Golden Gate University Law Review

Volume 30

Issue 4 The American Coast: Law on the Edge Article 3

9-23-2010

The Regulation of Biological Pollution: Preventing

Exotic Species Invasions from Ballast Water

Discharged into California Coastal Waters

Andrew N. Cohen

Brent Foster

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Recommended Citation

Andrew N. Cohen and Brent Foster, The Regulation of Biological Pollution: Preventing Exotic Species

Invasions from Ballast Water Discharged into California Coastal Waters, 30 Golden Gate U. L. Rev.

(2000), http://digitalcommons.law.ggu.edu/ggulrev/vol30/iss4/3
ARTICLE 

THE REGULATION OF 

BIOLOGICAL POLLUTION: 

PREVENTING EXOTIC SPECIES 

INVASIONS FROM BALLAST 

WATER DISCHARGED INTO 

CALIFORNIA COASTAL WATERS 

By ANDREW N. COHEN' AND BRENT FOSTER" 

INTRODUCTION 

Toward the end of the film Apollo 13, which portrays a 

stricken spacecraft rescued from disaster by American pluck 

and ingenuity, the returning astronauts are told at the last 

possible moment that if they don't immediately load more ballast into the re-entry vehicle they'll be bounced back out of the 

atmosphere to drift through space forever. "Ballast?" ask the 

, 

Environmental Scientist, San Francisco Estuary Institute, Richmond, California; 

PhD, Energy and Resources, University of California, Berkeley. The authors thank 

Michael Bean (Environmental Defense Fund), Leora Elazar and Jon Smith (San Fran· 

cisco Bay Conservation and Development Commission), Tami Grove (California Coastal 

Commission), Russell Harding (Oregon Department of Environmental Quality), John 

Lien and Michael Meier (California State Lands Commission), Michael Lozeau (Earth· 

law), Steve Moore (San Francisco Bay Regional Water Quality Control Board), Dennis 

Nixon (University of Rhode Island), Alison Rieser (University of Maine School of Law), 

Linda Sheehan (Center for Marine Conservation) and Jody Zaitlin (Port of Oakland) for 

providing information and/or reviewing the manuscript. The Rose Foundation and a 

Switzer Environmental Leadership Grant, through the San Francisco Foundation, 

provided support to Mr. Cohen. 

" Mr. Foster is a public·interest environmental attorney in Portland, Oregon; J.D., 

Northwestern School of Law, Lewis and Clark College; B.S. (Ecology) and B.A. 

(Environmental Science), University of California (Santa Barbara). Mr. Foster thanks 

Craig Johnston (Pacific Environmental Advocacy Center) and the numerous biologists 

who improved his understanding of the effects of exotic species. 

787 

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incredulous astronauts, who then frantically transfer excess 

equipment, empty containers and anything else that's not 

nailed down into the re-entry module to increase its weight. 1 

Thus, the practice of adjusting a vessel's weight and trim by 

loading ballast (which is later ejected into the surrounding environment when it is no longer needed) has persisted from the 

days of sailing ships into the era of starships. Ballast dumping 

came under regulatory control during the 19th century, as harbor masters barred ships from dumping rock, sand, mud and 

miscellaneous debris carried as ballast into harbors and channels, to prevent shoaling. In many areas, ballast dumping was 

banned by statute, both to protect channel depths and, in some 

cases, to prevent the fouling of waters. 2 "Ballast grounds" were 

set up where ballast could be legally disposed of, and professional "ballast haulers" and guilds of "ballast heavers" serviced 

the merchant shipping industry.3 Even on America's wild frontier, laws and regulations prohibited the dumping of ballast 

into harbors, although as Richard Henry Dana reported in Two 

Years Before the Mast, ships on the California coast frequently 

violated them.4 

Both a physical and socio-economic infrastructure and a 

regulatory framework were thus created to control ballast 

dumping. All of that changed, however, toward the end of the 

1 APOLLO 13 (Universal Pictures 1995). 

2 See United States v. Standard Oil Co., 384 U.S. 224, 226-227 (1966) (discussing a 

number of statutes relating to restricting ballast discharges dating back to 1886). Such 

laws remain on the books in Oregon, Washington and Alaska. See e.g., OR. REV. STAT. 

§ 783.600 (1995); WASH. REV. CODE § 88.28.060 (1996) ("Discharging Ballast, When 

Prohibited"); ALAsKA STAT. § 30.50.020 (1996) ("Discharging Ballast in Navigable Waters"). 

3 See James T. Carlton, History, Biogeography, and Ecology of the Introduced 

Marine and Estuarine Invertebrate of the Pacific Coast of North America 63-65 (1979) 

(unpublished Ph. D. thesis, University of California (Davis)) (on file with the University of California (Davis) Library). 4 

Dana describes the usual practice for disposing of ballast at Ballast Point in San 

Diego in 1836 as follows: "[W]e were turned-to, heaving out ballast. A regulation of the 

port forbids any ballast to be thrown overboard; accordingly, our long-boat was 

[used] ... but where one tub-full went into the boat, twenty went overboard. This is done 

by every vessel [.]" RICHARD HENRY DANA, Two YEARS BEFORE THE MAST, ch. 29 

(1840). 

2

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19th century with the advent of steel-hulled ships and steamdriven (and later, diesel-powered) water pumps. These made 

water a far more convenient and much cheaper substance to 

use as ballast than solid materials that had to. be hauled into 

and out of ships by gangs of laborers. The regulatory authorities at the time, operating under the erroneous assumption 

that the water used to ballast ~hips was harmless, imposed no 

restrictions on its discharge. 

However, we now know, beyond any doubt, that ballast water discharges are not harmless. Ballast water is recognized as 

a major mechanism for transporting and introducing exotic 

speciesfi into the world's coastal ecosystems, which may result 

in severe and irreversible impacts on environmental quality 

and biological diversity, on economic and recreational activities, and on public health. Thus, as we enter a new century, 

government regulators are beginning to seek means to rectify 

the errors made since the beginning of the last one, and to at 

last bring ballast water discharges under appropriate regulatory control. Although several bouts of limited legislative activity during the 1990s have nibbled at this problem, existing 

state and federal laws offer numerous, generally unexploited 

opportunities for managing ballast discharges. Several factors 

have made California a primary focus of attention and experi5 This article uses the terms "exotic species" or "exotic organism" to refer to a species or organism that has been transported into an ecosystem outside of its historic, 

natural range. This is similar to the federal statutory definition of non-indigenous 

species (NIS) as "any species or other biological material that enters an ecosystem 

beyond its historic range, including any such organism transferred from one country 

into another [.J" 16 U.S.C. § 4702(11) (2000). Related terms, some of which have been 

used interchangeably, include alien, non-native, foreign, immigrant, adventive, introduced, invasive, colonizing, naturalized, escaped, translocated and transfaunated species. Another frequently used term is aquatic nuisance species (ANS), defined in federal statutes as "a nonindigenous species that threatens the diversity or abundance of 

native species or the ecological stability of infested waters, or commercial, agricultural 

or recreational activities dependent on such waters[.J" [d. § 4702(1). In slightly different words, California statutes describe "a non-indigenous species that threatens the 

viability or abundance of a native species, the ecological stability of waters inhabited by 

those species, or the viability of commercial, agricultural, aquacultural, or recreational 

activities which depend on those waters[.J" CAL. FISH & GAME CODE § 6431 (West 

1994). More-or-Iess similar terms are injurious, harmful, pest or weed species. See D. 

M. Whalin, The Control of Aquatic Nuisance Nonindigenous Species, 5(1) ENVTL. LAw. 

68-127 at 70-77 (1998) !hereinafter Whalin, Nuisance Nonindigenous SpeciesJ. 

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mentation in ballast water regulation, including a spate of recent marine and freshwater invasions, the publication of some 

key scientific studies, substantial public and media interest in 

the phenomenon of invasions, aggressive work by a few environmental organizations, and, possibly, a more activist approach by the government agencies responsible for the protection of natural resources. These factors warrant a close examination of the legal authorities for ballast regulation in California. 

In Part I of this article, we describe ballast water's use, its 

contribution to biological invasions, and the technical approaches that could be used to combat the problem. In Part II, 

we describe opportunities for employing existing laws and 

regulations to manage ballast discharges in California. We 

first discuss the limitations of international, federal and state 

laws that have tried to address ballast discharges of exotic organisms as a shipping issue. We then consider the potential 

for regulating ballast discharges under federal and state laws 

aimed at controlling water pollution, protecting wildlife, ensuring the assessment, disclosure and mitigation of environmental 

impacts, and providing for the planning and management of 

coastal zone development. While we evaluate these laws in 

terms of their potential application in California, the federal 

laws and, in many cases, corresponding state laws could be applied in other coastal regions. We conclude by summarizing 

how existing regulations may provide a comprehensive overall 

framework for achieving effective regulation of ballast water 

discharges. 

I. BALLAST WATER DISCHARGES AND BIOLOGICAL INVASIONS 

A. THE ROLE OF BALLAST WATER IN SHIPPING 

A ship carrying little or no cargo rides high in the water. 

This may make the ship vulnerable to being knocked over by 

high waves and winds; increase the potential for "slamming" 

the bow or stern when riding over waves; or raise the propeller 

4

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so that it is insufficiently immersed. 6 At the start of a voyage a 

ship may take on large quantities of water-of whatever water 

the ship is floating in, fresh water if in a river port, and salt 

water if in the sea-in order to lower the ship to a safer and 

more efficient position in the water. At the end of the voyage 

the ship will then discharge this ballast water into a new port 

or coastal region (perhaps thousands of miles from its source) 

before loading cargo. Ballast water is also loaded or discharged 

for various other .purposes such as adjusting trim, improving 

maneuverability, increasing propulsion efficiency, reducing 

hull stress, raising the ship to pass over shallow areas, and 

lowering it to get under bridges or cranes.7 

Ballast water enters a ship through intake ports located below the water line. These are typically covered with grates or 

strainer plates with openings of about half an inch.s The function of the strainer plates is to prevent objects from being 

drawn in that could damage the ship's pumps, although they 

incidentally serve to prevent the introduction of large organisms into ballast tanks. Depending on the level of the tank 

relative to the water surface, water may be taken on or discharged either by pumping or by gravitational flow. Ballast 

6 See James T. Carlton, et aI., U. S. COAST GUARD & U. S. DEP'T OF TRANSPORTATION REPORT No. CG-D-1l-95, THE ROLE OF SHIPPING IN THE INTRODUCTION OF NONINDIGENOUS AQUATIC ORGANISMS To THE COASTAL WATERS OF THE UNITED STATES 

(OTHER THAN THE GREAT LAKES) & AN ANALYSIS OF CONTROL OPTIONS (1995) !hereinafter Carlton, et al.]. See also Andrew N. Cohen, CALFED Bay Delta Program, Ships' 

Ballast Water and the Introduction of Exotic Organisms into the San Francisco Estuary: Current Status of the Problem and Options for Management (1998) !hereinafter 

Cohen, CALFED Bay Delta Program). 

7 . See £d. 

B Sometimes the openings are larger either because they've been enlarged by corrosion or because the strainer plate has fallen off. See e.g., James T. Carlton, Transoceanic and Interoceanic Dispersal of Coastal Marine Organisms: The Biology of Ballast 

Water, 23 OCEANOGR. MAR. BIOL., ANN. REV. 313 (1985); AUSTRALIAN QUARANTINE & 

INSPECTION SERVICE, BALLAST WATER RESEARCH SERIES REPORT NO.1, BALLAST WATER TREATMENT FOR THE REMOVAL OF MARINE ORGANISMS 20 (1993) !hereinafter 

AQIS, Report No.1); AUSTRALIAN QUARANTINE & INSPECTION SERVICE, BALLAST WATER RESEARCH SERIES REPORT No.4, BALLAST WATER MANAGEMENT 25 (1993) !hereinafter AQIS, Report No.4); Carlton, et al. supra note 6; MARINE BOARD COMMITTEE ON 

SHIPS' BALLAST OPERATIONS, STEMMING THE TIDE: CONTROLLING INTRODUCTIONS OF 

NONINDIGENOUS SPECIES By Smps' BALLAST WATER (1996) !hereinafter Stemming the 

Tide). 

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water is generally carried in several different compartments on 

board ship, often in tanks set aside for that purpose (called 

"segregated" or "dedicated" ballast tanks), although bulk carriers and tankers may carry ballast water in their cargo holds 

("unsegregated tanks"). Some individual ships can carry tens 

of millions of gallons of ballast water. 9 

Sediment sometimes accumulates in the bottom of ballast 

tanks or ballasted cargo holds.1O This sedi~ent may include 

mud and small debris pumped in with the ballast water, rust 

and interior coatings that flake off the inside walls of the tank, 

and residue from previously carried cargo. Sediment is typically removed from ballast tanks every 3-5 years when a ship is 

in dry-dock, and from ballasted cargo holds on every voyage at 

the cargo-loading port. Sediment from cargo holds, which may 

amount to 500 gallons or more per ship,11 is typically shoveled 

or hosed out and either dumped into port or coastal waters, or 

retained and disposed of on land or at sea. 12 

9 See James T. Carlton, et aI., Remarkable Invasion of San Francisco Bay (California, USA) by the Asian Clam Potamocorbula amurensis: 1. Introduction and Dispersal, 

66 MARINE ECOL. PROG. SER. 81-94 (1990). See also Stemming The Tide supra note 8; 

Cohen, CALFED Bay Delta Program supra note 6. 

w . See generally G. M. Hallegraeff & C. J. Bolch, Transport of Dtatom and 

Dinoflagellate Resting Spores in Ships' Ballast Water: Implications for Plankton Biogeography and Aquaculture, 14(8) J. PLANKTON RES. 1067 (1992). Accumulated sediment may range from negligible to quite substantial amounts. See e.g., POLLUTECH 

ENVIRONMENTAL, LTD., CANADIAN COAST GUARD, A REVIEW AND EVALUATION OF BAIr 

LAST WATER MANAGEMENT AND TREATMENT OPTIONS To REDUCE THE POTENTIAL FOR 

THE INTRODUCTION OF NON-NATIVE SPECIES TO THE GREAT LAKES 21(1992) (recording 

a foot-thick layer of mud in the ballast tanks of one ship) [hereinafter Poll utech Environmental, Ltd.]. 

11 See generally J. M. Kelly, Ballast Water and Sediments as Mechanisms for Unwanted Species Introductions into Washington State, 12(2) J. SHELLFISH RES. 405 

(1993). 

12 See generally R. J. Williams, et aI., Cargo Vessel Ballast Water as a Vector for the 

Transport of Non-Indigenous Marine Species, 26 ESTUAR. COAST. SHELF SCI. 409 

(1988). See also G. M. Hallegraeff, et aI., Microalgal Spores in Ship's Ballast Water: A 

Danger to Aquaculture, in TOXIC MARINE PHYTOPLANKTON 475 (E. Gran/iIi, et aI., eds., 

1990); AQIS, Report No. 1 supra note 8, at 21; J. M. Kelly, Ballast Water and Sediments as Mechanisms for Unwanted Species Introductions into Washington State, 12(2) 

J_ SHELLFISH RES. 405-410 (1993). See also Stemming The Tide supra note 8. 

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B. BIOLOGICAL INVASIONS IN AQUATIC ECOSYSTEMS: HISTORY 

AND IMPACTS 

Recent studies have identified over 230 exotic species that 

have become established in the San Francisco Estuary. 13 At 

least another 125 organisms in the estuary are considered to be 

"cryptogenic," meaning there is inadequate evidence to determine whether they are native or exotic. 14 Exotic species dominate many of the estuary's biotic communities, where they may 

account for forty to 100 percent of the common species, up to 

ninety-seven percent of the total number of organisms, and up 

to ninety-nine percent of the biomass. 15 Perhaps even more 

striking than their abundance is the rapidly increasing rate at 

which new species are arriving and becoming established. 

Roughly half of the exotic species identified were first observed 

in the ecosystem within the last thirty-five years.

16 Overall, the 

rate of invasions increased from an average of about one new 

species established every fifty-five weeks between 1851 and 

1960, to one new species every fourteen weeks between 1961 

and 1995.17 

These exotic organisms arrived on the West Coasea through 

a variety of mechanisms. Historically, the most important of 

13 In this study, the San Francisco Estuary was defined as all waters in the San 

Francisco Bay watershed within the reach of the tides, including both the salty waters 

of the Bay and the freshwater inland delta of the Sacramento-San Joaquin rivers. See 

Andrew N. Cohen & James T. Carlton, Accelerating Invasion Rate in a Highly Invaded 

Estuary, 279 SCIENCE 555-558 (1998) [hereinafter Cohen & Carlton, Accelerating Inva· 

sionRate). 

14 See generally ANDREW N. COHEN & J. T. CARLTON, U. S. FISH & WILDLIFE SERVICE & NATIONAL SEA GRANT COLLEGE PROGRAM, NONINDIGENOUS AQUATIC SPECIES 

IN A UNITED STATES ESTUARY: A CASE STUDY OF THE BIOLOGICAL INVASIONS OF THE 

SAN FRANCISCO BAY AND DELTA (1995) [hereinafter Cohen & Carlton, SF Bay Case 

Study). The concept of cryptogenic species is defined and explored in James T. Carlton, 

Biological Invasions and Cryptogenic Species, 77(6) ECOLOGY 1653-1655 (1996). 

15 See generally Cohen & Carlton, SF Bay Case Study supra note 14. See also 

Cohen & Carlton, Accelerating Invasion Rate supra note 13, at 555-558. Biomass is a 

measure of the weight of the living organisms present. 

16 

See generally Cohen & Carlton, Accelerating Invasion Rate supra note 13. 

17 

See id. 

18 . . In thls article "West Coast" and "East Coast" refer to the western and eastern 

coasts of North America. 

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these involved organisms that had attached to or bored into the 

hulls of ships; organisms accidentally transported with oysters 

from the East Coast or Japan that were planted in the West 

Coast bays for rearing to market size; and fish imported and 

stocked to support commercial or recreational fisheries, primarily in fresh water.19 For the last several decades, however, 

these mechanisms have either not been operating or have declined in importance, while increasing numbers of organisms 

have been introduced through the discharge of ships' ballast 

water.20 Although a few species may have been introduced by 

ballast water discharges during the first half of the 20th century,21 substantial numbers began to appear in the 1960s,22 and 

by the 1990s between fifty-three and eighty-eight percent of the 

exotic species newly found in the San Francisco Estuary had 

been introduced to the West Coast via ballast water. 23 

Evidence from other aquatic ecosystems also indicates a 

high· degree of invasion, an accelerating rate of invasion, and 

an increasing contribution to invasions by ballast water. 

Within California, at least eighty-one exotic marine species 

have become established in southern California between San 

Diego and Los Angeles,24 twenty-seven species in Morro Bay,25 

and thirty-four species in Humboldt Bay.26 In the freshwater 

19 See generally James T. Carlton, History, Biogeography, and Ecology of the Introduced Marine and Estuarine Invertebrates of the Pacific Coast of North America 

(1979) (unpublished Ph. D. thesis, University of California (Davis» (on file with the 

University of California (Davis) Library). See generally Cohen & Carlton, SF Bay Case 

Study supra note 14. 

20 

See generally Cohen & Carlton, SF Bay Case Study supra note 14. See also Andrew N. Cohen, Invasions Status and Policy on the U. S. West Coast, in PROC. FIRST 

NAT'L CONF. ON MARINE BIOINVASIONS (Jan. 24-27, 1999) (forthcoming 2000) [hereinafter Cohen, Marine Bioinvasionsl. The use of ballast water in the shipping industry is 

described infra Part LA. 21 

See Cohen, CALFED Bay Delta Program supra note 6, at app. A. 

22 See id. at 12, Figure 1. 

23 See generally Cohen, Marine Bioinvasions supra note 20. 

24 Unpublished data established by Andrew N. Cohen (on file with authors). 

25 

See id. 

26. . Unpubhshed data estabhshed by James T. Carlton & Andrew N. Cohen (on file 

with authors). 

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Great Lakes, 139 exotic organisms had become established by 

the early 1990s.27 Nearly one-third of these arrived between 

1960 and 1990,28 coinciding with the opening of the St. Lawrence Seaway in 1959, which resulted in a dramatic increase in 

the number and size of ocean-going ships entering the Great 

Lakes and in the volume of ballast water released into the 

Lakes.29 Invasions due to ballast water discharges first began 

to appear in the Lakes the 1930s, increased substantially after 

1960, and accounted for eighty-two percent of new invasions in 

the 1980s.30 

Biological invasions have the potential to cause substantial 

damage to ecosystems and to the human activities that depend 

on them,31 Several recent invasions resulting from ballast water discharges provide noteworthy examples: 

1. Western Atlantic Comb Jelly 

The western Atlantic comb jelly,32 a small, floating organism 

similar to a jellyfish, was introduced into the Black and Azov 

Seas by the early 1980s. It became phenomenally abundant 

and by consuming much of the seas' crustacean zooplankton33 

27 

See E. L. Mills, et aI., Exotic Species in the Great Lakes: A History of Biotic Crises and Anthropogenic Introductions, 19(1) J. GREAT LAKEs RES. 1 (1993) [hereinafter 

Mills). 28 

See id. at 1, 39. 

29 See id. at 1, 4. 

30 Based on data in Mills supra note 27, at Tables 3 and 4. 

31 See generally U.S. OFFICE OF TECHNOLOGY AsSESSMENT, REPORT No. OTA-F565, HARMFuL NON-INDIGENOUS SPECIES IN THE UNITED STATES (1993) [hereinafter 

OTA, Harmful Non-Indigenous Species in U.S.I. See also, Cohen & Carlton, SF Bay 

Case Study supra note 14 (for a discussion of the types of impacts caused by aquatic 

invasions); Andrew N. Cohen, The Exotic Species Threat to California's Coastal Resources, in CALIFORNIA AND THE WORLD OCEAN '97 1418-1426 (1998). 32 

Mnemiopsis leidyi. 

33 Plankton are organisms that drift within the water column, most of which are 

microscopic or nearly microscopic. Plant and animal plankton are called, respectively, 

phytoplankton and zooplankton. 

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contributed to the decline of the region's already-stressed fisheries, affecting fishing fleets in six nations. 34 

2. European Zebra Mussel 

The European zebra mussel35 was discovered in the Great 

Lakes in the late 1980s and rapidly proliferated. It caused 

massive problems by clogging water-delivery pipes, attaching 

to boat hulls, marine structures and navigational buoys, and 

accumulating in nuisance quantities on recreational beaches. 36 

Damages through 1995 were reported at up to $1.5 million at 

one factory, $3.7 million at a water treatment plant, and $6 

million at a power plant, with ten-year costs estimated at $3.1 

billion for the power industry and $5 billion in all. 37 Zebra 

mussels have also disrupted food webs, promoted blooms of 

nuisance algae and threatened native species, although some 

organisms have benefited from the mussel's presence. 3S The 

zebra mussel has now spread across much of North America, 

~ . 

See E. A. Shushkina & E. I. Musayava, Structure of Planktic Community of the 

Black Sea Epipelagic Zone and its Variation Caused by Invasion of a New Ctenophore 

Species, 30 OCEANOLOGY 225-228 (1990). See. also J. Travis, Invader Threatens Black, 

Azov Seas 262 SCIENCE 1366-1367 (1993); G. R. Harbison & S. P. Volvik, The Ctenophore, Mnemiopsis leidyi, in the Black Sea: A Holoplanktonic Organism Transported in 

the Ballast Water of Ships, in NONINDIGENOUS ESTUARINE AND MARINE ORGANISMS 

(NEMO), PROCEEDINGS OF THE CONFERENCE AND WORKSHOP 25-36 (U. S. DEPI'. OF 

COMMERCE, NOAA, Seattle WA, 1994). 

35 

Dreissena polymorpha. 

36 See ZEBRA MUSSELS: BIOLOGY, IMPACTS, AND CONTROL (Thomas F. Nalepa & 

Don W. Schloesser eds., 1993). 

37 

See, e.g., OTA, Harmful Non-Indigenous Species in U.S supra note 31, at 68 (for 

reports and estimates of zebra mussel-related costs). See also W. L. LePage, The Impact of Dreissena polymorph a On Waterworks Operations at Monroe, Michigan: A Case 

History, in ZEBRA MUSSELS: BIOLOGY, IMPACTS, AND CONTROL 333-358 (T. F. Nalepa & 

D. W. Schloesser eds., 1993); K. Glassner-Shwayder, Biological Invasions, Address 

Before the Great Lakes Panel on Aquatic Nuisance Species and Great Lakes Commission (1996); C. O'Neill, The Zebra Mussel: Impacts and Control (1997) (unpublished 

manuscript, on file with Cornell University). ~ . . See L. Hushak, Zebra Mussel Update (1995) (unpublished manuscnpt, on file 

with Ohio State University). 

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from Canada to New Orleans and from the Hudson River to 

Oklahoma.39 

3. Small Asian Clam 

In 1986, three specimens of a small Asian clam40 were found 

in San Francisco Bay by a college biology class. 41 Within a 

year, it had become the most abundant clam in the northern 

part of the bay, and soon spread to the rest of the bay. The 

clam feeds by filtering small organisms out of the water column, and researchers calculated that virtually the entire volume of water over a large portion of the bay was being filtered 

through these clams between once and twice a day, dramatically altering the food web. The clam also appears to concentrate the metal selenium in its tissues, directing it into the diets of bottom-feeding fish and birds, which are accumulating 

selenium at levels known to cause reproductive defects in some • 42 specIes. 

39 See C. O'Neill, The Zebra Mussel: Impacts and Control (1997) (unpublished 

manuscript, on file with Cornell University). 

40 

Potamocorbula amurensis. 

41 See James T. Carlton, et aI., Remarkable Invasion of San Francisco Bay (California, USA) by the Asian Clam Potamocorbula amurensis: I. Introduction and Dispersal, 66 MARINE ECOL. PROG. SER. 81-94 (1990). 

42 See id. See also F. H. Nichols, et aI., Remarkable Invasion of San Francisco Bay 

(California, USA) by the Asian Clam Potamocorbula Amurensis: II. Displacement of a 

Former Community, 66 MAR. ECOL. PROG. SER. 95-101 (1990) [hereinafter Nichols, et 

aI., S.F. Bay Invasion]; I. Werner & J. T. Hollibaugh, Potamocorbula amurensis: Comparison of Clearance Rates and Assimilation Efficiencies for Phytoplankton and Bacterioplankton, 38(5) LIMNOL. OCEANOGR. 949-964 (1993); W. J. Kimmerer, et aI., Predation By An Introduced Clam as the Likely Cause of Substantial Declines in Zooplankton 

of San Francisco Bay, 113 MAR. ECOL. PROG. SER. 81-93 (1994); A. E. Alpine & J. E. 

Cloern, Trophic Interactions and Direct Physical Effects Control Phytoplankton Biomass and Production in an Estuary, 37(5) LIMNOL. OCEANOGR. 946-955 (1992); S. N. 

Luoma & R. Linville, Selenium Trends in North San Francisco Bay, 10(2) IEP NEWSLETTER 25, 26 (1997); J. K. Thompson, Impacts of the Asian Clam on San Francisco 

Bay, Paper Presented at the 127th Annual Meeting of the AnIerican Fisheries Society 

(Aug. 24-28, 1997); Save San Francisco Bay Association, Intruders in the Estuary, in 

WATERSHED 1,8 (Fall 1998) (for a personal description of the extent ofthis invasion). 

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4. Dinoflagellates and Red Tides 

Dinoflagellates are microscopic organisms43 that sometimes 

become so abundant that they color the sea as "red tides." 

These can kill fish or invertebrates,44 and some dinoflagellate 

species produce neurotoxins which, becoming concentrated in 

mussels or clams, produce a potentially fatal syndrome known 

as Paralytic Shellfish Poisoning or PSP when consumed by 

human beings. In recent decades red tides and PSP outbreaks 

have been reported more frequently around the world and in 

areas where they were previously unknown.45 Dinoflagellates 

are common in ballast water and ballast sediments,46 and at 

least some outbreaks (in Australia and Tasmania, and possibly 

also in New Zealand and Chile)47 apparently resulted from the 

introduction of dinoflagellates in ballast discharges. 

43 

Dinoflagellates are single-celled organisms that exhibit features that have been 

thought characteristic of both plants (photosynthesis) and animals (motility), and have 

been variously classified. They are found in both fresh and salt water. See generally 

Harold C. Bold & Michael J. Wynne, INTRODUCTION To THE ALGAE: STRUCTURE AND 

REPRODUCTION (2d ed. 1985). 44 

See, e.g., Brian Cole & Andy Cohen, Red Tide in Berkeley Marina Raises Concern 

for Toxic Blooms in Central Bay, in INTERAGENCY ECOLOGICAL PROGRAM NEWSLETTER 

11(1): 11-13 (1997). 45 

See Donald M. Anderson, Toxic Algal Blooms and Red Tides: A Global Perspective, in RED TIDES: BIOLOGY, ENVIRONMENTAL SCIENCE, AND TOXICOLOGY 11-16 (T. 

Okaichi, et aI., eds., 1989); Theodore J. Smayda, Novel and Nuisance Phytoplankton 

Blooms in the Sea: Evidence for a Global Epidemic, in TOXIC MARINE PHYTOPLANKTON 

29-40, (E. Graneli, et aI., eds., 1990); G. M. Hallegraeff, A Review of Harmful Algal 

Blooms and Their Apparent Global Increase, 32(2) PHYCOLOGIA 79-99 (1993). 46 

See G. M. Hallegraeff, et aI., Microalgal Spores in Ship's Ballast Water: A Danger to Aquaculture, in TOXIC MARINE PHYTOPLANKTON 475-480 (E. Graneli, et aI., eds., 

1990); G. M. Hallegraeff & C. J. Bolch, Transport of Toxic Dinoflagellate Cysts Via 

Ships' Ballast Water, 22(1) MARINE POLLUTION BULLETIN 27-30 (1991); G. M. Hallegraeff & C. J. Bolch, Transport of Diatom and Dinoflagellate Resting Spores in Ships' 

Ballast Water: Implications for Plankton Biogeography and Aquaculture, 14(8) J. 

PLANKTON RES. 1067-1084 (1992); Cohen, CALFED Bay Delta Program supra, note 6, 

at Table 5. 47 

Alexandrium catenella and Alexandrium minutum in Australia and Gymnodinium catenatum in Tasmania. See, e.g., G. M. Hallegraeff, et aI., Three Estuarine Australian Dinoflagellates That Can Produce Paralytic Shellfish Toxins, 10(3) J. PLANKTON RES. 533-541 (1988); G. M. Hallegraeff & C. J. Bolch, Transport of Toxic Dinoflagellate Cysts Via Ships' Ballast Water, 22(1) MARINE POLLUTION BULLETIN 27-30 (1991); 

G. M. Hallegraeff & C. J. Bolch, Transport of Diatom and Dinoflagellate Resting Spores 

in Ships' Ballast Water: Implications for Plankton Biogeography and Aquaculture, 

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5. Cholera Strain 

During the 1991 South American cholera epidemic, the 

South American cholera strain was discovered in oysters and 

fish in Mobile Bay, Alabama. The U. S. Food and Drug Administration subsequently found the same strain in five out of 

fifteen ships sampled on arrival in the Gulf of Mexico from 

Latin American portS. 48 Some medical researchers believe that 

this epidemic strain had originally been transported from Asia 

to South America in ballast water. 49 

C. ORGANISMS TRANSPORTED IN BALLAST WATER 

It has long been recognized that marine and freshwater organisms can be transported in water carried on ships. As early 

as 1897, biologists showed that marine plankton can pass 

through pumps into a ship's seawater system and survive, and 

the first scientific report of a ballast water introduction was in 

1908.50 It was not until the 1970s, however, that scientists began directly sampling the organisms carried in ballast water,S1 

with the results of the first substantial studies appearing in 

14(8) J. PLANKTON REs. 1067-1084 (1992); G. M. Hallegraeff, A Review of Harmful 

Algal Blooms and Their Apparent Global Increase, 32(2) PHYCOLOGIA 79-99 (1993). 

Gymnodinium breve in New Zealand. See P. Smith, et ai., Toxic Phytoplankton and 

Algal Blooms, Summer 1992/3, in 1993 MARINE TOXINS AND NEW ZEALAND SHELLFISH 

11-17 (J. A. Jasperse ed., 1993). Alexandrium catenella in Chile. Telephone Interview 

with G. Lembeye (1999). 48 

See 56(239) Fed. Reg. 64,381-64,386 (Dec. 12, 1991); 63(69) Fed. Reg. 17782-

17791 (Apr. 10, 1998). See also S. A. McCarthy, et ai., Toxigenic Vibrio cholerae 01 

and Cargo Ships Entering Gulf of Mexico, 339 LANCET 624-625 (1992); S. A. McCarthy 

& F. M. Khambaty, International Dissemination of Epidemic Vibrio Cholerae by Cargo 

Ship Ballast and Other Nonpotable Waters, 60(7) APPL. ENVTL. MICROBIOL. 2597-2601 

(1994). . 

49 See P. R. Epstein, et ai., Marine Ecosystems, 342 LANCET 1216-19 (1993). See 

also J. Ditchfield, Cholera, Plankton Blooms, and Ballast Water, 3(3) GLOBAL BIODIVERSITY 17-18 (1993). The South American cholera epidemic resulted in over one million reported cases and over 10,000 deaths. See R. V. Tauxe, Epidemic Cholera in the 

New World, 1 EMERGING INFECTIOUS DISEASE 141-146 (1995). 

50 . 

See, e.g., James T. Carlton, Transoceanic and Interoceanic Dispersal of Coastal 

Marine Organisms: The Biology of Ballast Water, 23 OCEANOGR. MAR. BIOL., ANN. REV. 

313-371 (1985). 

51 See generally id. 

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the mid-1980s.52 Numerous studies since then have shown that 

ballast tanks typically contain many species of animals, plants, 

protozoans, bacteria and viruses, sometimes in considerable 

abundance. 53 Well over a thousand different species have been 

identified from the water and sediment in ballast tanks. 54 The 

types of organisms transported in ballast tanks can include 

organisms that are planktonic for their entire lives, organisms 

that are planktonic as larvae but settle on the bottom as adults 

(these include many clams, oysters, mussels, snails, worms, 

barnacles, crabs, starfish and other common marine organisms), small swimming organisms such as fish or shrimp, parasites of planktonic or swimming organisms, organisms that 

normally live on the bottom but are stirred up into the water by 

waves or by ships' propellers, and organisms attached or clinging to bits of wood or other floating debris.55 

Many planktonic organisms can survive relatively long voyages drifting in the ballast water carried in ships, to be discharged into coastal waters at the end of the voyage. 56 While 

several studies have reported dramatic declines in the number 

and diversity of organisms over the course of a voyage,57 some 

live organisms have been collected from ballast water or sediments after periods of up to a year.58 Such long-term survival 

could be due to the presence of cysts, spores or other resting 

stages of certain organisms, which may be tolerant of harsh 

62 

See id. See also R. J. Williams, et al., Cargo Vessel Ballast Water as a Vector for 

the Transport of Non-Indigenous Marine Species, 26 ESTUAR. COAST. SHELF SCI. 409-

420 (1988); James T. Carlton & J. B. Geller, Ecological Roulette: The Global Transport 

of Nonindigenous Marine Organisms, 261 SCIENCE 78-82 (1993). 

63 

See COHEN, CALFED Bay-Delta Program supra note 6, at Tables 4-6. 

64 

See id., at Tables 4-5. 

66 

See generally Carlton, et al. supra note 6. See also Cohen, CALFED Bay-Delta 

Program supra note 6. 

66 See Cohen, CALFED Bay-Delta Program supra note 6, at Tables 4, 5 & 8. 

57 

See id. at Table 7. See also S. Gollasch, et al., Nonindigenous Organisms Introduced Via Ships Into German Waters, in BALLAST WATER: ECOLOGICAL ANn FISHERIES 

IMPLICATIONS (James T. Carlton ed., 1998). The declines may be due to changes in 

temperature or reductions in dissolved oxygen, or to depletion of food resources since 

there is no light in ballast tanks that would allow phytoplankton to photosynthesize. 

68 See Cohen, CALFED Bay-Delta Program supra note 6, at Table 8. 

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environmental conditions and capable of remaining dormant 

for many weeks or months,59 or to the long-term persistence of 

biological communities in ballast tank sediments.6o However, 

even with large declines, substantial numbers and considerable 

variety of living organisms may remain in ballast tanks after 

typical transoceanic voyages of ten to twenty days. Densities 

on the order of 0.1-1 relatively large (>0.003 inch) organisms 

per gallon, and much greater densities of smaller organisms, 

have been found in ballast water at the conclusion of transoceanic voyages. 61 Given the large capacity of ship's ballast water 

pumps,62 a single deballasting ship may thus discharge into the 

environment millions of exotic phytoplankton and zooplankton 

per hour, and larger numbers of protists, bacteria and viruses. 63 

D. REDUCING THE INTRODUCTION OF ORGANISMS IN BALLAST 

WATER 

The approaches suggested for reducing or eliminating the 

introduction of harmful organisms in ballast water generally 

fall into three categories: (1) adjusting where, when or how ballast water is loaded or discharged ("ballast water microman59 See generally James T. Carlton, Transoceanic and Interoceanic Dispersal of 

Coastal Marine Organisms: The Biology of Ballast Water, 23 OCEANOGR. MAR. BIOL., 

ANN. REV. 313 (1985). See also R. J. Williams, et al., Cargo Vessel Ballast Water as a 

Vector for the Transport of Non-Indigenous Marine Species, 26 ESTUAR. COAST. SHELF 

SCI. 409-420 (1988); G. M. Hallegraeff, et al., Microalgal Spores in Ship's Ballast Water: A Danger to Aquaculture, in TOXIC MARINE PHYTOPLANKTON 475-480 (E. Graneli, 

et al., eds., 1990); G. M. Hallegraeff & C. J. Bolch, Transport of Diatom and Dinoflagellate Resting Spores in Ships' Ballast Water: Implications for Plankton Biogeography 

and Aquaculture, 14(8) J. PLANKTON RES. 1067-1084 (1992); B. S. Galil & N. Hulsmann, Protist Transport Via Ballast Water-Biological Classification of Ballast Tanks 

by Food Web Interactions, 33 EUROP. J. PROTISTOL. 244-253 (1997). Notable among the 

cyst-forming organisms are some toxic species of dinoflagellates, whose viable cysts 

have been found in ballast sediments in enormous numbers. 

60 See generally, L. D. SMITH, ET AL. & U.S. COAST GUARD, REPORT No. CG-D-02-97, 

BIOLOGICAL INVASIONS By NONINDIGENOUS SPECIES IN UNITED STATES WATERS: 

QUANTIFYING THE ROLE OF BALLAST WATER AND SEDIMENTS, PARTS I AND 11(1996). 

61 

See Cohen, CALFED Bay-Delta Program supra note 6, at Table 6. 

62 Typi~al ships' pumping capacities are 0.3-0.5 million gal/hr for general cargo and 

container ships, 1.3-2.6 million gal/hr for bulk freighters and ore carriers, and 1.3-5 

million gal/hr for tankers. See generally Stemming The Tide supra note 8. 

63 See Cohen, CALFED Bay Delta Program supra note 6, at 11. 

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agement")64; (2) exchanging ballast water at some distance from 

shore ("ballast water exchange"); or (3) treating ballast water 

to remove or kill the organisms in it ("ballast water treatment"). In addition, the use of a "risk-based decision support 

system" has been recommended by the Australian government 

and some shipping industry representatives.65 This is not a 

management action per se, but rather a regulatory approach in 

which regulators would first assess a ship to determine 

whether its ballast water contained organisms that pose a risk, 

and then determine what management action would be required. 

Due to either intrinsic limitations or practical operational 

constraints, no approach is likely to be completely effective, 

and some are most certain to fall short. Combinations of approaches may ultimately be adopted, or different approaches 

may be used in different areas or by different parts of the industry. For any approach, certain issues must be considered 

such as the safety of the ship and crew, its effectiveness in destroying potential invading organisms, technical feasibility and 

compatibility with ships' operations, environmental impacts, 

the ability of regulatory agencies to monitor implementation, 

and the cost ofimplementation.66 

1. Ballast Water Micromanagement 

Various actions have been suggested to reduce the number 

of harmful organisms taken in when loading ballast, or to avoid 

the discharge of ballast water in sensitive or vulnerable areas. 

Measures related to the loading of ballast include not loading 

in areas that are known to contain harmful organisms or 

64 

The term "ballast water micromanagement" was used by Carton, et al. supra note 

6, at 132 to describe types of limitations on where and when ballast water is loaded; as 

used in this article, the term also includes certain types oflimitations on where ballast 

water is discharged. 

65 See AUSTRALIAN QUARANTINE & INSPECTION SERVICE, BALLAST WATER RESEARCH 

SERIES REPORT No.9, BALLAST WATER--TECHNICAL OVERVIEW REPORT 44-45 (1996). 

See also DENIS PATERSON & KATHERINE COLGAN, AUSTRALIAN QUARANTINE & INSPECTION SERVICE, INVASIVE MARINE SPECIES: AN INTERNATIONAL PROBLEM REQUIRING 

INTERNATIONAL SOLUTIONS 13 (1998). 

66 . . See Stemmmg The Tlde supra note 8, at 47. 

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phytoplankton blooms, or in areas with local outbreaks of infectious water-borne diseases, or in waters with high sediment 

loads or where propellers may stir up the sediment, or near 

dredging operations or in shallow water, or near sewage discharges or in areas with poor tidal flushing. 67 Other measures 

include not ballasting at seasons when harmful plankton are 

abundant, or at night when many types of organisms migrate 

closer to the surface; or ballasting through intakes located high 

on the ship's hull when in shallow water, to avoid entraining 

bottom sediments or organisms living near the bottom; or loading fresh water as ballast when expecting to deballast in salt 

water; and salt water as ballast when expecting to deballast in 

fresh water.68 Measures related to the discharge of ballast include not discharging near aquaculture areas, seafood harvesting areas, marine sanctuaries or parks, coral reefs or other 

sensitive sites.69 

67 

See International Guidelines for Preventing the Introduction of Unwanted 

Aquatic Organisms and Pathogens from Ships' Ballast Water and Sediment Discharges, Marine Environmental Protection Committee Res. (50)31 (July 4, 1991) 

(adopted by International Maritime Organization, Res. A774(18) (Nov. 4, 1993) (photocopy on file with authors». See also C. J. S. Bolch & G. M. Hallegraeff, Ballast Water 

as a Vector for the Dispersal of Toxic Dinoflagellates, in NONINDIGENOUS ESTUARINE 

AND MARINE ORGANISMS (NEMO), PROCEEDINGS OF THE CONFERENCE AND WORKSHOP 

63-67 (U. S. DEP'T OF COMMERCE & NOAA, Seattle, WA,1994); Carlton, et al. supra 

note 6, at 132-138; K. Weathers & E. Reeves, The Defense of the Great Lakes Against 

the Invasion of Nonindigenous Species in Ballast Water, 33(2) MARINE TECHNOLOGY 

92-100 at 98, Table 4 (1996); Stemming The Tide supra note 8, at 50; E. REEVES & U.S. 

COAST GUARD, PROTECTION OF THE GREAT LAKEs FROM INFECTION By EXOTIC ORGANISMS IN BALLAST WATER 14, Table 5 (1998) !hereinafter E. Reeves & U.S. COAST 

GUARD]; Cohen, CALFED Bay Delta Program supra note 6, at 20-21; 64(94) Fed. Reg. 

26672,26683-26684 (May 17, 1999) [33 C.F.R. 151.2305]. 

68 

See JAMES T. CARLTON, ET AL., U. S. COAST GUARD & U. S. DEP'T OF TRANSPORTATION REPORT No. CG-D-1l-95, THE ROLE OF SHIPPING IN THE INTRODUCTION OF 

NONINDIGENOUS AQUATIC ORGANISMS TO THE COASTAL WATERS OF THE UNITED 

STATES (OTHER THAN THE GREAT LAKEs) AND AN ANALYSIS OF CONTROL OPTIONS 132-

138 (1995). See also K. Weathers & E. Reeves, The Defense of the Great Lakes Against 

the Invasion of Nonindigenous Species in Ballast Water, 33(2) MARINE TECHNOLOGY 

92-100 at 98, Table 4 (1996); Stemming The Tide supra note 8, at 50, 56; E. Reeves & 

U.S. COAST GUARD supra note 67, at 14, Table 5; Cohen, CALFED Bay-Delta Program 

supra note 6, at 20-21; 64(94) Fed. Reg. 26672, 26683-26684 (May 17, 1999) [33 C.F.R. 

151.2305]. 

69 See C. J. S. Bolch & G. M. Hallegraeff, Ballast Water as a Vector for the Dispersal 

of Toxic Dinoflagellates, in NONINDIGENOUS ESTUARINE AND MARINE ORGANISMS 

(NEMO), PROCEEDINGS OF THE CONFERENCE AND WORKSHOP 63-67 (U. S. DEP'T OF 

COMMERCE & NOAA, Seattle, WA,1994). See also Cohen, CALFED Bay-Delta Program 

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While such micromanagement measures could enhance the 

effectiveness of ballast water exchange or ballast water treatment approaches, they are not a substitute for such approaches, and will not by themselves adequately resolve the 

problem of introductions in ballast water.70 In actual practice, 

ships will be unable to implement most of these measures 

much of the time, since the time and place of ballasting will to 

a large degree be constrained by the ship's itinerary, schedule 

and operational needs.71 

2. Ballast Water Exchange 

Ballast water exchange is often proposed as a measure for 

ships arriving from overseas ports. In such cases, an exchange 

would consist of discharging most of the ballast water that had 

been loaded in overseas coastal waters and replacing it with 

ocean water taken on when the ship is some distance from 

shore or in some minimum depth of water. In this article, this 

process is referred to as an open-ocean exchange.72 The majority of existing laws, regulations or guidelines specify that openocean exchange is to take place at least 200 miles offshore, or 

in waters that are at least 2,000 meters (6,560 feet) deep, or 

both. 73 

supra note 6, at 20-21; 64(94) Fed. Reg. 26672, 26683-26684 (May 17, 1999) [33 C.F.R. 

151.2305]. 

70 See Carlton, et aI., supra note 6, at 132. See also Cohen, CALFED Bay-Delta Program 

supra note 6, at 20. 

71 See Cohen, CALFED Bay-Delta Program supra note 7 at 20-21. In addition, 

systematically avoiding sites with unwanted organisms or where blooms of phytoplankton are occurring may be impossible because the system of international sampling programs and notification procedures that would be needed to support such an 

effort does not exist. Also, avoiding discharging into or near sensitive sites may be of 

limited value, since exotic species, once established at one site, can sometimes spread 

rapidly to other sites along the coast. For example, the European green crab, first 

collected on the West Coast in San Francisco Bay in 1989 or 1990, has since spread 

northward to Vancouver Island in British Columbia, a distance of about 900 miles. 

72 This procedure has also been called a mid-ocean, high seas, at sea or deep water' 

exchange. See Carlton, et al. supra note 6, at 154 (for a discussion of these terms). 

73 For most of the U. S. coast, the 2,000 meter depth contour is within 200 miles of 

shore. See id. at 161. The specifications for exchange in the International Maritime 

Organization guidelines, the Canadian guidelines, and the U. S. federal rule for tank18

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The primary purpose of open-ocean exchange is to remove 

exotic coastal organisms from a ship's ballast tanks, and replace it with water containing only oceanic organisms. On arrival at its destination, the ship would then be discharging only 

oceanic organisms into coastal waters. These are not expected 

to survive or thrive in the coastal zone, or to compete effectively 

with organisms adapted to coastal conditions.74 There have 

ers exporting Trans-Alaska Pipeline oil is to conduct the exchange in waters at least 

2,000 meters deep. See International Guidelines for Preventing the Introduction of 

Unwanted Aquatic Organisms and Pathogens from Ships' Ballast Water and Sediment 

Discharges, Marine Environmental Protection Committee Res. (50)31 (July 4, 1991) 

(adopted by International Maritime Organization, Res. A774(18) (Nov. 4, 1993) (photocopy on file with authors». See also 61(106) Fed. Reg. 27,255-27,258 (May 31, 1996). 

In federal law, at least 200 miles from shore (NANPCA 1990; NISA 1996). In federal 

regulations and California law, in waters that are both at least 200 miles from shore 

and at least 2,000 meters deep. See (58(66) Fed. Reg. 18,330-18,334 (Apr. 8, 1993); 

64(94) Fed. Reg. 26,672, 26,683-26,684 (May 17,1999) [33 C.F.R. 151.2035]; CAL. PUB. 

RES. CODE §§ 71200(e), 71201(b), 71204(a)(1) (West 2000). In Chilean law, at least 12 

miles from shore. See, e.g., D. GAUTHIER & D. A. STEEL, CAN. MANUSCR. REP. FISH. 

AQUAT. SCI., No. 2380, A SYNOPSIS OF THE SITUATION REGARDING THE INTRODUCTION 

OF NONINDIGENOUS SPECIES By SHIP-TRANSPORTING BALLAST WATER IN CANADA AND 

SELECTED COUNTRIES (1996). In Israeli regulations, beyond the continental shelf. See 

generally, STATE OF ISRAEL, MINISTRY OF TRANSPORT, ADMINISTRATION OF SHIPPING 

ANn PORTS, HAIFA, Notice to Mariners No. 4/96-Subject: Ballast Water Control 

(1996». 

74 

See Carlton, et aI., supra note 6, at 153. See also E. REEVES & U.S. COAST 

GUARD supra note 67, at 5. Similarly, coastal organisms are not expected to do well in 

the middle of the ocean. See id. at 153. Coastal waters are characterized by higher 

turbidity, lower levels of UV radiation, and more variable and generally lower salinities. See A. Locke, et aI., Ballast Water Exchange as a Means of Controlling Dispersal 

of Freshwater Organisms by Ships, 50 CAN. J. FISH. AQUAT. SCI. 2086-2093 (1993) 

!hereinafter Locke, et al. 1993]. See also Carlton, et aI., supra this note; E. Reeves & 

U.S. COAST GUARD supra this note, at 5. These conditions are thought to make transplants from either enVironment into the other likely to fail. Higher concentrations of 

nutrients in coastal waters, different availability of food resources, and different levels 

of competition and predation may also playa role. See Geoff Rigby & Gustaaf Hallegraeff, The Transfer and Control of Harmful Marine Organisms in Shipping Ballast 

Water: Behaviour of Marine Plankton and Ballast Water Exchange Trials on the MY 

"Iron Whyalla, n 1 J. MARINE ENVTL. ENGINEERING 91-110 (1994). For many coastal 

organisms that are planktonic only during their larval stages and must settle on the 

bottom for the adult stage of their lives, open ocean regions where the bottom is more 

than 2,000 meters down would provide singularly inhospitable environments. Two 

other phenomena that are sometimes cited as the rationale for open-ocean exchange 

may augment the effectiveness of the exchange process, but are not the primary objectives of the process. The first phenomenon is that higher salinity ocean water may act 

as a biocide, killing organisms adapted to freshwater or to lower salinity coastal water. 

See A. Locke, et aI., Effectiveness of Mid-Ocean Exchange in Controlling Freshwater 

and Coastal Zooplankton in Ballast Water, CAN. TECH. REP. FISH. AQUAT. SCI., No. 

1822 (1991) !hereinafter Locke, et al. 1991]; POLLUTECH ENVIRONMENTAL LTD. supra 

note 10, at app. B at 12; K Weathers & E. Reeves, The Defense of the Great Lakes 

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been some suggestions that vessels engaged in coastwise traffic 

should conduct ballast water exchanges at some lesser distance 

offshore, but there is no clear consensus on the value of such 

exchange. 

Ballast water exchange may be conducted in two basic ways. 

In an empty-and-refill exchange,75 a ballast tank is pumped as 

empty as possible76 and then refilled. The second approach is to 

pump water in through one port and allow it to flow out 

through another, called a flow-through exchange. 77 An emptyand-refill exchange could potentially make a ship unstable or 

prone to slamming (by discharging too much ballast for the sea 

conditions), cause inadequate propeller immersion, or impose 

unacceptable stresses on the hull (by changing the buoyancy in 

one section of the vessel relative to another).78 In general, staAgainst the Invasion of Nonindigenous Species in Ballast Water, 33(2) MARINE TECHNOLOGY 92-100 (1996); Geoff R. Rigby & Alan Taylor, Ballast Water: Its Impacts Can 

Be Managed, in BALLAST WATER: ECOLOGICAL AND FISHERIES IMPLICATIONS (James T. 

Carlton ed., 1998). However, a variety of freshwater organisms have been found to 

survive open-ocean exchange. See generally, Locke et al. 1991 supra this note; Locke et 

al. 1993 supra this note; Carlton, et al. supra note 6, at 159-162; E. Reeves & U.S. 

COAST GUARD supra note 67, at 5. The second phenomenon is that on transequatorial 

voyages, the influx of warmer tropical water may kill off temperate species; and the 

tropical species loaded during exchange would be less likely to survive or thrive when 

discharged to temperate coasts. See C. HAY, ET AL., CAWTHRON INSTITUTE, CAWTHRON'S BALLAST WATER RESEARCH PROGRAMME: FINAL REPORT 1996-1997 7 (1997). 

It has also been suggested that exchange will result in fewer organisms being released 

because lower concentrations or a lower diversity of organisms are found in the open 

ocean than in coastal waters. See, e.g., POLLUTECH ENVIRONMENTAL, LTD. supra note 

10, at 8, app. B; C. A. Welch, The National Invasive Species Act of 1996: Response to a 

Global Concern (1996) (unpublished student paper, University of Washington School of 

Law) (on file with authors). However, others claim this is not necessarily true. See 

Carlton, et al. supra note 6, at 155. 

75 Also called deballast-and-reballast exchange, reballasting, sequential release and 

replacement, sequential exchange, pumpdown exchange and complete exchange. H . . 

A substantial amount of water, typically on the order of tens of thousands of gallons per ship and often containing a high concentration of sediment and possibly organisms, may remain in the bottom of a ship's ballast tanks after the pumps have lost 

suction. See Carlton, et al. supra note 6, at 77, app. D & E; Locke, et al. 1991 supra 

note 74. This is known as unpumpable ballast or dead water. 

77 Also called flow-through dilution, flushing, continuous flushing, flush-through exchange, continuous exchange, dilution exchange and overflow exchange. 

78 See generally AQIS, Report No.4 supra note 8. See also J. B. Woodward, et aI., 

Ship Operational and Safety Aspects of Ballast Water Exchange at Sea, 31(4) MARINE 

TECHNOLOGY 315-326 (1992). 

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bility problems are likelier for smaller ships, and unsafe hull 

stresses are likelier for larger ships.79 

Such problems do not occur with flow-through exchange. 

Because the ballast tanks are never emptied, stability is never 

compromised and hull stresses are not significantly altered. 

However, flow-through exchange can be difficult because there 

is usually only one pipe available for both filling and draining 

the tank. so Flow-through exchange has been conducted by 

pumping water in through a pipe at the bottom of the tank and 

overflowing water onto the decks through hatch covers or air 

79 See c. HAY, ET AL., CAWTHRON INSTITUTE, CAWTHRON'S BALLAST WATER RESEARCH PROGRAMME: FINAL REpORT 1996-97 8 (1997). A figure that has been repeatedly cited in the ballast exchange literature, but is apparently without data to support 

it, is that empty-and-refill exchange is unsafe for vessels over 40,000 deadweight tons. 

See, e.g., Geoff R. Rigby, et al., The Transfer and Treatment of Shipping Ballast Waters 

to Reduce the Dispersal of Toxic Marine Dinoflagellates, in TOXIC PHYTOPLANKTON 

BLOOMS IN THE SEA, 169-176 (T. J~ Smayda & Y. Shimuzu eds., 1993). See also C. J. S. 

Bolch & G. M. Hallegraeft; Ballast Water as a Vector for the Dispersal of Toxic 

Dinoflagellates, in NONINDIGENOUS ESTUARINE AND MARINE ORGANISMS (NEMO), 

PROCEEDINGS OF THE CONFERENCE AND WORKSHOP 63-67 (U. S. DEP'T OF COMMERCE 

& NOAA, Seattle, WA,1994); Carlton, et al. supra note 6, at 164; E. Reeves & U.S. 

COAST GUARD supra note 67; POLLUTECH ENVIRONMENTAL LTD. supra note 10, at 23, 

app. B (reporting that the limit for safe exchange as ships of up to 30,000 tons of cargo, 

but without providing any basis or reference for this number). Modeling studies on 

empty-and-refill exchanges by various ship types and data from strain gauges have 

provided a more complex picture, with different studies indicating no stability or stress 

problems on three ship types of 37,700 to 110,000 tons displacement until the seas 

reached significant wave heights of somewhere between ten and 20 feet (significant 

wave heights of ten to 20 feet imply occasional waves nearly 40 feet high). See J. B. 

Woodward, et al., Ship Operational and Safety Aspects of Ballast Water Exchange at 

Sea, 31(4) MARINE TECHNOLOGY 315-326 (1992». See also AQIS, Report No.4 supra 

note 8, at (no stability or stress problems on a bulk carrier of 150,000 deadweight tons 

when tanks were exchanged in calm sea conditions). But see GeoffR. Rigby, et aI., The 

Transfer and Treatment of Shipping Ballast Waters to Reduce the Dispersal of Toxic 

Marine Dinoflagellates, in TOXIC PHYTOPLANKTON BLOOMS IN THE SEA,169-176 (T. J. 

Smayda & Y. Shimuzu eds., 1993) (unsafe stress conditions for four bulk carriers of 

70,000 to 188,000 deadweight tons). See also Geoff Rigby & Gustaaf HaIlegraeff, The 

Transfer and Control of Harmful Marine Organisms, in Shipping Ballast Water: Behaviour of Marine Plankton and Ballast Water Exchange Trials on the MV "Iron 

Whyalla," 1 J. MARINE ENVTL. ENGINEERING 91-110 (1994); K Weathers & E. Reeves, 

The Defense of the Great Lakes Against the Invasion of Nonindigenous Species in Ballast Water, 33(2) Marine Technology 92-100, at 93, 94 (1996) citing A. D. PRIOR, 

TRANSPORT CANADA, MARINE REGULATORY DIRECTORATE, BALLAST WATER EXCHANGE 

STUDY: PHASE I (1995). 

80 

See generally E. Reeves & U.S. COAST GUARD supra note 67. 

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ventilators at the top ofthe tank. 81 This is generally inefficient, 

and in some circumstances may be unsafe. 82 Fitting ballast 

tanks with a second pipe and making some other changes in 

the tanks could make flow-through exchange safer and easier 

and somewhat more efficient, even for the largest vessels.83 

Because of its limited effectiveness and potential safety issues, 

open-ocean ballast water exchange is generally viewed as an 

interim measure that should be replaced or augmented as soon 

as possible by more effective and safer ballast treatment approaches. 84 

3. Ballast Water Treatment 

Many technologies for treating ballast water could potentially be applied either on-board ship or in on-shore facilities,85 

although a few will be limited to on-shore use due to physical 

81 See Geoff Rigby & Gustaaf Hallegraeff; The Transfer and Control of Harmful 

Marine Organisms in Shipping Ballast Water: Behaviour of Marine Plankton and Ballast Water Exchange Trials on the MV "Iron Whyalla," 1 J. MARINE ENVTL. ENGINEERING 91-110 (1994); C. HAY, ET AL., CAWTHRON INSTITUTE, CAWTHRON'S BALLAST WATER 

RESEARCH PROGRAMME: FINAL REPORT 1996-1997 (1997). 82 

See AQIS, Report No.4 supra note 8, at 61; C. Hay, et. aI., CAWTHRON INSTITUTE, CAWTHRON'S BALLAST WATER RESEARCH PROGRAMME: FINAL REPORT 1996-1997 

(1997). 

83 Retrofit costs for this work have been estimated at £170,400 (-$280,000) to 

£528,000 (-$860,000) per ship for different ship types and sizes. See K. Weathers & E. 

Reeves, The Defense of the Great Lakes Against the Invasion of Nonindigenous Species 

in Ballast Water, 33(2) MARINE TECHNOLOGY 92-100 (1996); G. Armstrong, Ballast 

System Design for Flow-Through Exchange of Ballast Water, THE INSTITUTE OF MARINE ENGINEERS (1997); E. Reeves & U.S. COAST GUARD, supra note 68). Brazilian 

researchers have developed a cheaper approach involving deck-mounted pipes, called 

the "dilution method," which performed well in trials. See REpORT OF THE WORKING 

GROUP ON BALLAST WATER 5 (Jan. 5, 1999) (convened during MEPC 42, MEPC 43/4). 

In addition, a flow-through exchange requires that more water be pumped into a tank 

than in an empty-and-refill exchange, typically about three tank volumes to achieve a 

comparable level of exchange. See Geoff Rigby & Gustaaf Hallegraeff, The Transfer 

and Control of Harmful Marine Organisms in Shipping Ballast Water: Behaviour of 

Marine Plankton and Ballast Water Exchange Trials on the MV "Iron Whyalla, n 1 J. 

MARINE ENVTL. ENGINEERING 91-110 (1994». 

84 See Stemming The Tide supra note 8, at 53. 

85 Some studies consider a category of "port treatment" where ballast water is 

transferred from cargo ships to a treatment plant on a specially-designed vessel floating in the port. See generally AQIS, Report No. 1 supra note 8. In this article this is 

considered to be a type of on-shore treatment. 

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restrictions or safety concerns.86 Treatment technologies are 

generally of two types: technologies designed to removal particles, including both organisms and suspended sediments and 

technologies designed to kill living organisms, called disinfection. With most technologies, effective treatment will require 

both an initial particle removal process and a disinfection process, as discussed below. 

Most of the studies and experiments conducted to date have 

targeted on-board application and have primarily looked at filtration, chemical biocides and heat treatment. Other methods 

that have been proposed include ultraviolet (UV) radiation, 

ultrasound, microwaves, electric pulse and pulse plasma, magnetic treatment, mechanical agitation, and deoxygenation.87 . 

a. Particle Removal 

Several studies have considered different types of screens, 

strainers or membrane filters for on-board treatment of ballast 

water.B8 In general there are tradeoffs between efficiency, size, 

complexity and cost. Systems that are capable of removing 

very small organismsB9 at an acceptable flow rate90 tend to be 

large and shrinking the system tends to make it more complex 

~ . 

See Cohen, CALFED Bay-Delta Program supra note 6, at 27. 

87 See C. J. S. Bolch & G. M. Hallegraeft; Ballast Water as a Vector for the Dispersal of Toxic Dinoflagellates, in NONINDIGENOUS ESTUARINE AND MARINE ORGANISMS 

(NEMO), PROCEEDINGS OF THE CONFERENCE AND WORKSHOP 63-67 (U. S. Dep't of 

Commerce & NOAA, Seattle, WA,1994); Carlton, et al. supra note 6; Stemming The 

Tide supra note 8; E. Reeves & U.S. COAST GUARD supra note 67. 88 See POLLUTECH ENVIRONMENTAL LTD. supra note 11; AQIS, Report No.1 supra 

note 8; Carlton, et al. supra note 6; Stemming The Tide supra note 8; K. Mulvaney, 

Filters Put the Squeeze on Alien Stowaways, New Scientist, May 10, 1997, at 14; E. 

Reeves & U.S. COAST GUARD supra note 67, at 15. . 

89 The size ranges of organisms found in ballast water include invertebrate eggs at 

20-100 microns, algal spores and cysts at 5-25 microns, fungi at 1-100 microns, protozoa at 1-80 microns, bacteria at 0.1-100 microns and viruses at 0.01-1 micron. See, e.g., 

AQIS, Report No. 1 supra note 8; E. Reeves & U.S. COAST GUARD supra note 68. A 

research project on the Great Lakes is testing filters in the 25-250 micron range. See 

K. Mulvaney, Filters Put the Squeeze on Alien Stowaways, NEW SCIENTIST 14 (May 10, 

1997). 

90 Typical ballast pumping rates on commercial vessels are on the order of 1,000-

20,000 cubic meters per hour (4,400-88,000 gallons per minute). See Stemming The 

Tide supra note 8, at 37. 

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and more costly. Generally, the preferred arrangement is to 

filter the ballast water as it is loaded, so that backwash water 

and material may be discharged back into the source waters, 

rather than stored for later treatment and/or disposal. 91 Another technology that has been suggested for on-board use is 

cyclonic separation, which removes particles by centrifugal action. 92 

While these technologies could be used either on-board or 

on-shore, there are other, generally cheaper methods for removing organisms and sediment that are only suitable for use 

on-shore. These include settling tanks and granular filtration. 

However, requirements for space or still conditions cannot be 

met on-board. 93 Whatever technology is used for particle removal, whether employed on-board or on-shore, it is unlikely to 

be effective at removing the smallest organisms present in ballast water or, in the case of cyclonic separation, to remove organisms with a specific gravity near that of the ballast water. 

Thus, any particle removal technology will probably need to be 

followed by additional treatment to kill the remaining organisms, such as biocide application or UV disinfection.94 

91 

See id. at 77-79, 87. A disadvantage of in-line filtration during loading is that 

the system must be large enough to handle the ship's maximum ballast pumping rate. 

See id. at 70. 

• • See D. Oemcke, The Treatment of Shlps' Ballast Water, ECOPORTS MONOGRAPH 

SERIES No. 1860 (Ports Corporation of Queensland, Brisbane, Mar. 1999). 

93 One study calculated that a media filtration system (such as is routinely used in 

water trement on-shore) which was large enough to handle the ballast pumping rates 

on a small bulk carrier or tanker would need filters that are 200 square meters in area 

and two meters deep, too large to install on a ship. See Stemming The Tide supra note 

8, at 78. Another study calculated that granular filtration in pressure filters would 

require a footprint of at least 100 square meters to treat a flow of 4,000 cubic meters 

per hour. See AQIS, Report No.1 supra note 8, at 33. 

94 

See POLLUTECH ENVIRONMENTAL, LTD. supra note 11; Carlton et al. supra note 

6, at 140; E. Reeves & U.s. COAST GUARD supra note 67, at 2. The need to combine onboard filtration with another on-board treatment system tends to make this a relatively expensive approach. For example, one study estimated that filtration to 50 microns would cost about three to five times as much per gallon as open-ocean exchange, 

and that filtration with UV would cost about 200 times as much as open-ocean exchange. See POLLUTECH ENVIRONMENTAL, LTD. supra note 11. See also E. Reeves & 

U.S. COAST GUARD supra note 68, at 18 (noting that current cost estimates suggest 

that on-board filtration will be prohibitively expensive, and that "one filter break24

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b. Disinfection 

Biocides that could potentially be used to disinfect ballast 

water include chlorine, ozone, hydrogen peroxide, various 

metal ions, organic acids and glutaraldehyde. In laboratory 

tests of various commonly-used biocides, extraordinarily high 

doses were needed to kill dinoflagellate cysts,95 which were chosen as test organisms because of their potential harm to 

shellfisheries and human health, and their resistance to chemical treatment relative to mobile organisms. 96 These high doses 

would make use of these biocides prohibitively expensive.97 

through or failure to religiously maintain and use the system ... throughout the voyages 

around the world ... will contaminate the tank and vitiate the protection to be 

achieved"). ~ . 

Many types of marine and freshwater organisms can form cysts, spores or other 

resting life stages, which may be able to survive in environmental conditions that 

would be harmful to the organism's active life stages. See G. M. Hallegraeff & C. J. 

Bolch, Transport of Diatom and Dinoflagellate Resting Spores in Ships' Ballast Water: 

Implications for Plankton Biogeography and Aquaculture, 14(8) J. PLANKTON RES. 

1067-1084 (1992); Carlton et al. supra note 6, at 162). 

96 It was felt that biocides capable of killing dinoflagellate cysts would also killlarval zooplankton, cope pod eggs and seaweed spores, although possibly not bacterial 

spores or viral particles. See, e.g., C. J. Bolch, & G. M. Hallegraeff, Chemical and 

Physical Treatment Options to Kill Toxic Dinoflagellate Cysts in Ships' Ballast Water, 1 

J. MARINE & ENVTL. ENGINEERING 23-29 (1993). Chlorine and hydrogen peroxide 

proved to be effective against some dinoflagellate cysts only at doses that were tens or 

hundreds oftimes greater than normal water and wastewater treatment doses. See id. 

See also GeoffR. Rigby, et al., The Transfer and Treatment of Shipping Ballast Waters 

to Reduce the Dispersal of Toxic Marine Dinoflagellates, in TOXIC PHYTOPLANKTON 

BLOOMS IN THE SEA 169-176 (T. J. Smayda and Y. Shimuzu eds., 1993); S. Ichikawa, et 

al., Extermination Efficiency of Hydrogen Peroxide Against Cysts of Red Tide and Toxic 

Dinoflagellates, and its Adaptability to Ballast Water of Cargo Ships, 58(12) NIPPON 

SUISAN GAKKASHI 2229-2233 (1992); S. Montani, et al., Chemical and Physical Treatments for Destruction of Phytoflagellate Cysts, J. MARINE BIOTECHNOLOGY (1995). 

97 See C. J. Bolch & G. M. Hallegraeff, Chemical and Physical Treatment Options 

to Kill Toxic Dinoflagellate Cysts in Ships' Ballast Water, 1 J. MARINE & ENVTL. ENGINEERING 23-29 (1993); C. J. S. Bolch & G. M. Hallegraeff, Ballast Water as a Vector 

for the Dispersal of Toxic Dinoflagellates, in NONINDIGENOUS ESTUARINE AND MARINE 

ORGANISMS (NEMO), PROCEEDINGS OF THE CONFERENCE AND WORKSHOP 63-67 (U. S. 

DEP'T OF COMMERCE & NOAA, Seattle, WA,1994); GeoffR. Rigby, et al., The Transfer 

and Treatment of Shipping Ballast Waters to Reduce the Dispersal of Toxic Marine 

Dinoflagellates, in TOXIC PHYTOPLANKTON BLOOMS IN THE SEA 169-176 (T. J. Smayda 

and Y. Shimuzu eds., 1993). Some current research efforts in the Great Lakes are 

investigating the use of glutaraldehyde or organic acids to treat the relatively small 

amounts of unpumpable ballast remaining in ballast tanks on NOBOB ("no ballast on 

board") ships, but these chemicals are too expensive for general treatment of ballast 

water. See, e.g., E. Reeves & U.S. COAST GUARD, PROTECTION OF THE GREAT LAKEs 

FROM INFECTION BY EXOTIC ORGANISMS IN BALLAST WATER 19-20 (1998). 

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Many biocides may also not be feasible for on-board use because of inadequate storage space on ships, human health hazards, corrosion of ballast tanks or pipes, and concerns about 

discharging biocides or their residues into the environment.98 

Many biocides are also much less effective in water containing 

sediment or organic materia1. 99 A prior particle removal process to remove sediments and cysts would reduce the amount of 

biocide needed for disinfection and could make the use of biocides more feasible. 

UV radiation is effective at killing bacteria and other microorganisms, but may not be as effective for larger organisms, for 

cysts and spores,IOO or for algae and fungi. Its effectiveness is 

also greatly reduced in water containing suspended sediment. 

UV radiation is thus considered to be a feasible treatment for 

ballast water only after a particle removal stage.lOI 

Laboratory tests and field trials indicate that on tropical 

voyages the cooling water from ship's engines can be used to 

heat ballast water to temperatures that may be high enough to 

98 

See C. J. Bolch & G. M. Hallegraeff, Chemical and Physical Treatment Options to 

Kill Toxic Dinoflagellate Cysts in Ships' Ballast Water, 1 J. MARINE & ENVTL. ENGINEERING 23-29 (1993); Geoff R. Rigby, et aI., The Transfer and Treatment of Shipping 

Ballast Waters to Reduce the Dispersal of Toxic Marine Dinoflagellates, in TOXIC 

PHYTOPLANKTON BLOOMS IN THE SEA 169-176 (T. J. Smayda & Y. Shimuzu eds., 1993); 

AQIS, Report No.1 supra note 8, at 38; Carlton, et aI. supra note 6, at 145-147. 

99 See C. J. Bolch & G. M. Hallegraeff, Chemical and Physical Treatment Options to 

Kill Toxic Dinoflagellate Cysts in Ships' Ballast Water, 1 J. MARINE & ENVTL. ENGINEERING 23-29 (1993). 

100 

Tests have shown substantial germination of dinoflagellate cysts after two hours 

exposure to UV radiation. See GeoffR. Rigby & Alan Taylor, Ballast Water: Its Impacts 

Can Be Managed, in BALLAST WATER: ECOLOGICAL AND FISHERIES IMPLICATIONS 

(James T. Carlton ed.,1998) citing S. Montani, et aI., Chemical and Physical Treatments for Destruction of Phytoflagellate Cysts, J. MARINE BIOTECHNOLOGY (1995). 

101 . 

See POLLUTECH ENVIRONMENTAL, LTD. supra note 11; AQIS, Report No. 1 supra 

note 8, at 36; Carlton, et aI. supra note 6, at 142; Stemming The Tide supra note 8, at 

85. The likelihood of effective application on ships is small. See E. Reeves & U.S. 

COAST GUARD, PROTECTION OF THE GREAT LAKES FROM INFECTION By EXOTIC ORGANISMS IN BALLAST WATER 17 (1998) (stating that "as a matter of practical experience, we 

have found that many vessel owners forget to conduct the regular monitoring of the UV 

penetration necessary to guarantee that their marine sanitation devices are actually 

treating the sewage adequately"). 

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kill dinoflagellates and many other ballast water organisms.lo2 

Bacteria and viruses may be unaffected, however/o3 and in 

many ships it would not be possible to heat the water sufficiently on short voyages or voyages through colder waters. 104 

Other suggested technologies are generally considered to be 

less promising.lo5 For example, high intensity ultrasound can 

kill organisms, but no one frequency is likely to be effective 

against the range of organisms found in ballast water, the necessary exposure time may be quite long, and the power requirements high.106 Microwaves appear to be prohibitively expensive and of questionable effectiveness.lo7 Electric pulse and 

pulse plasma technologies, magnetic treatment and mechanical 

agitation are at experimental or exploratory levels of development, and they may not kill the full range of organisms in ballast water. lOB Ballast water could be deoxygenated by adding 

certain chemicals, but this would be ineffective against anaerobic bacteria, effectiveness would be compromised by surface reoxygenation, corrosive compounds and hazardous gases would 

102 See c. J. Bolch & G. M. Hallegraeff, Chemical and Physical Treatment Options to 

Kill Toxic Dinoflagellate Cysts in Ships' Ballast Water, 1 J. MARINE & ENVTL. ENGINEERING 23-29 (1993); C. J. Bolch &G. M. Hallegraeff, Ballast Water as a Vector for the 

Dispersal of Toxic Dinoflagellates, in NONINDIGENOUS ESTUARINE AND MARINE ORGANISMS (NEMO), PROCEEDINGS OF THE CONFERENCE AND WORKSHOP 63-67 (U. S. DEP'T 

OF COMMERCE & NOAA, Seattle, WA, 1994); GEOFF R. RIGBY, ET AL. & AUSTRALIAN 

QUARANTINE & INSPECTION SERVICE, BALLAST WATER RESEARCH SERIES REPORT No. 

11, BALLAST WATER HEATING AND SAMPLING TRIALS ON THE BHP SHIP M. V. IRON 

WHYALLA IN PORT KEMBLA AND EN-ROUTE To PORT HEDLAND (1997) [hereinafter 

Rigby & AQIS). 

103 See Rigby & AQIS supra note 102, at 37. 

104 S 'd ee £ • 

105 . 

See POLLUTECH ENVIRONMENTAL, LTD. supra note 11; Carlton, et al. supra note 

6; Stemming The Tide supra note 8. 

106 

See POLLUTECH ENVIRONMENTAL, LTD. supra note 11, at app. B; Carlton, et al. 

supra note 6, at 143-144; Stemming The Tide supra note 8, at 85,130. 

107 

See Carlton, et al. supra note 6, at 150. 

108 

See POLLUTECH ENVIRONMENTAL, LTD. supra note 11, at 6, app. B; Carlton, et al. 

supra note 6, at 141; Stemming The Tide supra note 8, at 84-85,127-130. 

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be generated, and there could be environmental impacts from 

discharging anoxic and possibly sulfur-rich water. 109 

c. On-shore us. On-board Treatment 

Although most of the research conducted to date has focused 

on· on-board ballast water treatment systems, it may be possible to develop treatment systems on-shore more quickly and 

cheaply, using available technologies that are routInely applied 

to water and wastewater treatment. no On-shore treatment approaches have several attractive characteristics. They avoid 

the ship safety and crew safety issues that arise with some ballast exchanges and on-board treatments. 111 As noted above, onshore treatment can use some relatively inexpensive particle 

removal technologies that would be impossible on a ship,112 and 

some of the least expensive types of biocides that would be too 

hazardous on a ship.1I3 Economies of scale would likely result 

from constructing and operating a smaller number of relatively 

large on-shore treatment plants, rather than constructing and 

operating a treatment plant on every single ship. 114 In some 

cases, it may be possible to use existing wastewater treatment 

facilities. 115 Proper maintenance and operation are more likely 

109 

See POLLUTECH ENVIRONMENTAL, LTD. supra note 11, at 81-89, app. B; AQIS, 

Report No.1 supra note 8, at 44; Carlton, et al. supra note 7, at 150. 

110 

See Cohen, CALFED Bay-Delta Program supra note, at 27-28. Feasibility studies conducted for the Canadian and Australian governments estimated on-shore treatment costs that were generally cheaper than on-board approaches. See e.g., POLLUTECH ENVIRONMENTAL, LTD. supra note 11 and AQIS, Report No. 1 supra note 8. 

111 

See AQIS, Report No. 1 supra note 8, at 13. 

112 

See id. at 31-34. 

113 Such as chlorine gas, probably the most common biocide used in water and 

wastewater treatment in the United States. 

114 See Cohen, CALFED Bay-Delta Program, supra note 6, at 27-28. See also 

AQIS, Report No. 1 supra note 8, at 86 (noting that "clearly the provision of centralised 

treatment in port or land-based facilities will be more economic in capital cost terms 

than provision of treatment facilities on board each ship.") 

115 .. . For example, the volume of wastewater treated III the San FranCISco Bay region 

is several hundred times the amount of overseas ballast water discharged into San 

Francisco Bay. Thus it may be possible in some cases to mix these relatively small 

ballast water discharges into the existing large waste streams without unduly altering 

their physical or chemical characteristics or straining the capacity of the wastewater 

plants to treat them. 

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in on-shore than in on-board treatment plants,U6 and it is also 

likely to be easier to monitor and regulate on-shore than onboard plants.ll7 Disadvantages of on-shore treatment include 

the use ofland near shore which may be needed for other purposes, possible delays to ships while off-loading ballast water, 

and the likelihood that in some regions ships will discharge 

some ballast water before entering port which will not receive 

treatment. us 

4. Risk-based Decision Support System 

Various shipping interests and the Australian government 

have advocated that the required level of ballast management 

should vary from ship to ship and voyage to voyage based on 

individual risk assessments. In this approach, the responsible 

agency would first estimate the level of risk presented by the 

discharge of a ship's ballast water, and then require a management action appropriate to the level of risk.u9 The apparent 

116 "[W]ater treatment equipment would be subject to operation, repair and maintenance by the crew. With the standards of ship maintenance in some cases having 

slipped badly for both hull and machinery, it may be assumed in these cases that ballast water treatment systems would not be accorded a high priority for maintenance 

and could be easily by-passed or operated at suboptimal efficiency." AQIS, Report No.1 

supra note 8, at 23. 

117 See id. at 12. 

118 See Cohen, CALFED Bay Delta Program supra note 6, at 28. Some ships may 

need to discharge ballast to lessen their draft before crossing a shallow bar or entering 

a shallow port. One question that arises with on-shore treatment is who would pay for 

the construction and operation of treatment facilities, the ships or the ports? If ships 

were required to treat their ballast water discharges and on-shore treatment was the 

cheapest approach, either shipping companies, ports or , conceivably, independent 

entrepreneurs might choose to construct treatment facilities. If ports or independent 

parties were to do so, they could recover costs and tum a profit by charging ships appropriate fees for receiving and treating their ballast water. A potential advantage to 

the shipping industry of on-shore treatment is that plant construction costs are more 

likely to be subsidized by federal or state governments-just as the cost of constructing 

wastewater treatment plants was subsidized during the implementation of the Clean 

Water Act-than would the cost of constructing or installing treatment plants on board 

ships. For example, low-interest or no interest loans are available for the construction 

of on-shore facilities to treat ballast water in California, through the State Revolving 

Fund administered by the State Water Resources Control Board, which is a form of 

subsidy. 

119 . See AUSTRALIAN QUARANTINE AND INSPECTION SERVICE, BALLAST WATER RESEARCH SERIES REpORT No.9, BALLAST WATER - TECHNICAL OVERVIEW REPORT at 44-

45 (1996); Keith R. Hayes & Chad L. Hewitt, Risk Assessment Framework for Ballast 

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objective is to release a significant number of ships from an 

otherwise required action, such as exchange or treatment.120 

Two approaches for estimating risk are "species-specific assessments,,121 (which estimate the probability that one or more 

species from a list of harmful organisms could be introduced in 

the ship's ballast water) and "environmental matching" (which 

compares the regions where ballast is loaded and discharged 

and assigns a higher estimate of risk if the regions are similar).122 Th~sfar, there are only rough descriptions of how such 

approaches might be implemented, but anything more ambitious than very conservative environmental matching (which 

would probably release few ships from management requirements) would likely prove to be unreliable.123 

Water Introductions, in TECHNICAL REPORT No. 14 at 5 (1988) !hereinafter Hayes & 

Hewitt, Risk Assessment Framework). See also REpORT OF THE WORKING GROUP ON 

BALLAST WATER 7 (convened during MEPC 42, MEPC 43/4, Jan. 5, 1999). This strategy was adopted by the Australian government in 1996. See DENIS PATERSON & 

KATHERINE COLGAN, AUSTRALIAN QUARANTINE & INSPECTION SERVICE, INVASIVE MARINE SPECIES: AN INTERNATIONAL PROBLEM REQUIRING INTERNATIONAL SOLUTIONS 11 

(1998). 

120 "Based on the "target" organism approach .. .it is possible that only a relatively 

small number of ships may need to undertake ballast treatment before discharge, in 

some areas." Geoff R. Rigby & Alan Taylor, Ballast Water: Its Impacts Can Be Managed, in BALLAST WATER: ECOLOGICAL AND FISHERIES IMPLICATIONS (James T. Carlton 

ed., 1998). See also AUSTRALIAN QUARANTINE AND INSPECTION SERVICE, BALLAST WATER RESEARCH SERIES REPORT No.9, BALLAST WATER - TECHNICAL OVERVIEW REPORT 

(1996) at 44-45; Hayes & Hewitt, Risk Assessment Framework supra note 119, at 2. 

121 

Also called a "target organism approach." 

122 . . . See Hayes & HeWItt, R£sk Assessment Framework supra note 119. ThIs report 

actually outlines six levels of assessment of increasing complexity from simple environmental matching (Level 0) to a fully-detailed species-specific assessment (Level 5). 

123 Species-specific assessments target a group of organisms identified as harmful, 

and are thus a kind of "dirty list" approach. Such approaches are thought to be ineffective by most regulators and researchers. See discussion and references infra Part 

II.C.2.b). One problem is that we have not tested criteria for predicting which organisms are likely to invade and do harm. For example, Australia currently proposes 

thirteen "invasive" species as targets for management, whose placement on the list is 

in large part due to their having become established in areas outside of their native 

ranges. See Hayes & Hewitt, Risk Assessment Framework supra note 119, at 65. However, ten of these species were not reported outside of their native ranges until the 

1980s or 1990s, so that most of the listed species would not have been selected as management targets even a decade or two ago. This strongly suggests that many of the 

most harmful invaders of the coming decades would not be included on target lists 

prepared today. In addition, all but two of the thirteen listed species are already established in Australia-consistent with a common complaint regarding dirty list approaches that species are usually listed only after it is too late to prevent their intro30

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II. REGULATING BALLAST WATER DISCHARGES INTO CALIFORNIA WATERS 

Despite the large ecological and economic costs resulting 

from the release of exotic organisms, there has been little effort 

to regulate ballast water discharges at the international, federal or state level. Although Congress enacted federal laws as 

early as 1900 to protect the United States from invasion by exotic species, these statutes have not been applied to transfers of 

duction. See, e. g., M. J. Bean, The Role of the United States Department of the Interior in Nonindigenous Species Issues 45-46 (1991) (report to the OFFICE OF TECHNOLOGY AsSESSMENT, U. S. Congress) (on file with authors) [hereinafter Bean, Report to 

OTAJ. 

The value of environmental matching is limited because the ranges of many marine 

organisms are very poorly known, because the range of environmental conditions in 

their native habitats may not be good indicators of the environmental limits in which 

they can establish, and because some aquatic organisms can tolerate or thrive in an 

extraordinarily broad range of physical and chemical conditions. See, e.g., Hayes & 

Hewitt supra and CENTRE FOR RESEARCH ON INTRODUCED MARINE PESTS, CSIRO 

DMSION OF MARINE RESEARCH, Hobart, Tasmania, Australia 16 (March 1988). Examples of aquatic organisms that successfully invaded waters outside of their presumed physical or chemical limits include two diatom species, originally considered to 

be strictly marine organisms, which became abundant in the Great Lakes. See BIOENVIRONMENTAL SERVICES, THE PRESENCE AND IMPLICATION OF FOREIGN ORGANISMS 

IN SHIP BALLAST WATERS DISCHARGED INTO THE GREAT LAKEs 18 (1981) (report to 

ENVIRONMENTAL PROTECTION SERVICE, ENVIRONMENT CANADA, OTTAWA) (on file with 

authors). See also Janet Raloff, Rogue Algae, 154(1) SCI. NEWS 8-10 (July 4, 1998) 

(discussing the tropical green algae Caulerpa taxifolia which invaded the Mediterranean) and Telephone Interview with J. T. Carlton (1999) (discussing.the tropical 

freshwater weed Hydrilla verticillata which became abundant in a New England pond 

that freezes over in the winter). Another problem is that many ballast tanks contain 

a mixture of water from a variety of ports, making it difficult to know the sources of all 

the ballast water carried. See Carlton, et al. supra note 6, at 48; Hayes & Hewitt supra at 16. 

In commenting on proposed international regulations, the United States noted that 

risk assessment-based ballast water management could be based on three conditions 

that theoretically could create a lower risk of invasion: longstanding movement of ballast water along the route in question, absence of target organisms in the ballast water, 

and different environmental conditions in donor and receiver ports. However, the 

United States rejected these arguments because many invasions have occurred decades 

after ballast water movement was begun, because "it is generally impossible to predict 

which organisms in ballast water will become serious invaders," and because the assumption that organisms introduced from different climate regions will die "is questionable." Proposed Amendments and Comments on the Draft Regulations for the Control and Management of Ships' Ballast Water and Sediments to Minimize the Transfer 

of Harmful Aquatic Organisms and Pathogens, MEPC 43/3, Annex 1, at fn. 8 (see discussion infra Part III.A.1, note 141) [hereinafter Proposed Amendments and Comments]. 

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exotic species in ballast water. 124 Similarly, California laws 

that prohibit the unauthorized release of exotic species have 

not been used by California as a method for addressing ballast 

water-caused invasions. 

The few measures that have been taken by California and 

the federal government to address the discharge of exotic organisms in ballast water have largely treated ballast water 

releases as a shipping issue. As established exotic species continue to expand their ranges and new invasions threaten ecosystems and economies across the United States, frustration at 

the slow pace of federal efforts to reform ballast water practices 

has lead a number of organizations and interest groups affected by invasions of exotic species to explore new strategies 

for regulating ballast water discharges. At the core of these 

strategies is the recognition that exotic organisms are biological pollutants. In fact, because these biological pollutants can 

reproduce, expand their range, and fundamentally alter ecosystem processes and bio-diversity, many exotic organisms can 

produce long-term impacts that are far more severe than those 

of many pollutants categorized as hazardous wastes. 

These new strategies have looked to federal and state statutes aimed at controlling water pollution, such as the federal 

Clean Water Act (CWA),125 Ocean Dumping Ace26 and Rivers 

and Harbors Act of 1899127 and California's Porter-Cologne Water Quality Control Act (California's equivalent of the CWA)/28 

to regulate ballast water discharges of exotic organisms. Additionally, they have focused attention on how public agencies 

have failed to assess the indirect effects of ballast water releases associated with the development and operation of shipping facilities and waterways, as is required by the National 

124 

See 16 U.S.C. §§ 3371-3378 (2000). 

125 See 33 U.S.C. §§ 1251-1387 (1986). 

126 See id. §§ 1401-1445. 

127 

See id. §§ 401-426 

128 See CAL. WATER CODE §§ 13000-13806 (West 1992). 

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Environmental Policy Act,129 California Environmental Quality 

Act,130 and Section 7 of the Endangered Species Act. 131 In California and elsewhere, groups concerned about the growing environmental and economic effects of exotic organisms are beginning to employ these statutes to hasten reform of ballast 

water practices. 

Applying existing water pollution laws to control ballast water discharges and using existing environmental review statutes to analyze actions that facilitate the release of ballast water (such as port construction or channel deepening projects) 

provide a framework for regulating ballast water discharges in 

California and nationwide. Wildlife protection statutes such as 

the Endangered Species Act 132 and the Lacey Act, 133 and statutes dealing with the management or protection of wetlands, 

tidelands or coastal lands may provide additional mechanisms 

for managing ballast discharges. To understand the full 

framework of potentially applicable regulatory approaches to 

ballast water, it is important to consider both the inadequacies 

of current international and domestic efforts that have addressed ballast discharges largely as a shipping issue, as well 

as the relevance of existing pollution control, environmental 

review, and other laws to ballast releases of exotic organisms. 

A. REGULATING BALLAST WATER DISCHARGE AS A SHIPPING 

ISSUE 

1. International Law 

Ballast water discharges were first recognized as an international concern in 1973, when the United Nations Conference 

on Marine Pollution requested the World Health Organization 

to investigate the potential spread of epidemic disease in bal129 See 42 U.S.C. §§ 4331-4370 (1995). 

130 See CAL. PUB. RES. CODE §§ 21000-21177 (West 1996). 

131 See 16 U.S.C. § 1536(a)(2) (2000). 

132 See id. §§ 1536 (a)(2), 1538(a). 

133 See id. §§ 3371-3378 and 18 U.S.C. § 42 (2000). 

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. last water.134 As early as 1976, the Tasmania State Government in Australia reportedly required the open-ocean exchange 

of ballast water for inbound ships,135 and in 1982 the Canadian 

Coast Guard, concerned about the potential for introducing 

toxic dinoflagellates into local mussel farms, prohibited the discharge of unexchanged ballast water in the vicinity of the Ilesde-la-Madelaine in the Gulf of St. Lawrence.136 Between 1989 

and 1993, Canada, Australia, New Zealand and the United Nations' International Maritime Organization (IMO) adopted 

guidelines on ballast water management. 137 These were in 

large part spurred by concerns over toxic dinoflagellates, based 

on studies of their introduction into Australia via ballast discharges. 138 

The IMO Guidelines were adopted by the IMO's Marine Environmental Protection Committee (MEPC) in 1991139 and by 

the IMO as a whole in 1993.140 These guidelines recommend 

134 

The requested research was apparently never conducted. See J. M. Kelly, 

Transport of Non-native Organisms via Cargo Ship Ballast Water: Characterizing the 

Science/Policy Interface at 77-78 (1992) (unpublished Masters thesis, University of 

Washington) (on file with the University of Washington Library); C. A. Welch, The 

National Invasive Species Act of 1996: Response to a Global Concern (1996) (unpublished student paper, University of Washington School of Law) (on file with authors». 

135 See R. J. Williams, et. aI., Cargo Vessel Ballast Water as a Vector for the Transport of Non-Indigenous Marine Species, 26 ESTUAR. COAST. SHELF SCI. 409-420 (1988). 

136 

See D. GAUTHIER & D. A. STEEL, CAN. MANUSCR. REP. FISH. AQUAT. SCI., NO. 

2380, A SYNOPSIS OF THE SITUATION REGARDING THE INTRODUCTION OF NONINDIGENOUS SPECIES By SHIP-TRANSPORTING BALLAST WATER IN CANADA AND SELECTED 

COUNTRIES 5 (1996). 

137 Locke et aI. 1991 supra note 74, at App. A. See also AQIS, Report No.4 supra 

note 8, at 114-121: See, e.g., NEW ZEALAND MINISTRY OF FISHERIES, IMPORT HEALTH 

STANDARD FOR SHIPS' BALLAST WATER FROM ALL COUNTRIES (1998). 

138 See G. M. Hallegraeff, et aI., Microalgal Spores in Ship's Ballast Water: A Danger to Aquaculture, in TOXIC MARINE PHYTOPLANKTON 475-480 (E. Graneli, et aI., eds., 

1990); G. M. Hallegraeff & C. J. Bolch, Transport of Toxic Dinoflagellate Cysts Via 

Ships' Ballast Water, 22(1) MARINE POLLUTION BULLETIN 27-30 (1991); G. M. Hallegraeff & C. J. Bolch, Transport of Diatom and Dinoflagellate Resting Spores in Ships' 

Ballast Water: Implications for Plankton Biogeography and Aquaculture, 14(8) J. 

PLANKTON RES. 1067-1084 (1992); C. J. S. Bolch & G. M. Hallegraeff, Ballast Water as 

a Vector for the Dispersal of Toxic Dinoflagellates, in NONINDIGENOUS ESTUARINE AND 

MARINE ORGANISMS (NEMO), PROCEEDINGS OF THE CONFERENCE AND WORKSHOP 63-

67 (U. S. DEP'T OF COMMERCE & NOAA, Seattle, WA,1994). 

139 . See MEPC ResolutIOn (50)31, adopted July 4, 1991. 

140 . See IMO ResolutIOn A. 774(18), adopted November 4, 1993. 

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the exchange of coastal ballast water in water at least 2,000 

meters deep, along with various operational procedures related 

to loading and discharging ballast water and sediment. The 

Guidelines note that Member States or their Port State Authorities may adopt ballast water or sediment management 

requirements, or may develop· shore reception facilities for disposing of ballast water and ballast sediment and implement 

fees for their use. The Guidelines themselves, however, are 

entirely voluntary. 

In 1994, MEPC established a Working Group on Ballast 

Water to consider potential ballast water regulations to be proposed as an annex to the Convention on Pollution from Ships 

(MARPOL).141 Even if effective regulations should be included 

in the proposed annex,142 it would still take many steps and potentially a very long time before the regulations were adopted 

and implemented at the national level. First the work on drafting the proposed annex (which has taken five years so far) 

would need to be completed. Then the MEPC would have to 

adopt the proposed annex, followed by the IMO as a whole. For 

the United States, the executive branch of the federal government would decide whether to support the proposed annex at 

these stages. After adoption by the IMO, the annex would then 

need to be ratified by IMO member states before it entered into 

force. 143 Such ratification is often neither prompt nor ulti141 

Report of the Working Group on Ballast Water convened during MEPC 42, 

MEPC 43/4 (Jan. 5, 1999) [hereinafter MEPC 43/4). The Convention, adopted in 1973, 

along with the Protocol of 1978, are commonly known as MARPOL. MEPC has also 

considered proposing ballast water regulations as amendments to an existing annex to 

MARPOL, or as a new Convention (MEPC 43/4). 

142 The current draft of the proposed annex requires open-ocean exchange of 

ballast water, with treatment of ballast water as an optional alternative. An annex 

requiring treatment of ballast water appears very unlikely at this time. 

143 The necessary conditions for IMO treaties or annexes to enter into force are set 

by the Conference convened to adopt the instrument. For example, MARPOL was 

designed to take effect 12 months after it was ratified by at least 15 member states 

controlling at least 50% of the world's gross tonnage of merchant shipping. Depending 

on the treaty, non-ratifying member states mayor may not be bound by the treaty 

provisions. Telephone Interview with Dennis Nixon, Professor of Maritime Law, University of Rhode Island (Nov. 1999). The current draft of the proposed annex also allows a Port State, or multiple Port States through Regional Agreements, to opt out of 

adopting and implementing the regulations for waters within their jurisdictions. See, 

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mately assured. 144 For the United States, that decision would 

be made by the Senate. 

Once the annex was in force, any elements of the annex that 

required implementation by Port States would in practice not 

go into effect until the Port States drafted, adopted and, finally, 

implemented appropriate statutes and regulations. 145 Thus, 

although ideally the transport of exotic organisms in ballast 

water should ultimately be managed through the development 

and implementation of comprehensive international regulations, the length of time this is likely to take and the urgency of 

the problem suggest that national, regional or local regulations 

may be necessary in the interim. 

2. Federal Law 

In the United States concern over ballast water arose with 

the discovery of zebra mussels in the Great Lakes in 1986, 

which had apparently been introduced through ballast water 

discharges. 146 The zebra mussel had long been recognized as a 

nuisance species in Europe, fouling structures and clogging 

water systems, and its population exploded in the Great Lakes 

. bringing environmental and economic disruption. 147 In November 1990 the Nonindigenous Aquatic Nuisance Prevention and 

Control Act (NANPCA)148 was signed into law. NANPCA set 

voluntary guidelines, modeled on the IMO Guidelines, for bale.g., Proposed Amendments and Comments supra note 123. See also Regional Agreements MEPC 43/3 at Annex 2. 144 

For example, the Convention on the Law of the Sea was adopted by the IMO 

with U. S. support and after considerable U. S. input on the language in the Convention, in 1982, but it has not yet been ratified either by the United States or by a sufficient number of IMO member states. Telephone Interview with Dennis Nixon, Professor of Maritime Law, University of Rhode Island (Nov. 1999). 

145 This too may take several years. For example, work on drafting the National 

Invasive Species Act (described in the next section) was underway at least by thn fall of 

1995. The bill was introduced in March 1996 and signed into law in October 1996. The 

implementing regulations were finally published in May 1999, an elapsed time of over 

three and a half years. 146 See generally OTA, Harmful Non-Indigenous Species in U.S supra note 31. 

147 S d" P ee ISCUSSlon supra art I.E. 

148 See 16 U.S.C. §§ 4701-4751 (2000). 

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last water management by ships arriving from outside the Exclusive Economic Zone (EEZ)149 and entering the Great Lakes. 

The voluntary guidelines were published in March 1991 and 

became mandatory requirements in May 1993.150 

These guidelines required ships to exchange their ballast 

water in the open ocean before discharging it into the Great 

Lakes, or to conduct alternative treatments that were determined to be as effective. 151 Additional support for these regulations resulted from the discovery in 1991 that a strain of epidemic cholera was being carried in ballast water from South 

America to the U. S. Gulf Coast, where it was found in oysters 

and fish. 152 In early 1995, the mandatory ballast water regula149 

The EEZ extends to 200 miles from the U. S. coast. 

150 . 

Ballast Water Management for Vessels Entering the Great Lakes, 58 Fed. Reg. 

18,330-18,334 (Apr. 8, 1993). NANPCA had directed that mandatory regulations be 

issued within 24 months of enactment of the statute, by November 29, 1992, but they 

were not published until April 8, 1993 and did not take effect until May 10, 1993. The 

regulations authorize the Coast Guard to prohibit a vessel's operation on the Great 

Lakes 0 or revoke its clearance if it is not in compliance. See 33 C.F.R. § 151.1506 

(2000) and 33 C.F.R. § 151.1508 (2000). Violation of these regulations carries a maximum civil penalty of $25,000 per day or a criminal charge of a class C felony which 

carries with it a maximum penalty of 12 years in prison and a $250,000 fine for an 

individual or a $500,000 fine for a company. See K Weathers & E. Reeves, The Defense 

of the Great Lakes Against the Invasion of Nonindigenous Species in Ballast Water, 

33(2) MARINE TECHNOLOGY 92,95 (1996) [hereinafter Weathers & Reeves). 

151 

NANPCA allows the use of alternative ballast water management methods if 

the Secretary of Transportation determines that these methods "are as effective as 

ballast water exchange in preventing and controlling infestations of aquatic nuisance 

species." NANPCA § 1l01(b)(2)(B)(iii). There have been no such determinations made 

or requested. However on four occasions the Coast Guard has allowed ships not in 

compliance with the regulations to conduct one of the following ad hoc alternative 

treatments: adding salt in the form of liquid sodium chloride (not likely to be allowed 

again, according to the Coast Guard), adding chlorine as liquid chlorine or sodium 

hypochlorite, and heating the water (a capability that few vessels possess). See L. V. 

Kabler, Ballast Water Invaders: Breaches in the Bulwark, 1(3) AQUATIC NUISANCE 

SPECIES DIGEST 25,34-35 (1996); Weathers & Reeves supra note 150, at 92-100. See 

generally E. Reeves & U.S. COAST GUARD supra note 67. 

152 See S. A. McCarthy, et aI., Toxigenic Vibrio cholerae 01 and Cargo Ships 

Entering Gulf of Mexico, 339 LANCET 624-625 (1992); S. A. McCarthy & F. M. Khambaty, International Dissemination of Epidemic Vibrio Cholerae by Cargo Ship Ballast 

and Other Nonpotable Waters, 60(7) APPL. ENVI. MICROBIOL, 2597-2601 (1994). 

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tions were amended to include ships entering the upper Hudson River. 153 

In October 1996, the National Invasive Species Act (NISA)154 

became law. NISA continued the mandatory regulations for 

the Great Lakes and upper Hudson River, and added similar 

voluntary guidelines for the rest of the country,155 along with 

record-keeping requirements.156 However, unlike NANPCA, in 

which the voluntary guidelines for the Great Lakes automatically become mandatory within two years of enactment, under 

NISA the voluntary guidelines that apply to the rest of the 

country will remain voluntary unless the Secretary of Transportation determines that they are not being complied with or 

are ineffective.157 NISA requires that an initial review and de153 See 16 U.S.C. 4701-4751. (directs that NANPCA's mandatory requirements be 

applied to vessels entering the Hudson River north of the George Washington Bridge 

after January 30, 1995). The objective was to provide further protection to the Great 

Lakes, since organisms established in the upper Hudson River could enter the Great 

Lakes via the Erie Canal. See Ballast Water Management for Vessels Entering the 

Hudson River, 59 Fed. Reg. 67,632-67,634 (Dec. 30, 1994). 154 See 16 U.S.C. §§ 4701-4751 (2000). 

155 See Implementation of the National Inv~sive Species Act of 1996,64 Fed. Reg. 

26,672-26,690 (May 17, 1999). These guidelines recommend that ships exchange their 

ballast water outside the EEZ or in other designated areas, or employ alternative ballast water management methods that are determined to be as effective. Passenger 

vessels with treatment systems designed to kill aquatic organisms in ballast water, 

and crude oil tankers engaged in coastwise trade were exempted from the guidelines. 

156 Under NANPCA and NISA, the record-keeping and reporting requirements for 

ship's ballast water have become more precisely codified over time. In 1991, NANPCA 

said nothing directly about ships' record-keeping, but ordered the Secretary of Transportation to "provide for sampling procedures to monitor compliance with the requirements of the regulations" which were to be promulgated for vessels bound for the Great 

Lakes from overseas. Under this authority, in 1993 these vessels (later including vessels bound for the upper Hudson River) were required to provide, on request of the 

Coast Guard, information including the volume and salinity of ballast water expected 

to be discharged into U. S. waters and any ballast water exchange conducted. See 

Ballast Water Management for Control of Nonindigenous Species in the Great Lakes 

and Hudson River, 33 C.F.R. § 151.1516 (2000). In 1996, NISA required vessels bound 

for all U. S. waters from overseas to maintain ballast water records on board and make 

them available for inspection on request. In 1999 these vessels were required to provide somewhat more detailed information to the Coast Guard by a specified point or 

time before entering port (for ships bound for the Great Lakes or upper Hudson River) 

or before leaving the first port of call (for vessels entering other waters), and a Ballast 

Water Reporting Form was provided for this information. See 33 C.F.R. §§ 151.2040, 

151.2045. 

157 See Whalin, Nuisance Nonindigenous Species supra note 5, at 123-124. 

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termination regarding compliance and effectiveness be completed within four years of the statute's enactment, but at the 

current time, three years after enactment, the process is already over a year and a half behind schedule. ISS 

Furthermore, it appears that the data being collected by the 

Coast Guard are not adequate to assess either compliance or 

effectiveness. These data consist of information provided by 

the ships on Ballast Water Reporting Formsl59-in which a ship 

reports on whether it has conducted an open-ocean exchangeand Coast Guard measurements of the salinity of the ballast 

water carried by some arriving ships. Although some past reports have based assessments of the rate of compliance on 

ships' statements about having conducted exchanges, 160 the 

available evidence indicates that these statements are generally unreliable. For example, an Australian test that checked 

ships' claims of conducting a full exchange against the ships' 

158 

Despite Congress' direction that voluntary guidelines were to be issued within 

one year of enactment (by October 26, 1997), draft guidelines were not published for 

public comment until April 1998. See Implementation of the National Invasive Species 

Act of 1996, 63 Fed. Reg. 17,782-17,791 (Apr. 10, 1998) (to be codified at 33 C.F.R. pt. 

151). The final guidelines were not published until May 1999, 19 months after the date 

mandated by NISA. See 64 Fed. Reg. 26,672-26,690 (May 17,1999) (to be codified at 

33 C.F. R. pt. 151). NISA also directed that criteria for determining the adequacy of 

compliance with and effectiveness of the guidelines were to be submitted to the Secretary of Transportation within 18 months of enactment, or by April 26, 1998; but the 

committee created to develop recommendations for criteria is not scheduled to submit 

these recommendations to the Aquatic Nuisance Species Task Force until May of 2000. 

See AQUATIC NUISANCE SPECIES TASK FORCE, BALLAST WATER PROGRAM EFFECTIVE· 

NESS AND ADEQUACY COMMITTEE: REQUIREMENTS AND IMPLEMENTATION CONSIDERATIONS (April 24, 1999). The Task Force will then decide on the criteria and submit 

them to the Secretary, but no schedule has yet been set for submission. Telephone 

Interview with Sharon Gross, U.S. Fish & Wildlife Service (Sept. 1999). 

NISA directs the Secretary of Transportation to determine the adequacy of compliance and effectiveness, within three years of the issuance of guidelines, and within four 

years of enactment (that is, by October 26, 2000). However, since the gliidelines were 

not issued until May of 1999 it is unlikely that this determination will be made before 

May 2002. If the Secretary then determines that either compliance or effectiveness is 

inadequate, mandatory regulations are to be promulgated promptly. 

159 See, e.g., 33 C.F.R. 151 (2000) Subpart D, Appendix. 

160 See, e.g., A. Locke, et aI., Effectiveness of Mid-Ocean Exchange in Controlling 

Freshwater and Coastal Zooplankton in Ballast Water, CAN. TECH. REp. FISH. AQUAT. 

SCI., No. 1822 (1991); D. GAUTHIER & D. A. STEEL, CAN. MANuSCR. REP. FISH. AQUAT. 

SCI., No. 2380, A SYNOPSIS OF THE SITUATION REGARDING THE INTRODUCTION OF 

NONINDIGENOUS SPECIES By SHIP-TRANSPORTING BALLAST WATER IN CANADA AND 

SELECTED COUNTRIES 6, 24, 44 (1996). 

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electrical records found that 24% of the ships appeared to have 

done no exchange, another 18% appeared to have done a partial exchange of less than 50%, and only 30% appeared to have 

done the full exchange that was claimed.16l 

Given the doubtful reliability of ships' statements about ballast exchanges, it is critical that regulators independently test 

whether exchanges have been conducted. To this end the Coast 

Guard measures the salinity of ballast water on some arriving 

ships, but this provides a limited test at best. Open-ocean waters, where ballast exchange is supposed to take place, typically contain about 3.4 to 3.7 percent salt. If a ship arrives in 

port with ballast water with a substantially different salt content, this would indicate that the ship had not done an adequate ballast exchange. However, this test is most effective 

when the salinity of the initial ballast water (prior to exchange) 

is very different from that of the open ocean, and is largely or 

completely ineffective when the initial salinity is close to that 

of the open ocean, which will be true for ballast water loaded at 

many ports. Thus, salinity tests cannot provide a reliable es161 Memorandum from Penny Lockwood, Former Manager, Australia Ballast Water Program, to the Pacific Coast Ballast Water Group (July 4, 1999) (summarizing her 

presentation to the Group's meeting at the Port of Oakland on June 17, 1999) (on file 

with authors). This method of checking ships' ballast reports against electrical records 

is called the Newcastle method after the Australian port where it was first tried. While 

·some of the inconsistencies between the ships' statements and their electrical records 

were apparently due to misunderstandings about what constitutes a full ballast exchange, the large number of discrepancies and the number of ships that apparently 

conducted no exchange at all is consistent with anecdotal and documentary evidence of 

ships providing false statements about their activities in order to satisfy regulatory 

requirements. For example, in 1994 a ship entering the Great Lakes reported to the 

Coast Guard that it had completed a full ballast exchange at sea; however, on inspection, the Coast Guard found that it carried freshwater ballast, apparently having arrived from the Congo River without any exchange. See L. V. Kabler, Ballast Water 

Invaders: Breaches in the Bulwark, 1(3) AQUATIC NUISANCE SPECIES DIGEST 25, 34-35 

(1996); K Weathers & E. Reeves, The Defense of the Great Lakes Against the Invasion 

of Nonindigenous Species in Ballast Water, 33(2) MARINE TECHNOLOGY 92-100 (1996». 

In 1996 a ship arriving in San Francisco Bay reported to the Coast Guard that it had 

treated its ballast water with chlorine to kill the exotic organisms in it, but tests failed 

to reveal any trace of chlorine in the water. Telephone Interview with U. S. Coast 

Guard Marine Safety Office-San Francisco Bay (1999). In 1997, 59 ships entered the 

Great Lakes from overseas and reported to the Coast Guard that they had conducted a 

ballast water exchange as required by NANPCA, but the ballast salinities for at least 

13% of the ships were inconsistent with that claim. See E. Reeves & U.S. COAST 

GUARD supra note 67, at 11-12. 

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timate of the rate of compliance; they can at most provide an 

estimate of the minimum rate of noncompliance. 162 

With the data now being gathered, the issue of effectiveness 

will, if anything, be even harder to assess than compliance. 

Though not defined in the statute, effectiveness presumably 

refers to the degree to which the voluntary guidelines reduce 

the release or establishment of exotic species. Since neither 

the release nor the establishment of these species is being systematically mqnitored, a direct assessment of effectiveness will 

be impossible. Theoretically, one could calculate the effectiveness of the guidelines in reducing the rate of release of exotic 

species by combining data on the effectiveness of individually 

monitored exchanges with information on the rate of compliance and the volume of shipping-but as noted above, the data 

needed to assess the rate of compliance are not being gathered. 

3. California Law 

California's recent legislative involvement with the management of ballast water began with a 1990 State Assembly 

resolution which found that introductions of exotic organisms 

in ballast water threatened sport and commercial fisheries and 

which asked the U. S. Coast Guard to prohibit "the dumping of 

ballast water originating in foreign ports in any west coast 

162 While it may be advisable for the Coast Guard to employ the Newcastle method 

in its monitoring efforts, in the end this also is not an independent test of whether a 

ship has conducted a ballast water exchange, because a ship's electrical records can be 

falsified to support such a claim. Thus it is impossible for this method to distinguish 

between a ship that has conducted an exchange and truthfully reports it, and a ship 

that falsely claims to have conducted an exchange and consistently falsifies its records 

in support. Like salinity tests, the Newcastle method can at best provide a minimum 

estimate of the rate of noncompliance. Independent tests that are based on the analyzing the biota in the ballast water. See, e.g., Christopher Badger, Harbour Master, Port 

of Vancouver, "Mandatory Ballast Water Exchange--The Vancouver Solution ," Presentation at the Eighth International Zebra Mussel and Aquatic Nuisance Species Conference, Sacramento, CA (March 16-19, 1998); Deborah Tanis, Review and Recommendations of Ballast Water Exchange Verification Technologies and Measurement Techniques (Oct. 1998) (discussing the chemical and physical characteristics of the ballast 

water) (unpublished manuscript on file with the U.S. Department of Transportation 

and U. S. Coast Guard). It is not yet clear whether these types of tests will prove to be 

any more effective than salinity tests. 

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river, estuary, bay or coastal area.,,163 In 1992, California 

passed a bill164 that also found that fisheries were threatened 

by ballast water introductions of exotic organisms and that "the 

people of the state have a primary interest in the regulation of 

the dumping of ballast water originating in foreign ports in any 

river, estuary, bay or coastal area of this state." 165 However, 

the bill contained no mechanisms for regulating ballast water 

dumping, and merely adopted the voluntary IMO guidelines 

and directed that ballast management practices be monitored,166 although the monitoring was never conducted.167 

In 1999, California adopted the first state law in the United 

States to regulate ballast water discharges specifically in order 

to prevent the introduction of exotic organisms.16s Initial versions of the bill regulated ballast water discharges through 

waste discharge permits in accordance with the state's Porter163 California Joint Assembly Resolution No. 88-Relative to Ballast Water (filed 

with the Secretary of State, July 12, 1990). Washington considered, and Alaska 

adopted, similar resolutions. See, e.g., Washington Senate Joint Memorial 8002-

Requesting that the Coast Guard Prohibit Dumping of Ballast Water in United States 

Waters (1991). See also Alaska Legislative Resolve No. 85, Relating to the Discharge of 

Ballast Water by Vessels Entering the Waters of Alaska (signed by the Governor, June 

8,1992). 164 See CAL. FISH & GAME CODE §§ 6430-6439 (West 1994). 

165 See id. § 6430. 

166 It required all operators of vessels carrying ballast water and entering a California port after January 1, 1994 to complete a form describing their ballast water 

management practices. The Department ofFish & Game was to administer this monitoring program and report of the Legislature on the rate of compliance with the IMO 

guidelines by January I, 1995. O'Shea and Cangelosi's description of this statute as 

requiring ballast water exchange was apparently a misreading. See S. O'Shea & A. 

Cangelosi, Trojan Horses in Our Harbors: Biological Contamination From Ballast 

Water Discharge, 27 U. ToL. L. REV. 381, 393, 395 (1996). 

167 The statute was reportedly regarded as an excessive burden on interstate commerce and, therefore, unconstitutional under the Dormant Commerce Clause. See id. 

393. In fact, this appears not to be the case. See discussion infra Part II.AA. Regard- . 

less, after five years passed without any monitoring being conducted, the statute was 

amended in 1997 to instead allow the Department of Fish & Game to obtain information on ballast management practices from the U. S. Coast Guard, which didn't actually begin collecting such information (uhder NISA) until mid-1999. Senate Bill 1003, 

amending CAL. FISH & GAME CODE §§ 6433, 6434 and 6439, Chapter 490 (Sept. 25, 

1997). 168 

See CAL. PUB. RES. CODE §§ 71200-71271 (West 2000). 

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Cologne Water Quality Control Act/69 and established an interim period during which open-ocean ballast water exchange 

or alternative treatment would satisfy permit requirements, 

followed by the imposition of more stringent standards potentially requiring ballast water treatment or involving a standard 

of zero discharge of exotic organisms.17o As passed, however, 

the law makes no reference to waste discharge permits, providing only for an interim period of required ballast exchange or 

alternative treatments until Jan. 1,2004.171 

The California law largely parallels NISA, but with mandatory rather than voluntary ballast exchange. Its main provisions require vessels that are carrying ballast water into the 

waters of the state after operating outside the EEZ,172 to retain 

the water on board, to conduct an open-ocean exchange, or to 

employ an alternate approved treatment method that is at 

least as effective as ballast exchange,173 and to report to the 

State Lands Commission (SLC) certain information on the ballast water carried and exchanged. 174 As in NISA, there is a 

safety exemption.175 The SLC is to monitor compliance176 and to 

submit to the Legislature by Sept. 1, 2002 an assessment of the 

compliance with and the effectiveness of the law, along with 

recommendations for improvements.177 In addition, the California Department of Fish and Game (CDFG) is to submit to 

the Legislature by Dec. 31, 2002 information on "baseline conditions" and on the location and range of exotic organisms in 

the coastal and estuarine waters of the state, for the purpose, 

169 See discussion infra Part II.B.2.a (Porter -Cologne Act). 

170 " 

Assembly Bill 703 as introduced on Feb. 14, 1999 through amendments made in 

the Senate on Aug. 17, 1999. 

171 See CAL. PuB. RES. CODE §§ 71200-71271. 

172 Certain vessels are exempted. See id. § 71202. 

173 See id. § 71204. 

174 

See id. § 71205. This is the same information required to be reported to the 

Coast Guard under NISA and is submitted on the same form. 

175 See id. at § 71203. 

176 See id. § 71206. 

177 

CAL. PuB. RES. CODE § 71212 (West 2000). 

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among other things, of determining alternative discharge 

zones;178 and the State Water Resources Control Board 

(SWRCB) is to submit to the Legislature by Dec. 31, 2002 an 

evaluation of "alternatives for treating and otherwise managing ballast water for the purpose of eliminating the discharge 

of nonindigenous species into the waters of the state or into 

waters that impact the waters of the state.,,179 

Noncompliance with reporting requirements could incur 

penalties of up to $500 per day, and knowingly filing false reports with the intent to deceive, or other intentional or negligent violations could incur penalties of up to $5000 per day.180 

It is questionable whether such modest penalties will alter 

ships' behavior and induce them to exchange or treat their ballast water. Any penalties collected plus fees of up to $1,000 for 

each voyage involving transit outside the EEZ are to be deposited in an account and used to implement the law.181 

This law further directs that "unless required by federal 

law, a state agency, board, commission, or department shall 

not, prior to January 1, 2004, impose any requirements that 

are different from those" specified by it.182 However, the types 

of studies and reports mandated by this law suggest that more 

stringent requirements may be imposed by state agencies (including boards, commissions and departments) or by the Legis178 See id. § 71211. NISA also anticipates the designation of alternative, backup 

exchange or discharge zones, but more have been designated. See 16 U.S.C. § 4712 

(2000). The scientific review conducted pursuant to NISA indicates that there is no 

valid scientific basis for designating such zones within protected waters or within the 

waters of the state. Letter from Bill Harvey, Chair, Western Regional Panel to Cathleen Short, Assistant Director-Fisheries, U.S. Fish & Wildlife Service, and Sally. J. 

Yozell, Deputy Assistant Director for Oceans and Atmosphere, NOAA (May 12, 1999) 

(on file with authors). 

179 

See CAL. PuB. RES. CODE § 71210. 

180 

See id § 71216. 

181 

See id. § 71215. The SLC has proposed fees of $600 per vessel voyage, but shipping industry representatives are protesting these fees, arguing that they should be no 

more than $400 per vessel voyage. Telephone Interview with Marian Ashe, California 

Department ofFish & Game (Jan. 2000). 

182 See id. § 71207(a). 

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lature after this interim period. l83 For example, several possible approaches to regulating ballast water discharges under 

existing state laws are discussed in the following pages. While 

implementation of these approaches by state agencies prior to 

Jan. 1, 2004 is prohibited, it would be fully consistent with the 

directives and objectives of this bill for agencies tp investigate 

and prepare for implementation of those approaches after that 

date. In addition, implementation of federal law requirements 

by authorized state agencies is not restricted during the interim period, nor is there any restriction on the ability of California courts to impose penalties or injunctions based on a finding that discharges are inconsistent with either a state or federallaw. l84 

183 AIl noted above, these studies and reports include an assessment by the CDFG 

of the extent of the exotic species problem in California coastal waters, which could 

justify more vigorous regulation of ballast discharges; an assessment and recommendations by SLC regarding compliance with and effectiveness of the current measures, 

which could recommend more aggressive enforcement or a different regulatory approach; an evaluation by SWRCB of ballast water treatment methods and additional 

research on developing treatment methods to reduce or eliminate the discharge of 

exotic species, which could demonstrate the feasibility of regulations that required 

treatment or that set higher standards (such as a zero discharge standard) for exotic 

organisms in ballast discharges. See CAL. PuB. REs. CODE §§ 710-71213 (West 2000). 

This law thus appears to be an interim measure adopted by the Legislature in order to 

give the agencies time to determine a more effective approach to be implemented at the 

end of the interim period. 

184 . Other states have also begun to adopt laws that regulate ballast water discharges, inspired in part by the California law, though differing in some important 

respects. Washington House Bill 2466, signed into law on March 24, 2000, prohibits 

ships from discharging into state waters any ballast water from outside the coastal 

region from the Columbia River on Washington's southern border to the north end of 

the Strait of Georgia in British Columbia, unless the ship has conducted an open-ocean 

exchange. See State of Washington, Substitute House Bill 2466, Sec. 4 [hereinafter WA 

2466]). There is a safety exemption, but after July 1, 2002 ships invoking the exemption will be required to treat their ballast water to standards that will be set by the 

state. WA 2466, Sec. 4(2). Ships will be required to report on their ballast water management, and as in the California law, the information required will likely be the same 

as that required under NISA and submitted on the same form (though unlike NISA, 

this reporting will be required of ships traveling to Washington from a U.S. port in 

Alaska or south of the Columbia River). WA 2466, Sec. 5(1). The Washington law is 

also generally similar to the California law in providing for sampling and monitoring of 

ballast water, in requiring certain studies and reports to the legislature, and in providing for the same very modest penalties for violations. See generally W A 2466. The 

Washington law differs in providing no funds to implement the law. See WA 2466, Sec. 

7. In Michigan, a bill introduced in 2000 would prohibit vessels from operating on 

state waters if carrying ballast water from outside the state that had not been treated 

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4. Constitutional Limitations on State Regulation of Ballast 

Water Discharges 

While states generally have significant discretion in adopting legislation to address the spread of exotic organisms, there 

are two constitutionally derived limitations on that authority. 

These limitations restrict state regulation that is preempted by 

federal law, under the Supremacy Clause of the U.S. Constitution,185 and prohibit a state from excessively burdening interstate commerce, under the dormant commerce clause.186 Although there are case precedents upholding a state's right to 

prevent exotic invasions and regulate ships' discharges, a recent Supreme Court decision suggests the need for a close look 

at the potential limitations on state regulation of ballast discharges. 187 

In deciding United States u. Locke, (previously entitled International Association of Independent Tanker Owners (INTERTANKO) u. Locke)188 the Supreme Court found that Washington's oil tanker safety regulations relating to general navigation watch procedures, English language skills, training, and 

casualty reporting on oil tankers were preempted by Title II of 

the Ports and Waterways Safety Act of 1972, as amended by 

the Ports and Tanker Safety Act of 1978 (PWSA).189 The Court 

explained that: 

The state laws now in question bear upon national and 

international maritime commerce, and in this area 

there is no beginning assumption that concurrent regulation by the State is a valid exercise of its police powers. Rather, we must ask whether the local laws in 

"to destroy or remove all living biological organisms," and would require a permit for 

discharging any ballast water into state waters. Michigan SB-955, "A bill to amend the 

Natural Resources and Environmental Protection Act". 185 U.S. Con st. art. VI, cl. 2. 

186 . See, e.g., Newfound/Owatonna, Inc. v. Town of Hamson, 520 U.S. 564, 117 

(1997). See also Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). 187 . See Umted States v. Locke, 529 U.S. 89 (2000). 188 INTERTANKO v. Locke, 148 F.3d 1053 (1998). 

189 46 U.S.C. §§ 3702-3719 (2000). 

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question are consistent with the federal statutory structure, which has as one of its objectives a uniformity of 

regulation for maritime commerce. 190 

PWSA Title II "requires the Coast Guard to issue regulations addressing the design, construction, alteration, repair, 

maintenance, operation, equipping, personnel qualification and 

manning" of tanker vessels. 191 Despite this Title's broad reach 

and the federal objective of uniform regulation of maritime 

commerce, the Court nevertheless envisioned the possibility of 

some state role in regulating tanker vessels. While finding 

that PWSA Title II or other laws preempted four of Washington's regulations, the Court remanded twelve remaining regulations to the lower courts for further consideration. 192 

In a 1984 decision that the Supreme Court declined to review, the Ninth Circuit found that Alaska's requirement that 

oil tankers discharge oil-tainted ballast water at shore-side 

treatment plants was consistent with both the Clean Water Act 

(CWA) and PWSA Title 11. 193 In making the latter finding, the 

Ninth Circuit principally relied on the Supreme Court decision 

in Ray v. Atlantic Richfield Co., which determined that PWSA 

Title II had implicitly occupied the field in terms of regulating 

the design and construction of tanker vessels and therefore 

states could not require additional or different design or construction. 194 The Ninth Circuit, however, distinguished impermissible design and construction requirements from permissi190 United States v. Locke, 120 S.Ct. 1135, 1148. 

191 See id. at 1138. 

192 See id. at 1150. 

193 . See Chevron v. Hammond, 726 F.2d 483 (9th Clr. 1984), cert. denied 421 U.S. 

1140 (1985). 

194 

See Ray v. Atlantic Richfield Co., 435 U.S. 151, 160-161 (1978). Federal law 

can pre-empt local or state measures either explicitly or implicitly. Although the 

PWSA did not explicitly restrict state efforts to regulate the design or construction of 

tankers, the Supreme Court found that in adopting PWSA Congress implicitly intended 

to foreclose states from requiring different or more stringent requirements on tankers. 

See id. at 163. At the same time the Supreme Court overturned two determinations of 

preemption by the District Court, finding instead that state requirements for piloting. 

of vessels engaged in foreign trade and for tug escorts of tanker vessels were not preempted by federal law. See id. at 152. 

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ble operational requirements such as de-ballasting at shoreside treatment plants, and upheld Alaska's effort to control discharges of polluted ballast water.195 The Supreme Court now 

appears to have undermined this distinction in PWSA Title II 

when it rejected the Ninth Circuit's similar reasoning U.S. v. 

Locke. 196 

PWSA Title II, however, applies only to tanker vessels and 

not to all vessels generally,197 and mandates regulations for the 

specific purpose of increasing the protection against hazards to 

life, property and the marine environment, and providing for 

navigation and vessel safety, that may be necessary in regard 

to tanker vessels. 19B PWSA Title II thus seems unlikely to preempt state regulations regarding the release of exotic organisms in ballast discharges by ships in general. 

Federal statutes that are more clearly relevant to such state 

regulation also appear unlikely to impede it. For example, 

NISA explicitly states that nothing in the statute shall restrict 

states' authority to control exotic species,199 and the Coast 

Guard emphasized this when issuing regulations. 20o Similarly, 

195 . See Chevron v. Hammond, 726 F.2d 483, 487 (1984), cert. dented. 

196 United States v. Locke, 529 U.S. 89 (2000). 

197 See 46 U.S.C. § 3702 (2000). A "tank vessel" is defined as "a vessel that is 

constructed or adapted to carry, or that carries, oil or hazardous material in bulk as 

cargo or cargo residue, and that (A) is a vessel of the United States; (B) operates on the 

navigable waters of the United States; or (C) transfers oil or hazardous material in a 

port or place subject to the jurisdiction of the United States." 46 U.S.C. § 2101 (2000). 198 See 46 U.S.C. § 3703(a). These regulations are to apply in addition to regulations prescribed under other laws that may apply to those vessels. 

199 "Nothing in this Title shall affect the authority of any State or political subdivision thereof to adopt or enforce control measures for aquatic nuisance species." 16 

U.S.C. § 4725 (Supp. 2000). NISA goes further, and not only does not restrict state 

action but rather directs federal agencies to cooperate with states to minimize the risk 

of unintentional introductions, which are defined to include ballast water introductions. See NISA §§ 1003(17), 1202(c)(2). NISA also invites states to develop their own 

management programs for exotic species, including prevention of introductions and 

authorizes the granting of federal funds to implement the states' programs, up to 75% 

of the total cost. See id. § 1204(a) and (b). 

200. . In adoptmg the current NISA regulations, the Coast Guard stated that "It has 

long been the Coast Guard's position that consistent standards of universal application, 

coupled with Federal initiatives to address unique concerns, are the best means of 

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in adopting the CWA, Congress clearly intended that it serve 

only as a floor for water quality protection and that states retain the right to require a greater level of protection.201 The 

express purpose of these laws was to provide states with significant discretion to adopt standards that are stricter than 

federal standards without fear that such actions would be preempted. 

In considering whether state regulation of ballast discharges would violate the dormant commerce clause, the Supreme Court's decision in Maine v. Taylor is likely most relevant.202 In that case, which addressed state regulations prohibiting the importation of exotic bait fish into the state,203 the Supreme Court found that Maine had a legitimate interest in protecting its waters against exotic bait fish and restated the District Court opinion that: 

[T]he constitutional principles underlying the 

commerce clause cannot be read as requiring the 

State of Maine to sit idly by and wait until potentially irreversible environmental damage has occurred or until the scientific community agrees 

on what disease organisms are or are not dangerous before it acts to avoid such consequences.204 

Accordingly, despite the recent Supreme Court decision invalidating certain state laws related to the operation of oil 

tankers,205 which recognized the considerable federal interest in 

tional maritime commerce ... [t]he Coast Guard will try to maintain nationwide consistency in methods for control of invasive species ... However, this regulation isn't intended to preempt any State, regional, or local efforts that exceed but do not conflict 

with the standards set forth in this rule." 64 Fed. Reg. 26,672, 26,674 (May 17, 1999) 

(to be codified at 33 C.F.R. pt. 151). 

201 

See 33 U.S.C. § 1370 (1986). The relevance of the CWA to the regulation of 

ballast discharges is discussed in the next section of this article. 

202 Maine v. Taylor, 477 U.S. 131, 148 (1986). 

203 S 'd ee I . 

204 [d. 

205 See United States v. Locke, 529 U.S. 89 (2000). 

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uniform regulation of maritime commerce,206 states nonetheless 

appear to have significant discretion in adopting measures to 

control the discharge of exotic organisms in ballast water. Neither the dormant commerce clause nor the Supremacy Clause 

appear to provide an absolute bar to such measures. In particular the federal statutes that are most clearly relevant to 

these efforts, NISA and CWA, include strong saving clauses 

that leave the states substantial discretion to adopt and enforce 

regulations regarding the release of exotic organisms and pollution standards that are stricter than those adopted by the 

federal government. 

B. REGULATING BALLAST WATER DISCHARGE AS A POLLUTANT 

DISCHARGE 

1. Federal Law 

a. The Clean Water Act 

In 1972, Congress passed the Clean Water Act (CWA) with 

the aggressive goal that "the discharge of pollutants into the 

navigable waters be eliminated by 1985."207 Although the CWA 

has hardly eliminated water pollution, it has substantially reduced point source discharges of pollutants into U. S. waters. 

The CWA is primarily implemented by the U. S. Environmental Protection Agency (EPA), and employs a number of interrelated strategies for restricting water pollution. Several of 

these are relevant to ballast water discharges of exotic organisms, but have been largely ignored by both federal and state 

entities.208 

As in most states, California is authorized by the EPA to issue permits under state water quality laws that satisfy the requirements of the federal CWA. EPA, however, retains author206 

See id. at 1148. 

207 33 U.S.C. § 1251(a)(1) (1986). 

208 See Whalin, Nuisance Nonindigenous Species supra note 5, at 89-101 (additional discussion of the application of the CWA to ballast water discharges of exotic 

organisms). 

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ity to veto a state-issued permit that it deems inconsistent with 

the CW A. In California, waste discharge permits are issued by 

the State Water Resources Control Board (SWRCB) and nine 

Regional Water Quality Control Boards (RWQCBs),209 which 

are responsible for adopting water quality control plans that 

will achieve requirements under both the state's PorterCologne Water Quality Act and the CW A. 210 

£. The Discharge Permit Requirement 

At the heart of the CWA is a prohibition against the discharge of any pollutant into the navigable waters of the United 

States from a point source absent a CWA permit.211 Several 

factors indicate that this prohibition applies to the release of 

exotic organisms in ballast water discharged into either fresh 

water or nearshore ocean waters. First, the CWA broadly defines "pollutants" as including "biological materials,"212 which 

therefore include exotic organisms, a reading supported by substantial case law.213 Second, vessels are statutorily defined as 

point sources.

214 Finally, "navigable waters" are broadly de209 Seven of the RWQCBs are responsible for coastal or port areas: North Coast 

RWQCB (Region 1), San Francisco Bay RWQCB (Region 2), Central Coast RWQCB 

(Region 3), Los Angeles RWQCB (Region 4), Central Valley RWQCB (Region 5), Santa 

Ana RWQCB (Region 8) and San Diego RWQCB (Region 9). 

2W . 

See CAL. WATER CODE § 13142 (West 1992). 

211 

See 33 U.S.C. § 1362 (12) (1996), amended by Pub. L. No. 106-284, 11 Stat. 870 

(2000). 

212 See id. § 1362(6). 

213 See National Wildlife Federation v. Consumers Power, 862 F.2d 580, 585 (6th Cir. 1988) 

(acknowledging that live fish, if added to a water body, would qualify as pollutants under the CWA); 

DuBois v. U.S. Dept. of Agriculture, 102 F.3d 1273, 1299(1st Cir. 1996) (finding that the transferring water from one water body to another constituted a discharge of pollutants that required an 

NPDES permit because the water being transferred had different biological and chemical components that the receiving waters); Marine Environmental Consortium v. State of Washington, 1997 

WL 3946514 (May 27,1997) (ruling of Washington Pollution Control Hearings Board that Atlantic 

salmon, were biological pollutants under the meaning of the Clean Water Act when released into the 

waters of the Pacific Northwest). See Whalin, Nuisance Nonindigenous Species supra note 5, 

at 90-94. As noted infra in Part n.B.l.a.ii., the states of Oregon and California have explicitly recognized that exotic organisms (including those discharged in ballast water) constitute a 

pollutant within the meaning of the CWA, by listing such organisms as water quality 

limiting pollutants under CWA §303(d). However, EPA Region 9, in reviewing the 

California listing, stated that exotic species are not a pollutant. See infra note 241. 214 

See 33 U.S.C. § 1362(14). 

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fined to include both inland water bodies such as rivers, estuaries and lakes as well as ocean waters extending out to three 

miles from shore. 215 

Congress explicitly recognized that CW A applies to ballast 

water discharges in 1990 and again in 1996, in language included in NANPCA and NISA. 216 Yet again, Congress made 

clear its intent that CWA's permit requirements apply to ballast water discharges when it amended the CWA in 1996 to 

narrowly exempt ballast water discharges from Armed Forces 

vessels from these requirements, but not ballast water dish . 12

c arges " In genera . 

Although the language of the CW A, case law and legislative 

history indicate that ballast discharges of exotic organisms require CWA permits, EPA regulations nevertheless purport to 

exempt ballast discharges from these requirements. 218 However, a group that includes conservationists, water industry 

associations, Native American tribes, and commercial and 

sport fishing interests from across the United States has argued that this exemption is illegal in a petition filed under the 

215 See id. See also Definition of Waters of the United States, 33 C.F.R. § 328.3 

(2000). 

216 "The regulations issued under this subsection shall .... not affect or supersede 

any requirements or prohibitions pertaining to the discharge of ballast water into the 

waters of the United States under the Federal Water Pollution Control Act (33 U.S.C. 

1251 et seq)." 16 U.S.C. § 4711(b)(2)(C) (2000). See also Whalin, Nuisance Nonindi· 

genous Species supra note 5, at 92, 100·1Ol. 

217 See Marine Sanitation Devices, 33 U.S.C. § 1322(n) (1986); 33 U.S.C. § 

1362(6)(A) (1986), amended by Pub. L. No. 104·106, § 325(c)(3) (1996). The Senate 

Report on the bill stated that "Ivlessels are sources of pollution under the Clean Water 

Act. Any discharge from a point source, including a vessel, into the waters of the 

United States is prohibited unless specifically permitted under section 402 or 404 of 

the Act." See Craig Johnston letter, infra note 220 for further discussion. 

218 See 40 C.F.R. § 122.3(a) (2000) stating that: "The following discharges do not 

require NPDES permits ... discharge of sewage from vessels, effiuent from properly 

functioning marine engines, laundry, shower, and galley sink wastes, or any other 

discharge incidental to the normal operation of a vessel." (Emphasis added). The CWA 

defines "discharge incidental to normal operation of a vessel" to include ballast water. 

See 3 U.S.C. § 1322(a)(12)(A)(i) (1996), amended by Pub. L. No. 106·284, 11 Stat. 870 

(2000). 

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Administrative Procedures Act.219 In reply, EPA acknowledged 

that CWA permits could be used to control ballast discharges, 

and promised a decision on whether to remove the exemption 

by the spring of 2000.220 

In deciding how to respond to the petition, EPA will have to 

consider how the courts would likely rule on a challenge to the 

current exemption. A similar EPA regulation exempting agricultural return flows from the CWA's permit requirements was 

roundly rejected by the D.C. Circuit Court. The Court found 

that "[t]he wording of the statute, legislative history, and 

precedents are clear: the EPA Administrator does not have the 

authority to exempt categories of point sources from the permit 

requirements of § 402."221 There is little reason to believe that 

the exemption for ballast discharges would fare any better.222 

219 Letter from Craig N. Johnston, Attorney, Pacific Environmental Advocacy 

Center to Carol Browner, Administrator, U.S. Environmental Protection Agency (Jan. 

13, 1999) (on file with authors). 

220 

Letter from J. Charles Fox, Assistant Administrator, U.S. Environmental 

Protection Agency, to Craig N. Johnston, Attorney, Pacific Environmental Advocacy 

Center (April 6, 1999) (on file with authors). The letter stated that EPA would prepare 

a report on the mechanisms available under the CWA to regulate ballast discharges 

and a plan for eliminating the exemption of ballast discharge from CWA permit requirements. The report was to be released for public comment by Sept. 1, 1999, but as 

of this writing it had not been released. Interestingly, some ballast water has been 

regulated through CWA permits and California water quality law to prevent the release of exotic organisms. Since 1997, the San Francisco Bay RWQCB has issued 

waste discharge permits to dry docks (under both CWA § 402 and California's PorterCologne Water Quality Control Act) which prohibit the discharge of ballast water from 

ships controlled by the dry docks, even before they have entered the dry docks. See 

SAN FRANCISCO BAY RWQCB, WASTE DISCHARGE REQUIREMENT FOR PEGASUS INC., 

MARE ISLAND, SOLANO COUNTY (ORDER No. 96-156, NPDES No. CA0030040) and 

WASTE DISCHARGE REQUIREMENT FOR AsTORIA METAL COMPANY, HUNTERS POINT, SAN 

FRANCISCO COUNTY (ORDER No. 98-101, NPDES No. CA0028282). Ballast water from 

these ships is pumped directly into sewers and treated at municipal wastewater treatment plants. Telephone Interview with J. Huang, San Francisco Bay RWQCB (1998). 

221 

Natural Resources Defense Council v. Costle, 568 F.2d 1369, 1376 (D.C. Cir. 

1977). The EPA did not exempt ballast discharges in its initial proposed rule, but did 

so in the final rule in order to reduce administrative costs, reasoning that "[tlhis type of 

discharge generally causes little pollution." 38(98) Fed. Reg. 13,528-13,530 (May 22, 

1973). This exemption was thus adopted more than a quarter-century ago when there 

was little information available on the harmful effects of ballast discharges, and was 

based on the erroneous assumption that they are benign. Since there is now substantial scientific evidence of their impacts, and since EPA has concurred that they are the 

source of a priority pollutant causing impairment of San Francisco Bay, there would 

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If it is established that ballast water discharges into inland 

U.S. waters are subject to CWA's permit requirements, then 

prior to making such discharges shippers would be required to 

obtain a permit under Section 402 ofCWA, the National Pollution Discharge Elimination System (NPDES).223 In order to get 

an NPDES permit a discharger must meet several criteria. 

First, the discharge must be consistent with the protection of 

water quality standards established by states to protect all designated uses of the water body where the discharge would occur.224 Second, the CWA's anti-degradation policy restricts discharges that would degrade high quality waters even where 

those waters would still be able to support designated uses.

225 

Third, the discharge must be treated to the level that could be 

achieved with the best available technology.226 If the discharges 

were to be made into ocean waters within three miles from 

shore, the discharge would also have to comply with Section 

403 of the CWA, which basically holds NPDES permits to the 

requirements of the Ocean Dumping Act.227 Because of these 

requirements along with the CWA's significant penalties228 and 

citizen suit provision,229 the CWA could become a powerful tool 

for addressing ballast water discharges of exotic organisms. 

appear to be no factual basis for maintaining the exemption, even ifit were found to be 

legal. See supra Parts I.B, I.C, and II.B.l.a.i and references therein. 

222 .. . See Brent C. Foster, Pollutants W£thout Half-lwes: The Role of Federal Env£-

ronmental Laws in Controlling Ballast Water Discharges of Exotic Species, 30 ENVTL. 

L. (forthcoming 2000) !hereinafter Foster, Pollutants Without Half-lives]. 

223 

See 33 U.S.C. § 1362 (12) (1996), amended by Pub. L. No. 106-284, 11 Stat. 870 

~~ . 224 Deslgnated . uses are set by states for each water body .. 

m the state and mclude 

uses such as fish and wildlife propagation, domestic water supply, recreation, or shellfish production, but must at least include all existing uses. See 40 C.F.R. § 131.11(h)(1) 

(2000). 

225 See 40 C.F.R § 131.12(a)(1). 

226 See 33 U.S.C. § 1311(b)(2)(A) (1986). 

227 See discussion infra Part II.B.l.b. 

228 See 33 U.S.C. § 1319 (c)(2) (providing for civil penalties of up to $25,000 a day, 

and larger penalties for knowing violations). 

229 

See id .. § 1365. 

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Because exotic organisms are capable of reproducing and 

thereby increasing in abundance and expanding in range, the 

discharge of even a small number of exotic organisms could be 

inconsistent with the protection of designated uses. Accordingly, the Clean Water Act may actually prohibit the discharge 

of exotic organisms into aquatic ecosystems entirely. This conclusion becomes difficult to avoid when faced with the challenge of trying to identify a level of discharge of exotic organisms greater than zero that would be consistent with the CW A. 

In fact, the only governmental body that has attempted to identify a level of exotic species releases that would be consistent 

with the protection of water quality standards necessary to 

support designated and existing uses, the San Francisco Bay 

Regional Water Quality Control Board (RWQCB), appears 

ready to conclude that no additional input of exotic organisms 

can be permitted into San Francisco Bay consistent with the 

CWA.230 The requirements in Section 303(d) of the CWA triggered this assessment and are relevant to ballast water-caused 

biological pollution in a number of respects. 

ii. Requirements for Water Quality Limited Water Bodies under 

Section 303(d) 

Section 303(d) of the CWA requires states to identify water 

bodies that are not meeting water quality standards set by the 

state and approved by EPA. 231 Water quality standard violations may include a violation of specific numeric criteria established to protect existing uses of the water body or may be 

caused by the fact that existing uses, such as fish or wildlife 

reproduction, are being impaired. 232 If, for example, high water 

temperatures due to industrial discharges were impairing 

shellfish production in a given water body or simply exceeding 

a maximum temperature standard set to protect shellfish production then that water body should be listed as water quality 

limited for temperature. 

230 See EPA Adds S.F. Bay Dioxins and Other Pollutants and Streams to State's 

Section 303( d) List, 11(12) CALIFORNIA ENVIRONMENTAL INSIDER (Nov. 17, 1998). 

231 See 40 C.F.R. § 130.7(c) (2000). 

232 See id. § 130.2(d). See also 33 U.S.C. § 1313(c)(2)(A) (1986). 

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Once a water body is identified as not meeting water quality 

standards, the state must then establish a total maximum 

daily load (TMDL) for the given pollutant in that water body,233 

based on the maximum amount that can be released consistent 

with the protection of designated uses. 234 Once established, 

any future NPDES permits must be consistent with the 

TMDL.235 Although there have been a number of problems in 

implementing the TMDL program, it does have the potential to 

reduce the discharge of specific pollutants. 

At least two states have listed exotic organisms as waterquality limiting pollutants under Section 303(d). Oregon listed 

three exotic plant species in 1996 and 1998.236 California applied Section 303(d) to ballast water discharges in 1998, when 

the San Francisco Bay RWQCB listed San Francisco Bay as 

water quality limited for exotic organisms released in ballast 

water, designating these pollutants as a high priority for the 

development ofTMDLs,237 which was subsequently approved by 

the SWRCB. 238 These state boards, used to setting discharge 

233 See 40 C.F.R. § 130.7(c)(1). 

234 See id. § 130.2(i). 

235 See 33 U.S.C. § 1311(c)(1)(C) (1986). 

236 Brazilian waterweed (Elodea densa), Eurasian watermilfoil (Myriophyllum 

spicatum) and Fanwort (Cabomba carolina) from the southeastern United States were 

each listed as water quality limiting for one of ten lakes, variously interfering with 

beneficial uses such as boating and swimming and in some cases requiring the application of herbicides. See OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, WATER 

QUALITY LIMITED STREAMS 303(D) LIST (1994/96 and 1998 lists) (last visited Nov. 12, 

2000) <http://waterquality.deq.state.or.us/wq/303dlistJ303dpage.htm>. 237 

The RWQCB's proposed list did not at first include exotic species. See CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, SAN FRANCISCO BAY REGION, 

PROPOSED REVISIONS TO SECTION 303(D) LIST AND PRIORITIES FOR DEVELOPMENT OF 

TOTAL MAxIMUM DAILY LOADS (TMDLs) FOR THE SAN FRANCISCO BAY REGION (Jan. 7, 

1998). Exotic species were added in response to comments from the San Francisco 

BayKeeper. Letter from Michael R. Lozeau, San Francisco BayKeeper to Thomas 

Mumley, Senior Water Resources Control Engineer, California Regional Water Quality 

Control Board, San Francisco Bay Region (Feb. 2, 1998). The RWQCB proposed to 

begin development of a TMDL for exotic species in 1998 and complete it by 2003. See 

CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, SAN FRANCISCO BAY REGION, 

STAFF SUMMARY REPORT, 1998 WATER QUALITY AsSESSMENT OF IMPAIRED WATER 

BODIES IN THE SAN FRANCISCO BAY REGION app. A (Feb. 18, 1998). 238 See SAN FRANCISCO REGION WATER QUALITY CONTROL BOARD SECTION, 303(D) 

LIST OF IMPAIRED WATER BODIES AND PRIORITIES FOR DEVELOPMENT OF TOTAL MAxI56

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standards for a range of hazardous pollutants ranging from 

carcinogens to heavy metals, are now faced with the task of 

establishing a TMDL for exotic organisms.239 

Unlike conventional pollutants, however, establishing a 

TMDL for exotic organisms may be relatively simple given the 

potential for a discharge of even a small number of organisms 

to grow into a multi-billion dollar ecological infection. As 

noted, the San Francisco Bay RWQCB appears poised to set a 

standard of zero discharge of exotic species into San Francisco 

Bay.240 Because designated uses in San Francisco Bay are al~ 

ready severely affected as a result of past invasions and since 

those effects continue to worsen, it would be difficult to argue 

that allowing the discharge of additional exotic organisms 

would be consistent with the CW A's water quality requirements. 

iii. Dredge and Fill Permitting Under Section 404 

The CW A regulates the discharge of dredged or fill material 

into U.S. waters under Section 404 instead of through Section 

402's NPDES program.

241 Section 404 permits are required 

MUM DAILY LOADS FOR THE SAN FRANCISCO BAY REGION, FINAL STAFF REPORT (Mar. 9, 

1998). See also EPA Adds S.F. Bay Dioxins and Other Pollutants and Streams to 

State's Section 303(d), List, 11(12), CALIFORNIA ENVIRONMENTAL INSIDER (Nov. 17, 

1998). 

239 In reviewing the state's 303(d) list, EPA Region 9 stated that exotic species are 

not a pollutant and that the CWA therefore does not require that TMDLs be developed 

for them, although the state may do so ifit chooses. See DAVID SMITH & JOE KARKOSI, 

U.S. EPA, REGION 9, STAFF REPORT, REVIEW OF CALIFORNIA'S 1998 SECTION 303(D) 

LIST (Nov. 3, 1998). However, on January 12, 2000, the San Francisco BayKeeper filed 

suit to force EPA to develop TMDLs for all pollutants and water bodies listed under 

303(d) in California, including exotic species. See San Francisco Baykeeper et al. v. 

Carol Browner et aI., No. C-00-0132 (N.D. Cal. filed Jan. 12, 2000). As of January 

2000, there were 509 water-quality-limited water bodies and 1471 impairments listed, 

with the EPA having developed TMDLs for five of these. Telephone Interview with 

Michael Lozeau, Staff Attorney, Earthlaw, (Jan. 2000). 

As noted supra Part II.A.3, while recent legislation bars state agencies from.imposing additional requirements on ballast water discharge under state law before Jan. 1, 

2004, state agencies such as the RWQCB and SWRCB are explicitly not barred from 

imposing federal law requirements. See CAL. PuB. RES. CODE § 71207(a) (West 2000). 

240 See EPA Adds S.F. Bay Dioxins and Other Pollutants and Streams to State's 

Section 303(d), List, 11(12), CALIFORNIA ENVIRONMENTAL INSIDER (Nov. 17, 1998). 241 See 33 U.S.C. § 404 (1986). 

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when private or public entities engage in a number of different 

activities associated with shipping such as channel deepening 

for navigational purposes, wetland fills for port expansions, 

lock construction and maintenance dredging. In order to issue 

a permit for these activities under Section 404, the U.S. Army 

Corps of Engineers must insure that the activity 1) will not 

"cause or contribute to significant degradation of the waters of 

the United States,"242 2) will not cause or contribute to a violation of water quality standards, and 3) is in the public interest.243 

In evaluating whether a dredge or fill action will cause or 

contribute to a significant degradation of U.S. waters the Corps 

must consider the "secondary effects" of a planned fill.244 For 

example, the secondary effect of a shipping-related project requiring a 404 permit may be to increase shipping traffic and 

thus increase the volume of ballast water and the quantity of 

exotic organisms being released in a given water body. If the 

discharges of exotic organisms associated with the proposed 

activity would have "significantly adverse" effects on fish, shellfish, plankton, wildlife, or on "aquatic ecosystem diversity, productivity, and stability" then the project would constitute a 

significant degradation of U.S. waters and could not be approved by the Corps.245 Similarly, if a project's secondary effects would have significantly adverse effects on recreational, 

aesthetic or economic values this would constitute a significant 

degradation that could not be permitted.246 Because of the 

known effects of ballast water-caused invasions of exotic species on these resources and values, it is unclear how the Corps 

could justify a dredge or fill permit where a predictable secon242 40 C.F.R. § 230.10(c) (2000). 

243 See 33 C.F.R. § 320.4(a) (2000). Additionally, 404 permit requirements include 

the need to consider practicable alternatives to the planned dredge or fill activity, potential mitigation measures, and whether the action will jeopardize threatened and 

endangered species. See id. §§ 320.10(a), 230.10(b), 320.4(r). 244 40 C.F.R § 230.10(c). 

245 [d. 

246 See id. 

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dary effect was the release of millions of gallons of untreated 

ballast. 

It would also seem difficult to support a finding that a project that would result in an increased or even a continued release of exotic organisms into a water body would not "cause or 

contribute to" a water quality violation given the nature of exotic organisms.247 If an area is already listed under Section 

303(d) as water quality limited for exotic organisms, such as 

San Francisco Bay, then it is unclear how an activity that 

would facilitate the continued release of exotic organisms 

would not at the very least "contribute to" if not "cause" a water 

quality violation. 

Finally, in determining what actions are in the "public interest," in some circumstances the economic, ecological and social costs that are associated with invasions of exotic organisms 

may outweigh the public benefits associated with the development of additional shipping industry infrastructure. However, 

in reviewing permit applications for dredge or fill projects the 

Corps has paid little attention to the cost side of this equation. 

In assessing the effects of proposed projects in San Francisco 

Bay, the Columbia River and elsewhere, the Corps has largely 

ignored the potential role of dredge and fill activities in leading 

to increased discharges of exotic organisms.248 

These. failures could be challenged by a citizen or industry 

group affected by the release of exotic spec~es. Additionally, 

Section 401 of the CWA gives states an opportunity to reject an 

Army Corps-issued 404 permit or to place conditions upon the 

permit that address the potential threat from exotic species.249 

Section 401, which requires that states certify that a Section 

404 permit issued by the Army Corps is consistent with the 

247 [d. § 230.10(b)(l). 

248 

See PORTLAND DISTRICT, U.S. ARMY CORPS OF ENGINEERS, DREDGED MATERIAL 

MANAGEMENT PLAN SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT: COLUMBIA 

RIVER AND LOWER WILLAMETTE RIVER FEDERAL NAVIGATION CHANNEL (1998). See 

also PORT OF OAKLAND, BERTHS 55·58 PROJECT: DRAFT ENVIRONMENTAL IMPACT RE· 

PORT (1999). 

249 

See 33 U.S.C. § 401 (1986). 

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protection of state water quality standards, is yet another avenue the CWA provides for addressing the discharge of exotic 

organisms in ballast water as a pollution control issue.25o 

b. The Ocean Dumping Act 

While the CWA regulates discharges within navigable 

inland waters and out to three miles from shore, the Ocean 

Dumping Act (ODA) relates to discharges further offshore.251 

The ODA prohibits the "dumping" of "any material transported 

from outside the United States" into the territorial sea or contiguous zone of the U.S. (between three and twelve miles from 

shore) without a permit.252 The ODA defines "dumping" broadly 

as a "disposition of material.,,253 What constitutes a "material" 

is also broadly defined to include "matter of any kind or description, including but not limited to, dredged material, solid 

waste, incinerator residue, garbage, sewage[.],,254 Furthermore, 

the U.S. Supreme Court, after twice considering the phrase 

"matter of any kind" in the context of the Rivers and Harbors 

Act of ·1899, strongly supported an expansive reading of its 

meaning.255 Because exotic organisms taken on in ballast water 

outside the U.S. likely qualify as "matter of any kind" and deballasting is clearly a disposing of that matter into the water, it 

appears that the ODA requires a permit for such discharges. 

The U.S. EPA has principal responsibility for enforcing the 

ODA and issuing dumping permits, but has made no effort to 

apply the aDA to ballast water discharges of exotic organisms. 

250 See id. States can, however, waive this certification if they so choose. See 33 

U.S.C. 

§ 1341(a)(1). 

251 See 33 U.S.C. § 1411(b) (1986). See also Foster, Pollutants Without Half-lives 

supra note 222, at 38 (for a more in depth review of the ODA's relevance to ballast 

discharges). 

252 33 U.S.C. § 1411(b). 

253 [d. § 1402(0. 

254 [d. § 1402(c). 

255 See, e.g., United States v. Pennsylvania Indus. Chern. Corp., 411 U.S. 655, 669 

(1973). See also United States v. Standard Oil Co., 384 U.S. 224, 226-227 (1966). 

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To issue an ODA permit, EPA must find that the dumping 

will not "unreasonably degrade or endanger human health, 

welfare, or amenities, or the marine environment, ecological 

systems, or economic potentialities."256 EPA is required to consider the need for the proposed dumping and the effect of the 

dumping on the marine ecosystem (including the effect on everything from plankton to marine mammals).257 Specifically, 

EPA must look at how the requested dumping may change the 

species diversity and productivity of the marine ecosystems or 

affect species and community population dynamics, and must 

evaluate the persistence and permanence of the effects of the 

dumping. 258 EPA must also hold a hearing if any member ofthe 

public or an agency requests one259 and ensure that the dumping will be consistent with relevant water quality standards.260 

Because exotic organisms released many miles from shore can 

be swept into coastal waters and establish themselves, EPA's 

analysis of a proposed dumping would have to include consideration of on-shore aquatic impacts.261 Discharges in violation 

. of the ODA are subject to penalties of up to $50,000, and actions for a violation of the ODA can either be brought by the 

EPA or filed under the ODA's citizen suit provision.262 . 

While statutes such as the National Invasive Species Act 

and California's AB 703 focus on minimal ballast water operation changes without regard for whether those measures are 

adequate for the protection of aquatic ecosystems, the ODA's 

prohibition against dumping· that "unreasonably degrades" 

aquatic resources (like the CWA's restriction of discharges that 

threaten existing or designated uses) establishes a critical floor 

of protection against damage to the environment. Due to this 

substantive bar against unreasonable degradation, it is 

256 33 U.S.C. § 1412(a) (1986). 

257 See id. §§ 1412(a)(A), 1412(a)(C). 

258 . See ld. §§ 1412(a)(D), 1412(a)(E). 

259 

See 33 C.F.R. § 222.4(a) (2000). 

260 See 33 U.S.C. § 1412(a). 

261 See Stemming the Tide supra note 8, at 17. 

262 See 33 U.S.C. § 1415(g). 

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unlikely that EPA could issue an ODA dumping permit for ballast discharges absent some effective technological treatment to 

remove exotic organisms. Enforcement of the ODA could therefore serve as an additional mechanism requiring technological 

treatment of ballast water prior to discharge, and would extend 

the regulation of ballast water discharges out to twelve miles 

from shore. 

c. The Rivers and Harbors Act of 1899 

Another statute that apparently applies to ballast water 

discharges of exotic organisms is the Rivers and Harbors Act of 

1899 (RHA).263 The RHA states that absent a permit "it shall 

not be lawful to throw, discharge, or deposit, or cause, suffer, or 

procure to be thrown, discharged or deposited either from or 

out of any ship, barge, or other floating craft of any kind ... any 

refuse matter of any kind or description whatever ... into the 

navigable water of the United States[.],,264 Since ballast water 

is obviously "discharged" from ships into the navigable water of 

the United States, the only question is whether ballast water 

containing exotic organisms qualifies as "refuse of any kind or 

description whatever." The U.S. Supreme Court has twice held 

that the term "refuse" as used in the RHA broadly applies to 

the release of "all foreign substances and pollutants," which 

suggests that RHA should apply to ballast discharges.265 However, as with the CWA and ODA, the RHA has simply not been 

applied to ballast water discharges. 

With the adoption of the CWA, the procedure for permitting 

a discharge under the RHA has been replaced by the CWA's 

NPDES permitting program. Because requirements for obtaining an NPDES permit are substantially stricter than the original requirement for an RHA permit, the RHA has primarily 

one effect: it increases the potential fines that could be levied 

263 See Foster, Pollutants Wtthout .. Half-Iwes supra note 222, at 38 (for a more 

detailed review of the RHA's applicability to ballast water releases). 

264 33 U.S.C. § 407 (1986). 

265 See United States v. Standard Oil Co., 384 U.S. 224, 228 (1966); United States 

v. Pennsylvania Indus. Chern. Corp., 411 U.S. 655, 669 (1973). 

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against unpermitted discharges from a ship. 266 In fact a ship 

that begins discharging ballast water while more than three 

miles from shore, where the ODA applies, and then continues 

de-ballasting while traveling into the three mile coastal zone 

covered by the CWA and RHA faces federal penalties that could 

exceed $100,000.267 The Supreme Court may have been correct 

in referring to the RHA as "almost an insult to the sophisticated wastes of modern technology,,,268 but the failure of the 

EPA to enforce this 100-year-old statute against discharges of 

exotic organisms in ballast water highlights the need for agencies to recognize and regulate exotic species as a form of biological pollution. 

2. California Law 

a. The Porter-Cologne Water Quality Control Act 

California's Porter-Cologne Water Quality Control Act provides an additional basis for regulating ballast water discharges in California.269 Porter-Cologne's system for regulating 

pollutant discharges is similar to that of the CWA in that waste 

discharges must meet water quality standards.270 Unlike the 

266 Penalties for violation of the RHA are up to $25,000 a day and/or up to a year in 

jail. See 33 U.S.C. § 411 (1994). See also U.S. v. Lambert, 915 F.Supp 797, 801 (1996) 

(EPA succeeded in an enforcement action for violations of both the CWA and RHA). 

267 ODA provides penalties of up to $50,000 per violation. See 33 U.S.C §§ 1415(a), 

1415(b) (1986). CWA provides civil penalties of up to $25,000 per day. See id. § 

1319(d). In addition, there could be criminal penalties of up to $1,000,000 for knowing 

endangerment by repeat offenders under CWA. See id. § 1319(c)(3)(A). As discussed 

below, state law penalties may also apply. Besides increasing the potential fines, the 

RHA may act as a legal backstop to the CW A, by remaining applicable to ballast water 

discharges within three miles of shore even if the EPA's regulatory exemption for ballast water were found to be legal. 

266 United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 669 (1973). 

269 See CAL. WATER CODE §§ 13000-13999 (West 1992). As noted aBove in Part 

II.A.3, recent legislation bars state boards from imposing additional requirements on 

ballast water discharges under Porter-Cologne or other state laws prior to Jan. 1,2004. 

See CAL. PUB. REs. CODE § 71207(a) (West 2000). However, the SWRCB and RWQCBs 

could take steps short of imposing requirements, such as developing, proposing and 

holding hearings on language for permit requirements that would go into effect on or 

after that date. In addition, the courts may impose penalties or injunctions if they find 

that discharges of exotic organisms in ballast water violate Porter-Cologne. 

270 See CAL. WATER CODE § 13263. 

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CWA, however, Porter-Cologne is not restricted to the regulation of point source discharges. 271 

Porter-Cologne uses the term "waste" to describe discharges 

under its purview, defining waste broadly as "sewage and any 

or all other waste substances."272 The full definition neither 

specifically includes nor specifically excludes ballast discharges, but because ballast water is taken on vessels as a necessary substance for maintaining a ship's stability and then 

discharged when no longer needed, ballast water is consistent 

with the common definition of waste.273 California courts implementing Porter-Cologne have also construed the term 

"waste" broadly to essentially cover the same types of pollutants covered under the CWA. Specifically, waste has been 

found to include silt caused by a dam,274 runoff from mining and 

logging operations,275 and agricultural runoff.276 Additionally, 

Porter-Cologne adopts the same definitions of "pollutants," 

"discharge" and "point sources" as are used in the CW A. 277 

Thus, there is good support that Porter-Cologne applies to the 

same substances that would be covered by the CWA, including 

exotic species discharged in ballast water.27B While Porter271 

See id. 

272 See id. § 1350(d). 

273 See Petition from the San Francisco Baykeeper and DeltaKeeper to the Bay 

Area Regional Water Quality Control Board and the Central Valley Regional Water 

Quality Control Board, Seeking Control of Ballast Water Discharges in the Bay-Delta 

Region (May 21, 1997). In considering whether detritus from construction operations 

dumped or drained into water could be r:egulated under Porter-Cologne, the California 

Attorney General turned to "the New Standard Dictionary, which defines waste as 

follows: 'Something rejected as worthless or not needed; surplus or useless stuff.'" 16 

Op. Cal. Att'y Gen. 125, 132 (1950). 

274 See Lake Madrone Water Dist. v. State Water Resources Control Bd., 209 

Cal.App.3d 163, 169 (1989). 

275 See People v. New Penn Mines, Inc., 212 Cal.App.2d 667, 673. See also 27 Op. 

Cal. Att'y Gen. 182 (1956). 276 See 27 Op. Cal. Att'y Gen. 182 (1956). 277 . CAL. WATER CODE § 13373 (West 1992). 

278 California's Secretary for Resources and Secretary for Environmental Protection have concluded that the meaning of "waste water discharges" in Porter-Cologne 

can include ballast water. See, e.g., DOUGLAS P. WHEELER & PETER M. ROONEY, REPORT OF THE SECRETARY FOR RESOURCES AND SECRETARY FOR ENVIRONMENTAL PRO64

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Cologne appears to require regulation of ballast discharges 

from individual ships, some conservationists have argued that 

it imposes similar requirements on port facilities where docked 

vessels commonly release ballast water. 279 

Porter-Cologne provides for civil penalties of up to $25,000 

for each day of violation and criminal penalties of up to $50,000 

and up to three years in jai1.280 Repeat offenders of PorterCologne could face a fine of up to $100,000 and up to six years 

in jail. 281 The San Francisco Bay RWQCB has made some limited use of Porter-Cologne to regulate ballast water discharges, 

by prohibiting ballast discharges from ships controlled by dry 

docks.282 However, in 1997 the San Francisco BayKeeper petitioned the San Francisco Bay and Central Valley RWQCBs to 

apply Porter-Cologne to all ballast water discharges in the 

BaylDelta system.283 

b. Fish and Game Code 

While Porter-Cologne requires dischargers to apply for a 

permit before discharging waste, California's Fish & Game 

Code provides even broader protection. Section 5650 makes it 

illegal to "deposit in, permit to pass into, or place where it can 

TECTION To GoVERNOR PETE WILSON: AN ANALYSIS OF FEDERAL RESPONSIBILITIES 

RELATED To OCEAN RESOURCE MANAGEMENT IN CALIFORNIA (June 1998). 

279 See, e.g., Petition of Sari Francisco BayKeeper and DeltaKeeper to the Bay Area 

Regional Water Quality Control Board and the Central Valley Regional Water Quality 

Control Board, Seeking Control of Ballast Water Discharges in the Bay-Delta Region 

(May 21, 1997) (on file with authors) [hereinafter BayKeeper, Seeking Cantrall. 

280 .. See CAL. WATER CODE §§ 13385(b)(1), 13385(c)(1), 13387(b) and (c). Additional 

Porter-Cologne civil penalties may be levied at the rate of up to $25 per gallon for the 

volume discharged in excess of 1,000 gallons. See id. §§ 13385(b)(2), 13385(c)(2). 

281 See id. § 13387(b), (c). 

282 

See supra note 221 and accompanying text. 

283 See BayKeeper, Seeking Control. Responding to similar questions, the Washington State Attorney General determined that "there is no doubt that water containing exotic microfauna that is potentially harmful to other aquatic life or to public 

health meets the definition of pollution" in Washington State law, that "ballast water 

containing harmful microfauna is pollution" under state law, and that "commercially 

operated vessels are prohibited from discharging waste material-including unwanted 

ballast waters-into waters of the state, except in accordance with the provisions of a 

state waste discharge permit." Washington Attorney General (1993). 

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pass into the waters of this state ... [a]ny substance or material 

deleterious to fish, plant life, or bird life" unless expressly authorized by a permit issued under Porter-Cologne.284 Because 

exotic organisms can clearly be deleterious to fish, plant and 

bird life, Section 5650 would appear to apply to ballast water 

releases of exotic organisms. Violations of Section 5650 are 

punishable by fines of up to $25,000 for each violation and are 

in addition to penalties for violations of any other law such as 

Porter-Cologne.285 The California Department of Fish & Game 

has the authority to bring an action to enforce the requirements of Section 5650,286 but has never used this authority to 

control ballast water discharges of exotic organisms. 

To help enforce this provision, Fish & Game Code Section 

12015 places cleanup responsibility directly on the party who 

has contaminated or polluted state waters.287 Fish & Game 

Code 12016 more broadly "imposes liability on any person who 

discharges ... any substance deleterious to fish, plant, bird or 

animal life or their habitats, into state waters.'!288 This section 

further specifies that the discharger is liable to the state for 

both actual damages to wildlife and habitats as well as reasonable costs the state incurs in the "clean up and abatement of 

the effects of the discharge" in addition to any other statutory 

penalties.289 While it may be difficult to show that an individual shipper had caused a given invasion, this law does provide 

a potential avenue for funding exotic species control efforts. 

284 

CAL. FISH & GAME CODE § 5650(a), (b) (West 1998). 

285 See id. §§ 5650.1(a), (b). 

286 See id. § 5651. As noted supra Part II.A.3, recent legislation bars state departments such as CDFG from imposing additional requirements on ballast water 

discharges under Section 5650 or other state laws prior to Jan. 1, 2004. See CAL. PUB. 

RES. CODE § 71207(a) (West 2000). 

287 See CAL. FISH & GAME CODE. § 12015. 

288 Id. § 12016. 

289 Id. 

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C. REGULATING BALLAST WATER DISCHARGE AS A WILDLIFE 

PROTECTION ISSUE 

1. International Law 

853 

Various current and pending international treaties related 

to the protection of wildlife or of the natural environment make 

reference to the prevention and control of exotic species. Although it is possible that these treaties could obligate the signatory nations to take steps to prevent or manage the introduction of exotic species in ballast water, none have yet been used 

for that purpose.290 

For example, the United Nations Convention on the Law of 

the Sea (not yet ratified by the U.S.) directs signatories to "take 

all measures necessary to prevent, reduce and controL.the intentional or accidental introduction of species, alien or new, to 

any particular part of the marine environment, which may 

cause significant or harmful changes thereto.,,291 It has been 

argued that this phrase would impose a due diligence standard 

on the signatories, including a duty to identify the pathways 

transporting exotic species and "close them Off,,,292 and that 

failure to take such measures could make them liable for any 

damages caused by such introductions.293 

The Protocol adopted pursuant to the Convention for the 

Protection and Development of the Marine Environment of the 

Wider Caribbean Region directs that "[e]ach Party shall take 

all appropriate measures to regulate or prohibit intentional or 

290 See D. J. Bederman, International Control of Marine "Pollution" by Exotic Species, 18 ECOL. LAw QUART. 677, 696-707 (1991) [hereinafter Bederman, Control of Marine "Pollutioni and OTA, Harmful Non-Indigenous Species in U.S supra note 31, at 

294-298 (for a fuller discussion of the relevance of international treaties to the management of exotic species, both on land and in the sea). 

291 Bederman, Control of Marine "Pollution" supra note 290, at 700-707; C. de 

Klemm, The Introduction of Exotic Species and the Law, in INTRODUCED SPECIES IN 

EUROPEAN COASTAL WATERS 85-92 (C. F. Boudeouresque, et al., eds., 1994) [hereinafter de Klemm, Exotic Species and the Law). The Convention has not yet been ratified 

by enough countries to take effect, nor been signed by the United States. 

292 ." . See Bederman, Control of Manne Pollutwn" supra note 290, at 702, 707. 

293 See de Klemm, Exotic Species and the Law supra note 291, at 85-92. 

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accidental introduction of non-indigenous ... species ... that may 

cause harmful impacts to the natural flora, fauna or other features of the Wider Caribbean Region.,,294 

The Bonn Convention on the Conservation of Migratory 

Species of Wild Animals obligates signatories to "the extent 

feasible and appropriate ... [to undertake the task of] strictly 

controlling the introduction of, or controlling and eliminating, 

already introduced exotic species" that endanger or are likely 

to further endanger migratory species, or that are detrimental 

to migratory species in "unfavorable conservation status.,,295 

The Convention Between the United States and Japan on 

Migratory Birds states that both signatories must attempt to 

control the importation of organisms that are determined to be 

hazardous to the birds protected by the treaty, or that could 

disturb the ecological balance of unique island environments.296 

The Convention on Biological Diversity requires the signatories, as far as possible and appropriate, to "prevent the introduction of, control or eradicate those alien species which 

threaten ecosystems, habitats or species." 297 

Thus, if the introduction of exotic organisms in ballast water would endanger migratory animals, harm protected migra294 The Convention was signed by the United States in 1983, while the Protocol 

Concerning Specially Protected Areas and Wildlife was opened for signature on Jan. 

18, 1990 and is not yet in force. See Bederman, Control of Marine "Pollution" supra 

note 290, at 704. 

295 Adopted in 1979. See Bederman, Control of Marine "Pollution" supra note 290, 

at 677-717; de Klemm, Exotic Species and the Law supra note 291, at 85-92. 

296 See R. A. Peoples, Jr., et ai., Introduced Organisms: Policies and Activities of the 

U. S. Fish and Wildlife Service, in DISPERSAL OF LMNG ORGANISMS INTO AQUATIC 

ECOSYSTEMS, 325-351 (A. Rosenfield & R. Mann eds., 1992) (Article VI of the Convention, which was adopted in 1972) [hereinafter Peoples, Introduced Organisms]. Other 

bilateral migratory bird protection treaties, with Canada (signed in 1916), Mexico 

(signed in 1936) and the USSR (signed in 1976), may have similar implications. 

297 Article 8(h) of the Convention. The Convention was signed by the United States 

in 1993 but has not yet been1atified by the Senate. See generally OTA, Harmful NonIndigenous Species in U.S. supra note 31; de Klemm, Exotic Species and the Law supra 

note 291, 85-92. See also OTA, Harmful Non-Indigenous Species in U.S. supra note 31, 

at 296 (describing this provision as "vague and probably unenforceable.") 

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tory birds, threaten aquatic ecosystems, habitats or species, or 

cause significant changes to marine or island environments, it 

is possible that the signatories to these conventions could be 

obligated to regulate and control ballast discharges. 

2. Federal Law 

a. The Endangered Species Act 

Exotic species are the second most common threat to imperiled species298 and endangered fish299 in the United States, the 

second most frequent contributing factor to North American 

fish extinctions,30o and the dominant threat to imperiled aquatic 

organisms in the West.30l Within California, exotic species may 

have caused the extinction of three native fish and the eradication of another from its native waters through competition, 

predation or parasitization,302 and contributed to the decline of 

the endangered winter-run chinook salmon.303 The Delta smelt, 

listed as threatened, may be at risk from an exotic predator of 

its eggs and larvae.304 Among ballast water introductions, zebra mussels are thought to pose a serious threat to many 

freshwater mussels305 and to chinook salmon if introduced into 

California.30G The shimofuri goby, introduced to California from 

298 

See David S. Wilcove, Quantifying Threats to Imperiled Species In the United 

States, 48(8) BIOSCIENCE 607-615 (1998) [hereinafter Wilcove, Quantifying Threats) .. 299 

See A REpORT To CONGRESS, AQUATIC NUISANCE SPECIES TASK FORCE, FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE INTENTIONAL INTRODUCTIONS 

POLICY REVIEW app. D (Mar. 1994). 

300 See Robert R. Miller, et aI., Extinctions of North American Fishes During the 

Past Century, 14(6) FISHERIES 22-38 (1989). In these three studies, habitat alteration, 

degradation or loss was found to be the most common threat or contributing factor. 

301 See Wilcove, Quantifying Threats supra note 298, at 612. 

302 See Cohen & Carlton, SF Bay Case Study supra note 14, at 119-22,125-27,129, 

131, 133, 187. 

303 See NATIONAL MARINE FISHERIES SERVICE, SOUTHWEST REGION, PROPOSED 

RECOVERY PLAN FOR THE SACRAMENTO RIVER WINTER-RUN CHINOOK SALMON [hereinafter NMFS, Sacramento Chinook Recovery Plan). 

304 

See Cohen & Carlton, SF Bay Case Study supra note 14, at 129,187. 

305 

See Don W. Schloesser, et aI., Zebra Mussel Infestation of Unionid Bivalves 

(Unionidae) in North America, 36 AMERICAN ZOOLOLGIST 300-310 (1996). 

306 

See NMFS, Sacramento Chinook Recovery Plan supra note 303. 

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Japan in ballast water, could have significant impacts on endangered tidewater gobies by preying on juveniles, competing 

for food and disturbing mating activities.307 Endangered and 

threatened salmon, steelhead and Delta smelt may be impacted 

by changes in their food supply caused by clams and zooplankton introduced via ballast water. 308 

Several provisions of the federal Endangered Species Act 

(ESA)309 are relevant to ballast water discharges of exotic organisms and to federal projects that indirectly result in ballast 

water discharges of exotic organisms. A recent Presidential 

Executive Order on invasive species310 specifically listed the 

ESA as one source of the federal government's authority to 

prevent the introduction of invasive species. 311 

For example, Section 7 of the ESA prohibits federal agencies 

from authorizing, funding or carrying out actions that would 

jeopardize a listed species or adversely modify the critical habitat of a listed species.312 If a federal action "may affect" a listed 

307 See Ramona O. Swenson & Scott A. Matern, Interactions Between Two Estuarine Gobies, the Endangered Tidewater Goby (Eucyclogobius newberryi) and a Recent 

Delta Invader, the Shimofuri Goby (Tridentiger bifasciatus), presented at the California-Nevada Chapter Meeting, American Fisheries Society, Napa, CA (1995). 

308 See NMFS, Sacramento Chinook Recovery Plan supra note 303. See also Biological and Conference Opinion for Port of Oakland Berths 55-58 Project, submitted as 

an attachment to a letter from Rodney R. McInnis, Acting Regional Director, National 

Marine Fisheries Service, Southwest Region, to Calvin Fong, Chief, Regulatory Section, 

U. S. Army Corps of Engineers, San Francisco District (Nov. 26, 1999); CALIFORNIA 

DEPARTMENT OF WATER RESOURCES. Delta Smelt Investigations, 12(2) IEP NEWSLET. 

TER 25, 28 (1999). 

309 Since the California Endangered Species Act offers less protection than the 

federal ESA, it is not analyzed here. 

310 See Exec. Order No. 13,112, 64 Fed. Reg. 6183 (Feb. 3, 1999). 

311 Agencies' willingness to use the ESA to regulate ballast water in appropriate 

circumstance may be encouraged by the order's directives to each federal agency to "use 

relevant programs and authorities to ... prevent the introduction of invasive species" and 

to "not authorize, fund or carry out actions that it believes are likely to cause or promote the introduction or spread of invasive species in the United States or elsewhere 

unless, pursuant to guidelines that it has prescribed, the agency has determined and 

made public its determination that the benefits of such actions clearly outweigh the 

potential harm caused by invasive species; and that all feasible and prudent measures 

to minimize the risk of harm will be taken in conjunction with the actions." Id. 

312 See 16 U.S.C. § 1536(a)(2) (2000). 

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species or its designated critical habitat, the responsible federal 

agency must initiate consultation with the U.S. Fish & Wildlife 

Service (USF&W) (for terrestrial and freshwater species) or the 

National Marine Fisheries Service (NMFS) (for marine and 

anadromous313 species).314 In determining whether a federal 

action will jeopardize a species or its critical habitat, agencies 

must consider both direct and indirect effects.315 Thus, a federal agency that is engaged in, is authorizing or is funding the 

construction or expansion of a port or the dredging of a waterway that would indirectly result in the release of ballast water 

containing exotic organisms must consider the potential effect 

on listed species or their critical habitat. 

Section 9 of the ESA prohibits the taking of an endangered 

species or its habitat,316 with "take" meaning to "harass, harm, 

pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to 

attempt to engage in any such conduct."317 Under some circumstances, the introduction of exotic organisms can constitute a 

take under Section 9. For example, the Ninth Circuit, when 

first affirming that Section 9 protects the habitat of endangered species and not just the species themselves, found that 

habitat damage caused by the grazing of exotic goats was a 

take.318 In addition, NMFS recently adopted a rule specifying 

that "[r]eleasing non-indigenous or artificially propagated species into a listed species' habitat or where they may access the 

habitat of listed species" is a type of habitat modifying activity 

that may qualify as a take. 319 In practice, demonstrating a 

causal link between a given ballast discharge, the release and 

establishment of an exotic organism, and resulting habitat degradation constituting a take of a listed species may prove to be 

313 

Anadromous species, such as salmon, spawn in fresh water and live as adults in 

salt water. 314 

See 16 U.S.C. § 1536 (a)(3). 

315 See 50 C.F.R. § 402. 14(g)(3) (2000). 

316 See 16 U.S.C. § 1538(a)(1). 

317 [d. § 1532(19). 

318 

See Palila v. Hawaii Dep't of Land and Natural Resources, 852 F.2d 1106 (9th 

Cir.1988). 319 64 Fed. Reg. 60,727 (Nov. 8, 1999) (to be codified at 50 C.F.R. pt. 222). 

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very difficult. However, when considered in the context of a 

broader scale challenge to the long-term practice of deballasting exotic species and thereby creating biologically-polluted 

waters, a Section 9 challenge may be more viable. 

In January of 1999, Earthlaw's Environmental Clinic at the 

Stanford Law School, on behalf of the Center for Marine Conservation and the San Francisco BayKeeper, filed a notice of 

intent to sue over violations of Section 7 of the ESA in connection with a proposed dredging project at the Port of Oakland.320 

The U.S. Army Corps of Engineers, the federal lead agency for 

the project, had requested a formal consultation from USF&W 

in January 1998.321 The Stanford notice alleged that the Army 

Corps had failed to comply with its obligations under the ESA 

in three respects: by preparing an inadequate Biological Assessment that did not address the projects' impacts on endangered and threatened species due to ballast water discharges 

resulting from the project (violating ESA Section 7(c)), failing 

to initiate consultation with USF&W and NMFS regarding 

those impacts (violating Section 7(a)(2)), and by failing to consult with USF&W and NMFS to develop programs for the conservation of endangered and threatened species that are at risk 

from exotic species invasions in the project area, largely as a 

result of ballast discharges (violating Section 7(a)(1)).322 In re320 Letter from Deborah A. Sivas, Supervising Attorney, Stanford Environmental 

Clinic, Stanford Law School, to Lt. Gen. Joe N. Ballard, Chief of Engineers and Commander, U. S. Army Corps of Engineers, San Francisco District and Lt. Col. Peter T. 

Grass, U. S. Army Corps of Engineers, San Francisco District (January 6, 1999) (on file 

with authors). While the specific project discussed in this letter is the Oakland Harbor 

Navigation Improvement (-50 Foot) Project [hereinafter the "dredging project"], any 

legal challenge is likely to include related projects such as the Berths 55-58 Project 

referenced below. The environmental review of these projects is discussed in Part II.D. 

321 Letter from Cay C. Goude, Acting Field Supervisor, U.S. Fish & Wildlife Service, Sacramento Field Office, to Peter E. LaCivita, Chief, Environmental Planning 

Section, U. S. Army Corps of Engineers, San Francisco District (June 29,1999) (on file 

with authors). The Army Corps also requested consultation from NMFS on the dredging project on March 5, 1999 and on the berth expansion project on September 27, 

1999. See generally BIOLOGICAL AND CONFERENCE OPINION FOR PORT OF OAKLAND 

BERTHS 55-58 PROJECT. 

322 See Letter from Deborah A. Sivas to Lt. Gen. Joe N. Ballard and Lt. Col. Peter 

T. Grass, supra note 320. 

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sponse, the Army Corps confirmed that it was requesting consultation on the exotic species issues raised in the notice.323 

In a biological opinion on the dredging project and a related 

berth expansion project, USF&W found that the Port's proposed ballast water exchange regulation and other measures 

would adequately minimize the impacts of ballast water discharges, and required the Army Corps to ensure that those 

measures were implemented.324 NMFS concluded that the 

dredging project is not likely to adversely affect listed species,325 

but found that the introduction of exotic organisms resulting 

from the berth expansion project could result in a take of listed 

salmon or steelhead.326 Accordingly, NMFS required the Army 

Corps to condition the Port's permit to require the Port to enter 

into an agreement with NMFS on monitoring and managing 

the introduction of exotic species, and further required the 

Army Corps to retain discretion to re-initiate Section 7 consultation with NMFS if the Port failed to fulfill that agreement or 

if ballast water discharges exceeded the amounts projected by 

the Port.327 

b. The Lacey Act and the Federal Noxious Weed Act 

In 1900, Congress passed the Lacey Act with the general 

purpose of preventing the introduction of animal and bird spe323 Telephone Interview with Michael Lozeau, Staff Attorney, Earthlaw (Jan. 

2000). 

324 See Letter from Cay C. Goude to Peter E. LaCivita, supra note 32l. 

325 Letter from Rodney R. McInnis, Acting Regional Director, National Marine 

Fisheries Service, Southwest Region, to Peter E. LaCivita, Chief, Environmental Planning Section, U. S. Army Corps of Engineers, San Francisco District (August 9, 1999) 

(on file with authors). 

326 In listing the anticipated effects of the project, NMFS wrote: "The introduction 

of nonindigenous species by ballast water and hull fouling may adversely affect listed 

salmonids and result in an unknown quantity of take, in the form of mortality, harm, 

injury, and/or harassing, listed salmonids." Potential impacts include changes in food 

availability, introduction of pathogens and predators, clogging of fish screens and decreased efficiency of fish salvage facilities, and loss of rearing habitat, which could 

result in a degradation of a listed species' ability to survive and recover. See BIOLOGI· 

CAL AND CONFERENCE OPINION FOR PORT OF OAKLAND BERTHS 55-58 PROJECT 20, 22. 

327 

See id. at 23-24. 

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cies injurious to agriculture. 328 As amended, the Lacey Act today prohibits the importation329 or interstate shipment of wild 

mammals, wild birds, reptiles, amphibians, fishes, mollusks or 

crustaceans, or their offspring or eggs, that are either listed in 

the Act or are determined by the Secretary of the Interior "to be 

injurious to human beings, to the interests of agriculture, horticulture, forestry or to wildlife or the wildlife resources of the 

United States.,,330 The Secretary may only permit the importation of such species for zoological, educational, medicinal or 

scientific purposes.331 

32S See Act of May 25,1900, ch. 553,31 Stat. 187, 188 § 2. Amendments made in 

1981 consolidated and partially repealed the 1900 Lacey Act and the 1926 Black Bass 

Act. See Amendments of 1981, Pub. L. No. 97-79, § 9(b)(2), 95 Stat. 1073, 1079 (codified at 16 U.S.C. §§ 3371-3378 (2000) and 18 U.S.C. § 42 (2000». The Act is generally 

implemented by the USF&W. 

329 The Act defines import to mean "to land on, bring into, or introduce into, any 

place subject to the jurisdiction of the United States, whether or not such landing, 

bringing, or introduction constitutes an importation within the meaning of the customs 

laws of the United States." 16 U.S.C. § 3371(b) (2000). 

330 18 U.S.C. § 42(a)(1) (2000). Some have read the Lacey Act as only prohibiting 

transport between the continental United States and its island states, territories and 

possessions, rather than all interstate transport. See, e. g. Bean, Report to OTA supra 

note 123, at 6. See also Peoples, Introduced Organisms supra note 296, at 325, 328. 

This seems to us to require a rather tortured reading of the admittedly somewhat convoluted text. Specifically, the Act prohibits "shipment between the continental United 

States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any 

possession of the United States." 18 U.S.C. § 42(a)(1). The "United States" is defined 

by applicable regulation to mean "the several States of the United States of America." 

50 C.F.R. § 10.12 (2000). This passage is thus most sensibly read as prohibiting shipment between the individual states, the District of Columbia, and so forth. In contrast, 

the interpretation that this passage only prohibits shipment between the continental 

United States as a whole and the other listed entities is severely hampered by the 

inclusion of the District of Columbia in the list-leading (by this interpretation) to the 

nonsensical situation where transport of harmful organisms between, for example, 

Bethesda, Maryland and the adjacent District of Columbia would be prohibited, but 

transport across the continent from Maryland to California would be allowed. 

On the other hand, U.S. Fish & Wildlife Service staff have at times read the Lacey 

Act as even prohibiting the intrastate transport of proscribed species, although that 

does not seem to be the Service's current interpretation. Email from Denny Lassuy, U. 

S. Fish & Wildlife Service to J. A. Kopp, Prince William Sound Regional Citizens Advisory Council and posted to the Western Regional'Panellistserver (July 12, 1999) (on 

file with authors). 

331 See 18 U.S.C. § 42(a)(3). 

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Additionally, the Lacey Act makes it a violation of federal 

law to import, export, transport,332 sell, receive, acquire or purchase in interstate or foreign commerce, or possess within the 

maritime and territorial jurisdiction of the United States, any 

fish, wildlife, or plants taken, possessed, transported or sold in 

violation of any state law or regulation.333 The implementing 

regulations deem that "[a]ny importation or transportation of 

live wildlife,,334 into the United States is injurious or potentially 

injurious, and prohibit such importation or interstate transport 

except as otherwise provided.335 Further provisions specifically 

allow for· the importing or transporting of fish, mollusks or 

crustaceans under certain conditions,336 but prohibit their release into the wild without the written permission of the state 

wildlife conservation agency with jurisdiction over the release 

site.337 

The Federal Noxious Weed Act similarly prohibits, except 

by permit, importing into the United States or the interstate 

movement of noxious weeds identified by the Secretary of Agriculture.33B "Noxious weeds" are defined as any living stage of a 

plant that "is of foreign origin, is new to or not widely prevalent 

in the United States, and can directly or indirectly injure crops, 

or other useful plants, livestock, or poultry or other interests of 

332 . 

"Transport" is broadly defined to mean "to move, convey, carry or ship by any 

means, or to deliver or receive for the purpose of movement, conveyance, carriage, or 

shipment." 16 U.S.C. § 3371(j). 

333 See 16 U.S.C. § 3372(a) (2000). 

334 . 

"Wildife" is defined to include "any wild animal, whether alive or dead, including without limitation any wild mammal, bird, reptile, amphibian, fish, mollusk, crustacean, arthropod, coelenterate, or other invertebrate, whether or not bred, hatched, or 

born in captivity, and including any part, product, egg, or offspring thereof." 50 C.F.R. 

§ 10.12. 

335 

See id. § 16.3. 

336 . Fish, mollusks or crustaceans other than a few listed species may be imported 

or transported without a permit if a written declaration has been filed with the Cus~ 

toms Department. See id. § 16.13(a). 

337 

See id. § 16.13(1). 

338 .. . See 7 U.S.C. §§ 2803(a) and (b). NOXIOUS weeds Identified by the Secretary are 

listed at 7 C.F.R. § 360.200 (2000). The Act is generally implemented by the Animal 

and Plant Health Inspection Service (APHIS) in the Department of Agriculture. 

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agriculture, including irrigation, or navigation or the fish and 

wildlife resources of the United States or the public health."339 

Because implementation of the Lacey Act and the Noxious 

Weed Act are each based on the use of a "dirty list" of prohibited species, the statutes are generally applied only to species 

that have already demonstrated their invasive nature.340 This 

limits the usefulness of these statutes as a pre-emptive mechanism for preventing invasions before they occur, which is one of 

several reasons for the oft-noted ineffectiveness of these Acts.341 

Various attempts to adopt a "clean list" approach (restricting 

the import of new species unless it is shown that the species is 

339 

7 U.S.C. § 2802(c). ~ .. . 

Although the broad language of the Lacey Act's regulattons at 50 C.F.R. § 16.3 

describes a clean act approach, the regulations have never been implemented in that 

way. 

341 

See Bean, Report to OTA supra note 123, at 5-7,44-46,66-68. See also Bederman, Control of Marine "Pollution" supra note 290, at 693, 695; Peoples, Introduced 

Organisms supra note 296, at 332-335; OTA, Harmful Non-Indigenous Species in U.S. 

supra note 31, at 21-30, 173; J. L Dentler, Noah's Farce: The Regulation and Control of 

Exotic Fish and Wildlife, 17 U. PUGET SOUND L. REV.191, 210-212 (1993); D. P. Larsen, 

Combating the Exotic Species Invasion: The Role of Tort Liability, 5 DUKE ENVTL. L. & 

POL'y F. 21, 27-29 (1995); S. A. Wade, Stemming the Tide: A Plea for New Exotic Species Legislation, 10 J. LAND USE & ENVTL. L. 343, 347-348 (1995); Whalin, Nuisance 

Nonindigenous Species supra note 5, at 104-106. The effectiveness of these Acts is also 

hindered by inadequate funding for monitoring and enforcement, and by generally lax 

implementation. In a recent revealing incident, 11,800 bur reed plants (Sparganium 

erectum), an exotic aquatic weed on the federal noxious weed list, were imported from 

Europe and distributed to Home Depot stores in at least 35 states before the Agriculture Department realized the plant was even in the country, although it was correctly 

identified on its shipping papers. See Alien Weed Eludes Authorities, Then Turns Up at 

Home Depot, WALL ST. J. (Aug. 10, 1999); Robert Weller, Noxious Weed Introduced in 

US, Sold as Pond Plant, SEATTLE DAILY J. OF COM. (Aug. 19, 1999). 

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not a threat) have failed,342 despite substantial support for this 

approach from the scientific and regulatory community.343 

Although these statutes have generally been interpreted as 

applying only to intentional acts,344 nothing in the language of 

the statutes or regulations restricts them to intentional acts, 

and only the application of criminal penalties is restricted to 

knowingly committed acts. 345 The appropriate standard for 

applying civil penalties appears to be one of due care.346 Given 

the known abundance of certain proscribed species in some 

port areas, ships discharging ballast water from those areas 

and which is therefore likely to contain those species may not 

be exercising due care.347 Given the amount of attention that 

342 • • • In 1973 and agam m 1975 the USF&W proposed amendmg the Lacey Act regulations to incorporate a clean list approach. See 38 Fed. Reg. 34,970 (Dec. 20, 1973); 40 

Fed. Reg. 7935 (Feb. 24, 1975). These proposals were withdrawn under pressure from 

pet trade, zoo and scientific interests. Roughly 5,500 comments were received, most of 

them critical. See, e.g., Bean, Report to OTA supra note 123, at 45-46,67-68; Peoples, 

Introduced Organisms supra note 296; OTA, Harmful Non·Indigenous Species in U.S. 

supra note 31, at 111. In 1995 APHIS attempted unsuccessfully to adopt a partial 

clean list approach to implementing the Noxious Weed Act. 60 Fed. Reg. 5288 (Jan. 26, 

1995); 60 Fed. Reg. 31,647 (June 16, 1995); David Whalin, The Control of Aquatic Nuisance Species, 5 ENVTL. LAWYER 69, 107-114 (1998). 

343 See OTA, Harmful Non·Indigenous Species in U.S. supra note 31,at 109; Letter 

from Andrew N. Cohen and 106 ecologists and research scientists to Interior Secretary 

Bruce Babbitt (Oct. 19, 1998), app. A in Sandra M. Keppner, et aI., Caulerpa taxifolia: 

A Potential Threat to U. S. Coastal Waters, A Preliminary Report to the Aquatic Nuisance Species Task Force (Nov. 17, 1998). 

344 See, e.g., S. A. Wade, Stemming the Tide: A Plea for New Exotic Species Legisla· 

tion, 10 J. LAND USE & ENVTL. L. 343, 348 (1995). 

345 See 16 U.S.C. § 3373(d) (2000). 

346 See id. § 3373(a)(l). 

347 Crabs in the genus Eriocheir (mitten crabs) and the zebra mussel Dreissena 

polymorpha are listed as injurious animals under the Lacey Act. 50 C.F.R. § 

16.13(a)(2) (2000). Ballast water is thought to be responsible for the introduction of 

mitten crabs to Europe, for several cases of mitten crab releases into the Great Lakes, 

New Orleans region and Columbia River, and possibly for their introduction into California. Mitten crabs spawn in estuaries with individual females producing 250,000 to 

one million eggs, which hatch in the late spring or summer and develop over three to 

four months as small, floating larvae. Mitten crabs are common or abundant in many 

port areas in China, Taiwan, Korea, Japan, Portugal, northern Europe and England, 

and it is thus likely that many ships taking on ballast water in these countries between 

late spring and early fall carry mitten crabs. See Andrew N. Cohen & James T. Carlton, Transoceanic Transport Mechanisms: The Introduction of the Chinese Mitten Crab, 

Eriocheir sinensis, to California, 51(1) PACIFIC SCIENCE 1-11 (1997). 

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the ballast water issue has received in shipping circles in recent years, and the near-certainty that ballast water contains 

various types of organisms,348 many ships may be knowingly 

violating the Lacey Act's regulatory prohibitions on importing 

wildlife without a permie49 and releasing fish, mollusks or 

crustaceans into the wild without a permit.350 

3. California Law 

California has several statutory requirements that generally restrict the release of exotic organisms in California absent 

a permit. The Fish and Game Code makes it unlawful to 

place, plant, or cause to be placed or planted, in 

any of the waters of the State, any live fish, any 

fresh or salt water animal, or any aquatic plant, 

whether taken without or within the state, without first submitting it for inspection to, and securing the written permission of, the department 

[ofFish and Game].351 

The Fish and Game Code further requires that "[n]o live 

aquatic plant or animal may be imported into this state without the prior written approval of the department [of Fish and 

Zebra mussels were apparently introduced in ballast water from Europe into the 

Great Lakes, then spread throughout much of eastern North America causing substantial economic and environmental damage. See supra discussion Part I.B. Zebra mussels spawn from spring to early fall with individual females producing up to one million 

eggs, and the larvae spend up to 33 days in the plankton. See M. Sprung, The Other 

Life: An Account of Present Knowledge of the Larval Phase of Dreis sen a polymorpha, in 

ZEBRA MUSSELS: BIOLOGY IMPACTS AND CONTROL 39-53 (T. F. Nalepa & D. W. 

Schloesser eds., 1993). Thus, ships that take on ballast water between spring and fall 

at freshwater ports in Europe, the Great Lakes, the Saint Lawrence Seaway, the Hudson River or New Orleans are likely to carry zebra mussels. 

348 For example, in one study of ships discharging ballast water from Japan into 

Coos Bay, Oregon, crustaceans were found in the ballast water from at least 98.6 percent of the ships. See James T. Carlton & J. B. Geller, Ecological Roulette: The Global 

Transport of Nonindigenous Marine Organisms, 261 SCIENCE 78-82 (1993). 

349 See 50 C.F.R. § 16.3 (2000). 

350 

See id. § 16.13(1). 

351 

CAL. FISH & GAME CODE § 6400 (West 1998). 

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Game].,,352 Additionally, California Code of Regulations establishes that "[n]o person shall release in to the wild without 

written permission of the [Fish and Game] Commission any 

wild animal...which .. .is not native to California.,,353 Pursuant to 

the above statutes and regulations, California has published 

two lists of species that may not be imported, transported, possessed or released into the wild without specific authorization, 

including several that may be found in ballast water.354 The 

California Department of Fish and Game additionally has the 

power to destroy any fish, amphibian, or aquatic plant that it 

determines is "merely deleterious" to in-state fish, aquatic 

plants, amphibians or aquatic animal life. 355 

Despite the broad language in these statues and regulations, California agencies have failed to apply them to the most 

important mechanism importing and releasing exotic organisms into state waters: ballast water discharges. The Legisla352 [d. § 2271(a}. 

353 CAL. CODE REGS. tit. 14, § 671.6 (2000). "Wild animal" is defined to include 

fish, crayfish and gastropods. 

354 See CAL. FISH & GAME CODE § 2118 makes it "unlawful to import, transport, 

possess, or release alive into this state, except under a revocable, nontransferable permit" any of a list of species that includes various primarily freshwater fish, three common genera of crayfish, and "all species of slugs." "Transport" is broadly defined to 

include "to move, convey, carry, or ship by any means" CAL. FISH & GAME CODE § 

2580(a). CAL. CODE REGS. tit. 14, § 671 (2000) makes it "unlawful to import, transport, 

or possess alive ... except under permit issued by the Department of Fish and Game" a 

somewhat larger list of species that includes all species in the genus Eriocheir (mitten 

crabs) and all species in the genus Dreissena (zebra mussels). Species in the latter two 

groups are believed to have been introduced via ballast discharges into, respectively, 

northern Europe and eastern North America, and resulted in substantial economic and 

environmental damage. See supra note 347 and discussion of zebra mussels supra Part 

I.B. Cal. Code Regs. § 236 also prohibits importing any of the listed species "unless 

specifically authorized" by the California Fish and Game Commission. 

355 CAL. FISH & GAME CODE § 6303. As noted supra in Part II.A.3, recent legislation bars state departments such as CDFG from imposing additional requirements on 

ballast water discharges under these Fish & Game statutes or other state laws prior to 

Jan. 1, 2004. See CAL. PuB. REs. CODE § 71207(a} (West 2000). However, the courts 

may impose penalties or injunctions if they find that the importing, transporting or 

releasing into the wild of exotic organisms in ballast water discharges violates these 

statutes. In addition, the Lacey Act at 16 U.S.C. Section 3372(a} (2000) makes it a 

federal offense to violate a state law, such as CAL. FISH & GAME CODE Section 2271(a}, 

which prohibits the importing of fish, wildlife or plants. In Maine v. Taylor, the U. S. 

Supreme Court upheld the use of the Lacey Act "for federal enforcement of valid 

state ... wildlife laws." Maine v. Taylor, 477 U.S. 131, 139-40 (1986). 

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ture intended such statutes to apply to ballast water discharges. This intent was made clear by Assembly Bill 1625, 

passed by the Legislature and signed into law in 1998, which 

added to the Fish and Game Code three sections related to violations of Section 6400 "through the use of an aquatic nuisance 

species.,,356 Section 12023 increased the penalties for violations, 

Section 12024 made violators "liable for all public and private 

response, treatment, and remediation efforts resulting from the 

violation," and Section 12026 provided for rewards to persons 

providing information leading to the arrest and conviction of 

violators. Ballast water releases were specifically exempted 

from the increased penalties of Section 12023,367 but not from 

the liability or reward provisions, or from Section 6400 itself, or 

the already established penalties.36s In adopting a narrow exemption that applies only to certain penalties for violation of 

Section 6400 by ballast water discharges, the Legislature implicitly recognized the general applicability of Section 6400 and 

its other penalty provisions to ballast water discharges. 

D. REGULATING BALLAST WATER DISCHARGE THROUGH ENVIRONMENTAL REVIEW 

Because of the extensive federal role in the development 

and maintenance of navigational channels and port and harbor 

facilities, the National Environmental Policy Act (NEPA) provides an important opportunity to assess and potentially avoid 

the effects of ballast water transfers in the introduction and 

spread of exotic species. Although NEPA does not contain substantive protections for the environmene69 and applies only to 

federal actions, it does provide an opportunity for both federal 

agencies and the public to assess and consider the relationship 

between ballast water practices, invasions of exotic organisms 

356 See definition of "exotic species" supra note 5. 

357 

See CAL. FISH & GAME CODE § 12023(d) (West 1994). 

358 These already established penalties are imprisionment for up to a year and lor 

a fine of up to $5000. See CAL. FISH & GAME CODE § 12007. Section 12023 increased 

the penalties, for non-ballast water releases of aquatic nuisance species, to imprisonment for six months to a year and/or a fine of up to $50,000. See id. § 12023. 

359 

See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Ctr., 

435 U.S. 519, 558 (1978). 

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and the resulting ecological, economic and public health impacts. The California Environmental Quality Act (CEQA), 

which more broadly applies to any discretionary project approved, financed or carried out by a California state agency,360 

provides a similar opportunity for assessing the effects of nonfederal actions, but additionally provides a level of substantive 

protection that NEP A does not.361 

NEPA, CEQA and their implementing regulations require 

that decision-makers evaluate the potential direct, indirect and 

cumulative impacts of a given action prior to project approval.362 If a given action may have significant impacts then 

an Environmental Impact Statement under NEPA, and/or an 

Environmental Impact Report under CEQA must be prepared 

to assess the project's impacts,363 analyze potential alternatives,364 and consider mitigation measures that could reduce 

significant impacts.365 A single environmental review document 

can be used to satisfy the requirements of both NEPA and 

CEQA. 366 While NEPA does not actually require an agency to 

adopt any mitigation measures, CEQA mandates that "[a] public agency should not approve a project as proposed if there are 

feasible alternatives or mitigation measures available that 

would substantially lessen any significant effects that the project would have on the environment."367 

At least one court has specifically found that under NEP A, 

federal agencies must consider how their actions affect the 

360 See CAL. PuB. RES. CODE §§ 21065, 21063. 

361 See id. §§ 21002, 21081(a). 

362 See, e.g., 42 U.S.C. § 4332(2)(C)(i) (1995). See also 40 C.F.R. § 1508.8(b) (2000) 

and CAL. PuB RES. CODE § 21002.1(a). 

363 See 42 U.S.C. § 4332(2)(C)(i). See also CAL. PuB. RES. CODE § 21080(d) (West 

2000) and CAL. CODE REGS. tit. 14, § 15064 (a)(l) (2000). 

364 See 42 U.S.C. § 4332(2)(C)(iii). See also CAL. CODE REGS. tit 14, § 15126(d). 

365 

See NEPA MIT ADD, CAL. PuB. RES. CODE § 15021 (a)(2). 

366 See Village Laguna of Laguna Beach v. Bd. of Supervisors of Orange County, 

134 Cal. App. 3d 1022 (1982). 367 CAL. PuB. RES. CODE § 15021(a)(2). 

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spread and establishment of exotic species.36B In that case, conservationists successfully challenged an Army Corps environmental review that failed to consider the potential watershed 

effects of zebra mussel colonization following the construction 

of a proposed reservoir. 369 

Over the past two years, eight conservation groups submitted a series of comment letters on the NEPA and CEQA documentation for proposed projects at the Port of Oakland, based 

on impacts related to the discharge of exotic organisms in ballast water. The projects, including a dredging370 and a berth 

expansion project,371 would upgrade and expand the Port's facilities. The conservation groups argue that the projects will 

lead to an increase in the release or establishment of exotic 

species transported in ballast water, in other components of 

ships' seawater systems, or attached to ships' hulls or anchors. 

They further argue that the potential impacts from such exotic 

species introductions have not been adequately analyzed, and 

that feasible mitigations have not been adequately or fairly 

analyzed or adopted. 

Among other issues, the conservation groups claim that the 

projects may lead to larger numbers of exotic organisms being 

introduced, to exotic organisms from different source regions 

being introduced, and to exotic organisms arriving from overseas in better condition after more direct and, therefore, 

shorter voyages.

372 They also argue that the proposed dredging 

368. . . See Hughes RIVer Conservancy v. Ghckman, 81 F.3d 437 (4th Clr. 1996). 

369 

See id. 

370 . 

See, e.g., U. S. ARMY CORPS OF ENGINEERS, ET AL., OAKLAND HARBOR NAVIGA· 

TION IMPROVEMENT (-50 FOOT) PROJECT, FINAL ENVIRONMENTAL IMPACT STATE· 

MENT/ENVIRONMENTAL IMPACT REPORT, VOLUME II (May 1998) [hereinafter Final EIR, 

Oakland Harbor). 

371 

See, e.g., PORT OF OAKLAND, ET AL., BERTHS 55·58 PROJECT, DRAFT ENVIRON· 

MENTAL IMPACT REPORT, VOLUME 1: MAIN TEXT (Dec. 11, 1998) [hereinafter Port of 

Oakland, Berths Project Vol. n. 

372 See Letter from Warner Chabot, Dlrector, ..• Center for Manne Conservabon, 

Pacific Region and seven other organizations to Gail Staba, Environmental Planning 

Department, Port of Oakland 3 (Mar. 4, 1998) (on file with author). See also Letter 

from Warner Chabot, Director, Center for Marine Conservation, Pacific Region and 

eight other organizations to Eric Jolliffe, U. S. Army Corps of Engineers, San Francisco 

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and emplacement of dredged sediments may lead to an increased rate of establishment of exotic species by creating disturbed and defaunated (and therefore vulnerable) habitat adjacent to areas where ballast water is released. 373 They further 

suggest that the projects may be inconsistent with various 

statutes, including CWA sections 303(d), 401 and 402, ESA, the 

Marine Mammal Protection Act, Porter-Cologne, and sections 

of the California Fish and Game Code.374 In response, the Port 

expanded its discussion of the potential impacts from the discharge of exotic organisms in ballast water, 375 and adopted 

mitigations including a mandatory ballast water exchange ordinance for vessels using its facilities. 376 However, the conserDistrict 11 (Mar. 30, 1998) (on file with authors). See Letter from Warner Chabot, 

Director, Center for Marine Conservation, Pacific Region, and eight other organizations 

to Robert McIntyre, Review Manager, U.S. Army Corps of Engineers, Policy Review 

Branch 2, 5, 11-12 (June 19, 1998) (on file with authors). See also Letter from Linda 

Sheehan, Pollution Program"Manager, Center for Marine Conservation, Pacific Region 

and seven other organizations to Richard Sinkoff, Supervisor, Environmental Planning 

Department, Port of Oakland 5, 9-10 (Jan. 28,1999) (on file with authors). 

373 See Letter from Warner Chabot to Robert McIntyre, supra note 372, at 2, 5, 12. 

See also Letter from Linda Sheehan to Richard Sinkoff, supra note 372, at 5, 9. See 

Letter from Linda Sheehan, Pollution Program Manager, Center for Marine Conservation, Pacific Region and seven other organizations to Jon Amdur, Port of Oakland 8 

(Oct. 20, 1999) (on file with authors). 

374 

See Letter from Warner Chabot to Eric Jolliffe, supra note 372, at 20-23. Letter 

from Deborah A. Sivas, Stanford Environmental Law Clinic to Lt. General Joe N. Ballard, Chief of Engineers and Commander, U. S. Army Corps of Engineers and Lt. Colonel Peter T. Grass, U. S. Army Corps of Engineers, San Francisco District (Jan. 6, 

1999) (on file with authors). See Letter from Linda Sheehan to Richard Sinkoff, supra 

note 372, at 6, 18-19. 

M5 " 

See Final EIR, Oakland Harbor supra note 370, at Appendices N through V, 

and Appendix X: Responses to Comments. See also Port of Oakland, Berths Project Vol. 

I supra note 371, at 3.6-14, 3.6-25 to 3.6-28, and 3.6-31 to 3.6-33. See PORT OF OAK· 

LAND, ET AL., BERTHS 55-58 PROJECT, DRAFT ENVIRONMENTAL IMPACT REPORT, VOLUME 2: APPENDICES APP. F1 (Dec. 11, 1998) [hereinafter Port of Oakland, Berths Project 

Vol. II]. PORT OF OAKLAND, BALLAST WATER MANAGEMENT STUDY. BERTHS 55-58 

PROJECT, FINAL ENVIRONMENTAL IMPACT REPORT, VOLUME III: RESPONSE TO COMMENTS 3-67-3-78 (Apr. 8, 1999) [hereinafter Port of Oakland, Berths Project Vol. III]. 

PORT OF OAKLAND, OAKLAND HARBOR NAVIGATION IMPROVEMENT (-50 FOOT) PROJECT, 

REVISIONS TO THE FINAL ENVIRONMENTAL IMPACT REPORT. PORT OF OAKLAND 15-16 

(Sept. 1999). 376 See Port of Oakland, Berths Project Vol. I supra note 371, at 3.6-31 to 3.6-32. 

See also Port of Oakland, Berths Project Vol. II supra note 375, at app. F2. Port of 

Oakland, Berths Project Vol. III supra note 375, at 3-73 to 3-76. Dennis Cuff, Port 

Aims to Protect Bay Species, SAN JOSE MERCURY NEWS, Oct. 6, 1998, at Bl. 

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vation groups do not consider this to be adequate mitigation,377 

and could challenge the projects. 

While neither NEPA or CEQA can be expected to bear the 

brunt of ballast water reform, both can provide a much needed 

opportunity to consider the effects of ballast water discharges 

of exotic organisms on everything from shellfish production to 

endangered species.378 CEQA's substantive requirement to 

adopt any feasible alternatives or mitigation measures that 

would substantially lessen the project's significant environmental impacts, and the potential for delay in project implementation under NEPA or CEQA if environment assessment 

and documentation has to be redone and recirculated for public 

comment, may lead project proponents to adopt mitigations 

such as requirements for ballast water exchange or treatment. 379 Assessing the potentially serious effects of invasions of 

exotic organisms through the CEQA or NEPA process may also 

help persuade states or the federal government to require 

treatment of ballast water-an action that may appear more 

reasonable when decision makers are forced to balance the eco377 

See Letter from Linda Sheehan to Richard Sinkoff, supra note 372, at 2-3, 5-6, 

and 11-18. See also Letter from Linda Sheehan to Jon Amdur, supra note 373, at 2 and 

9-12. The CEQA documentation for the berth expansion project was certified in April, 

1999 and the opportunity to file suit has passed. Telephone interview with Jody 

Zaitlin, Port of Oakland (Dec. 1999). A challenge to this project's environmental documentation under NEPA, or to the dredging project's documentation under NEPA or 

CEQA, remain possible. Telephone interview with Michael Lozeau, Staff Attorney, 

Earthlaw (Jan. 2000). 

378 

In Oregon, where the Army Corps has refused to consider the effects of ballast 

water discharges and the release of exotic organisms that could result from a proposed 

channel deepening project, NEPA is principally being used to get the Corps to recognize that there is an issue. 

379 

As noted supra Part II.A.3, recent legislation bars state agencies from imposing 

additional requirements on ballast water discharges prior to Jan. 1, 2004. See CAL. 

PuB. RES. CODE § 71207(a) (West 2000). However, the analysis and disclosure of environmental impacts resulting from a proposed project, including impacts resulting from 

changes in ballast water discharges caused by a project, would still be required under 

CEQA. Furthermore, while state agencies might be barred from imposing CEQA's 

substantive mitigation requirement, in practice CEQA's requirements are frequently 

invoked through lawsuits filed by individuals, non-governmental organizations or local 

governments. Such actions would not be restricted, nor would the courts be barred from 

imposing restraining orders or injunctions on projects whose environmental analyses 

and documentation or whose mitigations with regard to ballast water discharges fail to 

satisfy CEQA. 

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nomic and environmental risks of invasions against the economic incentives to increase shipping and thus, ballast discharges. 

E. REGULATING BALLAST WATER DISCHARGE AS A COASTAL 

ZONE MANAGEMENT ISSUE 

In part, California manages actiVities in the coastal zone by 

regulating land use and by setting conditions on leases of stateowned tidelands. State statutes and policies direct agencies to 

manage these uses to support various objectives, including the 

protection of natural resources, native species, water quality 

and other public benefits. In some cases, this may require 

managing the discharge of ballast water associated with those 

land uses. 

1. The California Coastal Zone 

Planning and development within the California coastal 

zone is managed under the authority of the California Coastal 

Act,380 (hereinafter "Coastal Act") which requires proposed developments in the coastal zone to obtain a coastal development 

permit.381 The Act created the California Coastal Commission 

(CCC) to oversee the planning and permitting process.382 In 

addition, the federal Coastal Zone Management Act (CZMA) 383 

requires federal actions to be consistent with the policies of the 

Coastal Act. 

The coastal zone is defined on a set of maps, and generally 

includes the land and water "extending seaward to the state's· 

outer limit of jurisdiction,384 including all offshore islands, and 

extending inland generally 1,000 yards from the mean high 

tide line of the sea" (exclusive of the jurisdiction of the San 

Francisco Bay Conservation and Development Commission, 

380 

See CAL. PuB. RES. CODE §§ 30000-30900 (1996). 

381 . See·td. § 30600. 

382 See id. §§ 30300-30344. 

383 See 16 U.S.C. § 1451 (2000). 

384 Three miles from shore. 

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which is described in the next section).385 The coastal zone extends further inland in "significant coastal estuarine, habitat 

and recreational areas" and less far inland in developed urban 

areas.386 Within this zone, permits for developments on "tidelands, submerged lands, and public trust lands" are issued by 

the CCC.387 Permits for developments in specified port areas 

and other land areas may be issued by, the relevant port governing body in conformity with a certified port master plan,368 

or the relevant local government in conformity with a certified 

local coastal program.389 Port master plans and local coastal 

programs are reviewed and certified by the CCC.390 In the absence of a certified plan or program, coastal development permits are issued by the CCC.391 The Coastal Act defines developments to include: 

the placement or erection of any solid material or 

structure; discharge or disposal of any dredged 

material or of any gaseous, liquid, solid or thermal waste ... change in the density or intensity of 

use ofland ... change in the intensity of use of water ... [and] construction, reconstruction, demolition, or alteration of the size of any structure[.]392 

Development permits are to be issued, and port master plans 

and local coastal programs certified, only if they are consistent 

with the policies of the Act.393 

385 

CAL. PuB. RES. CODE § 30103(a). 

386 [d. 

387 [d. §§ 30519, 30600. 

388 See id. §§ 30700-30721. The specified port areas are the Ports of Hueneme, 

Long Beach, Los Angeles and San Diego. 

389 See CAL. PuB. RES. CODE §§ 30500-30504 (West 2000). 

390 See id. §§ 30512.1, 30514, 30702, 30714, 30716. 

391 See id. §§ 30600, 30715. 

392 [d. § 30106. 

393 . 

See id. §§ 30200(a), 30512.2, 30714, 30715.5, 30716(c). The policies are described in Chapter 3 of the statute. See id. §§ 30200-30265.5. 

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The Coastal Act's policies state that "[m]arine resources 

shall be maintained, enhanced, and, where feasible, restored" 

and that "[u]ses of the marine environment shall be carried out 

in a manner that will sustain the biological productivity of 

coastal waters and that will maintain healthy populations of all 

species of marine organisms adequate for long-term commercial, recreational, scientific, and educational purposes.,,394 

Coastal water quality is also to be maintained or restored to 

maintain optimum populations of marine organisms and protect human health "through, among other means, minimizing 

adverse effects of waste water discharges." 395 The policies further state that diking, filling, or dredging for new or expanded 

port facilities, or to maintain or restore the depth of navigational channels, turning basins, or vessel berthing and mooring 

areas shall be permitted "where feasible mitigation measures 

have been provided to minimize adverse environmental effects."396 Finally, where conflicts arise between different policies in the Act they are to be "resolved in a manner which on 

balance is the most protective of significant coastal resources. "397 

Although the Coastal Act does not directly apply to federal 

agencies, under the CZMA any federal agency action (which 

includes activities directly undertaken by federal agencies, including development projects, as well as federal licensing, permitting or funding of activities conducted by others) that affects natural resources within the coastal zone is to be "carried 

out in a manner which is consistent to the maximum extent 

practicable with the enforceable· policies" of the Coastal Act. 398 

For example, activities undertaken, licensed, permitted or 

394 Id. § 30230. 

395 CAL. PuB. RES. CODE § 30231 (West 2000). 

396 Id. § 30233(a). 

397 Id. § 30007.5. 

398 . See 16 U.S.C. §§ 1456(c), (d) (2000). A federal agency undertaking an activity 

that affects natural resources within the coastal zone is required to provide the State 

with a consistency determination at least 90 days before final approval of the activity. 

In addition, any applicant for a required federal license or permit, or using federal 

funding, to conduct such an activity is required to provide a certification of compliance 

with the Coastal Act's policies. See id. § 1456(c)(3)(A). 

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funded by federal agencies in waters outside of the state's jurisdiction but affecting natural resources within the state's jurisdiction are required by the CZMA to be in conformance with 

the Coastal Act's policies.399 

Developments resulting in the introduction of exotic organisms into the coastal zone violate the policies of the Coastal Act 

to the extent that such organisms degrade marine resources, 

reduce biological productivity, harm populations of marine organisms that are of commercial, recreational, scientific or educational interest, or affect human health. As discussed earlier, 

exotic organisms introduced in ballast water discharges may 

have these effects. The CCC has on occasion explicitly recognized that the introduction or persistence of exotic organisms 

conflicts with the policies of the Act by including conditions in 

coastal development permits that restrict plantings to native 

species or require the removal of exotic plants.4oo 

The Coastal Act establishes the authority for state permitting of ballast water discharges of exotic organisms in two 

ways. First, coastal development permits are required for port 

or terminal projects, channel dredging projects and other types 

of projects that may affect shipping. To the extent that these 

projects affect the volumes, sources or condition of ballast water discharges, and may increase the number or diversity of 

exotic organisms released or established, they would conflict 

with the Act's policies. Permit conditions for such projects may 

thus require that measures be taken to control ballast discharges. 401 Second, since ballast water discharges are dis399 See id. §§ 1456(c), (d). Telephone interview with T. Grove, Deputy Director, 

California Coastal Commission (1999). 

400 ... Telephone mtervlew With T. Grove supra note 399. 

401 See CAL. PuB. RES. CODE §§ 30200(a), 30233(a), 30714, 30715.5 (West 2000). 

AB noted in Part II.A.3, recent legislation bars state commissions such as the cec from 

imposing additional requirements on ballast water discharges under the Coastal Act or 

other state laws prior to Jan. 1, 2004. See CAL. PuB. RES. CODE § 71207(a). However, 

the CCC could take steps short of imposing requirements, such as developing, proposing and holding hearings on language for permit requirements that would go into effect 

on or after that date. In addition, since the federal CZMA requires that projects permitted, funded or undertaken by federal agencies conform with the policies of the Coastal 

Act, comment or action by the CCC on these projects would not be barred. Penalties 

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charges of a liquid waste, they qualify as a development under 

the Act's definition402 and require a permit. In addition, under 

the CZMA's consistency requirements,403 actions undertaken, 

licensed, permitted or funded by federal agencies that would 

increase the exotic organisms released or established via ballast discharges may required amendment or mitigation. 

2. San Francisco Bay Region 

The San Francisco Bay Conservation and Development 

Commission (BCDC) was created by California's McAteerPetris Aceo4 and receives its authority from that Act, the Suisun Marsh Preservation Act,405 and the federal CZMA.406 BCDC 

has permitting authority over dredging, filling and substantial 

changes in use within its jurisdiction,407 which includes all of 

San Francisco Bay within reach of the tides.408 Suisun Marsh 

also grants BCDC permitting authority over marsh developments as defined within the primary management area, and 

appeal authority from local government decisions concerning 

marsh developments within the secondary management area.409 

BCDC's authority applies to both private parties and nonfederal agencies.410 In addition, under the CZMA,. any federal 

agency activity or activity licensed, permitted or funded by a 

may also be imposed by the superior court for violations of the Coastal Act. See CAL. 

PuB. RES. CODE § 30820. 402 

See CAL. PuB. RES. CODE § 30106. 

403 

See 16 U.S.C. §§ 1456(c), (d). 

404 

See CAL. GoV'T CODE §§ 66600-66682 (West 1997). 

405 

See CAL. PuB. RES. CODE §§ 29000-29612. 

406 

See 16 U.S.C. § 1451 (2000). 

407 

See CAL. GoV'T CODE § 66632(a) (West 1997). 

408 

BCDC's jurisdiction consists of all areas subject to tidal action within San 

Francisco Bay from the Golden Gate to the Sacramento River plus certain tributary 

creeks and rivers, including all sloughs, marshlands, tidelands and submerged lands 

up to five feet above mean sea level; plus salt ponds and managed wetlands diked off 

from the bay and maintained in use during the three years prior to the 1969 amendment of the McAteer-Petris Act; plus a shoreline band within 100 feet landward of the 

San Francisco Bay shore. See id. § 66610. 409 

See CAL. PuB. RES. CODE § 29000-29612 (West 2000). 

410 

See CAL. GoV'T CODE § 66632(a). 

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federal agency that affects land or water use or natural resources within BCDC's jurisdiction, and any activity or development project undertaken by a federal agency within BCDC's 

jurisdiction, must be consistent with BCDC's enforceable policies. 411 

BCDC will not issue permits to projects that do not conform . 

with the provisions and policies of the McAteer-Petris Act and 

the San Francisco Bay Plan.412 Permits may be granted subject 

to "reasonable terms and conditions" to meet the purposes of 

the Act and the Plan. 413 BCDC may issue cease and desist orders to block unpermitted projects or activities inconsistent 

with an issued permit, 414 may seek enforcement by injunction, 

415 and may seek or impose penalties for violations.416 

Projects resulting in the introduction of exotic species into 

the Bay would likely be inconsistent with the Bay Plan. For 

example, an objective of the plan is to "protect the Bay as a 

great natural resource for the benefit of present and future 

generations." 417 If the long-term protection of this resource implies maintaining it in something approximating its natural 

state, then the establishment or spread of exotic organisms 

would violate that objective~ The Bay Plan's policies state that 

marshes, mudflats, fish and wildlife benefits, habitats needed 

to prevent the extinction of any species, and habitats needed to 

maintain or increase species that provide substantial public 

411 

See 16 U.S.C. §§ 1456(c), (d). Consistency determinations or certifications must 

be provided for relevant activities undertaken, licensed, permitted or funded by federal 

agencies. 

412 

See CAL. GoV'T CODE § 66632(0 and San Francisco Bay Plan 1998 at cover 

letter. The Bay Plan was adopted in 1968 and is currently undergoing its first comprehensive revision. BCDC staff is considering recommending the inclusion of policies on 

exotic species. Interview with Leora Elazar, BCDC Coastal Program Analyst (Sept. 

1999). Within the shoreline band, BCDC may deny a permit only for failing to provide 

adequate public access to the bay and its shoreline. See CAL. GoV'T CODE § 66632.4. 

413 

See CAL. GoV'T CODE § 66632(0 (West 1997). 

414 

See id. §§ 66637, 66638. 

415 

See id. § 66640. 

416 

See id. §§ 66641, 66641.5. 417 • San FranCISCO Bay Plan 1998 at 7. 

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benefits are to be protected, maintained or restored. 418 As exotic 

species may have harmful impacts on fish and wildlife and may 

substantially alter marsh, mudflat and other aquatic and wetland habitats, their introduction would violate these policies. 

The Bay Plan's policies also state that water pollution 

should be avoided, that water quality should be maintained in 

all parts of the bay, and that BCDC's actions with regard to 

water quality should be based on the "policies, recommendations, decisions, advice and authority" of the State Water Resources Control Board and San Francisco Bay RWQCB.419 Since 

these agencies have listed the Bay as water-quality limited for 

exotic species discharged in ballast water,420 a project that increased the release of exotic species in ballast water would 

clearly violate the Bay Plan. 

Thus, if a project that involved dredging, filling or a substantial change in use can be reasonably expected to contribute 

to the introduction or spread of an exotic species, BCDC could 

deny a permit to the project or could require mitigation of that 

impact as a permit condition.421 These circumstances would 

arise with a project creating or expanding a marine port or 

terminal, or dredging a waterway, if the likely result would be 

an increase in the amount of ballast water discharged into San 

Francisco Bay, a change in the source of the ballast water, or a 

decrease in the travel time for the ballast water.422 Appropriate 

418 

See San Francisco Bay Plan 1998 at 9-10, 12-13. 

419 San Francisco Bay Plan 1998 at 11. 

420 . See supra Part II.B.1.a.i1. 

421 AB noted supra Part II.A.3, recent legislation bars state commissions such as 

BCnC from imposing additional requirements on ballast water discharges under 

McAteer-Petris or under other state laws prior to Jan. 1, 2004. See CAL. PuB. RES. 

CODE § 71207(a) (West 2000). However, BCnC could take steps short of imposing requirements, such as developing, proposing and holding hearings on language for 

permit requirements that would go into effect on or after that date. In addition, since 

the federal CZMA requires that projects permitted, funded or undertaken by federal 

agencies conform with the policies of state law including McAteer-Petris, comment or 

action by BCnC on these projects would not be barred. 422 Since the number and diversity of organisms in a ballast tank generally decreases dramatically over the course of a voyage (see discussion supra Part I.C), reduc91

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mitigation might involve requiring the exchange or treatment 

of the ballast water that would arrive at the facility or pass 

through the dredged waterway, or adopting an exotic species 

response plan, including both strategy and funding for controlling existing or future invasions. 

Violations of the Bay Plan's policies could also arise from 

projects that alter portions of the San Francisco Bay environment so as to encourage the establishment or spread of exotic 

organisms. This could occur with projects that dredge or deposit sediment in the bay, to the extent that this creates disturbed habitat or habitat with a depauperate biota, since such 

habitat may be especially vulnerable to the establishment or 

spread of exotic species. 423 The creation of such readilyinvasible habitat may be of particular concern in areas where 

exotic organisms are regularly released, such as dredging or 

filling done in or near a port where ballast water is discharged. 

Appropriate mitigation might involve requiring the exchange 

or treatment of the ballast water until such time as the disturbed or depauperate habitat has been fully colonized by extant organisms in the bay. 

3. State Tidelands Leases and Marine Terminal Regulation 

The State Lands Commission (SLC) was established to 

manage lands owned by the State of California. 424 These lands 

include tidelands and submerged lands from the mean hightide line to three miles from shore, swamp and overflow lands, 

ing the ballast water's travel time would tend to increase the number and diversity and 

improve the condition of the organisms released in the discharge. 

423 

See CHARLES S. ELTON, THE ECOLOGY OF INVASIONS By ANIMALS AND PLANTS 

117 (1958). See generally Robert A. Leidy & Peggy L. Fiedler, Human Disturbance and 

Patterns of Fish Species Diversity in the San Francisco Bay Drainage, California 33 

BIOLOGICAL CONSERVATION 247-267 (1985). See also F. H. Nichols, et al., Remarkable 

Invasion of San Francisco Bay (California, USA) by the Asian Clam Potamocorbula 

Amurensis, II. Displacement of a Former Community, 66 MAR. ECOL. PROG. SER. 95, 

100 (1990). Essentially, all dredging or filling activities within the Bay would likely 

leave disturbed and depauperate sediment surfaces vulnerable to colonization by exotic 

organisms, unless the top surface of the dredged channel or emplaced fill consisted of 

highly toxic sediments or other material that organisms could not live on. 424 

See CAL. PuB. RES. CODE §§ 6001-6465 (West 1977). 

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and the beds of naturally navigable rivers, streams and lakes.425 

Where ports have been constructed on such lands, the land title 

has been conveyed to the local government managing the port, 

but about twenty privately-owned marine terminals are constructed in part on land leased from the SLC.426 The SLC holds 

these lands in trust and has an affirmative duty to manage 

them in accordance with the public trust doctrine, which includes protecting "the people's common heritage of streams, 

lakes, marshlands and tidelands.,,427 The SLC is authorized by 

statute to include lease terms and conditions that it believes to 

be in the best interests of the state.428 

The SLC is also directed by statute to adopt rules, regulations, guidelines and leasing policies addressing "the location, 

type, character, performance standards, size, and operation of 

all existing and proposed marine terminals within the state, 

whether or not on lands leased from the commission [, to] provide the best achievable protection of public health and safety 

and the environment.,,429 Marine terminals are required to prepare and submit, for SLC approval, an operations manual describing the equipment and procedures used to achieve these 

goals.430 Vessels docked at the facilities are required to comply 

with the terms of the manual,431 and the SLC is empowered to 

inspect and monitor terminals with respect to these goals.432 

Thus, when the SLC leases state lands for marine terminals 

or other navigational improvements, it has the statutory au425 See STATE LANDS COMMISSION, DELTA-ESTUARY, CALIFORNIA'S INLAND COAST: A 

PuBLIC TRUST: REPORT 2 151 (1991). 

426 Telephone interview with Mark Meier, Attorney, State Lands Commission 

(1999). 

427 National Audubon Society v. Superior Court, 33 Ca1.3d 419 (1993). 

428 See CAL. PuB. REs. CODE § 6501.2. 

429 [d. §§ 8755(a), 8756. A marine terminal is defined as "any marine facility used 

for transferring oil to or from tankers or barges." [d. § 8750(h). This includes most 

shipping terminals in California. 

430 

See id. § 8758(a). 

431 . See zd. § 8758(g). 

432 • See zd. § 8757(a). 

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thority and potentially a public trust duty to include terms that 

protect wildlife and natural resources, and a statutory responsibility to develop leasing policies for marine terminals that 

protect public health and the environment. 433 In addition, the 

SLC is responsible for developing and monitoring regulatory 

requirements for all marine terminals, whether or not on land 

leased from the SLC, that protect public health and the environment. 434 So, for activities on land leased from the SLC that 

involve ballast discharges, or for marine terminals whose operations could result in the release of exotic species in ballast 

discharges that could in turn affect public trust uses, public 

health or the environment, the SLC has the authority and possibly the legal obligation to write lease terms and adopt regulations that require ballast water management.435 Inclusion of 

such terms in marine terminal leases has been considered in a 

few cases. 436 In addition, existing lease terms prohibiting the 

433 See id. § 8755(a). In addition, issuing or renewing such leases is a discretionary 

action on the part of the SLC, and thus triggers an environmental review under CEQA. 

Interview with John Lien, Environmental Division, State Lands Commission (1999). 

Lease terms addressing the management of ballast water discharges could thus be 

used to satisfy CEQA requirements for mitigation of significant impacts. See discussion supra Part II.D. 

434 See CAL. PuB. RES. CODE §§ 8755(a), 8756, 8757(a) (West 2000). 

435 As noted in the discussion supra Part 1I.A.3, recent ballast water legislation bars 

commissions such as SLC from imposing additional requirements on ballast water 

discharges prior to January 1, 2004. See id. § 71207(a). However, SLC could write 

leases with a "reopener" clause, or could develop leasing policies, that would allow 

terms requiring ballast water management to be included after that date; and similarly 

could develop rules, regulations or guidelines related to ballast water management 

that it would expect to be incorporated into marine terminal operations manuals after 

that date. In addition, the above-mentioned legislation may not bar SLC from essentially exercising the right of a property owner by offering protective lease terms and 

conditions, in contrast to adopting a regulatory requirement. Finally, the SLC would 

not be barred from taking actions compelled by the public trust doctrine. 

436 The Environmental Impact Report for an oil terminal in San Francisco Bay proposed that the potential impacts from releasing exotic organisms in ballast water could 

be mitigated by prohibiting tankers using the terminal from discharging ballast water 

into the bay and requiring instead that all ballast water (segregated as well as unsegregated) be off-loaded to the terminal's on-shore wastewater treatment facility. See 

generally DRAFT ENVIRONMENTAL IMPACT REPORT FOR CONSIDERATION OF A NEW 

LEASE FOR THE OPERATION OF A CRUDE OIL AND PETROLEUM PRODUCT MARINE TERMINAL ON STATE TIDE AND SUBMERGED LANDS AT UNOCAL'S SAN FRANCISCO REFINERY, 

OLEUM, CONTRA COSTA COUNTY 4.4-2, 4.4-4 (March 1994) (report prepared for State of 

California State Lands Commission). This requirement was not included in the terms 

of the lease, however. In 1997, the environmental review of the lease application for 

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discharge of pollutants could possibly be applied to ballast discharges of exotic organisms.437 

CONCLUSION 

Until quite recently, policymakers and regulators generally 

viewed ballast water discharges as harmless. Over the last few 

decades, however, scientific research and several dramatic ballast water invasions have made it abundantly clear that this 

view was incorrect. Events have repeatedly demonstrated that 

ballast water discharges can result in substantial damage to 

ecosystems, to economic activities, and even to public health. 

But because of our earlier mistaken view, we approach the 

close of the twentieth century with virtually no regulation of 

these potentially harmful discharges. Our review of the facts 

concerning ballast discharges and the scope of existing laws 

suggests that the current situation can be summarized as follows. 

Despite the very limited amount of research that has been 

done on treating ballast water to remove or kill exotic species, 

it is clear that the basic technology to do so exists. Our long 

experience as a modern society with disinfecting drinking water supplies and wastewater flows has provided us with a 

plethora of well-developed tools for killing organisms in large 

volumes of water. More recent technologies may eventually 

provide us with even more efficient approaches. Even applying 

only those methods that are being used to treat water and 

wastewater today, it is well within our ability to substantially 

reduce, if not eliminate, the discharge of exotic organisms in 

ballast water. 

Chevron's Estero Marine Terminal was assessing the release of exotic species in ballast 

water for potential impacts and mitigation measures when the lease application was 

withdrawn. Telephone interview with John Lien, State Lands Commission, Environmental Division (1999). 

437 Telephone interview with Mark Meier, Attorney, State Lands Commission 

(1999). 

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With the recent recognition of the damage that can result 

from the release of exotic species in ballast water discharges, 

science and common sense dictates a need for prompt regulatory action. There is, however, a long history of inaction to 

overcome. This includes a few regulatory missteps-a prime 

example being the EPA's 1973 adoption of a regulation exempting ballast water discharges from the Clean Water Act's permit 

requirements. This exemption, though illegal on its face, was 

adopted at the time because the EPA believed that ballast water discharges were harmless. Given what is now known about 

their impacts, if the EPA were to approach the issue anew, it 

clearly would have no basis for adopting such an exemption. 

Neither does there appear to be any legal or scientific rationale 

for maintaining it. 

On the other hand, the shipping industry has been discharging ballast water without oversight or regulation for over a century, and not surprisingly the industry is now rather resistant 

to the imposition of regulations. The contrast between the past 

lack of regulations and the current regulatory need is great, 

and the resulting potential for conflict is substantial. In these 

circumstances the legislative response, not surprisingly, has 

been rather timid, marked more by rhetoric than by action. 

Thus, in 1996 Congress passed a much-publicized national law 

on ballast water which, when carefully parsed, merely makes it 

officially voluntary for the shipping industry to do anything 

about its ballast water discharges. 

At the core of the body of relevant law are laws regulating 

the discharge of pollutants into the nation's and states' waters. 

Under the usual definitions in these laws, ballast water discharges are waste discharges, and exotic species, which are 

frequently contained in ballast water, are biological pollutants. 

These laws generally prohibit such waste discharges without a 

permit, which set limits on the concentrations or total loads of 

pollutants that may be discharged. In the case of exotic species, which can reproduce and spread in the environment, the 

permissible discharge under these laws is likely to be zero. 

There are several additional types of laws-pertaining to 

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mental impacts, and coastal zone management-that may in 

certain circumstances supplement or substitute for the regulation of ballast water by water pollution control statutes. These 

types of laws usually come into play at the time that proposed 

projects are adopted, approved or permitted by government 

agencies, and are applicable to such projects as the development or modification of shipping ports or terminals, navigable 

waterways, ship locks and navigation aids, harbor improvements, or other projects which may result in changes in the 

volumes, sources or patterns of ballast water transported and 

discharged. Challenges are likely to be brought under these 

laws if adequate and effective regulation of ballast water discharges is not implemented under water pollution or other 

laws, and in some cases such challenges are likely to result in 

delays or denials of permits or approvals for projects. 

Although not discussed in this article, a potential additional 

layer of legal redress exists under the common law theories of 

liability including tort, nuisance and negligence. If government 

agencies do not use their available authorities to effectively 

regulate the release of exotic species in ballast water, we are at 

some point likely to see lawsuits filed against the shipping industry for recovery of the costs of damages caused by these species and recovery of the costs of containment and eradication. 

As we have seen from recent invasions in aquatic ecosystems, 

the costs resulting from the introduction of even a single, particularly harmful organism may amount to several billions of 

dollars. Thus-besides protecting native ecosystems and public 

health-implementing technologies to prevent the release of 

exotic organisms in ballast water could prove to be a wise investment for the shipping industry. 

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