# 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

ByANDREW 

## N. COHEN'AND BRENTFOSTER"

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 ifthey don't immediately load more ballast into the re-entryvehicle they'll be bounced back out ofthe atmosphere to drift through space forever. "Ballast?" ask the

,Environmental Scientist, SanFrancisco EstuaryInstitute, 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 BayConservation andDevelopmentCommission), Tami Grove (California Coastal Commission), Russell Harding (Oregon Department ofEnvironmental 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 ofRhode Island), Alison Rieser (University ofMaine School ofLaw), Linda Sheehan (Centerfor Marine Conservation) andJodyZaitlin(PortofOakland)for providing information and/or reviewing the manuscript. The Rose Foundation and a Switzer Environmental Leadership Grant, through the San Francisco Foundation, provided supportto Mr. Cohen. 

### " Mr. Fosteris a public·interestenvironmental attorneyinPortland, Oregon; J.D., Northwestern School of Law, Lewis and Clark College; B.S. (Ecology) and B.A. (Environmental Science), University ofCalifornia (Santa Barbara). Mr. Fosterthanks CraigJohnston (Pacific Environmental Advocacy Center) and the numerous biologists who improvedhis understandingofthe effects ofexotic species.



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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-entrymodule to increase its weight. 1


## Thus, the practice ofadjusting 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 ofsailing ships into the era ofstarships. Ballastdumping
came under regulatory control duringthe 19thcentury, 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 preventthe fouling ofwaters.2 

## "Ballastgrounds"were set up where ballast could be legally disposed of, and professional "ballasthaulers" and guilds of"ballastheavers" serviced the merchant shippingindustry.3 Even onAmerica's wild frontier, laws and regulations prohibited the dumping of ballast into harbors, although as Richard HenryDanareported 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 ofthat changed, however, toward the end ofthe

1 APOLLO 13 (Universal Pictures 1995).

2 See United Statesv. Standard Oil Co., 384 U.S. 224, 226-227 (1966) (discussing a numberofstatutesrelatingto restrictingballastdischarges datingbackto 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 Ballastin Navigable Waters").

3 See James T. Carlton, History, Biogeography, and Ecology of the Introduced Marine and Estuarine Invertebrate ofthe Pacific Coast ofNorth America 63-65 (1979) (unpublished Ph. D. thesis, University ofCalifornia (Davis)) (on file with the UniversityofCalifornia (Davis) Library). 4 Dana describes the usual practice for disposing ofballast at BallastPoint in San Diego in 1836 as follows: "[W]e were turned-to, heavingoutballast. Aregulation ofthe port forbids any ballast to be thrown overboard; accordingly, our long-boat was [used]

...butwhere one tub-full wentinto theboat, twenty wentoverboard. Thisisdone by every vessel [.]" RICHARD HENRY DANA, Two YEARS BEFORE THE MAST, ch. 29 (1840).



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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 ofships by gangs oflaborers. 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 notharmless. Ballastwateris 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 ofthe last one, and to at last bring ballast water discharges under appropriate regulatory control. Although severalbouts oflimitedlegislative 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 ofattention and experi5 This article uses the terms "exotic species" or "exotic organism" to referto a species or organism that has been transported into an ecosystem outside ofits 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 ofwhich 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 thatthreatens the diversity or abundance of native species or the ecological stability ofinfested waters, or commercial, agricultural
orrecreational activities dependenton such waters[.J" [d. § 4702(1). In slightly different words, California statutes describe "a non-indigenous species that threatens the viability or abundance ofa native species, the ecological stabilityofwatersinhabitedby those species, or the viability ofcommercial, agricultural, aquacultural, orrecreational activities which depend on those waters[.J" CAL. FISH & GAME CODE § 6431 (West 1994). More-or-Iess similarterms are injurious, harmful, pestorweed species. See D. M. Whalin, The Control of AquaticNuisance Nonindigenous Species, 5(1) ENVTL. LAw. 68-127 at 70-77 (1998) !hereinafterWhalin,Nuisance Nonindigenous SpeciesJ.



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mentation in ballast water regulation, including a spate ofrecent marine and freshwater invasions, the publication ofsome key scientific studies, substantial public and media interest in the phenomenon ofinvasions, aggressive work by a few environmental organizations, and, possibly, a more activist approach by the government agencies responsible for the protection ofnatural resources. These factors warrant a close examination ofthe legal authorities for ballast regulation in California.

In Part I ofthis 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 ofinternational, federal and state laws that have tried to address ballast discharges ofexotic organisms as a shipping issue. We then consider the potential for regulating ballast discharges under federal and state laws aimed at controlling waterpollution, protectingwildlife, ensuringthe assessment, disclosure and mitigation ofenvironmental 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. BALLASTWATER DISCHARGES AND BIOLOGICAL INVASIONS 

## A. THE ROLE OF BALLASTWATER 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; orraise the propeller

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so thatitis insufficientlyimmersed. 6 

## Atthe start ofa voyage a ship may take on large quantities ofwater-ofwhateverwater the ship is floating in, fresh water ifin a river port, and salt water ifin the sea-in order to lower the ship to a safer and
more efficient position in the water. At the end ofthe voyage the ship will then discharge this ballast water into a new port or coastal region (perhaps thousands ofmiles from its source) before loadingcargo. Ballastwateris also loaded ordischarged 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 loweringitto getunderbridges orcranes. 7



## Ballastwater enters a ship through intake ports located below the water line. These are typically covered with grates or strainer plates with openings ofabout halfan 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 OFTRANSPORTATION 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 ofExotic Organisms into the San Francisco Estuary: Current Status ofthe Problem and Options for Management (1998) !hereinafter Cohen, CALFED Bay Delta Program). 7 .

See £d.

BSometimesthe openings are larger eitherbecausethey've beenenlargedbycorrosion or because the strainer plate has fallen off. See e.g., James T. Carlton, Transoceanic and Interoceanic Dispersal ofCoastal 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,ReportNo.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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wateris generallycarriedin 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 ofmillions ofgallons ofballastwater. 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 offthe inside walls ofthe tank, and residue from previously carried cargo. Sediment is typicallyremoved from ballasttanks every

## 3-5 yearswhen a shipis 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 ofon land or at sea. 12

9 See James T. Carlton, et aI.,Remarkable Invasion of San Francisco Bay (California, USA) by theAsian Clam Potamocorbula amurensis: 1. Introduction andDispersal, 66 MARINE ECOL. PROG. SER. 81-94 (1990). See also Stemming The Tide supra note 8; Cohen, CALFED BayDelta Programsupra note 6. 

## w
. See generally G. M. Hallegraeff & C. J. Bolch, Transport ofDtatom and Dinoflagellate Resting Spores in Ships' Ballast Water: Implicationsfor Plankton Biogeography andAquaculture, 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 ofmud in the ballast tanks ofone ship) [hereinafter Pollutech Environmental, Ltd.].

11 See generally J. M. Kelly, Ballast Water and Sediments as Mechanismsfor Unwanted Species Introductions into Washington State, 12(2) J. SHELLFISH RES. 405 (1993).
12 Seegenerally R. J. Williams, etaI., Cargo Vessel Ballast Water asa Vectorfor the Transport ofNon-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 toAquaculture, 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 asMechanismsfor Unwanted SpeciesIntroductions 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 INAQUATIC 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 inthe estuaryareconsideredtobe "cryptogenic," meaning there is inadequate evidence to determine whether they are native or exotic. 14 

## Exotic species dominate manyofthe estuary'sbiotic communities, wheretheymay account for forty to 100 percent ofthe common species, up to ninety-seven percent ofthe total number oforganisms, and up to ninety-nine percent of the biomass.15 

## Perhaps even more strikingthan their abundance is the rapidly increasingrate at which new species are arriving and becoming established. Roughly halfofthe exotic species identified were first observed inthe ecosystemwithinthelastthirty-five years. 16 

## Overall, the rate ofinvasions 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 ofthe tides, including boththe saltywaters ofthe Bay and the freshwater inland delta ofthe Sacramento-San Joaquin rivers. See Andrew N. Cohen & James T. Carlton,AcceleratingInvasion Rate in a Highly Invaded Estuary, 279 SCIENCE 555-558 (1998) [hereinafter Cohen & Carlton,AcceleratingInva· 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). Theconceptofcryptogenic speciesisdefined and exploredinJamesT. Carlton, BiologicalInvasions 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 ofthe weight ofthe living organisms present. 16Seegenerally Cohen & Carlton,AcceleratingInvasion Ratesupra note 13. 17See id. 18

. .

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



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these involved organisms thathad attachedto orboredintothe hulls ofships; 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 stockedto supportcommercial orrecreationalfisheries, 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 ofthe 20th century,21 substantial numbers began to appearinthe 1960s,22 and bythe 1990s betweenfifty-three and eighty-eightpercentofthe exotic species newly found in the San Francisco Estuary had beenintroducedto theWest Coastviaballastwater.23
Evidence from other aquatic ecosystems also indicates a high·degree ofinvasion, an accelerating rate ofinvasion, 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 ofthe Introduced Marine and Estuarine Invertebrates ofthe Pacific Coast of North America (1979) (unpublished Ph. D. thesis, University of California (Davis» (on file with the UniversityofCalifornia (Davis) Library). Seegenerally Cohen & Carlton, SFBay Case Studysupra note 14. 20 See generally Cohen & Carlton, SFBay 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 ofballast water in the shipping industryis described infra PartLA. 

## 21 See Cohen, CALFED BayDelta Program supra note 6, at app. A.

22 See id. at 12, Figure 1. 

## 23 Seegenerally Cohen, Marine Bioinvasions supra note 20. 

## 24 Unpublished dataestablished 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 Seawayin 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 ofnew 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 waterdischarges provide noteworthyexamples:

1. 

## WesternAtlantic Comb Jelly
ThewesternAtlanticcombjelly,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 ofthe seas' crustacean zooplankton33

27 See E. L. Mills, et aI., Exotic Species in the Great Lakes:A History of Biotic Crises andAnthropogenic 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 datain Mills supra note 27, atTables 3 and4. 

## 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 ofthe types ofimpacts caused by aquatic invasions); Andrew N. Cohen, The Exotic Species Threat to California's Coastal Resources, in CALIFORNIAAND THE WORLD OCEAN '97 1418-1426 (1998). 

## 32 Mnemiopsis leidyi. 

## 33 Plankton are organisms that drift within the water column, most ofwhich are microscopic or nearly microscopic. Plant and animal plankton are called, respectively, phytoplankton and zooplankton.



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contributed to the decline ofthe region's already-stressed fisheries, affectingfishing 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 ofthe 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 ofShips, in NONINDIGENOUS ESTUARINE AND MARINE ORGANISMS (NEMO), PROCEEDINGS OF THE CONFERENCE AND WORKSHOP 25-36 (U. S. DEPI'. OF COMMERCE, NOAA, SeattleWA, 1994). 35 Dreissena polymorpha. 36 See ZEBRA MUSSELS: BIOLOGY, IMPACTS, AND CONTROL (Thomas F. Nalepa & DonW. Schloesser eds., 1993). 37 See, e.g., OTA, HarmfulNon-Indigenous Species in U.S supra note 31, at 68 (for reports and estimates ofzebra mussel-related costs). See also W. L. LePage, The Impact of Dreissena polymorpha On Waterworks Operations atMonroe, 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 StateUniversity).



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from Canada to New Orleans and from the Hudson River to Oklahoma. 39


## 3. SmallAsian Clam

In 1986, three specimens ofa smallAsian 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 ofwater over a large portion ofthe 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 theAsian Clam Potamocorbula amurensis: I. Introduction andDispersal, 66 MARINE ECOL. PROG. SER. 81-94 (1990). 42 See id. See also F. H. Nichols, et aI.,RemarkableInvasion of SanFrancisco Bay (California, USA) by theAsian Clam PotamocorbulaAmurensis: II. Displacement of a Former Community, 66 MAR. ECOL. PROG. SER. 95-101 (1990) [hereinafter Nichols, et aI., S.F. BayInvasion]; I. Werner &J. T. Hollibaugh, Potamocorbula amurensis: Comparison ofClearance Rates andAssimilationEfficienciesfor Phytoplankton and Bacterioplankton, 38(5) LIMNOL. OCEANOGR. 949-964 (1993); W. J. Kimmerer, et aI., Predation ByAnIntroduced Clam as the Likely Cause of SubstantialDeclines inZooplankton ofSan 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 inNorth San Francisco Bay, 10(2) IEP NEWSLETTER 25, 26 (1997); J. K. Thompson, Impacts ofthe Asian Clam on San Francisco Bay, Paper Presented at the 127th Annual Meeting ofthe 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 ofthe extentofthisinvasion).



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## 4. Dinoflagellates andRed 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, andpossibly also in New Zealand and Chile)47 apparently resulted from the introductionofdinoflagellates inballast discharges.

43 Dinoflagellates are single-celled organisms that exhibit features that have been thought characteristic ofboth 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., BrianCole &Andy Cohen,Red Tide inBerkeleyMarinaRaises Concern for Toxic Blooms in Central Bay, in INTERAGENCY ECOLOGICAL PROGRAM NEWSLETTER 11(1): 11-13 (1997). 

## 45 See Donald M. Anderson, Toxic AlgalBlooms andRed 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: Evidencefor a Global Epidemic, in TOXIC MARINE PHYTOPLANKTON 29-40, (E. Graneli, et aI., eds., 1990); G. M. Hallegraeff, A Review ofHarmful Algal Bloomsand TheirApparent GlobalIncrease, 32(2) PHYCOLOGIA 79-99 (1993). 

## 46 See G. M. Hallegraeff, et aI., Microalgal Spores in Ship's Ballast Water: A Danger toAquaculture, in TOXIC MARINE PHYTOPLANKTON 475-480 (E. Graneli, et aI., eds., 1990); G. M. Hallegraeff & C. J. Bolch, Transport ofToxic 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, atTable 5. 

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



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## INVASNESPECIES 799


## 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 LatinAmerican portS. 48 

## Some medical researchers believe that this epidemic strain had originally been transported from Asia to SouthAmericainballastwater. 49 

## C. ORGANISMS TRANSPORTED INBALLASTWATER


## It 

## has long been recognized that marine and freshwater organisms canbe transported inwatercarriedon 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 ofa 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 ofHarmful 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 AlgalBlooms, 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 Gulfof Mexico, 339 LANCET 624-625 (1992); S. A. McCarthy & F. M. Khambaty,International Dissemination of Epidemic Vibrio Cholerae by Cargo Ship Ballast and OtherNonpotable 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 EMERGINGINFECTIOUS DISEASE 141-146 (1995). 50

. See, e.g., James T. Carlton, Transoceanic andInteroceanic Dispersal ofCoastal Marine Organisms: The Biology of Ballast Water, 23 OCEANOGR. MAR. BIOL., ANN. REV. 313-371 (1985).
51 Seegenerally id.



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the mid-1980s.52 Numerous studies since thenhave shownthat ballasttanks typically containmany species ofanimals, plants, protozoans, bacteria and viruses, sometimes in considerable abundance.53 Well over a thousand different species have been identified from the water and sedimentinballasttanks.54 The types of organisms transported in ballast tanks can include organisms that are planktonic for their entire lives, organisms that are planktonic as larvaebut settle on thebottom 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 normallylive on thebottombut are stirredup intothewaterby
waves or by ships' propellers, and organisms attached or clingingto bits ofwood or otherfloating 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 ofthe voyage.56 While several studies have reported dramatic declines in the number and diversity oforganisms over the course ofa voyage,57 some live organisms have been collected from ballast water or sediments after periods ofup 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 asa Vectorfor the Transport of Non-Indigenous Marine Species, 26 ESTUAR. COAST. SHELF SCI. 409- 420 (1988); JamesT. Carlton &J. B. Geller, EcologicalRoulette: The Global Transport of

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

63 See COHEN, CALFED Bay-Delta Programsupra note 6, atTables 4-6. 64 See id., atTables 4-5. 66 Seegenerally 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, atTables 4, 5 & 8. 

## 57 See id. atTable 7. See also S. Gollasch, et al.,Nonindigenous OrganismsIntroduced Via ShipsInto German Waters, in BALLASTWATER: ECOLOGICALANn FISHERIES IMPLICATIONS (James T. Carlton ed., 1998). The declines may be due to changes in temperature or reductions in dissolved oxygen, or to depletion offood resources since there is no lightinballasttanks thatwould allow phytoplanktonto photosynthesize. 68 See Cohen, CALFED Bay-DeltaProgram supra note 6, atTable 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,
evenwith large declines, substantialnumbers andconsiderable variety of living organisms may remain in ballast tanks after typical transoceanic voyages often 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 inballast water at the conclusion oftransoceanic voyages. 61 

## Given the large capacity ofship's ballast water pumps,62 a single deballasting ship maythus discharge intothe environment millions ofexotic phytoplankton and zooplankton perhour, andlargernumbers ofprotists,bacteriaandviruses. 63



## D. REDUCINGTHE INTRODUCTION OF ORGANISMS IN BALLAST WATER


## The approaches suggested for reducing or eliminating the introduction of harmful organisms in ballast water generally fall intothree categories: (1) adjustingwhere, when orhow ballast water is loaded or discharged ("ballast water microman59 See generally James T. Carlton, Transoceanic and Interoceanic Dispersal of Coastal Marine Organisms: The Biology ofBallast Water, 23 OCEANOGR. MAR. BIOL., ANN. REV. 313 (1985). See also R. J. Williams, et al., Cargo Vessel Ballast Water as a Vectorfor 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, etal., eds., 1990); G. M. Hallegraeff& C. J. Bolch, Transport of Diatom andDinoflagellate 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 byFood Web Interactions, 33 EUROP. J. PROTISTOL. 244-253 (1997). Notable amongthe cyst-forming organisms are some toxic species of dinoflagellates, whose viable cysts have been found in ballast sediments inenormous numbers. 60 Seegenerally, L. D. SMITH, ETAL. & U.S. COASTGUARD, REPORT No. CG-D-02-97, BIOLOGICAL INVASIONS By NONINDIGENOUS SPECIES IN UNITED STATES WATERS: QUANTIFYINGTHE ROLE OFBALLASTWATERAND SEDIMENTS, PARTS I AND 11(1996). 61 See Cohen, CALFED Bay-DeltaProgram supra note 6, atTable 6. 62**Typi~al** ships' pumping capacities are 0.3-0.5 million gal/hrfor general cargo and container ships, 1.3-2.6 million gal/hr for bulk freighters and ore carriers, and 1.3-5 million gal/hrfor tankers. Seegenerally Stemming The Tide supra note 8. 63

See Cohen, CALFED BayDelta Programsupra note 6, at 11.



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## 30:4 agement")64; (2) exchangingballastwater at some distancefrom 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 whetheritsballastwatercontained 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 ofapproaches may ultimately be adopted, or different approaches may be used in different areas or by different parts ofthe industry. For any approach, certain issues must be considered such as the safety ofthe ship and crew, its effectiveness in destroyingpotential invadingorganisms, technical feasibility and compatibility with ships' operations, environmental impacts, the ability of regulatory agencies to monitor implementation, andthe cost ofimplementation.66



## 1. Ballast WaterMicromanagement
Various actions have been suggested to reduce the number ofharmful organisms takeninwhen loadingballast, orto avoid the discharge ofballast water in sensitive or vulnerable areas. Measures related to the loading ofballast include not loading in areas that are known to contain harmful organisms or

64 The term "ballastwatermicromanagement" was usedby Carton, etal. supra note 6, at 132 

### to describe types oflimitations on where andwhen ballastwateris loaded; as used in this article, the term also includes certaintypes oflimitations onwhere ballast wateris discharged. 65 

### See AUSTRALIAN QUARANTINE & INSPECTION SERVICE, BALLASTWATER 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

. .



### SeeStemmmg The Tlde supra note 8, at47.



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## phytoplanktonblooms, orin areas withlocal outbreaks ofinfectious 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 oforganisms migrate closer to the surface; orballastingthrough intakes locatedhigh
on the ship's hull when in shallow water, to avoid entraining bottom sediments or organisms living near the bottom; orloading 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 ofballast 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 Vectorfor the Dispersal ofToxic Dinoflagellates, in NONINDIGENOUS ESTUARINE AND MARINE ORGANISMS (NEMO), PROCEEDINGS OFTHE CONFERENCEAND 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 ofthe Great LakesAgainst the Invasion ofNonindigenous 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 ByEXOTIC 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 OFTRANSPORTATION 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 ofthe Great LakesAgainst the Invasion ofNonindigenous 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 Vectorfor 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-DeltaProgram



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While such micromanagement measures could enhance the effectiveness ofballast water exchange or ballast water treatment approaches, they are not a substitute for such approaches, and will not by themselves adequately resolve the problem ofintroductions in ballast water.70 In actual practice, ships will be unable to implement most of these measures much ofthe time, since the time and place ofballasting will to a large degree be constrained by the ship's itinerary, schedule andoperational needs.71


## 2. Ballast WaterExchange
Ballast water exchange is often proposed as a measure for ships arriving from overseas ports. In such cases, an exchange would consist ofdischarging most ofthe ballast waterthathad 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 ofwater. In this article, this process is referred to as an open-ocean exchange.72 The majority ofexistinglaws, 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-DeltaProgram 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 ofinternational 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 ofabout 900 miles.

72 This procedurehas also been called a mid-ocean, high seas, at seaor deep water' exchange. See Carlton, etal. supra note 6, at 154 (for a discussion ofthese terms).

73 For most ofthe 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 tank

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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 atits destination, the shipwouldthenbe dischargingonly oceanic organisms into coastal waters. These are not expected to survive orthrive inthecoastal zone, orto 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 UnwantedAquatic Organisms andPathogensfrom Ships'Ballast Water andSediment Discharges, Marine Environmental Protection Committee Res. (50)31 (July 4, 1991) (adopted byInternational 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 ofthe ocean. See id. at 153. Coastal waters are characterized by higher turbidity, lower levels ofUV radiation, and more variable and generally lower salinities. See A. Locke, et aI., Ballast Water Exchange as a Means ofControlling Dispersal ofFreshwater 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 offood resources, and differentlevels ofcompetition and predation may also playa role. See GeoffRigby & GustaafHallegraeff, The Transfer and Control ofHarmful Marine Organisms in Shipping Ballast Water: Behaviour ofMarine 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 oftheir 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 ofthe exchange process, but are not the primaryobjectives ofthe process. The first phenomenonis thathigher salinityocean water may act
as a biocide, killing organisms adaptedto freshwater or to lower salinitycoastal water. See A. Locke, et aI., Effectiveness ofMid-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 ofthe Great Lakes



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been some suggestions thatvessels engaged in coastwisetraffic should conduct ballastwaterexchanges at some lesser distance offshore, but there is no clear consensus on the value of such exchange.
Ballastwaterexchange maybe conductedintwo basicways. 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 dischargingtoo much ballast for the sea conditions), cause inadequate propeller immersion, or impose unacceptable stresses on the hull (by changing the buoyancy in
one section ofthe vessel relative to another).78 In general, staAgainst the Invasion of Nonindigenous Species in Ballast Water, 33(2) MARINE TECHNOLOGY 92-100 (1996); GeoffR. Rigby & Alan Taylor, Ballast Water: Its Impacts Can Be Managed, in BALLASTWATER: ECOLOGICAL AND FISHERIES IMPLICATIONS (James T. Carlton ed., 1998). However, a variety of freshwater organisms have been found to surviveopen-ocean exchange. See generally, Locke etal. 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 ofwarmer tropical water may kill offtemperate 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). Ithas also been suggested that exchange will resultin fewer organisms beingreleased because lower concentrations or a lower diversity oforganisms 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 studentpaper, UniversityofWashington School of Law) (on file with authors). However, others claim this is not necessarily true. See Carlton, etal. supra note 6, at 155. 75 Also called deballast-and-reballast exchange, reballasting, sequentialrelease and replacement, sequential exchange, pumpdown exchange and complete exchange. H

. .

A substantial amount ofwater, typically on the order oftens ofthousands ofgallons pership andoftencontaininga highconcentrationofsedimentandpossiblyorganisms, 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 ballastordead 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 SafetyAspects 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 likelierfor 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 pumpingwater in through a pipe atthe bottom ofthe 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 apparentlywithoutdatato support it, is that empty-and-refill exchange is unsafe for vessels over 40,000 deadweight tons. See, e.g., GeoffR. Rigby, etal., The Transfer and Treatment of ShippingBallast Waters to Reduce the Dispersal ofToxic Marine Dinoflagellates, in TOXIC PHYTOPLANKTON BLOOMS 

### IN THE SEA, 169-176 (T.**J~** Smayda & 

### Y. Shimuzueds., 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 (reportingthatthe limitfor safe exchange as ships ofupto 30,000tons ofcargo, 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 complexpicture, withdifferent studies indicatingno stabilityor 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 often to 20 feet imply occasional waves nearly 40 feet high). See J. B. Woodward, et al., Ship Operational and SafetyAspects 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 exchangedincalm sea conditions). Butsee GeoffR. Rigby, etaI., The Transfer and Treatment ofShipping Ballast Waters to Reduce the Dispersal ofToxic 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 GeoffRigby & GustaafHaIlegraeff, The Transfer and Control ofHarmful Marine Organisms, in Shipping Ballast Water: Behaviour ofMarine 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 ofthe Great LakesAgainst the Invasion of Nonindigenous Species inBallast 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). 80Seegenerally E. Reeves & U.S. COASTGUARD supra note 67.



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## ventilators atthetop ofthetank. 81 

## This is generallyinefficient, 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 ofits 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 GeoffRigby & Gustaaf Hallegraeff; The Transfer and Control ofHarmful Marine Organisms in ShippingBallast Water: Behaviour of Marine Plankton andBallast Water Exchange Trials on the MV "Iron Whyalla," 1 J. MARINE ENVTL. ENGINEERING 91-110 (1994); C. HAY, ET AL., CAWTHRON INSTITUTE, CAWTHRON'S BALLASTWATER RESEARCH PROGRAMME: FINALREPORT 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 shipfor different ship types and sizes. See K. Weathers & E. Reeves, The Defense ofthe Great LakesAgainst the Invasion of Nonindigenous Species in Ballast Water, 33(2) MARINE TECHNOLOGY 92-100 (1996); G. Armstrong, Ballast System Design for Flow-Through Exchange ofBallast 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 ofexchange. See Geoff Rigby & GustaafHallegraeff, The Transfer and Control ofHarmful 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. ENGINEERING91-110 (1994».

84 See Stemming The Tide supra note 8, at53.

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 tobe a type ofon-shore treatment.



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## restrictions or safety concerns.86 Treatment technologies are generally oftwo types: technologies designed toremoval 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 initialparticleremoval process and a disinfection process, as discussedbelow.
Most ofthe 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, magnetictreatment, mechanical agitation, and deoxygenation.87

.



## a. ParticleRemoval
Several studies have considered different types of screens, strainers or membrane filters for on-board treatment ofballast 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 shrinkingthe system tends to make it more complex**~** . See Cohen, CALFED Bay-Delta Programsupra note 6, at27.

87 See C. J. S. Bolch & G. M. Hallegraeft; Ballast Water as a Vectorfor the Dispersal ofToxic 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,ReportNo.1 supra note 8; Carlton, et al. supra note 6; Stemming The Tide supra note 8; K. Mulvaney, Filters Put the Squeeze onAlien Stowaways, New Scientist, May 10, 1997, at 14; E. Reeves & U.S. COAST GUARD supra note 67, at 15.

. 89 The size ranges oforganisms found in ballastwaterincludeinvertebrate eggs at 20-100 microns, algal spores and cysts at 5-25 microns, fungi at 1-100 microns, protozoa at 1-80 microns, bacteriaat0.1-100 microns andviruses at0.01-1 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 onAlienStowaways, 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 settlingtanks and granularfiltration. However, requirements for space or still conditions cannot be met on-board. 93 

## Whatever technology is used for particle removal, whetheremployed on-board or on-shore, itis unlikelyto be effective at removing the smallest organisms presentinballast water or, in the case ofcyclonic separation, to remove organisms with a specific gravity near that ofthe ballast water. Thus, any particle removal technology will probably need to be followed by additional treatment to kill the remaining organisms, such asbiocide application orUV disinfection. 94

91 See id. at 77-79, 87. A disadvantage ofin-line filtration during loading is that the system mustbe large enough to handle the ship's maximum ballastpumpingrate. See id. at 70. 

# •
•

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

### No. 1860(Ports Corporation ofQueensland, Brisbane, Mar. 1999).

93 One study calculated that a mediafiltration system (such as is routinelyusedin water trement on-shore) which was large enough to handle the ballast pumping rates on a small bulkcarrier ortankerwould needfilters that are 200 square metersin 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 ofat least 100 square meters to treat a flow of4,000 cubic meters perhour. See AQIS,ReportNo.1 supra note 8, at33. 94 See POLLUTECH ENVIRONMENTAL, LTD. supra note 11; Carlton et al. supra note 6, at 140; E. Reeves & U.s. COAST GUARDsupra 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 studyestimated thatfiltration 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 break

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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 neededto kill dinoflagellate cysts,95 whichwere chosen as test organisms because of their potential harm to shellfisheries andhumanhealth, andtheirresistanceto chemicaltreatmentrelative to mobile organisms.96 These high doses would make use of these biocides prohibitively expensive.97

through orfailure to religiously maintain and use the system

...throughoutthevoyages around the world

...will contaminate the tank and vitiate the protection to be achieved").**~** . Many types ofmarine 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 andDinoflagellate 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 Itwas felt thatbiocides capable ofkilling dinoflagellate cysts would also killlarval zooplankton, copepod 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 inShips'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 greaterthan normalwater andwastewatertreatmentdoses. See id. See also GeoffR. Rigby, et al., The Transfer and Treatment of ShippingBallast Waters to Reduce the Dispersal ofToxic Marine Dinoflagellates, in TOXIC PHYTOPLANKTON BLOOMS IN THE SEA 169-176 (T. J. Smayda andY. Shimuzueds., 1993); S. Ichikawa, et al., ExterminationEfficiency of Hydrogen PeroxideAgainst Cysts of Red Tide and Toxic Dinoflagellates, and its Adaptability to Ballast Water ofCargo Ships, 58(12) NIPPON SUISAN GAKKASHI 2229-2233 (1992); S. Montani, et al., Chemical and Physical Treatmentsfor 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 ofToxic 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 ofShipping Ballast Waters to Reduce the Dispersal ofToxic 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 ofunpumpable ballast remaining in ballast tanks on NOBOB ("no ballast on board") ships, but these chemicals are too expensive for general treatment ofballast water. See, e.g., E. Reeves & U.S. COAST GUARD, PROTECTION OF THE GREAT LAKEs FROM INFECTION BYEXOTIC ORGANISMS IN BALLASTWATER 19-20(1998).



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## 30:4 Many biocides may also not be feasible for on-board use because ofinadequate storage space on ships, human healthhazards, 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 ofbiocides more feasible.
UV radiation is effective atkillingbacteria and other microorganisms, butmaynotbe 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 ballastwateronly after a particleremoval stage.lOI
Laboratory tests and field trials indicate that on tropical voyages the cooling water from ship's engines can be used to heatballastwater to temperatures that maybe high enough to

98 See C. J. Bolch & G. M. Hallegraeff, Chemical andPhysical Treatment Options to Kill Toxic Dinoflagellate Cysts in Ships' Ballast Water, 1 J. MARINE & ENVTL. ENGINEERING 23-29 (1993); GeoffR. Rigby, et aI., The Transfer and Treatment ofShipping 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,ReportNo.1 supra note 8, at 38; Carlton, et aI. supra note 6, at 145-147.

99See C. J. Bolch & G. M. Hallegraeff, Chemical andPhysical 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 ofdinoflagellate cysts aftertwohours exposureto UVradiation. See GeoffR. Rigby &AlanTaylor,Ballast Water: ItsImpacts Can Be Managed, in BALLAST WATER: ECOLOGICAL AND FISHERIES IMPLICATIONS (James T. Carlton ed.,1998) citing S. Montani, et aI., Chemical and Physical Treatmentsfor Destruction of Phytoflagellate Cysts, J. MARINE BIOTECHNOLOGY (1995). 101

. See POLLUTECH ENVIRONMENTAL, LTD. supra note 11; AQIS,ReportNo. 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 ByEXOTIC ORGANISMS IN BALLAST WATER 17 (1998) (stating that "as a matter ofpractical experience, we havefound thatmany vessel owners forget to conducttheregular monitoringofthe UV penetration necessary to guarantee that their marine sanitation devices are actually treatingthe 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 sufficientlyon shortvoyages orvoyages through colderwaters. 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 oforganisms found inballastwater, the necessary exposure time may be quite long, and the power requirements high.106 Microwaves appear to be prohibitively expensive and ofquestionable effectiveness.lo7 Electric pulse and pulse plasmatechnologies, magnetictreatment andmechanical agitation are at experimental or exploratory levels ofdevelopment, and they may not kill the full range oforganisms in ballast water.lOB Ballast water could be deoxygenated by adding certain chemicals, butthis would be ineffective against anaerobic bacteria, effectiveness would be compromised by surface reoxygenation, corrosive compounds and hazardous gases would

102See

## c. J. Bolch & 

### G. M. Hallegraeff, Chemical andPhysical 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 Vectorfor the Dispersal ofToxic 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).

103See 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 andpossibly sulfur-richwater. 109



## c. On-shore us. On-board Treatment Although most ofthe researchconductedto datehas focused
on·on-board ballast water treatment systems, it may be possible to develop treatment systems on-shore more quickly and cheaply, using availabletechnologies 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 safetyissues that arisewith 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 ofthe least expensive types ofbiocides that would be too hazardous on a ship.1I3 Economies ofscale would likely result from constructingand operating a smaller numberofrelatively 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, ReportNo.1 supra note 8, at44; 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 andAQIS, ReportNo. 1 supra note 8. 111 See AQIS, ReportNo. 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 wastewatertreatmentin the United States. 114 See Cohen, CALFED Bay-Delta Program, supra note 6, at 27-28. See also AQIS, ReportNo. 1 supra note 8, at 86 (notingthat "clearlythe provision ofcentralised treatment in port or land-based facilities will be more economic in capital cost terms than provision oftreatmentfacilities on boardeach ship.") 115

.. . Forexample, thevolume ofwastewatertreated IIItheSanFranCISco Bayregion 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 existinglarge waste streams without unduly altering their physical or chemical characteristics or straining the capacity ofthe wastewater plants to treatthem.



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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 otherpurposes, 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-basedDecision Support System
Various shipping interests and the Australian government have advocated that the required level ofballast 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 ofrisk presented by the discharge of a ship's ballast water, and then require a management action appropriate to the level ofrisk.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 thatballast water treatment systems would not be accorded a high priority for maintenance andcouldbe easilyby-passedoroperated atsuboptimalefficiency." AQIS, ReportNo.1 supra note 8, at23.

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 theirdraft before crossing a shallow barorentering
a shallow port. One question that ariseswith on-shore treatmentiswho would payfor the construction and operation oftreatment facilities, the ships or the ports? Ifships
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. Ifports 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 ofon-shore treatment is that plant construction costs are more likely

### to be subsidizedbyfederal orstategovernments-just as the cost ofconstructing wastewater treatment plants was subsidized during the implementation ofthe Clean WaterAct-thanwould thecost ofconstructingorinstallingtreatmentplantsonboard ships. For example, low-interest or no interest loans are available for the construction ofon-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, RiskAssessment Frameworkfor Ballast



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## 816 GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 30:4 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 ofharmful 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 ofrisk ifthe regions are similar).122**Th~sfar,** 

## there are only rough descriptions ofhow 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, RiskAssessment 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 ofships may need to undertake ballast treatment before discharge, in
some areas." GeoffR. Rigby & Alan Taylor, Ballast Water: Its Impacts Can Be Managed, in BALLASTWATER: ECOLOGICALAND FISHERIES IMPLICATIONS (JamesT. Carlton ed., 1998). See also AUSTRALIAN QUARANTINE AND INSPECTION SERVICE, BALLAST WATER RESEARCH SERIES REPORT No.9, BALLAST WATER

- TECHNICAL OVERVIEW REPORT (1996) at44-45; Hayes & Hewitt,RiskAssessmentFramework supra note 119, at 2. 121 Also called a "targetorganism approach." 122

. . . See Hayes & HeWItt, R£skAssessmentFramework supra note 119. ThIs report actually outlines six levels of assessment ofincreasing complexity from simple environmental matching(Level 0) to a fully-detailed species-specific assessment (Level 5). 123 Species-specific assessments target a group oforganisms identified as harmful, and are thus a kind of"dirtylist" 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 listis in large part due to their having become established in areas outside oftheir native ranges. See Hayes & Hewitt,RiskAssessmentFramework supra note 119, at65. However, ten ofthese species were not reported outside oftheir native ranges until the 1980s or 1990s, so that most ofthe listed species would nothave been selected as management targets even a decade or two ago. This strongly suggests that many ofthe most harmful invaders ofthe coming decades would not be included on target lists preparedtoday. In addition, all buttwo ofthe thirteenlisted species are alreadyestablished 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 intro

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## II. REGULATING BALLAST WATER DISCHARGES INTO CALIFORNIAWATERS 

## Despite the large ecological and economic costs resulting from therelease ofexotic organisms, therehasbeenlittle 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 statuteshave notbeen appliedtotransfers of

duction. See, e. g., M. J. Bean, The Role ofthe United States Department ofthe 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 ofenvironmental matchingis limited because theranges ofmanymarine organisms are very poorly known, because the range ofenvironmental conditions in their native habitats may not be good indicators ofthe environmental limits in which they can establish, and because some aquatic organisms can tolerate or thrive in an extraordinarily broad range ofphysical 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 presumedphysical 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 abundantin a New England pond thatfreezes over inthe winter). Another problem is that many ballasttanks contain
a mixture ofwaterfrom a varietyofports, makingitdifficult to know the sources ofall the ballast water carried. See Carlton, et al. supra note 6, at 48; Hayes & Hewitt supra at 16. In commenting on proposed internationalregulations, the United States noted that risk assessment-based ballast water management could be based on three conditions thattheoretically could create a lower risk ofinvasion: longstanding movement ofballastwateralongtherouteinquestion, absence oftargetorganismsintheballastwater, and different environmental conditions in donor and receiver ports. However, the UnitedStatesrejected theseargumentsbecause manyinvasionshaveoccurred decades afterballastwater movement was begun, because "itis 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." ProposedAmendmentsand Comments on the DraftRegulationsfor the Control andManagement ofShips' Ballast Water and Sediments to Minimize the Transfer of HarmfulAquatic Organisms andPathogens, MEPC 43/3, Annex 1, atfn. 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 addressingballast 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 offederal efforts to reformballastwaterpractices has lead a number of organizations and interest groups affected by invasions ofexotic 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, expandtheirrange, andfundamentally alterecosystem processes and bio-diversity, many exotic organisms can produce long-term impacts that are far more severe than those ofmanypollutants 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 ofthe CWA)/28 to regulate ballastwater discharges ofexotic 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 ofshipping 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 ofthe 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 waterpractices. Applying existingwaterpollution laws to controlballastwater discharges and using existing environmental review statutes to analyze actions that facilitate the release ofballastwater (such as port construction or channel deepening projects) provide a framework for regulatingballastwater 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 ofwetlands, 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 importantto considerboth 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 otherlaws to ballastreleases ofexotic organisms.

A. REGULATING BALLASTWATERDISCHARGE 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 42U.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. §§ 3371-3378and 18U.S.C. § 42 (2000).



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.last water.134 As early as 1976, the Tasmania State Government inAustraliareportedlyrequired the open-ocean exchange ofballast water for inbound ships,135 and in 1982 the Canadian Coast Guard, concerned about the potential for introducing toxic dinoflagellates into local mussel farms, prohibitedthe discharge ofunexchanged ballast water in the vicinity ofthe Ilesde-la-Madelaine in the Gulfof 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 oftheir 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 ofNon-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 ofWashington Library); C. A. Welch, The National Invasive Species Act of 1996: Response to a Global Concern (1996) (unpublished studentpaper, University ofWashington School ofLaw) (on file with authors».

135 See R. J. Williams, et. aI., Cargo Vessel Ballast Water as a Vectorfor the Transportof 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, ReportNo.4 supra note 8, at 114-121: See, e.g., NEW ZEALAND MINISTRY OF FISHERIES, IMPORT HEALTH STANDARD FORSHIPS' BALLASTWATER FROM

### ALL COUNTRIES (1998). 

## 138 See G. M. Hallegraeff, et aI., Microalgal Spores inShip's Ballast Water:A Danger toAquaculture, in TOXIC MARINE PHYTOPLANKTON 475-480 (E. Graneli, et aI., eds., 1990); G. M. Hallegraeff & C. J. Bolch, Transport ofToxic Dinoflagellate Cysts Via Ships' Ballast Water, 22(1) MARINE POLLUTION BULLETIN 27-30 (1991); G. M. Hallegraeff& C. J. Bolch, Transport of Diatom andDinoflagellate 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 Vectorfor the Dispersal ofToxic 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, adoptedJuly4, 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 withvarious 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 entirelyvoluntary.

In 1994, MEPC established a Working Group on Ballast Water to consider potentialballast waterregulations tobe proposed as an annex to the Convention on Pollution from Ships (MARPOL).141 Even ifeffective 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 andimplemented atthe nationallevel. Firsttheworkon drafting the proposed annex (which has taken five years so far) would need to be completed. Then the MEPC would have to adoptthe proposed annex, followed by the IMO as a whole. For the United States, the executive branch ofthe federal government would decide whether to support the proposed annex at these stages. After adoption by the IMO, the annexwould then need to be ratifiedby IMO member statesbefore it enteredinto 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 ballastwaterregulations 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 ofballast water as an optional alternative. 

### An annex requiringtreatmentofballastwater appears veryunlikely atthis time.

143 The necessary conditions for IMO treaties or annexes to enterinto 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 atleast 50% ofthe world's gross tonnage ofmerchant shipping. Depending
on the treaty, non-ratifying member states mayor may not be bound by the treaty provisions. Telephone Interview with Dennis Nixon, Professor ofMaritime Law, University ofRhode Island (Nov. 1999). The current draft ofthe 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 theirjurisdictions. See,



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## mately assured.144 For the United States, that decision would be made bythe Senate.
Once the annexwas in force, anyelements ofthe annexthat required implementation by Port States would in practice not go into effect untilthe Port Statesdrafted, 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 oftime this is likelyto take andthe urgency of the problem suggest that national, regional or local regulations maybe necessaryin 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., ProposedAmendments and Comments supra note 123. See also RegionalAgreements MEPC 43/3 atAnnex 2. 

## 144 For example, the Convention on the Law ofthe 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 ithas not yet been ratified either by the United States or by a sufficient number ofIMO member states. Telephone Interview with Dennis Nixon, ProfessorofMaritime Law, UniversityofRhode Island (Nov. 1999). 

## 145 This too may take several years. For example, work on drafting the National Invasive SpeciesAct (described in the next section) was underway atleastbythnfall of 1995. The bill was introducedinMarch 1996 and signedintolawinOctober 1996. The implementingregulations were finally published in May 1999, an elapsed time ofover three and a halfyears. 

## 146 Seegenerally OTA, HarmfulNon-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 mandatoryrequirements 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 supportfor these regulations resulted from the discovery in 1991 that a strain ofepidemic cholera was being carried in ballast water from South America to the U. S. GulfCoast, where it was found in oysters and fish.152 In early 1995, the mandatory ballast waterregula149The EEZ extends to 200 miles from the U. S. coast. 150

. BallastWaterManagement for Vessels Enteringthe GreatLakes, 58 Fed. Reg. 18,330-18,334 (Apr. 8, 1993). NANPCA had directed that mandatory regulations be issued within 24 months ofenactment ofthe statute, by November 29, 1992, butthey
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 ifit is not in compliance. See 33 C.F.R. § 151.1506 (2000) and 33 C.F.R. § 151.1508 (2000). Violation ofthese 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 ora $500,000 fine for a company. See K Weathers &E. Reeves, TheDefense ofthe Great Lakes Against the Invasion ofNonindigenous Species in Ballast Water, 33(2) MARINE TECHNOLOGY 92,95 (1996) [hereinafterWeathers &Reeves). 151 NANPCA allows the use ofalternative 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 ofaquatic nuisance species." NANPCA § 1l01(b)(2)(B)(iii). Therehave 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 ofliquid 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 GulfofMexico, 339 LANCET 624-625 (1992); S. A. McCarthy & F. M. Khambaty, International Dissemination of Epidemic Vibrio Cholerae by Cargo Ship Ballast and OtherNonpotable 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 ofenactment, under NISA the voluntary guidelines that apply to the rest of the country will remain voluntary unless the Secretary ofTransportation 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 ofthe 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 oftheNational

### Inv~sive Species Act of 1996,64Fed. 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 incoastwise trade were exempted from the guidelines. 

## 156 Under NANPCA and NISA, the record-keeping andreportingrequirements for ship's ballastwaterhave become more precisely codified over time. In 1991, NANPCA said nothing directly about ships' record-keeping, but ordered the Secretary ofTransportation to "provide for sampling procedures to monitor compliance with the requirementsoftheregulations" which were to be promulgatedfor vessels boundfor the Great Lakes from overseas. Under this authority, in 1993 these vessels (laterincluding vessels bound for the upper Hudson River) were required to provide, on request ofthe Coast Guard, information including the volume and salinity ofballast water expected to be discharged into U. S. waters and any ballast water exchange conducted. See Ballast Water Management for Control ofNonindigenous Species in the Great Lakes and Hudson River, 33 C.F.R. § 151.1516 (2000). In 1996, NISA requiredvessels bound for all U. S. waters from overseas to maintainballastwaterrecords onboard andmake 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 enteringport (for ships bound for the GreatLakes or upper Hudson River)
or before leaving the first port ofcall (for vessels entering otherwaters), and a Ballast Water Reporting Form was provided for this information. See 33 C.F.R. §§ 151.2040, 151.2045.

157See Whalin,NuisanceNonindigenous Species supra note 5, at 123-124.



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termination regarding compliance and effectiveness be completed within four years ofthe statute's enactment, but at the current time, three years after enactment, the process is alreadyover a year and a halfbehind schedule.ISS 

## Furthermore, it appears that the databeingcollected by the Coast Guard are not adequate to assess either compliance or effectiveness. These data consist of information provided by the ships on BallastWaterReporting Formsl59

## -inwhich a ship reports on whether ithas 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 thatvoluntary guidelines were to be issued within
one year ofenactment (by October 26, 1997), draft guidelines were not published for public commentuntilApril 1998. See Implementationofthe 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 guidelineswerenotpublisheduntil May 1999, 19 months afterthedate 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 ofthe guidelines were to be submitted to the Secretary ofTransportation within 18 months ofenactment, or by April 26, 1998; but the committee created to develop recommendations for criteria is not scheduled to submit theserecommendations to theAquatic Nuisance SpeciesTaskForce until May of2000. 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 withSharon Gross, U.S. Fish & Wildlife Service (Sept. 1999). NISA directs the Secretary ofTransportation to determine the adequacy ofcompliance andeffectiveness, withinthreeyearsofthe issuance ofguidelines, andwithinfour years ofenactment (thatis, by October 26, 2000). However, since the gliidelines were not issued until May of 1999 itis unlikelythatthis determination will be made before May 2002. Ifthe Secretarythen determines that either compliance or effectiveness is inadequate, mandatoryregulations areto be promulgated promptly. 159See, e.g., 33 C.F.R. 151 (2000) SubpartD, Appendix. 160 See, e.g., A. Locke, et aI., Effectiveness ofMid-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% 

## ofthe ships appeared tohave done no exchange, another 18% appeared to have done a partial exchange ofless than 50%, 

## and only 30% 

## appeared to have done the full exchange thatwas claimed. 16l



## Given the doubtful reliability ofships' statements aboutballast exchanges, it is critical that regulators independently test whetherexchangeshavebeen conducted. To this endthe Coast Guard measures the salinity ofballast water on some arriving ships, but this provides a limited test atbest. Open-ocean waters, where ballast exchange is supposed to take place, typically contain about 3.4 to 3.7 percent salt. Ifa 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 whenthe salinityofthe initialballastwater (prior to exchange) is very different from that ofthe open ocean, and is largely or completely ineffective when the initial salinity is close to that ofthe open ocean, whichwill be true for ballastwaterloaded at many ports. Thus, salinity tests cannot provide a reliable es161 Memorandum from Penny Lockwood, Former Manager, Australia BallastWaterProgram, to the Pacific CoastBallastWater Group (July4, 1999) (summarizingher presentation to the Group's meeting at the Port ofOakland on June 17, 1999) (on file with authors). This method ofchecking ships' ballastreports againstelectrical records is called the Newcastle method aftertheAustralianportwhereitwasfirsttried. While
·some ofthe 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 atall is consistentwith anecdotal and documentaryevidence 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 ithad 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 ofthe Great LakesAgainst 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 treatedits ballastwater with chlorine to kill the exotic organisms in it, buttests 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 GreatLakes from overseas and reported to the Coast Guard thattheyhadconducted 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 ofthe minimumrate ofnoncompliance.162 

## With the data now beinggathered, the issue ofeffectiveness 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 ofthese species is being systematically mqnitored, a direct assessment ofeffectiveness will be impossible. Theoretically, one could calculate the effectiveness ofthe guidelines in reducing the rate ofrelease ofexotic species by combining data on the effectiveness ofindividually monitored exchanges with information on the rate of compliance and the volume ofshipping-but as noted above, the data neededto assess the rate ofcompliance are notbeinggathered.


## 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 inballastwater 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 itmay be advisable for the CoastGuardtoemploythe Newcastle method in its monitoring efforts, in the end this also is not an independent test ofwhether a shiphas 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 thatfalsely 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 ofthe rate ofnoncompliance. Independenttests that arebased on the analyzingthe biota inthe ballast water. See, e.g., ChristopherBadger, HarbourMaster, Port ofVancouver, "Mandatory Ballast Water Exchange--The Vancouver Solution ," Presentation at the Eighth International Zebra Mussel andAquatic Nuisance Species Conference, Sacramento, CA (March 16-19, 1998); Deborah Tanis, Review and Recommendations ofBallast Water Exchange Verification Technologies and Measurement Techniques (Oct. 1998) (discussing the chemical and physical characteristics ofthe ballast water) (unpublished manuscript on file with the U.S. Department ofTransportation andU. S. Coast Guard). Itis notyetclearwhetherthese types oftests will prove to be any more effective than salinitytests.



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## 30:4 river, estuary, bay or coastal area.,,163 In 

## 1992, California passed a bill164 that also found that fisheries were threatened byballastwaterintroductions ofexotic organisms andthat "the people ofthe state have a primary interest in the regulation of the dumpingofballastwateroriginatinginforeign ports in any river, estuary, bayorcoastal area ofthis 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 althoughthe monitoringwas neverconducted.167

In 

## 1999, California adopted the first state law in the United States to regulate ballastwater 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 ofBallastWater in United States Waters (1991). 

### See also AlaskaLegislative Resolve No. 85, Relatingto theDischarge of BallastWater by Vessels EnteringtheWaters ofAlaska (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 ofvessels carrying ballast water and entering a California port after January 1, 1994 to complete a form describing their ballast water managementpractices. The Department ofFish & Game was to administer this monitoring program and report ofthe Legislature on the rate ofcompliance with the IMO guidelines by January I, 1995. O'Shea and Cangelosi's description ofthis 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 WaterDischarge, 27 U. ToL. L. REV. 381, 393, 395 (1996). 

## 167 The statute was reportedly regarded as an excessive burden on interstatecommerce and, therefore, unconstitutional under the Dormant Commerce Clause. 

### See id. 393. Infact, 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 ofFish & 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 ofmore stringent standards potentiallyrequiringballastwatertreatmentorinvolvinga 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 ofrequired ballast exchange or alternative treatments untilJan. 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 ofthe 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 safetyexemption.175 The SLC is to monitorcompliance176 andto submitto the Legislatureby Sept. 1, 2002 an assessment ofthe 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 ofthe state, for the purpose,

169See discussion infra PartII.B.2.a (Porter -CologneAct). 170 " Assembly Bill 703 as introducedon Feb. 14, 1999through amendmentsmadein the Senate on Aug. 17, 1999. 171 See CAL. PuB. RES. CODE §§ 71200-71271. 

## 172 Certainvessels 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 underNISA andis submittedon the same form. 

## 175 See id. at § 71203. 176See 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 ofeliminating the discharge of nonindigenous species into the waters of the state or into waters thatimpact the waters ofthe state.,,179 Noncompliance with reporting requirements could incur penalties ofup to $500 per day, and knowingly filing false reports with the intent to deceive, or other intentional or negligent violations could incur penalties ofup to $5000 per day.180 It 

## is questionable whether such modest penalties will alter ships' behavior and induce them to exchange ortreat theirballastwater. Any penalties collected plus fees ofup to $1,000 for each voyage involving transit outside the EEZ are to be deposited in an account and usedto implementthe 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 ofstudies and reports mandated by this law suggest that more stringent requirements may be imposed by state agencies (includingboards, commissions and departments) orbythe Legis178 

### See id. § 71211. NISA also anticipates the designation ofalternative, 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 ofthe 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 pervessel voyage, butshippingindustryrepresentatives are protestingthese fees, arguingthatthey should be no more than $400 per vessel voyage. Telephone Interview with Marian Ashe, California DepartmentofFish & Game (Jan. 2000). 182 

### See id. § 71207(a).



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## INVASIVESPECIES 

## 831
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 ofthese approaches by state agencies prior to Jan. 1, 2004 is prohibited, it would be fully consistentwith the directives and objectives ofthis bill for agencies tp investigate and prepare for implementation ofthose approaches after that date. In addition, implementation offederal law requirements by authorized state agencies is not restricted during the interim period, nor is there any restriction on the ability ofCalifornia courts toimpose penalties orinjunctionsbasedon a finding that discharges are inconsistent with either a state or federallaw. l84

183 AIl noted above, these studies andreports include an assessment by the CDFG ofthe extent ofthe exotic species problem in California coastal waters, which could justifymorevigorous regulation ofballastdischarges; anassessmentandrecommendations 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 ofballast 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 aninterim measure adopted by theLegislature in orderto give the agencies timeto determine a more effective approach to be implemented atthe endoftheinterimperiod. 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 StraitofGeorgia inBritish Columbia, unless the shiphas conducted an open-ocean exchange. See StateofWashington, SubstituteHouse Bill 2466, Sec. 4 [hereinafterWA 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 requiredto reporton theirballastwatermanagement, and as inthe California law, the information required will likelybe 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 ofthe Columbia River). WA 2466, Sec. 5(1). The Washington law is also generally similarto the Californialawinprovidingfor sampling andmonitoringof ballastwater, inrequiringcertain studies andreports to the legislature, and inproviding for the same very modest penalties for violations. See generally W A 2466. The Washington law differs inproviding no funds to implementthe law. See WA 2466, Sec. 7. In Michigan, a bill introduced in 2000 would prohibit vessels from operating on statewaters ifcarryingballast water from outside the state thathad not been treated



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## GOLDEN GATE UNIVERSITYLAW REVIEW [Vol. 30:4


## 4. Constitutional Limitations on State Regulation ofBallast WaterDischarges
While states generally have significant discretion in adopting legislation to address the spread ofexotic organisms, there
are two constitutionally derived limitations on that authority. These limitations restrict stateregulation thatis preemptedby federal law, under the Supremacy Clause ofthe 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 ofballast discharges.187

In deciding 

## United States u. 

## Locke, (previously entitled 

## International Association ofIndependent Tanker Owners (INTERTANKO) u. 

## Locke)188 the Supreme Court found thatWashington's oil tanker safety regulations relating to general navigation watchprocedures, English language skills, training, and casualtyreporting on oil tankers were preemptedby Title II 

## of the Ports and Waterways Safety Act of 1972, 

## as amended by the Ports and Tanker SafetyAct 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 ofits 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 anyballastwaterinto statewaters. Michigan SB-955, "Abill to amendthe Natural Resources andEnvironmental ProtectionAct". 

## 185 U.S. Const. art. VI, cl. 2. 

## 186

. See, e.g., Newfound/Owatonna, Inc. v. Town of Hamson, 520 U.S. 564, 117 (1997). See also Pikev. Bruce Church, Inc., 397 U.S. 137, 142 (1970). 

## 187

. See Umted Statesv. 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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## INVASNESPECIES 833 question are consistentwith the federal statutory structure, which has as one ofits objectives a uniformity of regulationfor 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" oftanker 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 ofWashington'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 treatmentplantswas consistentwithboththe CleanWaterAct (CWA) and PWSA Title 

## 11. 193 

## In making the latter finding, the Ninth Circuit principally relied on the Supreme Court decision in

## Ray v. AtlanticRichfield Co., which determined that PWSA Title II had implicitly occupied the field in terms ofregulating 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 UnitedStatesv. 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 Courtfound thatin adoptingPWSA Congressimplicitlyintended 

### to foreclose statesfrom requiringdifferent or more stringentrequirements 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. ofvessels engaged in foreign trade and for tug escorts oftanker vessels were not preemptedby federal law. See id. at 152.



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ble operational requirements such as de-ballasting at shoreside treatmentplants, and upheldAlaska's effortto 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 ofincreasing the protection againsthazards 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 inballastdischarges by ships in general.
Federal statutes that are more clearlyrelevantto 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 Statesv. 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 ofthe United States; (B) operateson the navigable waters ofthe United States; or (C) transfers oil or hazardous material in a portor place subjectto thejurisdiction ofthe 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 underotherlaws that may apply to those vessels. 199 "Nothingin thisTitle shall affect the authorityofany Stateor 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 butrather directs federal agencies to cooperate with states to minimize therisk 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 offederal funds to implement the states' programs, up to 75% ofthe total cost. See id. § 1204(a) and (b). 200.

. In adoptmg the current NISA regulations, the Coast Guard stated that "It has longbeen the Coast Guard'sposition thatconsistentstandardsofuniversal application, coupled with Federal initiatives to address unique concerns, are the best means of meeting local and national environmental goals with the least disruption to interna

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## INVASNESPECIES 835
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 stateregulations prohibitingthe importation ofexotic baitfish into the state,203 the Supreme Courtfound that Maine had a legitimate interestinprotecting its waters against exotic bait fish and restated the District Court opinion that: [T]he constitutional principles underlying the
commerce clause cannotbe read as requiringthe StateofMaine to sitidlyby andwaituntilpotentially 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 considerablefederal interestin

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 at33 C.F.R. pt. 151). 201 See 33 U.S.C. § 1370 (1986). The relevance ofthe CWA to the regulation of ballastdischarges is discussed in the next section ofthis article.
202 Mainev. Taylor, 477 U.S. 131, 148 (1986).
203 

### S 'd 

### ee I .
204 [d. 

## 205 See United Statesv. Locke, 529U.S. 89 (2000).



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uniform regulation ofmaritime commerce,206 statesnonetheless appear to have significant discretion in adopting measures to control the discharge ofexotic organisms inballastwater. 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 thatleavethe states substantialdiscretionto adopt andenforce regulations regarding the release ofexotic organisms and pollution standards that are stricter than those adopted by the federal government.

B. REGULATING BALLASTWATER DISCHARGEAS APOLLUTANT DISCHARGE


## 1. Federal Law

a. The Clean WaterAct
In 1972, Congress passed the Clean Water Act (CWA) with the aggressive goal that "the discharge of pollutants into the navigable waters be eliminatedby 1985."207 Although the CWA has hardly eliminated water pollution, it has substantially reduced point source discharges ofpollutants into U. S. waters. The CWA is primarily implemented by the U. S. Environmental Protection Agency (EPA), and employs a number ofinterrelated strategies for restricting water pollution. Several of these are relevant to ballast water discharges ofexotic organisms, but have been largely ignored by both federal and state entities.208

As in most states, California is authorized by the EPAto issue permits under state water quality laws that satisfy the requirements ofthe 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 ofthe CWA to ballast water discharges ofexotic organisms).



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## itytoveto a state-issuedpermitthatitdeems inconsistentwith the CWA. 

## In 

## California, waste discharge permits are issuedby 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 QualityAct andthe CWA.

## 210

£. 

## The Discharge PermitRequirement
At the heart of the CWA is a prohibition against the discharge ofany pollutant into the navigable waters ofthe 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 supportedby substantial case law.213 Second, vessels are statutorily defined as point sources.214 Finally, "navigable waters" are broadly de209 Seven ofthe 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 AnaRWQCB (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, ifadded to a water body, would qualify as pollutants under the CWA); DuBois v. U.S. Dept. ofAgriculture, 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 ofWashington Pollution Control Hearings Board that Atlantic salmon, were biological pollutants under the meaning ofthe Clean Water Act when released into the waters ofthe Pacific Northwest). See Whalin,NuisanceNonindigenous Species supra note 5, at 90-94. As noted infra in Part n.B.l.a.ii., the states ofOregon and California have explicitly recognized that exotic organisms (including those discharged in ballast water) constitute a pollutant within the meaning ofthe CWA, by listing such organisms as water quality limiting pollutants under CWA §303(d). However, EPA Region 9, in reviewing the California listing, stated thatexotic species are not a pollutant. See infra note 241. 

## 214 See 33 U.S.C. § 1362(14).



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fined toincludebothinlandwaterbodies such asrivers, 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 . 1 2" 

## c arges In 

## genera
. Although the language ofthe CWA, case law and legislative history indicate that ballast discharges ofexotic 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 ofWaters ofthe 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 ofballast water into the waters ofthe 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, at92, 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 ofpollution underthe CleanWater 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 theAct." See CraigJohnston 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 ofa vessel." (Emphasis added). The CWA defines "discharge incidental to normal operation ofa 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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## INV ASNESPECIES 

## 839

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 springof2000.220

In 

## deciding how to respond to the petition, EPAwill have to consider how the courts would likely rule on a challenge to the current exemption. A similar EPA regulation exempting agriculturalreturn flows from the CWA's permitrequirements 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 EPAAdministrator does not have the authorityto exempt categories ofpoint sources from the permit requirements of § 402."221 There is little reason to believe that the exemption for ballast discharges wouldfare anybetter.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 statedthatEPAwould prepare a report on the mechanisms available under the CWA to regulate ballast discharges and a plan for eliminating the exemption ofballast discharge from CWA permit requirements. The reportwas to be releasedfor public comment by Sept. 1, 1999, butas ofthis 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 QualityControlAct) which prohibitthe discharge ofballastwaterfrom 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 FORAsTORIAMETAL COMPANY, HUNTERS POINT, SAN FRANCISCO COUNTY (ORDER No. 98-101, NPDES No. CA0028282). Ballastwater from these ships is pumped directly into sewers and treated at municipal wastewater treatmentplants. Telephone Interview withJ. Huang, SanFrancisco BayRWQCB (1998). 221 Natural Resources Defense Council v. Costle, 568 F.2d 1369, 1376 (D.C. Cir. 1977). The EPA did not exemptballast discharges in its initial proposed rule, but did
so inthefinal ruleinordertoreduce administrativecosts,reasoningthat "[tlhistype 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 ofballast discharges, and was based on the erroneous assumption that they are benign. Since there is now substantial scientific evidence oftheirimpacts, and since EPAhas concurred that they are the
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## GOLDEN GATE UNIVERSITYLAW REVIEW [Vol. 30:4


## 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 waterquality standardsestablishedby statesto protect all designated uses ofthe 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 withthebestavailable technology.226 If

## thedischarges
were to be made into ocean waters within three miles from shore, the discharge would also have to comply with Section 403 

## ofthe CWA, which basically holds NPDES permits to the requirements ofthe Ocean Dumping Act.227 Because ofthese requirements alongwith the CWA's significant penalties228 and citizen suit provision,229 the CWA could become apowerful tool for addressingballastwaterdischarges ofexotic organisms.

appearto be no factual basisfor maintainingthe exemption, even ifitwere found to be legal. See supra PartsI.B, I.C, and II.B.l.a.i andreferencestherein. 222

.. . See Brent C. Foster, Pollutants W£thout Half-lwes: The Role ofFederal Env£- ronmental Laws in Controlling Ballast Water Discharges of Exotic Species, 30 ENVTL. L. (forthcoming 2000) !hereinafterFoster,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, butmustatleastinclude all existinguses. See 40 C.F.R. § 131.11(h)(1) (2000). 225See 40 C.F.R § 131.12(a)(1).

226See 33 U.S.C. § 1311(b)(2)(A) (1986).

227 See discussion infra PartII.B.l.b.

228 See 33 U.S.C. § 1319 (c)(2) (providing for civil penalties ofup to $25,000 a day, and largerpenalties for knowingviolations). 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 ofeven a small number ofexotic organisms could be inconsistent with the protection of designated uses. Accordingly, the CleanWaterAct may actuallyprohibit the discharge ofexotic organisms into aquatic ecosystems entirely. This conclusion becomes difficult to avoid when faced with the challenge oftrying to identify a level ofdischarge ofexotic organisms greaterthan zero thatwould be consistentwiththe CW A. Infact, the onlygovernmentalbody thathas attemptedtoidentify 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 ofexotic organisms
can be permitted into San Francisco Bay consistent with the CWA.230 

## The requirements in Section 303(d) ofthe CWA triggered this assessment and are relevanttoballastwater-caused biological pollution in a numberofrespects.


## ii. Requirementsfor Water QualityLimited WaterBodies under Section 303(d)
Section 303(d) ofthe CWA requires states to identify water bodies that are not meetingwater quality standards setby the state and approved by EPA. 231 

## Water quality standard violations may include a violation ofspecific 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 beingimpaired. 232 

## If, for example, highwater temperatures due to industrial discharges were impairing shellfish production in a given waterbody or simply exceeding
a maximum temperature standard set to protect shellfish production then that waterbody should be listed as water quality limitedfor temperature.

230 See EPA Adds S.F. Bay Dioxins and Other Pollutants and Streams to State's Section 303( d) List, 11(12) CALIFORNIAENVIRONMENTAL 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 waterbody is identified as notmeetingwaterquality standards, the state must then establish a total maximum daily load (TMDL) for the given pollutantin thatwaterbody,233 based on the maximum amount that canbe 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 ofproblems in implementingthe TMDL program, it does have the potentialto reduce the discharge ofspecific pollutants.
At least two states have listed exotic organisms as waterqualitylimitingpollutants 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 subsequentlyapprovedby 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, SeniorWaterResources Control Engineer, California RegionalWater Quality Control Board, San Francisco Bay Region (Feb. 2, 1998). The RWQCB proposed to begin development ofa 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 SANFRANCISCO BAYREGION 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 MAxI

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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 TMDLfor exotic organisms.239

Unlike conventional pollutants, however, establishing a TMDL for exotic organisms may be relatively simple given the potential for a discharge ofeven a small number oforganisms to grow into a multi-billion dollar ecological infection. As noted, the San Francisco Bay RWQCB appears poised to set a standard ofzero discharge ofexotic species into San Francisco Bay.240 Because designated uses in San Francisco Bay are**al~** 

## ready severely affected as a result ofpast 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 andFill Permitting Under Section 404
The CWA regulates the discharge ofdredged or fill material into U.S. waters under Section 404 instead ofthrough Section 402's NPDES program.241 Section 404 permits are required

MUM DAILY LOADS FORTHE SAN FRANCISCO BAYREGION, 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 reviewingthe state's 303(d) list, EPARegion 9 statedthat exotic species are not a pollutant and that the CWA therefore does notrequire thatTMDLs be developed for them, although the state may do so ifitchooses. 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, onJanuary 12, 2000, the SanFrancisco BayKeeperfiled 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 ofJanuary 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, StaffAttorney, Earthlaw, (Jan. 2000). As notedsupra PartII.A.3, while recentlegislationbarsstate 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 imposingfederal law requirements. See CAL. 

### PuB. RES. CODE § 71207(a) (West 2000). 

## 240 See EPAAdds S.F. Bay Dioxins and Other Pollutants and Streams to State's Section 303(d), List, 11(12), CALIFORNIAENVIRONMENTAL 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 ofdifferent 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 ofthe waters of the United States,"242 2) 

## will not cause or contribute to a violation ofwater quality standards, and 3) 

## is in the public interest.243

In evaluating whether a dredge or fill action will cause or contribute to a significantdegradation ofU.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 ofballast water and the quantity of exotic organisms being released in a given water body. If

## the discharges of exotic organisms associated with the proposed activitywould 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 ofballast water-caused invasions of exotic species on these resources and values, it is unclear how the Corps couldjustify 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 permitrequirements 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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It 

## would also seem difficult to support a finding that a project that would result in an increased or even a continued release ofexotic organisms into a waterbody would not "cause or contribute to" a water quality violation given the nature ofexotic 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 attheveryleast "contributeto" ifnot "cause" a water qualityviolation. Finally, in determining what actions are in the "public interest," in some circumstances the economic, ecological and social costs that are associatedwithinvasions ofexotic organisms may outweigh the public benefits associated with the development ofadditional shippingindustry infrastructure. However, in reviewing permit applications for dredge or fill projects the Corps has paid little attention to the cost side ofthis equation. In assessing the effects ofproposed projects in San Francisco Bay, the Columbia River and elsewhere, the Corps has largely ignored the potential role ofdredge and fill activities inleading to increased discharges ofexotic organisms. 248



## These.failures could be challenged by a citizen or industry group affected by the release of exotic**spec~es.** 

## Additionally, Section 401 ofthe CWA gives states an opportunityto 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). 249See 33 U.S.C. § 401 (1986).



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## GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 30:4 

## protection ofstate water quality standards, is yet another avenue the CWA provides for addressing the discharge of exotic organisms inballastwater as a pollution control issue.25o



## b. The Ocean DumpingAct
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"anymaterial transported from outside the United States" into the territorial sea or contiguous zone ofthe U.S. (between three and twelve miles from shore) without a permit.252 The ODA defines "dumping"broadly
as a "disposition ofmaterial.,,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, incineratorresidue, garbage, sewage[.],,254 Furthermore, the U.S. Supreme Court, after twice considering the phrase "matter ofany kind" in the context ofthe Rivers and Harbors Act of·1899, 

## strongly supported an expansive reading of its meaning.255 Becauseexotic organismstaken on inballastwater outside the U.S. likely qualify as "matter ofany kind" and deballastingis clearly a disposing ofthatmatterintothewater, 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 applythe aDAtoballastwaterdischarges ofexotic organisms.

250 See id. States can, however, waive this certification ifthey 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 ofthe 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 Statesv. Standard Oil Co., 384U.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 ofthe 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 ofthe marine ecosystems or affect species and community population dynamics, and must evaluate the persistence and permanence ofthe effects ofthe dumping.258 EPAmust also hold a hearingifanymemberofthe 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 ofon-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 EPAorfiled underthe ODA's citizen suitprovision.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 ofdischarges that threaten existingor designated uses) establishes a criticalfloor ofprotection 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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## 30:4 unlikely thatEPA could issue an ODA dumpingpermitfor ballastdischarges absent some effective technologicaltreatmentto remove exotic organisms. Enforcement ofthe ODA couldtherefore serve as an additional mechanism requiring technological treatmentofballastwaterpriorto discharge, andwould extend the regulation ofballast water discharges out to twelve miles from shore.

c. 

## The RiversandHarborsActof1899
Another statute that apparently applies to ballast water discharges ofexotic organisms is the Rivers and HarborsAct of 1899 (RHA).263 The RHA states that absent a permit "it shall notbe lawful to throw, discharge, ordeposit, orcause, suffer, or procure to be thrown, discharged or deposited either from or out ofany ship, barge, or other floating craft ofany kind

...any refuse matter of any kind or description whatever

... into the navigable water ofthe United States[.],,264 Since ballast water is obviously "discharged" from ships into the navigable waterof the United States, the only question is whether ballast water containing exotic organisms qualifies as "refuse ofany kind or description whatever." The U.S. Supreme Courthas 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 simplynotbeen applied to ballastwaterdischarges.
With the adoption ofthe CWA, the procedure for permitting
a discharge under the RHA has been replaced by the CWA's NPDES permittingprogram. 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 ofthe RHA's applicability

### to ballastwaterreleases). 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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## 849 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 coveredbythe CWA andRHAfaces federal penaltiesthatcould 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 ofbiological pollution.


## 2. California Law

a. The Porter-Cologne Water Quality ControlAct
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 pollutantdischargesis similarto that ofthe CWA inthatwaste discharges must meet water quality standards.270 Unlike the

266 Penaltiesfor violation ofthe RHA are upto $25,000 a dayand/orupto a yearin jail. See 33 U.S.C. § 411 (1994). See also U.S. v. Lambert, 915 F.Supp 797, 801 (1996) (EPA succeeded in anenforcement action for violations ofboththe CWA and RHA).
267 ODA provides penalties ofupto $50,000 perviolation. 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 ofup 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 legalbackstop to the CWA, byremaining applicable to ballastwater discharges within three miles ofshore even ifthe EPA's regulatory exemption for ballastwaterwere found to be legal.

266 United Statesv. 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 ballastwaterdischarges underPorter-Cologne orotherstatelaws priorto Jan. 1,2004. See CAL. PUB. 

### REs. CODE § 71207(a) (West 2000). However, the SWRCB andRWQCBs could take steps short ofimposing 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 mayimpose penalties orinjunctions iftheyfind thatdischarges ofexotic organismsinballastwaterviolate Porter-Cologne. 270 See CAL. WATERCODE § 13263.



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## [VoL 30:4 CWA, however, Porter-Cologne is not restricted to the regulation ofpoint 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, butbecause ballastwateris 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 ofwaste.273 California courts implementing Porter-Cologne have also construed the term "waste" broadly to essentially cover the same types ofpollutants covered under the CWA. Specifically, waste has been found to include siltcausedby a dam,274 runofffrom miningand 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 ofBallastWater 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: 'Somethingrejected as worthless ornot needed; surplus oruseless 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. WATERCODE § 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 PRO

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## INVASNESPECIES 851 Cologne appears to require regulation of ballast discharges from individual ships, some conservationists have argued that it imposes similarrequirements on port facilities where docked vessels commonlyreleaseballastwater.279 Porter-Cologne provides for civil penalties ofup to 

## $25,000 for eachday ofviolation and criminal penalties ofupto 

## $50,000 and up to three years in jai1.280 Repeat offenders of PorterCologne could face a fine ofup to 

## $100,000 and up to six years injail.281 The San Francisco Bay RWQCB has made some limited use ofPorter-Cologne to regulate ballastwater 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 ToOCEAN RESOURCE MANAGEMENT IN CALIFORNIA (June 1998).

279See, e.g., PetitionofSariFranciscoBayKeeperandDeltaKeeperto theBayArea Regional Water Quality Control Board and the CentralValley Regional Water Quality Control Board, Seeking Control ofBallast Water Discharges in the Bay-Delta Region (May 21, 1997) (on file with authors) [hereinafterBayKeeper, 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 ofup 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 accompanyingtext.

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 ofpollution" 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-includingunwanted ballast waters-into waters ofthe state, except in accordance with the provisions ofa state waste discharge permit." WashingtonAttorney General (1993).



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pass into the waters ofthis state

... [a]ny substance ormaterial 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 ofup to $25,000 for each violation and are in addition to penalties for violations ofany other law such as Porter-Cologne.285 The California Department ofFish & 

## Game has the authority to bring an action to enforce the requirements of Section 5650,286 but has never used this authority to control ballastwater discharges ofexotic 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 ofthe 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 BALLASTWATERDISCHARGE AS AWILDLIFE PROTECTION ISSUE


## 1. International Law 853

Various current and pending international treaties related tothe protection ofwildlife or ofthe natural environmentmake reference to the prevention and control of exotic species. Although it is possible that these treaties could obligate the signatorynations to take steps to preventormanagetheintroduction ofexotic species in ballast water, none have yet been used for thatpurpose.290

For example, the United Nations Convention on the Law of the Sea(notyetratifiedbytheU.S.) directs signatoriesto "take all measures necessary to prevent, reduce and controL.the intentional or accidental introduction ofspecies, 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 causedby such introductions.293

The Protocol adopted pursuant to the Convention for the Protection and Development ofthe Marine Environment ofthe 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 ofMarine "Pollutioni and OTA, Harmful Non-Indigenous Species in U.S supra note 31, at 294-298 (for a fuller discussion ofthe relevance ofinternational treaties to the managementofexotic species, both on land and inthe sea).

291 Bederman, Control ofMarine "Pollution" supra note 290, at 700-707; C. de Klemm, The Introduction ofExotic 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 notyet 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, at85-92.



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## accidental introduction of non-indigenous

...species

...that may cause harmful impacts to the natural flora, fauna or otherfeatures oftheWider 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 oforganisms that are determined to be hazardous to the birds protected by the treaty, or that could disturb the ecological balance ofunique island environments.296

The Convention on Biological Diversity requires the signatories, as far as possible and appropriate, to "preventthe introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species."297 Thus, ifthe introduction ofexotic 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 ofMarine "Pollution" supra note 290, at 704.
295Adopted 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.

296See R. A. Peoples, Jr., etai., Introduced Organisms:Policies andActivitiesof 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 ofthe 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), mayhave similarimplications. 

## 297 Article 8(h) ofthe Convention. The Conventionwas signed by theUnited States in 1993 buthas notyet been1atified by the Senate. Seegenerally OTA, HarmfulNonIndigenous Species in U.S. supra note 31; de Klemm, Exotic Species and the Law supra note 291, 85-92. See also OTA, HarmfulNon-Indigenous Species in U.S. supra note 31, at 296 (describingthis provision as "vague and probablyunenforceable.")



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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 obligatedtoregulate and controlballast discharges.


## 2. Federal Law

a. The Endangered SpeciesAct
Exotic species are the second most common threatto imperiled species298 and endangered fish299 in the United States, the second most frequent contributing factor to North American fish extinctions,30o andthedominantthreattoimperiled aquatic organisms inthe West.30l Within California, exotic species may have caused the extinction ofthree native fish and the eradication of another from its native waters through competition, predation or parasitization,302 and contributed to the decline of the endangeredwinter-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 ifintroduced into California.30G The shimofuri goby, introducedto Californiafrom

298 See David S. Wilcove, Quantifying Threats to Imperiled Species In the United States, 48(8) BIOSCIENCE 607-615 (1998) [hereinafterWilcove, 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 ofNorth American Fishes During the Past Century, 14(6) FISHERIES 22-38 (1989). In these three studies, habitat alteration, degradation orloss was found to be the most commonthreat orcontributingfactor.
301 See Wilcove, Quantifying Threats supra note 298, at 612. 302 See Cohen & Carlton, SFBay 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,SFBay Case Studysupra note 14, at 129,187. 305 See Don W. Schloesser, et aI., Zebra Mussel Infestation ofUnionid Bivalves (Unionidae) inNorthAmerica, 36 AMERICAN ZOOLOLGIST 300-310 (1996). 306 See NMFS, Sacramento Chinook Recovery Plan supra note 303.



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## 856 GOLDEN GATE UNIVERSITYLAW REVIEW [Vol. 30:4 Japan in ballast water, could have significant impacts on endangered tidewater gobies by preying onjuveniles, competing for food and disturbing mating activities.307 Endangered and threatened salmon, steelheadandDelta smeltmaybe impacted by changes in their food supply caused by clams and zooplanktonintroducedviaballastwater. 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 preventthe introduction ofinvasive species.311
Forexample, Section 7 

## ofthe ESAprohibits federal agencies from authorizing, funding or carrying out actions that would jeopardize a listed species or adversely modify the critical habitat ofa listed species.312 Ifa 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 ChapterMeeting, American Fisheries Society, Napa, CA (1995).

308 

### See NMFS, 

### Sacramento Chinook Recovery Plan supra note 303. 

### See also Biological and Conference Opinion for PortofOakland Berths 55-58 Project, submitted as an attachmentto a letter from Rodney R. McInnis, Acting Regional Director, National Marine FisheriesService, SouthwestRegion, to CalvinFong, Chief, RegulatorySection, U. S. Army Corps ofEngineers, 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, itis notanalyzed here. 310

### See Exec. OrderNo. 13,112, 64 Fed. Reg. 6183 (Feb. 3, 1999).

311 Agencies' willingness to use the ESA to regulate ballast water in appropriate circumstance maybeencouragedby theorder's directives to eachfederal agencyto "use relevantprograms and authorities to

...preventtheintroductionofinvasive species" and to "not authorize, fund or carry out actions that it believes are likely to cause or promote the introduction or spread ofinvasive 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 ofsuch actions clearly outweigh the potential harm caused by invasive species; and that all feasible and prudentmeasures to minimize theriskofharm will be taken in conjunction with the actions." 

### Id. 312See 16 U.S.C. § 1536(a)(2) (2000).



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## species orits designatedcriticalhabitat, theresponsiblefederal agency mustinitiate consultationwiththeU.S. Fish &Wildlife Service (USF&W) (for terrestrial andfreshwater species) orthe National Marine Fisheries Service (NMFS) (for marine and anadromous313 species).314 In determining whether a federal action willjeopardize 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 ofa port or the dredging ofa waterway that would indirectly result in the release ofballastwater containing exotic organisms must consider the potential effect
onlisted species ortheircriticalhabitat.
Section 9 ofthe ESA prohibits the taking ofan endangered species or its habitat,316 with "take" meaning to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attemptto 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 notjust 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 oflisted species" is a type ofhabitat modifying activity that may qualify as a take.319 In practice, demonstrating a causal link between a given ballast discharge, the release and establishmentofan exotic organism, andresultinghabitatdegradation constituting a take ofa listed species may prove to be

313 Anadromous species, such as salmon, spawninfresh waterandlive as adultsin saltwater. 

## 314 See 16U.S.C. § 1536 (a)(3). 

## 315 See 50 C.F.R. § 402.14(g)(3) (2000). 

## 316 See 16U.S.C. § 1538(a)(1).

317[d. § 1532(19). 

## 318 See Palila v. Hawaii Dep't ofLand and Natural Resources, 852 F.2d 1106 (9th Cir.1988). 

## 319 64 Fed. Reg. 60,727 (Nov. 8, 1999) (to be codified at50 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 ofdeballasting exotic species and thereby creating biologically-polluted waters, a Section 9 challenge maybe more viable.

InJanuary of 1999, Earthlaw's Environmental Clinic at the Stanford Law School, on behalfofthe Center for Marine Conservation and the San Francisco BayKeeper, filed a notice of intent to sue over violations ofSection 7 ofthe ESA in connection with a proposed dredging project at the Port ofOakland. 320 

## The U.S. Army Corps ofEngineers, 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 ofendangered andthreatened species that are atrisk from exotic species invasions in the project area, largely as a result ofballast 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, ChiefofEngineers and Commander, U. S. Army Corps ofEngineers, San Francisco District and Lt. Col. Peter T. Grass, U. S. Army Corps ofEngineers, SanFrancisco District (January6, 1999) (onfile with authors). While the specific project discussed inthis letteris the OaklandHarbor 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 oftheseprojectsisdiscussed inPartII.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 ofEngineers, SanFrancisco 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 Letterfrom Deborah 

### A. Sivas to Lt. Gen. Joe N. Ballard andLt. Col. Peter T. Grass, supra note 320.



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sponse, the Army Corps confirmed that it was requesting consultation onthe exotic species issues raised inthe 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 dredgingprojectis notlikelyto adversely affect listed species,325 but found that the introduction of exotic organisms resulting from the berth expansion project could resultin a take oflisted salmon or steelhead.326 Accordingly, NMFS required the Army Corps to condition the Port's permitto require the Portto enter into an agreement with NMFS on monitoring and managing the introduction of exotic species, and further required the Army Corpsto retain discretion to re-initiate Section 7 

## consultation with NMFS ifthe Port failed to fulfill that agreement or ifballast water discharges exceeded the amounts projected by the Port.327



## b. The LaceyActand the Federal Noxious WeedAct

In 1900, 

## Congress passed the Lacey Act with the general purpose ofpreventingthe introduction ofanimal and bird spe323 Telephone Interview with Michael Lozeau, Staff Attorney, Earthlaw (Jan. 2000).

324 See Letterfrom Cay C. Goude to PeterE. LaCivita, supra note 32l.

325 Letter from Rodney R. McInnis, Acting Regional Director, National Marine Fisheries Service, Southwest Region, to PeterE. LaCivita, Chief, Environmental Planning Section, U. S. Army Corps ofEngineers, San Francisco District (August 9, 1999) (on file with authors). 326 Inlisting the anticipated effects ofthe project, NMFS wrote: "The introduction ofnonindigenous species by ballast water and hull fouling may adversely affect listed salmonids and result in an unknown quantity oftake, in the form ofmortality, harm, injury, and/or harassing, listed salmonids." Potential impacts include changes in food availability, introduction ofpathogens and predators, clogging offish screens and decreased efficiency of fish salvage facilities, and loss of rearing habitat, which could result in a degradation ofa listed species' ability to survive and recover. See BIOLOGI· CALAND CONFERENCE OPINION FORPORTOF 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 ofwild mammals, wild birds, reptiles, amphibians, fishes, mollusks or crustaceans, or their offspring or eggs, that are eitherlisted in theAct or are determinedbythe Secretaryofthe Interior "tobe injurious to human beings, to the interests ofagriculture, horticulture, forestry or to wildlife or the wildlife resources ofthe United States.,,330 The Secretary may only permitthe importation of such species for zoological, educational, medicinal or scientific purposes.331

32S See Act ofMay 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 theUSF&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, orintroduction constitutes animportationwithinthe meaningofthe customs laws ofthe UnitedStates." 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 rathertorturedreading ofthe 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 ofthe United States." 18 U.S.C. § 42(a)(1). The "United States" is defined by applicable regulation to mean "the several States ofthe United States ofAmerica." 50 C.F.R. § 10.12 (2000). This passage is thus most sensibly read as prohibiting shipmentbetween theindividual states, the DistrictofColumbia, 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 ofthe District ofColumbia 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 continentfrom Maryland to Californiawould be allowed. On the otherhand, U.S. Fish &Wildlife Service staffhave at times read theLacey Act as even prohibiting the intrastate transport ofproscribed species, although that does not seem to be the Service's currentinterpretation. Email from DennyLassuy, U. S. Fish &Wildlife Service to J. A. Kopp, Prince William Sound Regional CitizensAdvisory Council and posted to the Western Regional'Panellistserver (July 12, 1999) (on file with authors). 331 See 18U.S.C. § 42(a)(3).



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## 861 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 territorialjurisdiction ofthe 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 orpotentially injurious, andprohibit suchimportationorinterstatetransport except as otherwise provided.335 Furtherprovisions 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 ofthe state wildlife conservation agency withjurisdiction over the release site.337

The Federal Noxious Weed Act similarly prohibits, except by permit, importing into the United States or the interstate movement ofnoxious weeds identified by the Secretary ofAgriculture.33B "Noxious weeds" are defined as any living stage ofa plantthat "is offoreign origin, is new to ornotwidelyprevalent inthe United States, and candirectly orindirectlyinjure crops, or otheruseful plants, livestock, or poultry or otherinterests 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 ofmovement, 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 otherinvertebrate, whetherornotbred, hatched, or born in captivity, andincluding anypart, 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 ifa 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 PlantHealth Inspection Service (APHIS) inthe DepartmentofAgriculture.



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## agriculture, including irrigation, or navigation or the fish and wildlife resources ofthe United States orthe public health."339

Because implementation of the Lacey Act and the Noxious Weed Act are each based on the use ofa "dirty list" ofprohibited species, the statutes are generally applied only to species that have already demonstrated their invasive nature.340 This limits the usefulness ofthese statutes as a pre-emptive mechanismfor preventinginvasions before theyoccur, which is one of severalreasons for the oft-noted ineffectiveness oftheseActs.341 Various attempts to adopt a "clean list" approach (restricting the import ofnew species unless it is shown that the species is

339 7U.S.C. § 2802(c).**~** 

## .. . Although the broad language ofthe 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 ofMarine "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 Regulationand 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 ofTort Liability, 5 DUKE ENVTL. L. & POL'y F. 21, 27-29 (1995); S. A. Wade, Stemming the Tide: A Pleafor 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 oftheseActs is also hindered by inadequate funding for monitoring and enforcement, and bygenerally 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 Departmentrealized the plant was even in the country, although it was correctly identified onits shippingpapers. SeeAlien Weed EludesAuthorities, Then Turns Up at Home Depot, WALL ST. J. (Aug. 10, 1999); Robert Weller, Noxious Weed Introduced in US, SoldasPond Plant, SEATTLE DAILY

### J. OF COM. (Aug. 19, 1999).



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not a threat) have failed,342 despite substantial support for this approachfrom the scientific and regulatorycommunity.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 ofdue 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 agamm 1975 the USF&W proposed amendmgthe LaceyAct regulations to incorporate a cleanlist approach. See 38 Fed. Reg. 34,970 (Dec. 20, 1973); 40 Fed. Reg. 7935 (Feb. 24, 1975). These proposals were withdrawn under pressure from pettrade, 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, HarmfulNon·Indigenous Species in U.S. supra note 31, at 111. In 1995 APHIS attempted unsuccessfully to adopt a partial cleanlistapproachto implementingthe Noxious Weed Act. 60 Fed. Reg. 5288 (Jan. 26, 1995); 60 Fed. Reg. 31,647 (June 16, 1995); DavidWhalin, The Control of AquaticNuisance Species, 5 ENVTL. LAWYER 69, 107-114 (1998).

343 See OTA, HarmfulNon·Indigenous Species in U.S. supra note 31,at 109; Letter from Andrew N. Cohen and 106 ecologists andresearch scientists to Interior Secretary Bruce Babbitt (Oct. 19, 1998), app. A in SandraM. Keppner, et aI., Caulerpa taxifolia: A Potential Threat to U. S. Coastal Waters, A Preliminary Report to the Aquatic Nuisance Species TaskForce (Nov. 17, 1998).

344 See, e.g., S. A. Wade, Stemming the Tide:A PleaforNew Exotic SpeciesLegisla· 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 inthe 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 ofmitten crab releases into the GreatLakes, 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 abundantin many port areas in China, Taiwan, Korea, Japan, Portugal, northern Europe and England, anditisthus likelythatmany ships takingonballastwaterinthesecountriesbetween late spring and early fall carry mitten crabs. See Andrew N. Cohen &James T. Carlton, Transoceanic TransportMechanisms: 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 crustaceansinto thewildwithout a permit.350



## 3. California Law
California has several statutory requirements that generallyrestrictthe release ofexotic organismsinCalifornia absent
a permit. The Fish and Game Code makes itunlawful to place, plant, or cause to be placed or planted, in any ofthe waters ofthe 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 securingthe 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 ofthe department [ofFish and

Zebra mussels were apparently introduced in ballast water from Europe into the GreatLakes, then spreadthroughout much ofeastern NorthAmericacausing substantial economic and environmental damage. See supra discussion Part 

### I.B. Zebra mussels spawnfrom springto earlyfall withindividual females producingupto one million eggs, and the larvae spend up to 33 days in the plankton. See M. Sprung, The Other Life:AnAccountof PresentKnowledge of the LarvalPhase of Dreissena polymorpha, in ZEBRA MUSSELS: BIOLOGY IMPACTS AND CONTROL 39-53 (T. F. Nalepa & D. W. Schloesser eds., 1993). Thus, ships that take on ballastwater between spring and fall at freshwater ports in Europe, the Great Lakes, the SaintLawrence Seaway, the Hudson River orNew Orleans are likelyto carryzebra mussels.

348 For example, in one study ofships discharging ballast water from Japan into Coos Bay, Oregon, crustaceans were found in the ballast water from at least 98.6 percent ofthe ships. See James T. Carlton & J. 

### B. Geller, Ecological Roulette: The Global Transport of Nonindigenous Marine Organisms, 261 SCIENCE 78-82 (1993). 349See 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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## 865 Game].,,352 Additionally, California Code ofRegulations 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 notnativeto California.,,353 Pursuantto the above statutes and regulations, California has published two lists ofspecies that maynot 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 ofFish 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 applythemto 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, orrelease alive into this state, except under a revocable, nontransferable permit" any ofa list ofspecies that includes various primarilyfreshwater 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 toimport, transport, or possess alive

...except under permit issued by the Department ofFish and Game" a somewhat larger list ofspecies that includes all species in the genusEriocheir (mitten crabs) and all species in thegenusDreissena (zebramussels). Species inthe lattertwo groups are believed to have been introduced via ballast discharges into, respectively, northernEurope andeastern NorthAmerica, andresultedin substantial economic and environmentaldamage. See supra note 347 anddiscussion ofzebramusselssupraPart I.B. Cal. Code Regs. § 236 also prohibits importing any ofthe 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 ballastwaterdischarges under these Fish & Game statutes orother statelaws priorto Jan. 1, 2004. See CAL. PuB. REs. CODE § 71207(a} (West 2000). However, the courts may impose penalties or injunctions ifthey find that the importing, transporting or releasing into the wild ofexotic 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 statelaw, such as CAL. FISH & GAME CODE Section 2271(a}, which prohibits the importing offish, wildlife or plants. InMaine 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 ofSection 6400 "throughthe use ofan aquatic nuisance species.,,356 Section 12023 increasedthe penalties for violations, Section 12024 made violators "liable for all public and private response, treatment, andremediationefforts resultingfrom 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 theliabilityorrewardprovisions, orfrom 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 implicitlyrecognized the general applicability ofSection 6400 and its otherpenaltyprovisions toballastwaterdischarges.

D. REGULATING BALLASTWATER DISCHARGE THROUGH 

### ENVIRONMENTAL REVIEW


## Because of the extensive federal role in the development and maintenance ofnavigational channels and port andharbor 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 ofexotic 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 ofexotic organisms

356See definition of"exotic species"supra note 5. 357 See CAL. FISH & GAME CODE § 12023(d) (West 1994).

358 These already established penalties are imprisionmentfor up 

### to a year and lor
a fine ofup 

### to $5000. See CAL. FISH & GAME CODE § 12007. Section 12023 increased the penalties, for non-ballast water releases ofaquatic nuisance species, to imprisonmentfor sixmonths to a year and/or a fine ofup 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 ofnonfederal actions, but additionally provides a level ofsubstantive protectionthatNEP 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 significantimpacts.365 A single environmentalreview 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 ifthere are feasible alternatives or mitigation measures available that would substantially lessen any significant effects that the projectwould 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 NEPAMITADD, CAL. PuB. RES. CODE § 15021 (a)(2).

366 See Village Laguna ofLaguna Beach v. Bd. ofSupervisors ofOrange County, 134 Cal. App. 3d 1022 (1982). 

## 367 CAL. PuB. RES. CODE § 15021(a)(2).



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## 30:4 spread and establishment ofexotic species.36B Inthat case, conservationists successfully challenged an Army Corps environmental review that failed to consider the potential watershed effects of zebra mussel colonization following the construction ofa proposed reservoir.369

Over the past two years, eight conservation groups submitted a series ofcomment letters on the NEPA and CEQA documentation for proposed projects at the Port ofOakland, based
on impacts related to the discharge ofexotic 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 ofexotic 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, shortervoyages.372 They also argue that the proposed dredging

368.

. . See Hughes RIVer Conservancyv. 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,BerthsProject 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 eightother organizations to EricJolliffe, U. S. Army CorpsofEngineers, San Francisco



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and emplacement of dredged sediments may lead to an increased rate ofestablishment ofexotic 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 and402, ESA, the Marine Mammal Protection Act, Porter-Cologne, and sections ofthe California Fish and Game Code. 374 

## In response, the Port expanded its discussion ofthe 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, Centerfor Marine Conservation, Pacific Region, andeightotherorganizations 

### to Robert McIntyre, Review Manager, U.S. Army Corps ofEngineers, Policy Review Branch 2, 5, 11-12 (June 19, 1998) (on file with authors). See also Letter from Linda Sheehan, Pollution Program"Manager, Centerfor Marine Conservation, Pacific Region and seven otherorganizations to Richard Sinkoff, Supervisor, Environmental Planning Department, PortofOakland 5, 9-10 (Jan. 28,1999) (on file with authors). 373 See Letterfrom Warner Chabot to RobertMcIntyre, supra note 372, at 2, 5, 12. See also Letter from Linda Sheehan to Richard Sinkoff, supra note 372, at 5, 9. See Letterfrom Linda Sheehan, Pollution Program Manager, Centerfor Marine Conservation, Pacific Region and seven other organizations to Jon Amdur, Port of Oakland 8 (Oct. 20, 1999) (on file with authors). 374 See Letterfrom Warner Chabotto EricJolliffe, supra note 372, at20-23. Letter from Deborah A. Sivas, Stanford Environmental Law Clinic 

### to Lt. General Joe N. Ballard, ChiefofEngineers and Commander, U. S. Army Corps ofEngineers and Lt. Colonel Peter T. Grass, U. S. Army Corps of Engineers, San Francisco District (Jan. 6, 1999) (on file with authors). See Letterfrom Linda Sheehan 

### to Richard Sinkoff, supra note 372, at6, 18-19. M5 " See Final EIR, Oakland Harbor supra note 370, at Appendices N through V, andAppendixX: Responses

### to Comments. See also PortofOakland,BerthsProject 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) [hereinafterPortofOakland,BerthsProject 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 ofOakland, 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 ofOakland, Berths Project Vol. I supra note 371, at 3.6-31to 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 BaySpecies, SANJOSE MERCURYNEWS, Oct. 6, 1998, atBl.



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vation groups do not consider this to be adequate mitigation,377 andcould challenge the projects.
While neither NEPA or CEQA can be expected to bear the brunt ofballast water reform, both can provide a much needed opportunity to consider the effects ofballast water discharges ofexotic 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 

## Assessingthepotentially serious effects ofinvasions of exotic organisms through the CEQA or NEPAprocess may also help persuade states or the federal government to require treatment ofballast 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 Letterfrom Linda Sheehanto JonAmdur, 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 ofOakland (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, StaffAttorney, Earthlaw (Jan. 2000). 378 In Oregon, where the Army Corps has refused to consider the effects ofballast water discharges and therelease ofexotic organisms thatcould result from a proposed channel deepening project, NEPA is principally being used to get the Corps to recognize thatthere is an issue. 379 As noted supra PartII.A.3, recentlegislationbars 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 ofenvironmental impacts resultingfrom a proposed project, includingimpacts resultingfrom 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 orlocal governments. Suchactions would notbe restricted, norwouldthecourts be barredfrom imposing restraining orders or injunctions on projects whose environmental analyses and documentation orwhose mitigations withregardto ballastwater discharges fail to satisfyCEQA.



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nomic and environmental risks of invasions against the economic incentives to increase shipping and thus, ballast discharges.
E. REGULATING BALLASTWATERDISCHARGE AS A COASTAL ZONE MANAGEMENT ISSUE


## In part, California manages actiVities in the coastal zone by regulatinglanduse andby settingconditions on leases ofstateowned tidelands. State statutes and policies direct agencies to manage these uses to supportvarious objectives, including the protection of natural resources, native species, water quality and other public benefits. In some cases, this may require managing the discharge ofballast water associated with those landuses. 

## 1. The California Coastal Zone Planning and development within the California coastal
zone is managed under the authority ofthe 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 consistentwiththe policies ofthe CoastalAct.
The coastal zone is defined on a set ofmaps, and generally includes the land and water "extending seaward to the state's· outer limit ofjurisdiction,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 16U.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 ofa certified plan or program, coastal development permits are issued by the CCC.391 The Coastal Act defines developments to include:
the placementorerection ofany solid materialor structure; discharge or disposal of any dredged material or ofany gaseous, liquid, solid or thermal waste

...change in the density or intensity of
use ofland

...change in the intensity ofuse ofwater

... [and] construction, reconstruction, demolition, or alteration ofthe size ofany structure[.]392 Development permits are to be issued, and port master plans and local coastal programs certified, only ifthey are consistent withthe policies oftheAct.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 ofHueneme, LongBeach, Los Angeles and SanDiego. 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 describedin Chapter3 ofthe 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 ofthe marine environment shallbecarriedout in a manner that will sustain the biological productivity of coastalwaters andthatwill maintainhealthypopulationsofall 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 ofwaste 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, turningbasins, orvesselberthingandmooring
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" ofthe 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 atleast 90 days before final approval ofthe 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 ofcompliance withthe Coastal Act's policies. See id. § 1456(c)(3)(A).



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funded by federal agencies in waters outside ofthe state'sjurisdiction but affecting natural resources within the state'sjurisdiction are required by the CZMA to be in conformance with the CoastalAct's policies. 399 

## Developments resulting in the introduction ofexotic organisms into the coastal zone violate the policies ofthe CoastalAct to the extent that such organisms degrade marine resources, reduce biological productivity, harm populations ofmarine organisms that are ofcommercial, 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 ofexotic organisms conflicts with the policies ofthe Act by including conditions in coastal development permits that restrict plantings to native species orrequire the removal ofexotic 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 dredgingprojects and othertypes ofprojects that may affect shipping. To the extent that these projects affect the volumes, sources or condition ofballast water discharges, and may increase the number or diversity of exotic organisms released or established, they would conflict withtheAct's policies. Permitconditions for suchprojects 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 mtervlewWith T. Grove supra note 399. 401 See CAL. PuB. RES. CODE §§ 30200(a), 30233(a), 30714, 30715.5 (West 2000). AB notedinPartII.A.3, recentlegislation bars statecommissions such asthe

## cec from imposing additional requirements on ballastwaterdischarges underthe CoastalAct or other state laws prior to Jan. 1, 2004. See CAL. PuB. RES. CODE § 71207(a). However, the CCC could take steps short ofimposing requirements, such as developing, proposingandholdinghearingson language for permitrequirementsthatwould go into effect
on or afterthatdate. In addition, since the federal CZMArequiresthatprojects permitted, funded orundertaken by federal agencies conform with the policies ofthe Coastal Act, comment or action by the CCC on these projects would not be barred. Penalties



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## charges ofa 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 mayrequired amendmentormitigation.


## 2. San Francisco BayRegion
The San Francisco Bay Conservation and Development Commission (BCDC) was created by California's McAteerPetris Aceo4 and receives its authority from that Act, the SuisunMarsh PreservationAct,405 andthe 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 ofthe 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 withinthe secondarymanagement 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 ofthe 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'TCODE §§ 66600-66682 (West 1997). 

## 405 See CAL. PuB. RES. CODE §§ 29000-29612. 406 See 16 U.S.C. § 1451 (2000). 

## 407 See CAL. GoV'TCODE § 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 ofthe McAteer-Petris Act; plus a shoreline band within 100 feet landward ofthe San Francisco Bay shore. See id. § 66610. 

## 409 See CAL. PuB. RES. CODE § 29000-29612 (West 2000). 410 See CAL. GoV'TCODE § 66632(a).



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federal agency that affects land or water use or natural resources within BCDC'sjurisdiction, 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 ofthe McAteer-Petris Act and the San Francisco Bay Plan.412 Permits maybe 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 penaltiesfor 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 

## Ifthe long-term protection ofthis 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 preventtheextinction ofany 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 orfunded 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 staffis considering recommending the inclusion ofpolicies on exotic species. Interview with Leora Elazar, BCDC Coastal Program Analyst (Sept. 1999). Within the shoreline band, BCDC maydeny a permitonly for failing to provide adequate public access to the bay and its shoreline. See CAL. GoV'TCODE § 66632.4. 413 See CAL. GoV'TCODE § 66632(0 (West 1997). 414See id. §§ 66637, 66638. 415 See id. § 66640. 416See id. §§ 66641, 66641.5. 417 • SanFranCISCO BayPlan 1998 at 7.



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benefits areto beprotected, maintainedorrestored.418 As exotic species mayhave harmful impacts on fish andwildlife andmay substantially alter marsh, mudflat and other aquatic and wetlandhabitats, theirintroductionwouldviolate 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" ofthe State Water Resources Control Board and San Francisco BayRWQCB.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 clearlyviolate the BayPlan. Thus, if a project that involved dredging, filling or a substantial change in use canbe reasonably expected to contribute to the introduction or spread ofan exotic species, BCDC could deny a permitto the project or could require mitigation ofthat 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, ifthe likely result would be
an increase in the amount ofballast water discharged into San Francisco Bay, a change in the source ofthe ballastwater, or a decrease inthe travel time for the ballastwater.422 Appropriate

418 See 

## SanFranciscoBayPlan 1998 at9-10, 12-13. 419 SanFranciscoBayPlan 1998 at 11. 

## 420

. See supra

## PartII.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 ofimposing requirements, such as developing, proposing and holding hearings on language for permitrequirements that would go into effect on or afterthat date. In addition, since the federal CZMA requires that projects permitted, funded or undertaken by federal agencies conform with the policies ofstate law including McAteer-Petris, commentor actionbyBCnContheseprojectswouldnotbebarred. 422 Since the number and diversity oforganisms in a ballast tank generally decreases dramatically overthe courseofavoyage (see 

## discussion supra

## PartI.C), reduc91 Cohen and Foster: Ballast Water and Invasive Species

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## 30:4 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, includingboth strategyand funding for controlling existingorfuture invasions.
Violations of the Bay Plan's policies could also arise from projects that alter portions ofthe San Francisco Bay environment so as to encourage the establishment or spread ofexotic 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 ofparticular concern in areas where exotic organisms are regularly released, such as dredging or filling done in ornear a portwhere ballastwater 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 thebay.


## 3. State Tidelands Leases andMarine TerminalRegulation
The State Lands Commission (SLC) was established to manage lands owned by the State ofCalifornia. 424 

## These lands include tidelands and submerged lands from the mean hightide line to three miles from shore, swamp and overflow lands,

ingthe ballastwater's travel timewouldtendtoincreasethe number anddiversity and improve the condition ofthe organisms releasedin the discharge. 423 See CHARLES S. ELTON, THE ECOLOGY 

### OF INVASIONS By ANIMALS AND PLANTS 117 (1958). Seegenerally Robert

### A. Leidy &Peggy L. Fiedler,HumanDisturbance and Patterns ofFish Species Diversity in the San Francisco Bay Drainage, California 33 BIOLOGICAL CONSERVATION 247-267 (1985). See also F. H. Nichols, et al., Remarkable Invasion ofSan Francisco Bay (California, USA) by the Asian Clam Potamocorbula Amurensis, II. Displacement ofa 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 surfacesvulnerable to colonization byexotic organisms, unless the top surface ofthe dredged channel or emplaced fill consisted of highlytoxic sediments orothermaterial thatorganisms could notlive on. 424 See CAL. PuB. RES. CODE §§ 6001-6465 (West 1977).



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andthebeds ofnaturallynavigablerivers, streams andlakes.425 Whereportshavebeen constructedon suchlands,thelandtitle has been conveyed to the local government managing the port, but about twenty privately-owned marine terminals are constructedinpart on landleasedfrom 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 itbelieves to be inthe bestinterests ofthe 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 ofpublic health and safety andthe 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 ofthe manual,431 and the SLC is empowered to inspect andmonitorterminals withrespectto these goals.432
Thus, whenthe SLC leases statelands 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 NationalAudubon Societyv. 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 shippingterminals in California. 430 See id. § 8758(a). 431

. See zd. § 8758(g). 432 • See zd. § 8757(a).



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## 880 GOLDEN GATE UNIVERSITYLAW REVIEW [Vol. 30:4 thority andpotentially a publictrustdutyto includetermsthat 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 ofexotic species in ballast discharges that could in turn affect public trust uses, public health orthe environment, the SLC has the authority and possibly the legal obligation to write lease terms and adoptregulations 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 thepartoftheSLC, andthus triggers an environmentalreview underCEQA. 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 ofsignificant impacts. See discussion supra PartII.D. 434 See CAL. PuB. RES. CODE §§ 8755(a), 8756, 8757(a) (West 2000).

435

### As notedinthe discussionsupra Part 1I.A.3, recentballastwaterlegislation 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 termsrequiringballastwatermanagementto be included afterthatdate; andsimilarly 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 notbe barred from takingactions compelled by thepublic trustdoctrine.

436 The Environmental Impact Report for an oil terminal in San Francisco Bayproposed that the potential impacts from releasingexotic organisms in ballastwatercould be mitigated by prohibitingtankers 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 STATETIDE AND SUBMERGED LANDSATUNOCAL'S SAN FRANCISCO REFINERY, OLEUM, CONTRA COSTA COUNTY 4.4-2, 4.4-4 (March 1994) (report preparedfor Stateof California State Lands Commission). This requirementwas not included in the terms ofthe lease, however. In 1997, the environmental review ofthe lease application for



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### CONCLUSION


## Until quite recently, policymakers and regulators generally viewed ballastwaterdischarges as harmless. Overthelastfew 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 ofthe 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 ofresearch that has been done on treatingballast 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 ofwell-developed tools for killing organisms in large volumes of water. More recent technologies may eventually provide uswith 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 ballastwater.

Chevron'sEsteroMarineTerminalwas assessingtherelease ofexotic speciesinballast 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 ofthe 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 beingthe EPA's 1973 adoption ofa regulation exemptingballastwaterdischarges from the CleanWaterAct's permit requirements. This exemption, though illegal on its face, was adopted at the time because the EPA believed that ballast waterdischarges were harmless. Given whatis now known about their impacts, ifthe EPA were to approach the issue anew, it clearly would have no basis for adopting such an exemption. Neither does there appearto be any legal or scientific rationale for maintainingit.
Onthe otherhand, the shippingindustryhasbeendischargingballastwaterwithoutoversight orregulationfor overa century, and not surprisingly the industry is now rather resistant to the imposition ofregulations. The contrastbetweenthe 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 ballastwaterwhich, whencarefullyparsed, merelymakes it officially voluntary for the shipping industry to do anything aboutits ballastwaterdischarges.
At the core ofthe body ofrelevant law are laws regulating the discharge ofpollutants 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 inballast water, arebiological 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 underthese laws is likely to be zero.
There are several additional types of laws-pertaining to wildlife protection, the assessment and mitigation ofenviron96

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mental impacts, and coastal zone management-that may in certain circumstances supplement or substitute for the regulation ofballastwaterby water pollution control statutes. These types oflaws 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 ofballast water transported and discharged. Challenges are likely to be brought under these laws if adequate and effective regulation ofballast water discharges is not implemented under water pollution or other laws, and in some cases such challenges are likely to result in delays ordenials ofpermits or approvals for projects. Although not discussed in this article, a potential additional layer oflegal redress exists under the common law theories of liabilityincludingtort, nuisance andnegligence. If

## government agencies do not use their available authorities to effectively regulate the release ofexotic species inballastwater, we are at some point likely to see lawsuits filed against the shipping industryfor recovery ofthe costs ofdamages causedbythese species and recovery ofthe costs of containment and eradication. As we have seen from recent invasions in aquatic ecosystems, the costs resulting from the introduction ofeven a single, particularly harmful organism may amount to several billions of dollars. Thus-besidesprotectingnative ecosystems andpublic health-implementing technologies to prevent the release of exotic organisms in ballast water could prove to be a wise investmentfor the shippingindustry.

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