels, emergency response vessels such as firefighting and police vessels. Including recreational vessels, 

the universe of vessels is in the millions. 

Ballast water discharges from vessels have been a particular concern, because 

invasive species entering U.S. waters cause social, recreational, and ecological disturbances and result in significant economic losses. National attention was drawn 

to the invasive species problem with the arrival of zebra mussels in the Great Lakes 

in the late 1980s. Since then, virtually all coastal and Great Lakes states have experienced ecological change and loss from aquatic nuisance species. For example, zebra 

mussels attach to hard surfaces such as water intake pipes that are used for cooling 

water and municipal water supply. When this occurs, the infestation can cause significant reduction in pumping capacity and occasionally has caused plant shutdowns. 

Ballast water has been identified as a major pathway for introduction of aquatic 

nuisance species. Ships use large amounts of ballast water to stabilize the vessel 

during transport. Ballast water is often taken on in the coastal waters in one region 

after ships discharge wastewater or unload cargo, and then discharged at the next 

port of call, wherever more cargo is loaded, which reduces the need for compensating ballast. The practice of taking on and discharging ballast water is essential 

to the proper functioning of ships, because the water that is taken in or discharged 

compensates for changes in the vessel’s weight as cargo is loaded or unloaded, and 

as fuel and supplies are consumed. However, ballast water discharge typically contains a variety of biological materials, including non-native, nuisance, exotic species. 

If these species are released into lakes or rivers as part of ballast water discharge, 

they can alter aquatic ecosystems. 

Today there is wide agreement on the need for strong measures to control vessel 

discharges, especially ballast water discharges, but there are differing views on how 

to do that. Vessel discharge requirements in the United States are a result of U.S. 

Coast Guard regulations, U.S. Environmental Protection Agency (EPA) permits, and 

individual state rules, limitations, and requirements. Vessels also are subject to a 

number of international agreements, in particular to Conventions adopted by the 

International Maritime Organization (IMO),1 which apply to vessels operating under 

20 

2 16 U.S.C. §§ 4701–4741. 

3The Exclusive Economic Zone (EEZ) means the area established by Presidential Proclamation Number 5030, dated March 10, 1983, which extends from the baseline of the territorial sea 

of the United States seaward 200 miles, and the equivalent zone of Canada. 4 Ballast water exchange involves replacing water that has been taken on in coastal areas 

with open-ocean water during a voyage. This process reduces the density of coastal organisms 

in ballast tanks, replacing them with oceanic organisms with a lower probability of survival in 

nearshore waters. 5Department of Homeland Security, Coast Guard, ‘‘Standards for Living Organisms in Ships’ 

Ballast Water Discharged in U.S. Waters,’’ 77 Federal Register 17254–17320, March 23, 2012. 

The regulations are codified at 33 CFR Part 151 and 46 CFR Part 162. 6 International Maritime Organization, International Convention for the Control and Management of Ships’ Ballast Water and Sediment, 2004. Numeric discharge performance standards in 

the IMO ballast water convention, referred to as the D–2 standards, will enter into force 12 

months after ratification by 30 nations representing 35 percent of the world shipping tonnage. 

As of January 2015, this convention has been ratified by 43 nations, representing 32.5 percent 

of the world merchant shipping tonnage. The United States has not ratified the convention. 

flags of countries that are Parties to the Conventions. It is the combination of regulations and standards that is at issue today. 

Coast Guard Regulation: Ballast Water Discharges 

Federal authority to address ballast water concerns in the United States is contained in the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 

(NANPCA, P.L. 101–646), as amended by the National Invasive Species Act of 1996 

(NISA, P.L. 104–332),2 and is administered by the Coast Guard. Initially this authority required a program to prevent the introduction and spread of invasive species into the Great Lakes by managing vessel ballast water discharge, a program 

that subsequently was extended to all U.S. ports and waters. Ships that have operated outside the U.S. Exclusive Economic Zone 3 were directed to undertake high 

seas ballast exchange before entering U.S. waters. However, ballast water exchange 

is believed to be only partially effective to reduce the spread of aquatic organisms 

and pathogens and is often not carried out due to safety consideration.4

In 2012 the Coast Guard promulgated a rule establishing new requirements for 

ballast water management.5 The Coast Guard amended its existing requirements to 

include numeric standards that establish allowable concentrations of living organisms in ballast water that is discharged in U.S. waters. The rule specifies that ballast water to be discharged must contain fewer than 10 organisms per cubic meter 

for organisms larger than 50 micrometers and fewer than 10 organisms per milliliter for smaller organisms, those that are between 10 and 50 micrometers in size. 

It also establishes numeric limits on indicator microorganisms, such as intestinal 

pathogens. The rule applies to all U.S. and foreign vessels that are equipped with 

ballast tanks and are operating in waters of the United States, unless specifically 

exempt, a number estimated by the Coast Guard to be 3,046 vessels over a 10-year 

period. Under the rule, the standards would apply to new vessels—meaning those 

constructed on or after December 1, 2013—on delivery and would apply to vessels 

constructed before December 1, 2013, according to a phased schedule beginning January 1, 2014, depending on a ship’s ballast water capacity. 

Under the Coast Guard rule, vessel owners and operators have several compliance 

options. 

• They can eliminate ballast water discharge. 

• They can discharge to an onshore facility or to another vessel for the purpose 

of treatment. 

• They can use ballast water that is only drawn from a U.S. public water system. 

• Or, they can install a ballast water management system that has been approved 

by the Coast Guard. For this option—installation of treatment technology—the 

rule details procedures for land-based and shipboard testing and Coast Guard 

approval. 

The numeric standards in the Coast Guard rule overlap with standards specified 

in a 2004 Convention of the IMO.6 Like the Coast Guard rule, the IMO ballast 

water performance standard identifies organisms of various sizes and also identifies 

concentrations of indicator microbes in ballast water that management systems are 

required to achieve prior to discharge. And the numeric standards in the Coast 

Guard rule and the IMO Convention are the same. 

EPA Permit for Vessel Discharges 

EPA also has authority to regulate vessel discharges, including ballast water, but 

for many years the agency mostly chose not to do so. This authority stems from the 

21 

7 Clean Water Act Section 301(a); 33 U.S.C. § 1311(a). 

8 Northwest Environmental Advocates v. U.S. Environmental Protection Agency, 537 F.3d 

1006 (9th Cir. 2008). 9P.L. 110–288. 

10P.L. 110–299. 11P.L. 113–181. 12 Infra note 4. 

Clean Water Act, which prohibits the discharge of pollutants from a point source 

into U.S. waters without a permit.7 Vessels are defined in the statute as point 

sources. In 1973, EPA promulgated a regulation that excluded discharges incidental 

to the normal operation of vessels—including ballast water (but not including vessel 

sewage discharges, which are regulated)—from Clean Water Act permitting requirements. EPA’s position was that, because vessels are mobile and move between jurisdictions, the traditional Clean Water Act mechanism of regulating through stateissued permits is problematic, because state requirements can vary widely. 

This long-standing regulation was challenged in Federal district court by environmental advocacy groups who wanted EPA to address ballast water as a source of 

aquatic nuisance species in U.S. waters. The court found that the 1973 regulation 

contradicted Congress’ intention that discharges from vessels be regulated under the 

Clean Water Act, and it vacated, or revoked, the regulatory exclusion. In 2008, this 

ruling was upheld.8

EPA initially estimated that the court’s ruling could affect and would require permits for as many as 98,000 commercial fishing, passenger, cargo and other vessels, 

plus over 13 million recreational boats. Congress responded to that estimate by enacting two bills to restrict the population of vessels subject to regulation. The first, 

the Clean Boating Act of 2008, provided a permanent exemption for discharges incidental to the normal operation of recreational vessels of all sizes from Clean Water 

Act permitting requirements.9

The second measure provided a two-year moratorium on Clean Water permitting 

for certain discharges from commercial fishing vessels of all sizes and non-recreational vessels less than 79 feet in length.10 This moratorium has been extended 

three times, most recently through a three-year extension, until December 18, 2017, 

which was enacted in December 2014 as part of a Coast Guard reauthorization 

bill.11

Following Congress’ actions, in 2008 EPA issued a national Clean Water Act permit called the Vessel General Permit (VGP), giving permit coverage to an estimated 

72,000 vessels including tankers, freighters, barges, and cruise ships that were not 

exempted by the two bills. It applied to 26 types of pollutant discharge types or 

waste streams, including but not limited to ballast water, that result from the normal operation of covered vessels. The ballast water requirements of the 2008 VGP 

were minimal, largely requiring what was required by then-existing Coast Guard 

rules—primarily use of ballast water exchange.12 Like Coast Guard rules that had 

been in effect since 2004, EPA’s permit mandated mid-ocean ballast water exchange 

for ships traveling outside the 200-nautical-mile exclusive economic zone (EEZ) of 

the United States. 

Some stakeholder groups urged EPA to include numeric ballast water discharge 

standards in the 2008 VGP, arguing that discharge standards would encourage 

adoption of technology that is more effective for controlling living organisms than 

ballast water exchange. But EPA did not do so. Requiring a numeric effluent limit 

for the discharge of living organisms was not practicable, achievable, or available 

because adequate treatment technologies were not then commercially available, 

EPA said. Instead, the VGP specified ballast water best management practices, such 

as regular cleaning of ballast tanks in mid-ocean to remove sediment, as well as recordkeeping and monitoring requirements. 

Because the VGP and other Clean Water Act permits are authorized for five-year 

periods and then must be renewed, in 2013 EPA re-issued the VGP. It is similar 

to the 2008 permit in many respects, but departs from the previous permit by specifying ballast water numeric discharge limits. Based on reports from the National 

Research Council and the agency’s own Science Advisory Board since issuance of the 

2008 permit, EPA concluded that ballast water treatment technologies are now 

available to meet numeric limits in the new VGP, and that the requirements are 

economically practicable and achievable. 

The numeric limits in the 2013 VGP are the same as the performance standards 

in the Coast Guard’s 2012 regulation and also the same as the standards in the 

IMO’s ballast water Convention. Likewise, the VGP matches the implementation 

time-frame in the Coast Guard rule for new and existing vessels. 

22 

While they are similar in many respects, the Coast Guard rule and the EPA permit differ in several ways. 

• Number and types of vessels. The Coast Guard rule applies to about 3,050 vessels that are equipped with ballast tanks, while the EPA permit applies to 

about 72,000 vessels, including many that do not discharge ballast water. The 

Coast Guard rule exempts crude oil tankers engaged in coastwise trade (i.e., essentially referring to a voyage that begins at any point within the United States 

and delivers a type of commercial cargo to any other point within the United 

States); the EPA permit has no such exemption. 

• Covered discharges. The Coast Guard rule focuses just on ballast water discharges. The EPA permit authorizes discharges of ballast water and 26 other 

waste streams incidental to the normal operation of vessels. 

• Ballast water requirements are similar but not identical. Both adopt the ballast 

water discharge standards in the IMO ballast water convention, but they include somewhat different monitoring, recordkeeping and reporting requirements. For example, the EPA permit regulates discharges of biocides that vessels may use as part of ballast water management; the Coast Guard rule has 

no such requirements. 

• Ballast water management technology. The Coast Guard rule requires use of approved ballast water management technology. The EPA permit requires use of 

‘‘best available technology,’’ but does not require technology certification. 

• Exemptions. The Coast Guard has authority to grant temporary exemptions 

from its ballast water management standards if technology is not available. Because no technological system has yet received Coast Guard approval, the Coast 

Guard has granted two-year exemptions to nearly 350 vessels. EPA does not 

have authority to grant exemptions from requirements of the VGP. 

• Enforcement. Under NISA and the Clean Water Act, respectively, the Coast 

Guard and EPA have enforcement authority, such as civil and criminal sanctions. Only the Clean Water Act authorizes citizen suits, that is, the ability of 

citizens to bring a lawsuit to enforce effluent limitations in a permit. 

State Regulation of Vessel Discharges 

The role of states in regulating vessel discharges is a controversial issue, because, 

beyond Federal requirements, vessel discharges also are subject to regulation by 

nearly one-half of the states. The states’ authority to do so derives in part from provisions of the Clean Water Act. First, Section 510 allows states to adopt standards, 

discharge limitations, or other requirements no less stringent than Federal rules. 

States often want the flexibility to require standards more stringent than federal, 

and this general authority in the statute gives states the ability to tailor their implementation of Federal water quality programs by adopting requirements under 

state law to address local conditions and circumstances. 

Several states, including Minnesota, Wisconsin, Michigan, and Hawaii, have used 

their authority to issue state permits independent of the VGP to regulate ballast 

water discharges. 

Second, under Clean Water Act Section 401, an applicant for a Federal license or 

permit to conduct any activity that may result in a discharge to waters of the 

United States must provide the Federal agency with a certification that the discharge will comply with applicable provisions of the Federal law, including stateestablished water quality standards. Section 401 gives states two distinct powers: 

one, the power indirectly to deny Federal permits or licenses by withholding certification; and two, the power to impose conditions on Federal permits. Where states 

impose conditions on a Federal permit—such as the VGP—the permittee must meet 

the additional state limitations as conditions of the Federal permit. 

Twenty-five states and Tribes certified the 2013 re-issued permit with additional 

permit conditions covering one or more of the 27 effluent streams. Of the 25, 14 

states certified the permit with supplementary conditions applicable to ballast water 

discharges, including specific numeric discharge standards that are more stringent 

than those in the EPA permit (or the Coast Guard rule), state permit requirements 

such as Michigan’s, or with more general language prohibiting nuisance or other 

conditions in order to protect state waters. Some states certified with conditions for 

specific pollutant discharges, such as chlorine, which can harm aquatic life. States 

that have used their state authority to adopt more stringent ballast water standards 

include New York, which are 100 times more stringent than EPA’s and the Coast 

Guard’s, and California, which has established numeric standards 1,000 times more 

stringent than those in the Coast Guard rule and the EPA permit. Both New York 

23 

13S. 2094 would have established a single Federal ballast water management standard, specifying the Coast Guard’s 2012 numeric standards as the baseline. Under the legislation, these 

standards would supersede existing state standards or permits and also would supersede EPA’s 

ballast water management requirements under the Clean Water Act. The Coast Guard would 

be directed to adopt more stringent ballast water standards within eight years, unless a feasibility review determines that the specified more stringent standards are not attainable. The 

Coast Guard could establish lower or higher revised performance standards with respect to 

classes of vessels, if appropriate. Following enactment of the bill, manufacturers of ballast water 

treatment technology could only sell, deliver, or import technology that has been certified by the 

Coast Guard as meeting criteria in the legislation. Finally, a state could enforce a more stringent ballast water performance standard if the standard is in effect on the date of enactment 

of the legislation and if the Coast Guard determines that compliance with the state standard 

is achievable and is consistent with obligations under relevant international treaties or agreements. Also in the 113th Congress, the House passed a bill with similar, but not identical, provisions (H.R. 4005). 14Lake Carriers’ Association v. EPA, 652 F.3d 1, 10 (D.C. Cir. 2011). 

and California have temporarily deferred their more stringent standards, but expect 

to implement them when technology to do so is available. 

The commercial shipping industry and environmental groups challenged several 

separate state permits, on differing grounds, but courts have generally upheld the 

permits. A Minnesota court upheld that state’s permit despite challenges from an 

environmental group over the state’s failure to impose numeric limitations on ballast water discharges. Also, Michigan’s permitting program and New York’s certification of the 2008 EPA permit were upheld after challenges by shipping industry 

groups. 

Issues in the Regulation of Vessel Discharges 

The combination of multiple Federal requirements, plus state requirements, presents several closely related issues, some of which have been addressed in recent 

legislation, including S. 2094, which this committee approved in the 113th Congress.13

Overlapping Federal Requirements 

For some time, the maritime industry has argued for harmonization of what it 

views as duplicative Federal rules for vessel discharges, especially for ballast water 

discharges, through a single set of requirements. Shipping and other industry 

groups have long raised concerns that EPA’s permit overlaps with mandates in the 

Coast Guard rule, making implementation costly and confusing for vessel owners. 

Many in these groups have called for centralizing responsibilities with the Coast 

Guard, which has long had administrative and regulatory authority over the industry. 

Centralizing ballast water management with the Coast Guard might reduce confusion about ballast water, but questions would still remain. One question concerns, 

how would the more than two dozen non-ballast water waste streams that also are 

included in EPA’s permit be regulated? Options could include eliminating regulation 

of them entirely, or centralizing everything with the Coast Guard, or having EPA 

continue to regulate non-ballast water discharges. If EPA were to continue regulating other discharges such as shower and laundry water, bilgewater, and machinery waste, vessels would still be subject to those portions of the VGP, and vessel 

owners and operators would still be dealing with two agencies. Some interest 

groups, especially some environmental advocacy groups, would prefer that if ballast 

water regulation is centralized with one Federal agency, they favor EPA. These 

groups prefer EPA because its sole mission is protecting public health and the environment, while for the Coast Guard, regulating pollutant discharges is one of several of its existing missions and responsibilities. The maritime industry is concerned 

about any continuing regulation under the Clean Water Act, because of the potential 

for citizen suit enforcement, which that law allows. 

State Role and Federal Preemption 

Shipping and other industry groups have also objected to the conditions that 

states attach to EPA’s permit, which they argue create a patchwork of inconsistent 

requirements that are economically inefficient and cumbersome to implement. A 

group of commercial shipping operators challenged state certifications under the 

2008 VGP, contending that the shipping industry is placed in the difficult regulatory 

position of being subject to a single Federal permit with multiple state requirements. The Federal court rejected the challenge, ruling that under the Clean Water 

Act, EPA does not have the power to amend or reject state certifications under Section 401, which must be attached to and become conditions of the Federal permit.14

24 

15 16 U.S.C. 4725. See 77 Federal Register 17279–17280, March 23, 2012. 16 Extension of the moratorium was included in The Howard Coble Coast Guard and Maritime 

Transportation Act of 2014 (P.L. 113–281). 

Similar concerns were raised about the Coast Guard’s 2012 rule. A number of 

commenters on the rule requested that the Coast Guard preempt all state ballast 

water treatment standards and requirements in favor of a uniform, national standard. Some argued that states with conflicting regulations burden interstate commerce and create confusion and would delay eliminating invasions of aquatic nuisance species. In the final rule, the Coast Guard responded that it cannot legally 

preempt state action to regulate discharges of ballast water within state waters, citing a provision of NANPCA, as amended by NISA, that saves to the states or their 

political subdivisions their authority to ‘‘adopt or enforce control measures for aquatic nuisance species, [and nothing in the Act would] diminish or affect the jurisdiction of any State over species of fish and wildlife.’’ 15

States that have adopted additional requirements, such as their own permits or 

more stringent standards, strongly oppose proposals to preempt this authority, arguing that doing so would be contrary to Congress’ clear intention in both the Clean 

Water Act and the National Invasive Species Act. 

Ballast Water Discharge Standards 

Previous Coast Guard rules and EPA’s 2008 VGP did not include numeric standards to control ballast water discharges, largely because effective and economical 

technology was not available. This changed in the Coast Guard’s 2012 rule and 

EPA’s reissued permit in 2013. While the issue of numeric ballast water discharge 

standards would seem to have been resolved through these more recent actions, 

that’s not necessarily the case. Both the Coast Guard and EPA believe that the 

standards specified in the IMO ballast water Convention, which their rules endorse, 

are technically and economically achievable, although some industry groups disagree. At the same time, some states and environmental advocacy groups continue 

to favor more stringent numeric standards in order to eliminate invasions of aquatic 

invasive species. For example, while New York agrees that a uniform, national 

standard is desirable, that state would like such a standard to match what it has 

adopted. Likewise, California continues to support its standards, which are the most 

stringent in the country. 

The Coast Guard’s rule calls for a review of its standard in 2016, and EPA will 

review its standard before the current VGP expires in 2018. Whether the agencies 

will see a need to adopt more stringent ballast water standards in the future is unknown for now. 

Permit Moratorium for Small Vessels 

A final issue is how to resolve the current temporary moratorium that Congress 

enacted in December on EPA permitting of commercial fishing and small vessels.16

That moratorium expires in December 2017. Many believe that discharges incidental to the normal operation of these vessels are not a significant source of harm 

to aquatic life in U.S. waters—compared with discharges from larger vessels—and 

that it would be appropriate, both administratively and environmentally, to exclude 

them permanently from Clean Water Act permitting. On the other hand, some may 

argue that, even if there is small potential risk of environmental harm from discharges from these vessels, it still warrants improved management and regulation. 

That concludes my statement. Thank you again for the opportunity to testify. I 

would be glad to respond to questions at the appropriate time. 

STATEMENT OF HON. DAN SULLIVAN, 

U.S. SENATOR FROM ALASKA 

Senator SULLIVAN [presiding]. Thank you, Ms. Copeland. 

Our next witness is Captain Robert Zales, President, National 

Association of Charterboat Operators. 

Captain Zales? 

25 

STATEMENT OF ROBERT F. ZALES II, PRESIDENT, NATIONAL 

ASSOCIATION OF CHARTERBOAT OPERATORS (NACO); 

OWNER, BOB ZALES CHARTERS 

Captain ZALES. Mr. Chairman and members of the Committee, 

my name is Robert F. Zales II, and I appear today on behalf of the 

National Association of Charterboat Operators and as owner of Bob 

Zales Charters in Panama City, Florida. 

My charter fishing business is a family business started by my 

mother and father in 1965. My parents—father, 88; mother, 82— 

are still involved, and the three of us have struggled for 50 years 

to keep this small business viable. 

I want to thank Chairman Thune, the Committee, and Senator 

Rubio for your invitation to present testimony on this critical issue. 

The charterboat industry provides a variety of on-the-water services, from recreational charter fishing to kayak ecotours. We are 

grateful to Congress for extending the current exemption from the 

NPDES permit requirements on our industry as well as the commercial fishing industry. 

I mention the commercial fishing industry because a substantial 

number of charter-for-hire fishing businesses hold dual permits to 

allow them to commercial-fish during the off-season and during recreational fishery closures in order to help their business survive. 

The charterboat industry has been inundated with Federal, state, 

and local permitting, regulations, and requirements. The permits 

have monetary fees and burdensome reporting and recordkeeping 

requirements and provide for penalties, which include monetary 

fines, permit sanctions, and possible imprisonment associated with 

failing to properly report. 

Requirements placed on our industry range from Federal fishery 

overly restrictive fishing seasons, bag limits and quotas, to closed 

areas to boating and fishing, to engine exhaust emission regulations. The U.S. Coast Guard regulates life-saving, crew licensing, 

medical fitness review, and drug-testing processes. We have similar 

state and local requirements that also include clean-water standards and anti-pollution requirements. 

Clean water is paramount to the successful operation of these 

small family businesses. No one is more concerned about our environment and the condition of our natural marine resources than 

the families who make their living on the water. 

Regulations and requirements to ensure our waters are clean are 

already in place, with the majority being enforced by the Coast 

Guard. Even with their expanded role due to homeland security 

and limited budget and personnel, the U.S. Coast Guard does a tremendous job ensuring our waters are clean. 

Recreational charterboats are operated as uninspected six or less 

passengers and as U.S. Coast Guard-certified seven or more passenger inspected vessels. The Coast Guard COI vessels have mandatory yearly topside inspections and biyearly out-of-the-water inspections. And many uninspected vessels participate in Coast 

Guard voluntary inspection programs. 

In all cases where Coast Guard personnel check a vessel, whether at sea, a dock, or routine inspection, one of the first things they 

look for is a clean bilge and pollution-free vessel. 

26 

In April 2007, the EPA Fact Sheet provided information from 

data from the Coast Guard that, as of 2005, there were 13 million 

state-registered recreational boats, 81,000 commercial fishing vessels, and 53,000 freight and tank barges operating in U.S. waters. 

The 13 million recreational boats have since been exempted from 

the permit. 

The charterboat fleet consists of vessels from 15 foot center console outboards up to 120 foot triple engine headboats, and, of those, 

the majority are the same type vessels as the millions of recreational boats already exempt. The difference between the two is 

one is used for pleasure and the other used for business. 

Many of the Coast Guard COI vessels are also typical recreational boats that have been modified to meet U.S. Coast Guard’s 

COI standards. In cases where vessels are purpose-built for Coast 

Guard’s COI standards, the normal operation of the vessels is similar to recreational boats except they are equipped with Coast 

Guard-required equipment and built to Coast Guard standards, 

which include standards for fuel and oil tanks and purpose-built 

pollution-prevention devices. 

Few, if any, charterboats have ballast tanks, meaning any ballast 

water regulation is a moot point for charterboats. 

The EPA permit will add a substantial regulatory and financial 

burden to an already overly burdened small family business. In addition, the potential liability with associated costs of fines, possible 

lawsuits, and possible imprisonment due to failure to comply with 

reporting requirements could be the final nail in the coffin to drive 

many small families out of business. 

Here is a copy of the current 194 page VGP rules and regulations. The permit requires daily logging of discharges, with estimated amounts and condition. The VGP authorizes civil and criminal penalties for violations of the prohibition against the discharge 

of a pollutant without a permit and also allows for citizen suits 

against violators. Deck wash, including rain runoff, and fish hold 

effluents are among the discharges requiring a permit to discharge. 

The small family charterboat owners handle all business issues 

from their home or vessel. They do not have a staff, large business 

file capacity; handle all daily paperwork and keep up with licensing 

and permit schedules. They try their best to keep up with current 

regulations while trying to provide safe and enjoyable services to 

the public. 

You can imagine my 82 year old mother trying to stay on top of 

the 194 page VGP permit rule book to ensure compliance with recording how much rain runoff from the deck of our vessel occurred 

on any day. 

Our industry is concerned, compliant, safe, and diligently works 

to maintain a clean environment. There is no significant difference 

between our type vessels and those recreational vessels already 

permanently exempt. We have worked since 2006 to gain a permanent exemption and greatly appreciate the help from Congress. 

While you just gave us 3 more years, we encourage you to approve 

legislation as soon as possible providing a permanent exemption for 

the multiple thousands of small family businesses so we are more 

confident in our future. 

27 

Mr. Chairman, this concludes this portion of my testimony. 

Again, I truly appreciate the invitation and opportunity to provide 

you and the Committee with this information. I am pleased to respond to any questions. 

[The prepared statement of Captain Zales follows:] 

PREPARED STATEMENT OF ROBERT F. ZALES II, PRESIDENT, NATIONAL ASSOCIATION

OF CHARTERBOAT OPERATORS (NACO); OWNER, BOB ZALES CHARTERS

Mr. Chairman and Members of the Committee, my name is Robert F. Zales II and 

I am appearing today on behalf of the National Association of Charterboat Operators (NACO) and as owner of Bob Zales Charters in Panama City, Florida. My charter fishing business is a family business started by my mother and father in 1965. 

My parents, father 88 and mother 82, are still involved and the three of us have 

struggled for 50 years to keep this small business viable. I want to thank Chairman 

Thune, the Committee, and Senator Rubio for your kind invitation to present testimony on this critical issue. 

NACO is a non-profit 501 (c) (6) association representing charter boat owners and 

operators across the United States including the Great Lakes. The charter boat industry in the United States consist of recreational charter fishing, diving and snorkeling tours, sailing vessels, sightseeing eco tours, dining cruises, pontoon boat and 

jet ski and kayak rentals, parasailing, and other on the water businesses. While we 

are extremely grateful to Congress for extending the current exemption from the 

NPDES permit requirements on our industry as well as the commercial fishing industry, we are acutely aware of the devastating impacts of the pending requirements, regulations, and potential liability issues on our small family businesses. I 

mention the commercial fishing industry because a substantial number of charter 

for hire fishing businesses hold dual permits to allow them to commercial fish during the offseason and during recreational fishery closures in order to help their business survive. 

Over recent years the charter boat industry has been inundated with Federal, 

State, and Local government permitting, regulations, and requirements. Many of 

the permits have substantial monetary fees and burdensome reporting and record 

keeping requirements. The requirements provide for substantial penalties which include monetary fines, permit sanctions, and possible imprisonment associated with 

failing to properly and timely report. Examples of the substantial number of agencies and multiple requirements placed on our industry are: Federal fishery overlyrestrictive fishing seasons, bag limits and quotas, closed areas to boating and fishing, fishing gear restrictions, the Endangered Species Act, Marine Mammal Protection Act, engine exhaust emission regulations, marine protected areas, U.S. Coast 

Guard regulations such as manning requirements, life-saving requirements, crew licensing, crew medical fitness review and drug testing processes, navigation restrictions, FCC radio licensing and requirements, State business licenses, fishing license 

requirements, fishing and gear restrictions, anti pollution requirements, clean water 

standards, Local business license requirements, anti pollution requirements, among 

a host of others. 

Clean water is paramount to the successful operation of these small family businesses. No one is more concerned about our environment and the condition of our 

natural marine resources than the families who make their living on the water. 

Regulations and requirements to ensure our waters are clean are already in place 

with the majority being enforced by the United States Coast Guard. Even with their 

expanded role due to homeland security and limited budget and personnel the 

USCG does a tremendous job ensuring our waters are clean. 

Recreational charter boats are operated as uninspected 6 or less passengers and 

as USCG Certificated 7 or more passenger Inspected vessels. While the USCG COI 

vessels have mandatory yearly topside inspections and biyearly out of the water inspections, many uninspected vessels participate in the USCG 5 star and other voluntary programs that provides similar inspections. In all cases where USCG personnel check a vessel whether at sea, a dock, or routine inspection one of the first 

things they look for is a clean bilge and pollution free vessel. 

In April 2007 the EPA produced a ‘‘fact Sheet’’ providing information on the impacts of the U.S. District Court decision vacating the exclusion of vessel discharges. 

The information provided as of 2005 data from the USCG stated there were 13 million State-registered recreational boats, 81,000 commercial fishing vessels, and 

53,000 freight and tank barges operating in U.S. waters. The 13 million recreational 

boats have since been exempted from the NPDES permitting requirement. Since 

28 

2006 NACO has provided information to the EPA and Congress about the type boats 

that comprise the charter boat fleet. The vast majority of charter boats consist of 

vessels from 15′ center console outboards up to 120′ triple engine headboats and of 

those the majority are the same type vessels as the millions of recreational boats 

already exempt. The difference between the 2 is one is used for pleasure and the 

other used for business. Many of the USCG COI vessels are also typical recreational 

boats that have been modified to meet USCG COI standards. In cases where vessels 

are purpose built for USCG COI standards the normal operation of the vessels is 

similar to recreational boats except they are equipped with special wiring, piping, 

certified machinery, special safety equipment, and follow USCG COI standards for 

fuel and oil tanks, piping, bilge pumps, and purpose built pollution prevention devices. Few, if any, charter boats have ballast tanks meaning any ballast water regulation is a moot point for charter boats. 

The EPA NPDES permit will add a substantial regulatory and financial burden 

to an already overly burdened small family business. In addition, the potential liability with associated costs of fines, possible lawsuits, and possible imprisonment 

due to failure to comply with reporting requirements no matter how minor could be 

the final nail in the coffin to drive many small families out of business. 

I am presenting a copy of the current 194 page EPA VGP for discharges incidental 

to the normal operation of vessels (the permit rules and regulations). The permit 

will require daily logging of any and all discharges with estimated amounts and condition among other issues. The VGP also authorizes civil and criminal penalties for 

violations of the prohibition against the discharge of a pollutant without a permit, 

and also allows for citizen suits against violators. 

Currently deck wash, including rain runoff, and fish hold effluents are among the 

discharges that will require a permit to allow the discharge. In the VGP permit, fire 

main discharges, gray water, refrigeration and air condensate discharges, seawater 

cooling overboard discharges (including non-contact engine cooling water, hydraulic 

system cooling water, refrigeration cooling water), boat engine wet exhaust, and well 

deck discharges all will require a permit with the required reporting regulations. 

Discharges of garbage and trash will not be eligible for coverage by the permit because discharges of garbage are already covered under 33 CFR Part 151, Subpart 

A. Currently vessel owners must provide a detailed vessel garbage plan and post 

it on the vessel. 

The charter boats owners are small family businesses who typically handle all of 

the business issues from their home or vessel. They do not have a secretarial staff, 

do not have a large business file capacity, handle all of the day to day paper work 

and keep up with licensing and permit renewal schedules, and try their best to keep 

up with all the current regulations while trying to provide safe and enjoyable services to the public. You can imagine my 82 year old mother trying to stay on top 

of a 194 page VGP permit rule book to ensure compliance with recording how much 

rain runoff from the deck of our vessel occurred on any day. 

Our industry is concerned, compliant, safe, and diligently works to maintain a 

clean environment. As you can see there is no significant difference between our 

type vessels and those recreational vessels already permanently exempt. Since 2006 

our and other Associations have worked hard to gain a permanent exemption and 

greatly appreciate the help from Congress by continuing the temporary exemption. 

While you just gave us three more years we encourage you to approve legislation 

as soon as possible providing a permanent exemption for the multiple thousands of 

small family businesses so we are more confident in our future. 

Mr. Chairman, this concludes this portion of my testimony. Again, I truly appreciate the invitation and opportunity to provide you and the Committee with this information. I will be pleased to respond to any questions. 

Senator SULLIVAN. Thank you very much, Captain Zales. 

I want to start by just following up on your testimony. I find that 

very powerful testimony. 

Captain ZALES. Thank you. 

Senator SULLIVAN. As you probably know, in Alaska we also have 

a concern about this issue. And one of the things that I like to remind people, somehow there is sometimes a disconnect between 

people who see a charterboat captain, a small commercial fishing 

boat, and they don’t make the connection that the owner of that 

boat is kind of the ultimate small businessman or small businesswoman in America. 

29 

Captain ZALES. Exactly. 

Senator SULLIVAN. They work hard, take risks. They provide a 

great service. 

And one of the things—and I would welcome comments from all 

the panelists, but, Captain Zales, why don’t we start with you— 

that concerns me the most is the ever-increasing regulatory burden, particularly on the small commercial fishing boats and charters. 

Two questions. What do you see as the increasing costs? And I 

know this is kind of a tough question. Maybe we can have you kind 

of get back to us on that. But as the percentage of regulations has 

increased—and I appreciate you putting that book out, because 

that shows people, right? Small family business, 184 pages. 

What do you see as the increase in terms of just costs to your 

business? And I know it is hard to quantify, but if you can give us 

a sense of that, I think that that is powerful testimony. 

And then, second, in terms of a permanent exemption—and, 

again, this would be for all the panelists, all witnesses—to me, that 

is something that makes a lot of sense. Where is the opposition on 

that? 

Captain ZALES. Thank you for your comments. 

And I would agree with you. Clearly, fishing businesses in this 

country, I mean, you know, that is kind of where this country started, was from fishing, and moved on. 

And, you know, as I said, my daddy is 88 years old, my mother 

is 82. Daddy does what he can; mother handles most of the paperwork stuff now. Mother is not computer-literate, so this 194-page 

book, she would have to read a page at a time, rather than getting 

on a computer and doing that. 

The cost of the permit probably is not that great. The cost of the 

burden of having to keep up with the day-to-day logging of discharges that would be reported to her from things like—like I said, 

this thing requires you to record the amount of rain runoff I had 

on my deck today. I can’t even give you an answer to that question 

on how much rain runs off my deck on any particular day. It is 

rainwater that would have hit the water if it hadn’t hit my boat. 

So what is the purpose? 

And, I mean, you know, it is like I said. We already comply with 

a host of rules and regulations. The Coast Guard, every time they 

come on the boat, the first thing they look for is any kind of pollutant or any kind of problem, because if they see any kind of oil, fuel, 

anything around there, they immediately go to try to find the 

source of where that came from and what happened. So we are constantly working to keep everything clean. 

Senator SULLIVAN. I am going to interrupt you, and I really 

apologize. I have to go cast a vote real quick here, but I will certainly be looking at the transcripts of all your answers to this. This 

is a hugely important issue for me. I am very pleased and honored 

that the Committee Chair is already focusing on this issue. And I 

am going to be very interested in your answers. 

I don’t want to be rude, but I am going to go vote here. I have 

about a minute to get to the floor. So thank you very much. But 

please continue, because I think it is a really important issue. 

Thank you. 

30 

Captain ZALES. And I will tell you that we have quite a number 

of members from Alaska that are part of our organization. 

The real potential here is the liability burden that is here. I don’t 

know if my marine insurance company is going to charge me more 

to cover potential liability from this permit, if it doesn’t get permanently exempted, or what the cost will be. 

But I do know, from reading everything that I have read about 

it, that there are going to be penalties and fines set up. There are 

going to be rewards offered to people who happen to see something. 

I mean, in the fishing business, especially in Florida where we 

are, people use a lot of suntan oil. You drop suntan oil on the 

water, you immediately have a sheen on the water. It is not necessarily a spill, but it looks like a spill. 

So, you know, these kind of problems and this kind of unknown 

future is what really is bothersome to us in trying to make it in 

this. 

And, you know, the benefit to a permanent exemption is—like I 

said, we have been working on this since the court decision came 

out in 2005, and since 2006 we have tried to gain this permanent 

exemption. 

And it is like I said, the vast majority of the boats that the people that I represent operate are recreational-type boats. I mean, it 

is the same 46 Bertram that you use for pleasure that you are just 

taking a charter out on. They are permanently exempted. So there 

is no difference, in our mind. 

And we continually have kicked this can down the road, and we 

appreciate all the help that Congress has given, but we think it is 

time. Let’s permanently stop it so that we can get on to other business and concentrate on the issues that affect us on a day-to-day 

basis—whether or not we are going to be able to catch a red snapper this year or not. 

Senator RUBIO [presiding]. Well, thank you. 

At this time, I am going to ask my questions. And we are going 

to wait for members that are coming in and out, but with these 

votes going on, it will be an ongoing process. Although it is just one 

vote, so I anticipate most of the Members that had questions will 

return. 

Mr. Farley, given the vast amount of agricultural and manufacturing products and energy resources shipped by organizations 

such as yours, is it fair to say that a patchwork regulatory framework for vessel discharge increases prices for U.S. consumers dependent on these products? What is the impact that these regulations have on consumers, who ultimately at the retail level are buying the products that your members are shipping? 

Mr. FARLEY. Senator, there certainly is a cost, an indirect cost 

if nothing else, in the sense that we have a continuing training 

burden to be sure that the men and women who ride our tailboats 

and offshore vessels are fully versed in the regulations of the various states through which we pass. We operate on all coasts of the 

inland river systems, Hawaii, Alaska, Gulf Coast, East Coast, West 

Coast. 

So the very fact that there is this balkanization of rules leads us 

to a higher training burden. And training is not free. Eventually, 

that cost is borne by the shipper at some point in time. 

31 

Senator RUBIO. I particularly appreciate the point you made 

about upward mobility. One of the challenges we have in this country in the 21st century is the rise of the cost of living in comparison 

to wages that have been stagnant. 

And, in particular, the challenge is we are graduating a lot of 

young people out of high school who—the high school diploma alone 

does not certify them, necessarily, to work in most industries. But 

yours is an industry where people who graduate from high school 

can go work if they are properly trained by your members or during their graduation. 

How would regulatory streamlining allow you to hire more people, particularly people with this sort of background? 

Mr. FARLEY. Well, it allows us to continue to build our fleets, to 

have more boats, more barges to move the nation’s product. 

An example of what you are talking about, sir, is a young person 

graduating from high school can come to work for Kirby Inland Marine or Inland Towboat Company, that those entry-level jobs are in 

the $40,000 to $45,000 level, and—— 

Senator RUBIO. I am sorry. The entry-level job is about $40,000 to $45,000. That would be potentially for an 18- or 19-year-old just 

coming in? 

Mr. FARLEY. Yes. 

Senator RUBIO. OK. 

Mr. FARLEY. Yes, sir, they are. 

And then someone who can apply themselves diligently to our 

training regime within 5 years can be earning six figures. And I 

wouldn’t say that all people do that, but it is possible. We have numerous examples of that. In our offshore fleet, there is a higher licensing regime, if you will; it takes longer to do that. But the captain of an offshore vessel earns $140,000-plus a year. 

These are good family jobs. We have 2,500 mariners in our company. 

Senator RUBIO. Mr. Weakley, would a uniform U.S. standard assist in our negotiations with our northern neighbors as they create 

their own standards for the Great Lakes? 

Mr. WEAKLEY. Yes, sir, absolutely. I think that is a frustration 

of the Canadian industry as well as the Canadian government. 

There really isn’t a clear mechanism for a foreign government to 

negotiate with an individual state, and the other way around, so 

most of that negotiation takes place indirectly via the courts. 

I am embarrassed to tell you how much money I spend on attorneys and lobbyists in the U.S. and in Canada and in each of the 

eight Great Lake states. That is how complicated not just the 

patchwork quilt is to deal with from an operational perspective 

that I think Mr. Farley so eloquently described but from a cost perspective, keeping up with the compliance, going through the process every 5 years. As I said in my oral statement, it is mind-boggling. 

Senator RUBIO. Does the Vessel Incidental Discharge Act that we 

have refiled today—have you had a chance to review it? And if so, 

do you think that it addresses the unique issues faced by the Great 

Lake carriers? 

Mr. WEAKLEY. To be honest, sir, I haven’t read the current bill. 

I read it last Congress. 

32 

We are very supportive of the geographically limited routes. If 

you look at the legislation that was introduced by Senator Levin 

several Congresses ago, it was a little more specific toward the 

Great Lakes. I understand and respect the broadness of the geographical limited areas. That gives the administration agencies the 

ability to determine where that lake or line would be. 

So we are very supportive of the single national standard, sir, 

and we are very supportive of the bill. And we are very appreciative of your leadership on this effort to unravel the patchwork 

quilt. 

Senator RUBIO. And, finally, Captain Zales, I think you were answering this question as I came in, so I apologize, but never take 

up a good opportunity to restate your case. 

How important is this permanent exemption to not just your 

small business but others in the industry, as well? 

And, by the way, I would take this opportunity of having this 

chairmanship to invite everyone to come to Panama City and go 

fishing. I think it is a—I wanted to take that opportunity to let everybody know about that great place. 

Captain ZALES. We appreciate it. We invite everybody to come. 

Spring break is fixing to kick off here in—— 

Senator RUBIO. Well, not during spring break. They will probably—— 

Captain ZALES. But, you know, around the middle of April, from 

then on is really nice. But, yes, Panama City is a great place. 

But, clearly, it is just a matter of being to know where our future 

is. Right now we know that we are exempt for 3 years. At that 

point in time, we don’t know what is going to happen, so we don’t 

know what we have to comply with, what we don’t. We don’t know 

if that 194 pages is going to increase in size or what the situation 

is going to be. 

So it is a matter of having to know that you can take this issue 

and fix it, be done with it, and set it aside and not have to be concerned about it anymore, and only be concerned about the other 

regulations that are out there that we comply with every day. 

Senator RUBIO. Thank you very much. 

Senator Cantwell? 

STATEMENT OF HON. MARIA CANTWELL, 

U.S. SENATOR FROM WASHINGTON 

Senator CANTWELL. Thank you, Mr. Chairman. 

And I want to follow up on Captain Zales’ last point, because in 

the Pacific Northwest, our economy is definitely tied to living marine resources, from salmon to crab to tourism to maritime transportation. And our recent economy—a report showed that the 

Washington State maritime cluster was worth $30 billion in economic activity and 57,000 direct jobs. 

So 60 percent of that relies on the fishing industry. So our commercial fishing industry is a big driver. And, as you said, they have 

had to deal with this incidental discharge issue, which, you know, 

sounds bad, but when you are referring to something as small as 

rain runoff of a deck, it can be very challenging. 

So there is no science showing that these types of incidental discharge damage the environment. And, obviously, we were able to 

33 

do, as you said, this 3-year bill, but why not make that permanent? 

So I was a sponsor of 2,963, and I hope my colleagues will join in 

on something that makes it a more permanent bill. 

But I had a question for either you or Ms. Copeland. And that 

is that, if I am understanding this correctly, you can have, like, two 

vessels targeting, say, Fraser River sockeye salmon in Puget 

Sound. Both of these vessels built by the same yard, both are the 

same size, both have the same engines, both have the same fuel. 

But is it accurate to say that one of these vessels is a commercial 

vessel and has to comply with the regulation and the other one is 

recreational and doesn’t? So is that what we are seeing out there? 

Captain ZALES. Is that to me? 

Essentially, it is, in our opinion. Because it is like, you know, you have $13 million—I don’t know what the figure ended up being for 

the recreational vessels that are permanently exempt from this. 

But in most cases, the vast majority of cases in the charter business, it is the same boat. In most of the cases in the commercial 

fishing business, it is pretty much the same boat. 

I mean, it is converted boats that people buy that have already 

been premanufactured for certain things and then they are modified to do things. And I don’t know that there is a difference. 

I mean, when I catch a red snapper and throw him in my 

fishbox, that fishbox has got a discharge on it to where the blood 

from that red snapper, what little bit is in there, filters out into 

the water. If you take that same red snapper and clean him, you 

use his head for crab bait, part of the fish went into the water. 

There is no permit that you have to have for that; you just put him 

in there. 

So there is no difference there. This is a natural thing. I mean, 

if the red snapper dies in the water, something is going to eat him. 

If he dies on my boat, something is going to eat what is out there 

from that fish. 

Senator CANTWELL. Well, I mean, I definitely see a difference between this and the ballast water debate. But I guess I am asking 

whether we know of any science that shows that fishing vessel regulation on this—I mean, that this is negatively impacting the environment. 

Is there any science out there, Ms. Copeland? 

Ms. COPELAND. Well, when Congress first passed the exemption, 

the temporary moratorium that is in effect now, it asked EPA to 

do a study about incidental discharges coming from the categories 

of vessels that were covered by this temporary moratorium. 

And EPA produced a report in response to that, and it found 

that, yes, there are a number of types of waste streams that are 

discharged by the vessels that are covered by the moratorium. And 

they include pathogens and toxic substances and a number of other 

contaminants that can be of concern. 

But what EPA also concluded was, when those wastes are discharged from these vessels in open waters, they don’t appear to 

cause violations of water quality standards. Where they may be a 

concern is when the vessel is in a tight area where there are multiple vessels present in the same location, all of them discharging. 

Then there may be a water quality issue that arises. 

Senator CANTWELL. OK. 

34 

Captain Zales, did you want to add anything to that? 

Captain ZALES. And I would say that in areas where you are 

going to have—and I am assuming this would be, like, a dock area 

or marina where these vessels would come in. If there is a problem 

there, you probably have some type of local or state regulation in 

addition to Coast Guard regulation for whatever the pollutant is. 

My example of rainwater, if it doesn’t hit my boat, it is going to 

hit the water. If it is going to my hit my boat and my boat has 

enough pollutants on it to where that is going to be a problem to 

clean water, my boat shouldn’t be on the water. 

And the Coast Guard clearly takes care of those kind of situations. Like I said, when these boats are looked at by the Coast 

Guard, whether it is a typical inspection at sea or a dockside inspection or a routine required inspection, the first thing they look 

at—and this is every case, because I am always prepared for this— 

every case, they look for clean bilges and a pollution-free vessel. 

Because if you have an issue there, they require you to fix it. 

Senator CANTWELL. Speaking of which, I think Senator Murkowski and Senator Boxer are looking for a clean bill just on this 

subject, and I look forward to working with them on that. 

Thank you. 

Senator RUBIO. Thank you. 

Senator Ayotte? 

STATEMENT OF HON. KELLY AYOTTE, 

U.S. SENATOR FROM NEW HAMPSHIRE 

Senator AYOTTE. Thank you, Chairman, for having this important hearing, and thank the Ranking Member. 

I wanted to follow up, Captain Zales, because in my home state, 

in New Hampshire, the catch share limits, frankly, are devastating 

our fishermen. And, you know, it has been dramatic. 

And so, as I look at this piece, I see the permanent exemption 

being very important, because if that is added on what they have 

already just really been dramatically cut, in terms of what they can 

catch, you know, I look at this as a burden I don’t know how they— 

I am really worried about their ability to stay in business now. 

And if you add this on top of it, for a business like yours, what 

kind of costs do you think would be faced if this exemption did not 

continue and you were required to obtain an EPA NPDES permit? 

Especially as I look at this, as these are really, you know, as Senator Cantwell said, things like rain runoff. 

But what kind of cost are we talking about on—it is a wonderful 

tradition, the fishermen and what they do, certainly in New Hampshire, and I am sure it is the same in Florida as well, but I don’t 

think it is a business where your margins are really large. So what 

would this do to a business like that? 

Captain ZALES. No, and that is clear. And then catch shares are 

a problem across the country. A catch share program is intended— 

its primary purpose is to reduce fleet capacity. So if you have 

enough catch shares to where you eliminate the fleet, then you 

don’t have much of a problem; you don’t have many people on the 

water. 

And that is something that we are very concerned with, because, 

clearly, it has a significant potential problem because, as you said, 

35 

you don’t get rich in the charter fishing business as a small family. 

I mean, my parents—I am an only child. My parents and my family, we have lived for 50 years, and, you know, there has been lean 

times and there has been good times. 

When tourism is great, the fishing business is a little better, so 

it is good. But in the past 15 to 20 years, the regulatory atmosphere that has come on this business has just been tremendous. I 

mean, it is everything from this proposed permitting problem to 

catch share situations to, you know, red snapper. 

We had a 9-day fishing season for red snapper in the Gulf last 

year. You don’t make very much—you can’t make enough money. 

You know, imagine working as a Senator for the country 6 months 

out of the year. What would the country do for the rest of the time? 

So it is a significant problem. 

Senator AYOTTE. Yes. We have had the same thing. With cod, for 

example, we had a situation where they could fish, like, 1 day a 

year, 2 days a year. It is like, how does anyone make a living doing 

that? I appreciate your comments on that. 

I wanted, Mr. Farley, to follow up with you. In your testimony, 

you had explained that Kirby’s concern is not having vessel discharges regulated—not the fact that they are regulated but the 

way that they are regulated. And I have heard similar concerns 

from towing companies in New Hampshire regarding the uncertainty surrounding the vessel discharge regulations. 

Can you explain how you currently reconcile the patchwork of 

Federal and state regulations? 

And, also, how is the legislation that you had testified about 

today, what you would like to see happen, different from what Congress enacted last year? What do you need us to do to make some 

certainty here? 

Mr. FARLEY. Well, thank you about ending up with certainty. 

Certainty is what we need. 

In other words—I will use my company as an example. We have 

been putting off the decision on what type of ballast water treatment system we are going to put on our offshore vessels for some 

time. This is going to be roughly a $90 million decision on our part. 

We need a Federal standard that allows us to make the best decision that we can for the shareholders we represent. 

It is a pretty good gamble for us, in a sense, to bet that we are 

going to make it in a system that could at any moment be changed. 

In other words, a vessel that I have just invested $1.6 million, $1.8 

million in can suddenly by fiat by any of the states be changed, and 

now I can’t go there, I can’t go to New Hampshire, I can’t go to 

Alaska, I can’t go off Mississippi or off Florida. 

We need certainty and we need consistency so that we can make 

those decisions in the correct manner. 

Senator AYOTTE. And how quick do you need us to act on this? 

Mr. FARLEY. As soon as you can, Senator. I mean, we are approaching a point in time where we are going to have to make 

those decisions, and I just want to make sure I make the right one 

for all of us, because it is an environmental decision as well. 

Senator AYOTTE. Right. And if we are going to ask you to make 

a capital investment, then we want you to make sure that you 

36 

make one that complies with the regulations that the Government 

puts in place and there is one standard. That makes a lot of sense. 

And I see, as I think about the answer that you gave, Mr. Farley, 

and what Captain Zales—gave a consistent theme of, let’s get this 

done so that we can have certainty for all of your businesses to 

thrive and grow, whether larger or smaller. So thank you. 

Senator RUBIO. Thank you. 

Senator Nelson? 

STATEMENT OF HON. BILL NELSON, 

U.S. SENATOR FROM FLORIDA 

Senator NELSON. Mr. Chairman, congratulations on your new 

chairmanship of this subcommittee. 

And welcome to Bob Zales. 

And the opening statement that I had I will just insert in the 

record. 

[The prepared statement of Senator Nelson follows:] 

PREPARED STATEMENT OF HON. BILL NELSON, U.S. SENATOR FROM FLORIDA

First, I want to congratulate my fellow Floridian, Senator Marco Rubio, on his 

Chairmanship of the Oceans, Atmosphere, Fisheries, and Coast Guard subcommittee. This committee and the work they do is of vital importance to this great 

nation but is also essential to the great state of Florida. 

I want to welcome all of our witnesses as I look forward to having a discussion 

with you on the important issue at hand today and I thank you for your testimony. 

I especially want to welcome and thank Captain Bob Zales, owner and operator of 

Bob Zales Fishing Charters in Panama City, Florida. Thank you for joining us 

today. 

I want to be brief in my comments because I want to hear the testimony of our 

witnesses and engage in dialogue on the issue at hand. 

The U.S. economy is reliant on healthy coastal and ocean resources. The U.S. 

maritime transportation system carries 95 percent of U.S. foreign trade equating to 

more than two billion tons of freight in and out of our nations ports and three million jobs. 

Tourism and recreation account for 70 percent of the ocean economy’s total employment and 24 percent of its GDP. 

Florida is heavily reliant on its waters. Florida ranked seventh among the Nation’s top exporting states in 2013 accounting for $86 billion. Florida is the world’s 

top travel destination with over 87 million annual visitors accounting for $67 billion. 

Many of these tourists come to Florida for our beautiful and pristine waters and 

the aquatic life that they support. 

The issue of ship ballast water regulation is important to this country, and especially Florida, for the protection of our waters while also facilitating commerce in 

a safe and environmentally sound manner. The protection of our environment and 

the facilitation of commerce are two things that this committee cares deeply about. 

Ballast water from ships is the single largest source of introductions of aquatic 

invasive species. These invasive species can wreak havoc on local ecosystems and 

the local infrastructure where they are introduced. Making matters worse, these 

invasive species will not typically stay where they were introduced and will cause 

problems elsewhere causing massive amounts of ecological and monetary damage. 

The current patchwork of state and Federal regulations will not help in our goal 

of reducing and hopefully eliminating invasive species while allowing for the facilitation of commerce. This is important to get right as our aquatic environments are 

at great risk from many other areas while at the same time this Nation relies on 

shipping for over 95 percent of our global trade. 

Regardless of our views of which states are active at the state levels, the standards and requirements imposed on ships must be based on hard science. We cannot 

afford to ignore science when it comes to both the protection of our waters and the 

protection of our maritime industry. 

Senator NELSON. And I wanted to ask Ms. Copeland, does the 

authority that state regulators feel that they have under the Clean 

37 

Water Act, do they have this authority with regard to discharges 

of sewage? 

Ms. COPELAND. No. There is a separate provision in the Clean 

Water Act dealing with sewage discharges from vessels. 

Senator NELSON. Right. 

Ms. COPELAND. And it is not a permit program. It was a provision Congress enacted in 1972 that put EPA and the Coast Guard 

together to develop performance standards for what are called marine sanitation devices. And that particular provision does preempt 

states from having their own requirements. 

Senator NELSON. Right. And that is section 312—— 

Ms. COPELAND. Correct. 

Senator NELSON.—as opposed to the section that we have been 

discussing, 402. 

Ms. COPELAND. Right. 

Senator NELSON. Then how has the state preemption language of 

that section 312 impeded states from protecting their waters with 

regard to the discharges of sewage, if at all? 

Ms. COPELAND. Well, what section 312 allows states to do is to 

petition EPA to establish what is called a ‘‘no-discharge zone.’’ 

Where a state Governor determines that it is necessary to protect 

the local environment or local public water supplies or the like, the 

Governor can ask EPA to do that, to establish a no-discharge zone. 

But that is a no-discharge zone, and it has to be accompanied by 

a demonstration that there are adequate on-land facilities to handle sewage that is discharged from vessels in those locations. So 

there is an accompanying requirement that has to be met through 

that determination. 

Senator NELSON. With regard to ballast water, some states have 

standards that are much more stringent than others. Does it make 

sense, both from compliance and enforcement, to have a single 

standard that is the most stringent scientifically and then ratchet 

that standard up over time as the technology improves? 

Ms. COPELAND. Well, that is certainly an option that has support 

in a number of areas. The question really is the availability of the 

technology to meet a more stringent standard, either now or in the 

future. And as my statement indicated, there are states that have 

adopted more stringent standards. They have temporarily deferred 

them because of the very question of is there technology that can 

meet a more stringent standard. 

Senator NELSON. In my opening statement, I was talking about, 

of course, the Great Lakes have a real problem on some of that ballast water that comes in from foreign ships. But we in Florida have 

had the same thing with regard to some of the discharges that 

come in from foreign ports. 

Thank you all very much. 

And thank you, Bob, for coming up. 

Senator RUBIO. Thank you, Senator Nelson. 

Senator Wicker? 

STATEMENT OF HON. ROGER F. WICKER, 

U.S. SENATOR FROM MISSISSIPPI 

Senator WICKER. Thank you. 

38 

And thank you to the panelists. We are shuttling back and forth 

between various committees today. For me, it is three committees. 

So I am sorry I missed your testimony. 

Let me ask the three gentlemen, first of all, not as researchers 

but as actual people who are out there, what was your position, if 

at all, in the last Congress on the proposed legislation, S. 2094, the 

Vessel Incidental Discharge Act, as it was reported from this committee? 

And we will start with Mr. Farley. 

Mr. FARLEY. Senator, we were in total support. We seek a Federal standard, a standard based on the latest science, a regulation 

that we can follow from now and forward, particularly the idea that 

we establish the best science currently available to us, with the 

idea that over time, as that science increases, that we would move 

forward with that science. I think that is the way we need to go. 

So my short answer is we were in support, sir, of that legislation. 

Senator WICKER. And, Mr. Weakley, did your association take a 

position on that particular mark from the Commerce Committee? 

Mr. WEAKEY. Senator, we were supportive of that bill. We were 

hopeful that there could have been some more clarity around the 

Great Lakes language, although we were comfortable with allowing 

the administrative agencies to define the geographically-defined 

route. 

So we were supportive of that. I anticipate—— 

Senator WICKER. What sort of clarity would have been helpful? 

Mr. WEAKLEY. Define a geographically-defined route as to include the lakes of Michigan, Superior, Huron, Erie, Ontario, out to 

a point on the St. Lawrence River as far off as Anticosti Island. 

Senator WICKER. Would there have been a different standard for 

that area? 

Mr. WEAKLEY. Yes, sir. Let me clarify. It would be the same 

standard that the EPA and Coast Guard have currently accepted, 

and that is the vessels that operate only within the defined area 

don’t have to install ballast water treatment systems. 

So that is why I say we are comfortable with letting the administrative agencies define that geographically defined route. We would 

be more comfortable if Congress were to define that in statute. 

Senator WICKER. And Captain Zales? 

Captain ZALES. We were supportive, and we were very hopeful 

that we were going to end up with a permanent exemption before 

the end of the Congress. 

And I appreciate the 3 year exemption, but, as you know, coming 

from your state—you have a large shrimping fleet there and commercial fleet, recreational charter fleet. They were all of the same 

opinion to try to get this to where, you know, we could get off this 

page and continue looking at what other regulations are coming at 

us and complying with the things that are out there already. 

But we were very supportive of the bill and would hope to see 

this thing get expedited so we can have finality soon. 

Senator WICKER. Why do you think we didn’t get the bill passed? 

Captain ZALES. Coming from a small fishing family, unlike most 

of the people in this room, the organization that I represent I do 

on a volunteer basis. Some of my expenses are paid every now and 

then, some are not, but most of it is out of my pocket, and all the 

39 

times out of my pocket away from my business. Because, as a small 

charter business, I do it all. I build engines, I build fiberglass, I do 

everything. So when I am not in Panama City, nothing is getting 

done. 

And so, had that been done, I wouldn’t be sitting here now. I 

would be working on my boat, getting ready for spring break. 

Senator WICKER. Well, Washington is a nice place to visit in February, but I do understand that you make your living elsewhere. 

Captain ZALES. I prefer April when the cherry trees are in blossom. It is prettier. 

Senator WICKER. Well, we will put that to a vote, and I think we 

will get a nice show of hands there. 

What technology do you have now? And where is it OK? 

Captain ZALES. Technology? 

Senator WICKER. I am still on incidental discharge. 

Captain ZALES. The technology that is there is just keeping our 

boats clean and keeping our engines clean and keeping everything 

discharged in a normal fashion. 

Senator WICKER. OK. What about, do you have any treatment 

technology on your vessels? 

Captain ZALES. On my vessel, I have a holding tank that whenever I get to the dock, you know, I pump into a holding tank facility. So that is for sewage discharges. 

For bilge water and whatnot, it is just normal operation of the 

vessel. I mean, all boats typically take on a little bit of water, and, 

you know, if it rains, you get a little bit more. But most of your 

decks are watertight, so, you know, it is confined to a small 

amount; it is not a large amount. If I have a large volume of water 

coming out of my boat, I have a problem, so, you know, I am fixing 

that. 

But other than that, rain runoff and stuff, it just washes off. Engine exhaust, cooling water, it goes right out the exhaust and cools 

the mufflers like they are supposed to. 

Senator WICKER. Mr. Farley and Mr. Weakley, do you have ballast water treatment technology on your vessels? 

Mr. FARLEY. No, Senator, not at this time, we do not. That is—— 

Senator WICKER. If we tell you what to do, you will do it. 

Mr. FARLEY. Yes, sir. And what we would like to have told is the 

IMO standard, which is achievable at this time. There is technology that can achieve that standard. We would like to start 

there, sir. 

Senator WICKER. Mr. Weakley? 

Mr. WEAKLEY. Senator, both the U.S. Coast Guard and the U.S. 

EPA have determined that there is no ballast water treatment systems that will work on Great Lakes vessels. Our flow rates, our engineering challenges are too great. 

If you combine our fleet, 57 vessels, with the Canadian-flagged, 

it is 200 vessels out of 70,000 unique vessels in the U.S. So—— 

Senator WICKER. Do you think ballast water treatment is a problem for your vessels? 

Mr. WEAKLEY. No, sir. We never leave the Great Lakes. We rarely leave the upper four Great Lakes. We clearly think the problem 

is the oceangoing vessels that are coming from foreign destinations 

bringing invasive species into the heartland of the United States. 

40 

Prevention is the key. Once you prevent those—and I would say, 

sir, that since the no-ballast-water-on-board loophole was closed in 

2006, there is no unmanaged ballast water allowed into the Great 

Lakes, thanks to the United States Coast Guard. Not coincidentally, since 2006, there have been no new introductions of invasive 

species from the ballast water vector. 

So, clearly, best management practices have a place. Clearly, the 

toxicity of ocean water on freshwater environments, on freshwater 

critters, is having an impact. So prevention is working. Is that as 

good as the IMO D–2 discharge standard? Some would say it is not, 

some would say it is. 

Senator WICKER. Ms. Copeland, do you want to take issue with 

anything or elaborate or help me out in any way? 

Ms. COPELAND. No, just one other point I thought might be worth 

mentioning. The Coast Guard rule requires that compliance with 

its ballast water discharge standard be—one of the options for compliance is installing treatment technology. And the rule specifies 

that the Coast Guard must test and approve and certify that technology. 

I understand that for a number of vessel operators and owners, 

they are waiting for the Coast Guard to actually go through that 

full certification process before they can install technologies. And 

the Coast Guard has found it necessary to issue temporary exemptions from its standard until there is technology that has been certified and approved. 

Senator WICKER. Thank you so much. 

Thank you, Mr. Chairman. 

Senator RUBIO. Thank you, Senator. 

Well, I want to thank all four of you for being here today. And 

I apologize for the chaos of running in and out. Some of you are 

veterans of testifying, so you know how the process is. 

This is an important issue. It is an important issue for multiple 

states, as evidenced by the senators that came here today, a couple 

who briefly attended and then got pulled in to other committee 

meetings but who I know have an interest in this subject matter. 

And it is one we are going to continue to talk about. Your testimony today was incredibly valuable. 

The hearing record is going to remain open for 2 weeks, and during this time, Senators are going to be asked to submit any additional questions for the record that they might have. Upon receipt, 

our request is that each of you agree to submit written answers to 

the Committee as soon as possible. It will be very helpful as we 

move forward on the proposed legislation before us today. 

With that, I want to thank you again for appearing. 

And, with that, this hearing is adjourned. 

[Whereupon, at 3:38 p.m., the hearing was adjourned.] 

(41) 

1Martin Associates (2011) The economic impacts of the Great Lakes-St. Lawrence Seaway system. 2Fisheries and Oceans Canada (2014) Science Advice from the National Risk Assessment for 

Ballast Water Introductions of Aquatic Nonindigenous Species to Canada. Report 2013/064. 

A P P E N D I X 

CANADIAN EMBASSY

February 18, 2015 

Dear Senator Rubio, 

I am pleased to submit this letter to the U.S. Senate Subcommittee on Oceans, 

Atmosphere, Fisheries, and Coast Guard in light of its February 4, 2015 hearing on 

the impacts of vessel discharge regulations, notably with respect to ballast water. 

Canada appreciates the long history of co-operation between our two countries to 

reduce the risks associated with the introduction and spread of invasive species 

from ballast water on the Great Lakes. A compatible approach to ballast water regulations is important in order to allow Canadian, U.S. and international ships to continue to operate together in this region, where they directly support almost 100,000 

jobs and over US$33 billion in annual business revenues in our two countries.1

In recent years, Canada has sought to maintain compatible bi-national ballast 

water requirements, despite challenges from an increase in the number of differing 

U.S. Federal and state regulations in the region. As Great Lakes shipping is a global industry, Canada’s view is that a fair and feasible global approach is the best 

way to address the problem of invasive species there. Canada has strongly encouraged U.S. regulators to adopt standards compatible with the International Convention for the Control and Management of Ships’ Ballast Water and Sediments. 2004 

(the Convention), which Canada has ratified. Canada was encouraged when many 

U.S. regulators did so, and when our two countries agreed through the Great Lakes 

Water Quality Agreement, 2012 to take into account, as appropriate, the standards 

set forth in the Convention in addressing ballast water discharges on the Great 

Lakes. 

In general, Canada welcomes the Vessel Incidental Discharge Act, which will 

greatly assist in the maintenance of a compatible regulatory regime on the Great 

Lakes by establishing a single U.S. regulatory regime for ballast water. 

Please allow me to express one concern with the proposed act’s limitations on ballast water rulemaking for enclosed geographical areas, such as in our shared Great 

Lakes waters. Canada has recently determined that Great Lakes ships pose a high 

environmental risk when compared with the low risk posed by international voyages 

to the Great Lakes (to which current ballast water management regulations apply).2

As many damaging species (e.g., the Zebra Mussel) cannot move long distances without help, the movement of non-native species by Great Lakes ships can spread invasions (whether from ships or other sources) to new sites, multiplying economic and 

financial damages of a more isolated invasion. For this reason, Canada would prefer 

that any limitations on ballast water rulemakings be contingent on a favourable 

risk assessment by the appropriate U.S. Federal agency, considering both the introduction and spread of invasive species. Canada would be pleased to have the opportunity to participate in any such risk assessments involving our shared waters. 

In light of written testimony provided to your sub-committee on January 29, 2015 

by the U.S. Lake Carriers Association (LCA), I also want to take this opportunity 

to clarify Canada’s position on the implementation of the Convention. 

I want to reassure you and your sub-committee that Canada is committed to facilitating marine transportation on the Great Lakes-St. Lawrence Seaway system, 

while reducing the introduction and spread of damaging invasive species and protecting the safety of ships and crews. 

The Convention will not be applicable in Canada until it enters into force and is 

implemented in Canadian regulations. No Canadian ballast water regulations currently apply to Great Lakes ships. 

42 

In preparation for the regulatory process, Transport Canada is consulting with 

U.S. and Canadian stakeholders, taking into account legal, scientific, technical, cost, 

benefit and compatibility considerations. Transport Canada has recognized that if 

the Convention entered into force now, technical and regional compatibility uncertainties would pose challenges for Great Lakes ships. As the Convention has not yet 

entered into force, Canada will continue to monitor these challenges, and is exploring options to address them if necessary. 

I would like to clarify three specific issues raised by the LCA in its written testimony. 

First, Canada is committed to continued cargo movements on the Great Lakes by 

the Canadian, U.S. and international fleets that operate there, in the context of 

practicable and protective ballast water requirements. 

Second, the recent assessment by Canada of the environmental risk posed by 

Great Lakes vessels noted above does not accord with the LCA’s testimony. 

Third, regarding Canada’s earlier opposition to New York State ballast water requirements, which applied to transiting ships, Canada objected to the application 

of these state-level requirements to Canadian ships because they were unilateral 

and unachievable, being 1000 times more stringent than the Convention’s ballast 

water standard. Since that time, the U.S. Coast Guard and the U.S. Environmental 

Protection Agency have joined Canada in adopting the internationally-agreed Convention standard, which Canada and the U.S. have further agreed to take into account as appropriate under the Great Lakes Water Quality Agreement. 

As the Convention remains at a pre-regulatory stage, Transport Canada will continue its discussions with the LCA, U.S. Federal agencies and other stakeholders 

toward fair, practicable and protective requirements. Canada looks forward to further co-operation between our two countries toward these ends. 

Sincerely 

GARY DOER, 

Ambassador. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. MARCO RUBIO TO

JAMES F. FARLEY

Question 1. Absent Federal regulation, another potential solution to the issue 

would be state compacts to harmonize existing state regulations. Are you aware of 

any such effort among the fourteen states on the east coast? Or, alternatively, an 

effort amongst the states along the Mississippi river? 

Answer. I am not aware of any such efforts, and I would argue that state compacts to harmonize existing state regulations would not be adequate to fix the broken system under which our company and employees are working. Kirby Corporation operates over 1,300 vessels on all three U.S. coasts, throughout the Mississippi 

River system, on the Gulf Intracoastal Waterway, and in Alaska and Hawaii. Even 

if states that share a body of water or coastline were able to eliminate overlap and 

inconsistency between and among their vessel discharge standards, nothing in existing law would prevent state compacts from conflicting with each other and/or with 

Federal regulations. We need Congressional leadership to establish a single set of 

nationally consistent and clear standards for vessel discharges in order to protect 

our investments in our vessels and preserve our flexibility to deploy those vessels 

where ever they are needed across the country. Only Congress can bring long-term 

certainty to Kirby and other vessel operators engaged in interstate commerce that 

the multi-million dollar treatment systems we install on our vessels will be acceptable anywhere our vessels may operate. 

Question 2. Which is better for the environment—harmonized and streamlined 

Federal standard or a patchwork of Federal and state standards addressing vessel 

discharge? 

Answer. Harmonized and streamlined Federal standards are better for the environment because without them, environmental protection will be delayed as companies lack assurances that their investments in ballast water treatment systems for 

their towing vessels and barges will be protected. To come into compliance with Federal requirements, Kirby is planning to invest over $90 million in equipping our vessels with ballast water treatment systems. However, the arbitrary regulatory regime 

we are operating under has compromised our ability to make that investment decision with confidence because if any state in which we operate decides the treatment 

systems we have selected are not acceptable for any reason, our investment will be 

wasted and we will be forced to spend more money on alternative systems. As a result of this regulatory uncertainty, rational companies have delayed the installation 

of costly treatment systems. 

43 

Our industry’s position as the most environmentally friendly mode of freight 

transportation attracts shippers to move their commodities by barge, and our customers rigorously vet companies and vessels, rightly demanding that they strive to 

achieve the goal of zero harm to the environment. Harmonized and streamlined Federal standards would advance us towards this goal by allowing us to confidently 

make multi-million-dollar investments in discharge treatment technology, further 

enhancing environmental protection. 

Finally, it is important to note that establishing a uniform Federal framework for 

the regulation of vessel discharges does not mean depriving Americans in any state 

of the highest standards of environmental protection. The solution is to take the 

highest standard that is technologically achievable and economically practicable and 

make that standard the law of the land, so that the waters of every state are equally well protected. 

Question 3. You mentioned that the Federal Government and the states are in 

fact harmonized in the regulatory standards at this time. Is there anything preventing that harmonization from changing on any given day by any given state? 

Answer. No, as it currently stands, there is nothing to prevent a state from changing its standard for ballast water or any other vessel discharge and thereby create 

an inconsistency. Neither of the Federal statutes under which the Coast Guard and 

EPA have promulgated their regulations preempt state lawmaking or rulemaking 

in this area. Further, while the Federal Government and the states currently agree 

on a harmonized standard for ballast water discharges, this only occurred after several states reduced their standards after they finally accepted the broad scientific 

consensus that no currently existing ballast water treatment technology can achieve 

the more stringent ballast water standards they had promulgated. 

It is important to note that ballast water is not the only vessel discharge for 

which there are regulatory conflicts among Federal and state authorities. Through 

its certification of the 2013 VGP, Connecticut became the first state to prohibit 

graywater discharges, and at least two states, California and Washington, have explored the establishment of costly and operationally infeasible hull inspection and 

cleaning programs. Inconsistencies in these areas have as much potential to impact 

the efficiency of our operations as contradictory ballast water discharge standards 

do, and further highlight the need for a uniform national approach to the regulation 

of all vessel discharges. 

Question 4. Is this issue important to only coastal states? 

Answer. As a representative of Kirby, which operates both coastal and inland vessels, I can assure you that this issue is equally important to vessel owners that operate on the major inland waterways—such as the Mississippi, the Ohio, and the 

Columbia-Snake River systems—and on the Great Lakes, whose vessels cross multiple jurisdictional lines in the course of a single voyage and are burdened by the 

same Federal and state regulatory patchwork as those engaged in the coastwise 

trade. 

This issue is also important to the vitality of the entire U.S. economy. Vessels operating on the coasts, the inland waterways and the Great Lakes are part of an economic lifeline for the shipment of critical commodities like export grain, coal, steel, 

and petroleum products, and represent an investment made by our customers in the 

most affordable, fuel-efficient and environmentally friendly mode of transportation. 

If the current state of affairs persists, and regulatory burdens increase, barge transportation will become more expensive, and those costs may ultimately be passed on 

to consumers, or cargo may be shifted to other more expensive and less efficient 

modes. Establishing a single Federal framework for the regulation of vessels in 

interstate and international commerce is essential to ensure the efficient movement 

of vital commodities on which the U.S. economy depends. 

In addition, this issue has real impacts for all American taxpayers. The average 

American taxpayer cannot afford to fund duplicative, superfluous regulatory programs, especially at a time when many are struggling economically and Federal and 

state budgets are facing overwhelming amounts of debt. Funding the efforts of two 

Federal agencies and 25 states to regulate the same vessel discharges in redundant 

and sometimes conflicting ways is both wasteful and inefficient. 

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