New York State Department of Environmental Conservation 

Division of Environmental Permits, 4th Floor 

625 Broadway, Albany, NY 12233-1750 

Phone: (518) 402-9167· Fax: (518) 402-9168 

Website: www.dec.ny.gov 

Joe Martens 

Commissioner 

ORr:CI211lI2D September 26, 2012 CTO 

004Sl.4 21IJI! 

Mr. John Filippelli, Director FY. 'l. R.fSOUI? Division of Environmental Planning and Protection ()Yh Wt~ . CEs United States Environmental Protection Agency f,V1(,'t() -' ' 'Sf+-e.. : . (It'e. n 290 Broadway, 25th Floor 

New York, New York 10007-1866 'Jj°V/Per'hif 

:S:/72&79. ' 

Re: Clean Water Act Section 401 Certification for 2013 . hfJn I 

Commercial and Large Recreational Vessel General Permit 

and Small Vessel General Permit 

Dear Mr. Filippelli: 

This Certification is issued by the New York State Department of Environmental Conservation 

(Department) pursuant to Section 401 of the Federal Clean Water Act (CWA or Act), 33 

U.S.C.§1341, in response to your letter of December 16,2011 to Mr. William R. Adriance, Chief 

Permit Administrator, Division of Environmental Permits, and is based on the information and 

materials available at (http://cfpub.epa.gov/npdes/vessels/vgpem1it.cfm) and, or included in 

Docket ID No. EPA-HQ-OW-2011-0141, available at (http://www.regulations.gov). Please 

note that Mr. Adriance has retired, and I am responding as the Chief Permit Administrator for the 

Department. 

The Department certifies there is a reasonable assurance that discharges from vessels covered by 

the EPA's National Pollutant Discharge Elimination System (NPDES) Vessel General Permit 

(VGP) for discharges incidental to the normal operation of commercial and non-commercial 

vessels greater than or equal to 79 feet in length, and the NPDES Small Vessel General Permit 

(sVGP), will comply with the applicable provisions of33 U.S.C §§ 1311, 1312, 1313, 1316, 

1317 and 1341 (CWA §§ 301, 302, 303, 306,307 and 401), and that permittees and their 

activities will not contravene applicable limitations, standards and other appropriate 

requirements of State law, provided the following conditions set forth in this Certification are 

met. 

Small Vessel General Permit Certification Conditions 

The conditions in the draft s VGP cannot be made less stringent without violating water quality 

standards and other requirements of State law. See 40 CFR 124.53 (e)(3). The Department has 

not identified any additional conditions that are needed to meet the requirements of either the 

Page 1 of7 
CWA or New York State Law, provided the conditions of the final sVGP are at least as stringent 

as the conditions of the draft s V GP. The Department finds that EPA's supporting analysis has 

shown that the requirements of the sVGP is sufficiently protective of New York's waters. 

Vessel General Permit Certification Conditions 

The Department finds that the conditions in the draft VGP cannot be made less stringent without 

violating water quality standards and other requirements of State law, and also establishes other 

conditions more stringent than those contained in the draft VGP that are needed to meet the 

requirements of either the CWA or New York State law. As further explained herein and in the 

Department's Fact Sheet dated 2012, each such condition is needed to assure compliance with 

the relevant provisions of law and regulation which are set forth in the Department's Fact Sheet 

dated 2012. In accordance with 40 CFR §§ 124.53(e)(2) and (3), those provisions of the CWA 

and New York State law form the basis for the conditions of this Certification. In accordance 

with 40 CFR § 124.53 (e)(2) and (3), each such condition cannot be made less stringent and still 

comply with the requirements of State law and regulation, including State water quality 

standards. Since the requirements ofNew York State law and regulation, including water quality 

standards, are more stringent than the protections the VGP would otherwise provide, this water 

quality certification is necessary. 

In accordance with 40 CFR § 122.44(d)(1), numeric Water Quality-Based Effluent Limitations 

(WQBEL) for living organisms in ballast water discharges can be set for vessels covered under 

the VGP. The WQBEL is set at a level which will neither cause nor contribute to an excursion 

above New York State water quality standards, including State narrative criteria for water 

quality. While this Certification does not set a WQBEL, it does specify interim measures to 

ensure compliance with State water quality standards, including State narrative criteria for water 

quality, until such time as the WQBEL is developed and fully attainable. The Certification also 

sets conditions for other vessel discharges such as bilge water. 

All studies, reports, authorities and other documents cited herein, including the Department's 

Fact Sheet dated 2012, are incorporated into this Certification by reference. 

Conditions set forth in the draft VGP cannot be made less stringent: 

1. Draft permit generally. The conditions set forth in the draft VGP, including Section 

2.2.3.5 (discharge limitations), Section 2.2.3.7 (Great Lakes exchange and flushing), and Section 

2.2.15 (graywater), cannot be made less stringent without impairing New York waters for their 

best usage. These conditions, or equally protective conditions, are needed to comply with the 

New York State statutes and regulations indicated in the Department's Fact Sheet dated 2012. In 

accordance with 40 CFR 124.53 (e)(3), this condition cannot be made less stringent and still 

comply with State water quality standards. 

For example, permittees must meet the following discharge limits consistent with Section 2.2.3.5 

and Table 6: Ballast Water Treatment to BAT(Best Available Technology) Schedule found in the 

VGP, unless excluded from these requirements by Parts 2.2.3.5.3 or 2.2.3.8 of the VGP: 

Page 2 of7 
a. 	 For organisms greater than or equal to 50 micrometers in minimum dimension: discharge 

must include fewer than 10 living organisms per cubic meter of ballast water. 

b. 	 For organisms less than 50 micrometers and greater than or equal to 10 micrometers: 

discharge must include fewer than 10 living organisms per milliliter (mL) ofballast 

water. 

c. 	 Indicator microorganisms must not exceed: 

1. 	 For Toxicogenic Vibrio cholerae (serotypes 01 and 0139): a concentration of 

less than 1 colony forming unit (cfu) per 100 mL. 

11. 	 For Escherichia coli: a concentration of fewer than 250 cfu per 100 mL. 

iii. 	For intestinal enterococci: a concentration of fewer than 100 cfu per 100 mL 

Conditions more stringent than those contained in the draft VGP: 

2. 	Exchange andflushing for voyages originating beyond the exclusive economic zone (EEZ). 

The operator of any vessel covered under the VGP whose voyage originates outside the 

exclusive economic zone and enters New York waters shall conduct ballast water exchange or 

flushing beyond the EEZ 1, at least 200 nautical miles from any shore, and in water at least 2,000 

meters in depth, resulting in a salinity level of at least 30 parts per thousand (ppt). These 

requirements remain in effect regardless of whether the vessel is. equipped with a ballast water 

treatment system. 

No vessel subject to this condition which operates a treatment system in accordance with Section 

2.2.3.5 of the draft VGP shall bring ballast water into New York waters unless its ballast tanks 

have been exchanged or flushed at a location at least 200 nautical miles from shore in accordance 

with the above requirements, and unless any water reintroduced into the vessel's tanks is ocean 

water from that same general location which has been treated by the vessel's treatment system 

prior to entry into New York waters. 

All vessels entering New York waters must maintain the ability to measure salinity levels in each 

tank onboard the vessel so that salinities of at least 30 ppt can be ensured. 

This condition adds no new requirement or deadline for ballast water treatment. The 

requirements and deadlines for ballast water treatment are those specified in the draft VGP, 

Section 2.2.3.5 and Table 6. However, in addition to meeting those requirements, vessel 

operators will need to continue performing exchange or flushing. 

This condition does not apply to vessels: 

I "Exclusive Economic Zone" (EEZ) means the area established by Presidential Proclamation Number 5030, dated 

March 10, 1983 (48 FR 10605,3 CFR, 1983 Comp., p. 22) which extends from the base line of the territorial sea of 

the United States seaward 200 miles, and the equivalent zone of Canada. [source: 33 C.F.R. 151.2025] 

Page 3 of7 
a. 	 that either have no operable ballast tanks or that carry only permanent ballast water, all of 

which is in sealed tanks that are not subject to discharge, or 

b. 	 that carry only potable water that meets the requirements of section 2.2.3.5.1.3 of the 

draft VGP in their ballast tanks. 

This condition does not apply if the master of the vessel determines that compliance with this 

condition would threaten the safety or stability of the vessel, its crew, or its passengers because 

of adverse weather, equipment failure, or any other relevant condition. If a vessel is unable to 

conduct ballast water exchange or flushing due to serious safety concerns as specified above, the 

operator of any vessel with ballast on board shall take reasonable measures to avoid discharge of 

organisms in ballast water and shall inform the Department in writing of the measures taken. 

For vessels entering the Great Lakes from outside the EEZ and carrying only residual amounts of 

ballast water and/or sediment, the flushing requirements are equivalent to those set forth in the 

May 4,2012 edition of the Seaway Regulations and Rules, 33 CFR 401.30(f). 

New York finds that the exchangelflushing requirements set forth in this condition, including the 

combination of treatment with exchange or flushing, are needed to prevent impairment of waters 

for their best usage and are thus needed to comply with the New York State statutes and 

regulations indicated in the Department's Fact Sheet dated 2012. In accordance with 40 CFR 

124.53 (e)(2), this condition cannot be made less stringent and still comply with State water 

quality standards. 

3. WQBEL. The discharge of ballast water from vessels covered under the EPA VGP contains 

biological pollutants in the form of aquatic invasive species (AIS). These pollutants must not be 

discharged at a level which will cause, or have the potential to cause, or contribute to an 

excursion above the State narrative water quality standards in 6 NYCRR Part 703.2. Vessels 

discharging ballast water in New York's waters must control the level of these biological 

pollutants to a level to achieve the State narrative water quality standards. A numeric effluent 

limitation for this condition is deferred until the next VGP. 

4. Confined Laker vessels. Requirements and recommendations for vessels that operate 

exclusively in the Great Lakes are the following Best Management Practices (BMPs). New 

York requires the use of reasonable and effective management practices to limit the introduction 

and spread of aquatic invasive species, until at least the WQBEL is fully implemented. 

The following BMPs are required to be implemented in the Great Lakes: 

a. 	 In lieu of the normalS-year inspection, annually inspect and replace, as necessary, ballast 

sea chest screens. Replace screens with the smallest openings allowed by good 

engineering practice. Inspections will be documented by log entry, diver's report, video 

report, dry-docking report, marine inspection note, or surveyor's report. 

Page 4 of7 
b. 	 During cargo operations while accounting for boom list, hull stress, and bending 

moments, lighten the ship as much as practical to elevate water intakes before ballasting 

to minimize sediment uptake and increase water flow. 

c. 	 Ballast water taken aboard in Viral Hemorrhagic Septicemia (VHS) affected waters shall 

be the minimum needed to ensure the safety of the crew and vessel. Additional ballast 

water can be taken aboard, once deeper water is reached. 

d. 	 Ballast water shall always be taken aboard or discharged via the pumps and never 

"gravity fed or drained." This ensures an organism that somehow makes it past the 

screen is pulverized by the high speed, high pressure, and tight tolerance pump. 

The following BMPs are recommended to be implemented in the Great Lakes: 

e. 	 The temperature range in which the VHS virus is known to replicate, and in which fish 

kills have been detected, is quite broad (37°F -70°F [3°C - 21°C)). Since this range 

encompasses the majority of water temperatures found in the Great Lakes throughout the 

year, New York State recommends following this supplemental BMP regardless of water 

temperatures. 

l. 	 In order for the VHS disease to spread, an uninfected, yet vulnerable fish must be 

exposed to an active virus, such as with exposure to the bodily fluids from an 

infected fish. The virus is most stable in a living fish. It can remain active in 

dead or macerated fish parts, but for a shorter time. Therefore New York State 

recommends its vessel operators take all appropriate actions to insure that fish or 

fish parts do not enter their ballast tanks. This is accomplished by inspecting the 

W' openings screening the ballast water intakes and using pumps as macerators 

during uptake and discharge. 

11. 	 Fish populations are denser near shore and significantly less dense more than 3 

miles from shore; therefore, New York State recommends its vessel operators, 

when and where possible, minimize uptake of ballast water in near shore 

locations. To further reduce risk, when possible: 

1) 	 Conduct a ballast water exchange in the deepest, warmest water prior to 

entering Lake Superior (this practice would specifically preclude 

exchanging ballast water in Lake St. Clair and the western basin of Lake 

Erie). 

2) 	 If vessel operators are unable to conduct an exchange in the lower Great 

Lakes, consider doing an exchange in deep, remote waters of Lake 

Superior. 

3) 	 Although it is unlikely a live fish or larger fish particle could have entered 

the ballast system, consider exchanging ballast water within the ship or rePage 5 of7 
circulating it within a ballast tank (pumps act as a macerator to reduce the 

possibility of discharging fish or larger pieces of fish). 

4) 	 Continue working with the U.S. Coast Guard and Council of Lake 

Committees to evaluate additional risk reduction actions. 

New York finds that the BMPs set forth in this condition are needed to prevent impairment of 

waters for their best usage and are thus needed to comply with the New York State statutes and 

regulations indicated in the Department's Fact Sheet dated 2012. In accordance with 40 CFR 

124.53 (e)(2), this condition cannot be made less stringent and still comply with State water 

quality standards. 

5. Live organism monitoring. In addition to meeting the draft VGP monitoring requirements in 

section 2.2.3.5.1.1.4, all vessels covered under the VGP and operating in New York waters, after 

a Ballast Water Treatment System is installed, must sample and analyze the ballast water 

discharge at least once a year (provided appropriate facilities are available) using the California 

shipboard sampling protocol, or a compliance monitoring protocol developed by the USCG, 

whichever is most advanced and available. This monitoring shall include sampling for >50 /lm 

and for 10-50 /lm organisms. The monitoring results shall be submitted to EPA and the 

Department on an annual basis, consistent with the mechanisms used in the VGP for all other 

submissions. The Department's point of contact is provided at the close of this letter. Such live 

organism monitoring shall include the collection of representative discharge samples and the 

testing (counting) of live organisms in such samples by qualified personnel in accordance with 

standard and/or best available sampling and analytical methods. 

New York finds that the monitoring requirements set forth in this condition are needed to prevent 

impairment of waters for their best usage and are thus needed to comply with the New York 

State statutes and regulations indicated in the Department's Fact Sheet dated 2012. In 

accordance with 40 CFR 124.53 (e)(2), this condition cannot be made less stringent and still 

comply with State water quality standards. 

6. Bilge water. Discharge ofbilge water is prohibited in New York waters. This condition does 

not apply to the discharge of bilge water if the master of the vessel determines that compliance 

with this condition would threaten the safety or stability of the vessel, its crew, or its passengers 

because of adverse weather, equipment failure, or any other relevant condition. 

New York finds that the discharge prohibition set forth in this condition, coupled with the 

narrowly defined safety exemption, is needed to prevent impairment of waters for their best 

usage and is thus needed to comply with the New York State statutes and regulations indicated in 

the Department's Fact Sheet dated 2012. In accordance with 40 CFR 124.53 (e)(2), this 

condition cannot be made less stringent and still comply with State water quality standards. 

Basis for conditions. 

The above conditions combine water quality protection with operational flexibility. They provide 

flexibility to the industry by allowing further development of treatment technology and test 

Page 6of7 
protocols. While not a mandatory requirement, the Department urges vessel permittees to 

voluntarily install currently available technologies that go beyond the IMO D-2 standard (e.g., 

systems that have demonstrated the abi lity to meet and exceed a lOx IMO level oftreatment) as a 

means of gaining useful experience while contributing to the advancement oftreatment 

technology. 

The detailed basis for the above conditions is set forth in a separate Fact Sheet dated 2012. 

Contact 

The contact point for consultation, submittals, and approvals as refelTed to in this Certification is: 

Mr. Donald E. Tuxill, P.E. 

New York State Department of Environmental Conservation 

Division of Water, 4th Floor 

625 Broadway 

Albany, New York 12233-3505 

(518)402-8168 

The Department reserves the right to challenge the EPA's VGP and sVGP. 

Should you require further information regarding this Certification, please feel free to contact 

Mr. Tuxill. 

Sincerely, 

John J. Ferguson 

Chief Pennit Administrator 

Page 7 01'7 
wS:W(" 1011- 1041 (VA) 

WOvY'l w! bSi·/-.t: w"vaJ Ofe. flV·j_w/ptrm 1f$17'J3qq.~;<, 

~~ ~ Ct:/I, FACT SHEET Co OCTO v~D 

~Sl'..q 2l{Jt Supports the Vessel General Permit (VGP) Certification Letter L.1?~s. '2 

issued September 26,2012 by the OUI? 

NYS Department of Environmental Conservation (DEC or Department) Q::-s 

This Fact Sheet supports the Department's 2012 draft Certification of EPA's Vessel General 

Permit which is issued under the Clean Water Act (CWA), 33 U.S.C. § 1341. 

Legal basis for Certification 

All studies, reports, authorities and other documents cited herein are incorporated into this Fact 

Sheet by reference. The term "law," as used herein, includes duly promulgated regulations. 

The CW A's "objective ... is to restore and maintain the chemical, physical and biological 

integrity of the Nation's waters (and) [i]n order to achieve this objective ... 

(1) it is the national goal that the discharge of pollutants into the navigable waters be 


eliminated by 1985; 


(2) it is the national goal that wherever attainable, an interim goal of water quality which 

provides for the protection and propagation of fish, shellfish, and wildlife and provides 

for recreation in and on the water be achieved by July 1, 1983; 

(3) it is the national policy that the discharge of toxic pollutants in toxic amount be 


prohibited. 


33 U.S.C. § 1251 (a). In addition, the Act requires that "[i]n order to carry out (its) objective .. 

. there shall be achievednot later than July 1, 1977, any more stringent limitation, including those necessary to 

meet water quality standards, treatment standards, or schedules of compliance, 

established pursuant to any State law or regulations (under authority preserved by section 

1370 of this title) or any other Federal law or regulation, or required to implement any 

applicable water quality standard established pursuant to this chapter. 

33 U.S.C. § 1311 (b)(I)(C). The CWA further requires that "water quality standard(s) shall 

consist of the designated uses of the navigable waters involved and the water quality criteria for 

such waters based on such uses." 33 U.S.c. § 1313(c)(2)(A). Moreover, EPA regulations 

implementing the Act's requirements to "maintain" the chemical, physical, and biological 

integrity of the nation's waters require States to include in their water quality standards an 

antidegradation policy. 40 C.F.R. 131.6(d); 40 C.F.R. 131.12. Among other aspects of the 

required antidegradation policy is the protection of existing uses, 40 C.F.R. 131.12( a)(I), defined 

as "those uses actually attained in the water body on or after November 28, 1975, whether or not 

they are included in the water quality standards." 40 C.F.R. 131.3(e). 

Page 1 of 11 
New York Environmental Conservation Law (ECL) Article 17 is entitled "Water Pollution 

Control." Its declaration of policy states: 

It is declared to be the public policy of the state ofNew York to maintain reasonable 

standards of purity of waters of the state consistent with public health and public 

enjoyment thereof, the propagation and protection of fish and wild life, including birds, 

mammals and other terrestrial and aquatic life, and the industrial development of the 

state, and to that end requires the use of all known available and reasonable methods to 

prevent and control the pollution of the waters of the state of New York. 

ECL § 17-0101. Department regulations adopted pursuant to ECL Article 17 define "pollution" 

as follows: 

Pollution means the presence in the environment of conditions and/or contaminants in 

quantities of characteristics that are or may be injurious to human, plant or animal life or 

to property or that unreasonably interfere with the comfortable enjoyment of life and 

property throughout such areas of the State as shall be affected thereby. 

6 NYCRR § 700.1(a)(47). Both the CWA and the ECL define "pollutant" to include "biological 

materials". 33 U.S.c. § 1362 (6); ECL § 17-0105 (17). The ECL further defines "pollutant" to 

include "ballast". Id. 

Pursuant to ECL Section 17-0301, DEC has developed water quality standards for the waters of 

New York State. Title 5 of ECL Article 17 makes unlawful any discharges that violate those 

water quality standards, providing that: 

[i]t shall be unlawful for any person, directly or indirectly, to throw, drain, run or 

otherwise discharge into such waters organic or inorganic matter that shall cause or 

contribute to a condition in contravention of the standards adopted by the department 

pursuant to section 17-0301. 

ECL § 17-0501. Department regulations adopted pursuant to ECL Article 17 broadly define 

effluent limitations that serve to, inter alia, control the discharges prohibited under ECL § 17­

0501. 

Effluent limitations mean any restriction on quantities, qualities, rates and concentrations 

of chemical, physical, biological, and other constituents of effluents that are discharged 

into or allowed to run from an outlet or point source or any other discharge within the 

meaning of section 17-0501 ofthe Environmental Conservation Law into surface waters, 

groundwater or unsaturated zones. 

6 NYCRR § 700.1(a)(15). 

New York's water quality standards establish classifications and designated uses of New York 

waters. 6 NYCRR Part 70l. New York's water quality standards also include the water quality 

criteria set forth at 6 NYCRR Part 703. Included therein is the criteria, that, for numerous 

Page 2 of 11 
identified classes of waters, limits the discharge of "toxic or other deleterious substances" to 

"none in amounts that will ... impair the waters for their best usages." 6 NYCRR § 703.2. The 

best usages of the classes of waters specified in 6 NYCRR § 703.2 include fish, shellfish and 

wildlife propagation and survival, fishing, drinking water supply, and primary and secondary 

contact recreation. Further, consistent with the requirements of the CWA, New York's Water 

Quality Antidegradation Policy, implemented through State laws including ECL Article 17 and 

Department regulations adopted pursuant thereto, operates to ensure existing instream water uses 

and the level of water quality necessary to maintain and protect those existing uses. See DEC 

Organization and Delegation Memorandum No. 85-40, Water Quality Antidegradation Policy, 

September 9, 1985. 

As explained herein, Conditions #1-6 of the Department's draft Certification dated 2012 are 

needed to assure compliance with the CWA and the provisions of New York State law set forth 

above. In accordance with 40 CFR § 124.53(e)(2) and (3), the CWA and State law provisions 

cited above form the basis for each of Conditions # 1-7 of the Certification. In accordance with 

40 CFR § 124.53(e)(2) and (3) these conditions cannot be made less stringent and still comply 

with the requirements of State law, including State water quality standards. Since the 

requirements ofNew York State law, including water quality standards, are more stringent than 

the protections the VGP would provide, the Department's 2012 Certification is necessary. 

The need to reduce water quality impacts from ballast water discharges 

Pursuant to the Clean Water Act, the inclusion of a state water quality certification 

requirement in the draft VGP appropriately preserves the lawful authority of the 

individual States to implement more protective ballast water pollution controls as part of the 

EPA general permit within their respective waters. Pursuant to the Clean Water Act, the States 

also have the authority to adopt more stringent ballast water requirements than currently 

proposed under the draft VGP. 

As part of New York's certification ofthe draft VGP, DEC finds that the additional 

discharge standards set forth as conditions in the Department's 2012 Certification are necessary 

to reduce the unintentional discharge ofinvasive species, disease organisms and other pollutants 

that have the potential to disrupt the ecological balance ofNew York's waters and negatively 

impact the fish and wildlife resources of the State, as well as other states, and to comply with the 

requirements of federal and State law, including State water quality standards. 

The additional discharge standards set forth as conditions in the Department's 2012 Certification 

are necessary for the following reasons. First, there is overwhelming evidence that water quality, 

including fish, shellfish, and wildlife propagation and survival, has been impaired in recent 

decades in New York's waters by invasive species. Second, direct discharge ofinvasive species 

into New York waters is not a necessary condition for impaim1ent by invasive species; 

discharges into adjacent, connected waters have already severely impaired New York waters for 

their best usage such as fish, shellfish, and wildlife propagation and survival. Third, the above 

points provide a reasonable basis for determining that water quality will be further impaired by 

additional, future introductions and spreading of invasive species; and that impairments to New 

York's water quality will be caused by discharges of such species to adjacent, connected waters. 

Page 3 of 11 
Invasive species spread to New York waters. The ability of various invasive species to spread 

into adjacent, connected waters is well known. The zebra mussel is a prime example. This 

mussel, introduced in or near Lake St. Clair where it was discovered in 1988, I quickly spread 

into New York waters and throughout the Great Lakes and beyond.2 The rapid spread of the 

zebra mussel since 1988 can be seen, for example, on a series of maps available on the website 

of Sea Grant's National Aquatic Nuisance Species Clearinghouse.3 As another example, the 

round goby was introduced into the St. Clair River in 1990, "probably via contaminated ballast 

water of transoceanic ships.,,4 Following this discharge in adjacent, connected waters, the round 

goby has moved into New York waters and contributed to the impairment of these waters for 

their best usage such as fish, shellfish, and wildlife propagation and survival. 5 Round gobies 

"have shown a rapid range of expansion through the Great Lakes,,6 and have been found in the 

upper St. Lawrence River and the lower Genesee River, among other New York waters. 7 Yet 

another example is the spiny water flea, "first found in Lake Huron in 1984 - probably imported 

in the ballast water of a trans-oceanic freighter. Since then, populations have exploded and the 

animal can now be found throughout the Great Lakes and in some inland lakes,"s including New 

York waters. 

Invasive species in the Great Lakes. As recognized by EPA,9 the predominant pathway for 

aquatic invasive species entry into the Great Lakes is the ballast water of oceangoing ships.IO 

The Great Lakes, while accounting for only a small fraction of global shipping, are closely 

connected to other ports worldwide, with most such ports being separated from the Great Lakes 

by no more than two ship voyages. I I Invasive species introduced into the Great Lakes from 

vessels' untreated ballast water discharges have created serious, damaging impacts that threaten 

the resource's ecological and economic health.12 Because the Great Lakes contain fresh water, 

I NOAA, National Center for Research on Aquatic Invasive Species, Great Lakes Aquatic Non-indigenous Species 


List (www .glerI.noaa.gov Ires/Programs/ncraislgreat_lakes _list.html). 


2 D. Strayer, Twenty years of zebra mussels: lessons from the mollusk that made headlines, Front Ecol Environ 7(3), 


135-141 (2009). 


3 New York Sea Grant, National Aquatic Nuisance Species Clearinghouse (www.aquaticinvaders.org). 


4 Great Lakes Information Network, "Goby in the Great Lakes Region" (www.great­


lakes.netlenvtlflorafaunalinvasive/goby.htm1). 


5 U.S. Geological Survey, Non-indigenous Aquatic Species (NAS) Program, Species Fact Sheet, "Apollonia 


(Neogobius) melanostomus (Pallas 1814); Common Name: round goby," 


(http://nas.er.usgs.gov/queries/FactSheet.asp?specieslD=713); M. Walsh et a!., Occurrence and Food Habits of the 


Round Goby in the Profunda1 Zone of Southwestern Lake Ontario, 33 J. of Great Lakes Research 83 (2007). 


6 U.S. Geological Survey, Species Fact Sheet, op. cit. 


7 U.S. Geological Survey, Non-indigenous Aquatic Species (NAS) Program 


(http://nas.er.usgs.gov/AlertSysternldefault.asp), NAS Alert System results for New York. 


8 Great Lakes Information Network, "Spiny Water Flea in the Great Lakes Region" (www.greatIakes.netlenvtlflora­


faunalinvasive/spinyflea.html).; DEC, Spiny Flea Confirmed in First "Inland" Water (October 30,2008). 


9 EPA, Aquatic Nuisance Species in Ballast Water Discharges: Issues and Options, 4,6 (September 10,2001), 


identified at 66 Fed. Reg. 49381 (September 27, 2001). 


10 E. Mills et a!., Exotic Species in the Great Lakes: A History ofBiotic Crises and Anthropogenic Introductions, 19 


1. of Great Lakes Research 1 (1993); Kipp et aI., Transoceanic ships as vectors for non-indigenous freshwater 


bryozoans, Diversity and Distributions 16, 77-83 (2010). 


II R. Keller et aI., Linking environmental conditions and ship movements to estimate invasion species transport 


across the global shipping network, Diversity and Distributions 17, 93-102 (2011). 


12 16 U.S.c. §4701(a). 


Page 4 of 11 
some of the most damaging ballast water-induced species are native to other fresh or brackish 

waters, particularly those in the Ponto-Caspian region (the Black, Caspian and Azov Seas). 13 

These Ponto-Caspian invaders are now abundant in European waters used extensively by ships 

destined for the Great Lakes, and their continued invasion into the Lakes is considered highly 

probable. 14 

Invasive species adversely affect native species. Such invasive species have competed with, 

preyed upon and otherwise altered the Great Lakes' environment, resulting in population 

declines and compromised species viability ofthe region's native plants, fish and wildlife. 15 

They have harmed the region's commercial and recreational fishing industries and damaged its 

public water and energy generating infrastructure. 16 The insidious effects ofthese species have 

been costly to deal with and show no signs of dissipating. The harm caused by exotic nuisance 

species such as the zebra mussel, round goby, and spiny water flea in the Great Lakes is 

widespread. For example, large zebra mussel populations reduce food and oxygen for native 

fauna, and have been observed completely covering native mussels and snails, threatening their 

survival. 17 The zebra mussel readily attaches to submerged hard surfaces including rocky shoals, 

water intake pipes and docks, forming dense layered colonies that have approached one million 

mussels per square meter. IS Power companies and others must repeatedly remove mats of these 

mussels from their infrastructure. In addition, selective feeding by zebra mussels has been 

implicated in recurring nuisance algae blooms in the Great Lakes, causing taste and odor 

problems and increased treatment costs for municipal water supplies. 19 Congress estimates that 

the economic disruption to communities, just from the zebra mussel, has already cost billions of 

dollars.2o The round goby, an invader from the Black and Caspian Seas, feeds on mollusks, 

crustaceans, and lake trout eggs and fry, injuring Great Lakes native species through competition 

for food and predation.21 The invasive Hemimysis anomala, an omnivorous Ponto-Caspian 

13 A. Ricciardi and H. MacIsaac, Recent Mass Invasion of the North American Great Lakes by Ponto-Caspian 


Species, 15 Trends in Ecology and Evolution 62 (2000); L. Campbell et al. 2009, Re-engineering the eastern Lake 


Erie littoral food web: The trophic function of non-indigenous Ponto-Caspian species, Journal of Great Lakes 


Research 35, 224-231 (2009). 


14 Ricciardi and Maclsaac, op. cit.; U.S. EPA, Predicting future introductions of non-indigenous species to the Great 


Lakes. National Center for Environmental Assessment, Washington, DC, EPAJ6001R-08/066F (2008); Wikipedia 


entry for Dikerogammarus villosus, http://en.wikipedia.org/wikilDikerogammarus_villosus; D. Platvoet et al., 


Flexible Omnivory in Dikerogammarus villosus (Sowinsky, 1894) (Amphipoda) - Amphipod Pilot Species Project 


(AMPIS) Report 5, Crustaceana 82 (6), 703-720 (2009). 


15 16 U.S.c. §4701(a). 


16 Id.; K. Limburg et al., The good, the bad, and the algae: perceiving ecosystem services and disservices generated 


by zebra and quagga mussels, Journal of Great Lakes Research 36,86-92 (2009). 


17 U.S. Dept. of the Interior, National Biological Survey, A. Benson, et al., "Invasion of the Zebra Mussel into the 


United States," Our Living Resources: A Report to the Nation on the Distribution, Abundance, and Health of U.S. 


Plants, Animals and Ecosystems, 445-46 (1995). 


18 Id.; D. Pimentel, et al., Environmental and Economic Costs of Non-Indigenous Species in the United States, 50 


Bioscience 53, 58 (2000). 


19 National Oceanic and Atmospheric Administration, Great Lakes Environmental Research Laboratory, Aquatic 


Invasive Species (AIS) and the Great Lakes: Simple Questions, Complex Answers, (September 2002). 


20 16 U.S.c. §470l(a)(4). 


21 M.L. Corn et al., "Invasive Non-Native Species: Background and Issues for Congress," Congressional Research 


Service, Report for Congress, RL30123 (updated November 25,2002); Michigan Dept. of Natural Resources, 


Annual Report, State of the Great Lakes, 32 (1993); J. Young et al., Demography and substrate affinity of the round 


goby (Neogobius melanostomus) in Hamilton Harbour, Journal of Great Lakes Research 36,115-122 (2010). 


Page 5 of 11 
mysid which quickly became a major part of the alewife diet after it was first observed in 

southeastern Lake Ontario in May 2006, has the potential to alter energy flow in Great Lakes 

foodwebs. 22 Another exotic invader from the Black and Caspian Seas, the spiny water flea, 

rarely more than a centimeter in length, competes with newly hatched Great Lakes native fish 

populations by feeding on zooplankton. The sharp spines characteristic of the spiny water flea 

prevent most small fish from swallowing it, thereby allowing this invader to reach a 

disproportionate population abundance.23 

Since 2000, significant mortality of lake sturgeon, Common Loon, Red-breasted 

Merganser, and other fish and waterbirds have been documented on Lake Erie. More recently, 

since 2002, similar mortality events have been noted, with increasing regularity, distribution and 

magnitude on Lake Ontario. Over the past several years Caspian Tern, and several other 

waterbird species, have been impacted. Nonnative invasive species, the quagga mussel and round 

goby, appear to be the biological transport mechanism bringing deadly Type E botulism toxin 

from the benthic environment to within foraging range of nesting and migrating waterbirds. 24 

Invasive species in New York coastal waters and the Hudson River basin. Aquatic invasive 

species also pose a serious threat to the ecological health and biodiversity of native ecosystems 

of Long Island Sound and can affect the economic interests and public health ofresidents. To 

date, more than 50 non-native and 40 cryptogenic species have been identified in Long Island 

Sound. 25 The Asian shore crab, believed to have been introduced via ballast water discharge, was 

first found in the U.S. in 1988 in southern New Jersey and is now found from Maine to North 

Carolina.26 The Asian shore crab arrived in New York Harbor and Long Island Sound in 1994 or 

1995, and has since become the dominant crab in the intertidal zone in these areas, reaching 

densities greater than 300 per square meter in western Long Island Sound and causing population 

declines of native crabs such as common mud crab, green crab, and Atlantic rock crab. Atlantic 

rock crab has not been found since 1998, green crab densities have decreased 50% from 1998 to 

2001, and common mud crab densities are down 96%. Overall, the diversity of the intertidal 

crab community in portions of western Long Island Sound have dropped greatly since 1998.27 

In the Hudson River basin, at least 113 non-indigenous species have established 

populations.28 Most came from Eurasia or the Mississippi-Great Lakes basin, and some are 

ballast-water invaders, many of which cause large economic damage and irreversible ecological 

changes. The best-known of these is the zebra mussel, which appeared in the Hudson in 1991 

following introduction to the Great Lakes via ballast water. Zebra mussels now constitute more 

22 B. Lantry et al., Occurrence of the Great Lakes' most recent invader, Hemimysis anomaia, in the diet of fishes in 


southeastern Lake Ontario, Journal of Great Lakes Research 36, 179-183 (2010). 


23 Com et al., op. cit.; Michigan Dept. of Natural Resources, op. cit. 


24 K. Roblee, W. Stone and D. Adams, "Waterbird Mortality as a Result of Type E Botulism in Lake Erie and Lake 


Ontario," Northeast Natural History Conference IX, New York State Museum, Albany, NY (2006). 


25 Balcom, Nancy. 2007. Long Island Sound Interstate Aquatic Invasive Species Management Plan. New England 


Interstate Water Pollution Control Commission, US Environmental Protection Agency, Long Island Sound Study, 


State of Connecticut and New York State. 


26 Science Daily, Japanese Shore Crabs Invade Penobscot Bay, Maine, 


http://www.sciencedaily.com/releases/2002/07/020719073146.htm (July 19, 2002). 
 n . Long Island Sound Study, 2001 Fall Update, http://www.longislandsoundstudy.netipubs/news/fallOltxt.htm. 

28 Mills, E., M. Scheuerell, D. Strayer and J. Carlton. 1996. Exotic Species in the Hudson River Basin: A History of 

Invasions and Introductions. 18 Estuaries 814-823. 

Page 6 of 11 
than half of consumer biomass in the river, and have completely altered the river's ecosystem by 

consuming 80% of the plankton in the river,29 causing large declines in valuable open-water fish 

species such as American shad30 and the destruction of hundreds of millions of native bivalves.31 

Economic costs of the zebra mussel invasion to water intakes alone have been estimated at $267 

million in North America32 and in the range of $1 00,000-$1 ,000,000 per year in the Hudson 

River alone.33 Other invaders that are thought to have arrived in ballast water have caused large 

ecological changes in the Hudson River; these include the Asian shore crab, now very common 

along the lower Hudson, where it displaces native crabs, the wedge rangia (Rangia cuneata), 

which dominates the waters of the lower Hudson, and the Chinese mitten crab, which appeared 

in numbers in the Hudson for the first time in 2008, and which has the potential to damage 

infrastructure (levees and embankments) as well as harm native populations of plants and 

shellfish.34 Many other species now traveling around the world in ballast water (e.g., the golden 

mussel Limnopernafortunei, the amphipod Corophium curvispinum, and the ruffe 

Gymnocephalus cernuus) would be able to survive and prosper in the Hudson, where they could 

contribute to further economic and ecological damage.35 

Basis for Water Quality Based Effluent Limitation (WQBEL) 

The conditions in the Department's 2012 Certification combine water quality protection with 

operational flexibility. The conditions are protective and provide flexibility to the industry by 

allowing further development oftreatment technology and test protocols before setting a 

WQBEL. 

Under the CWA (40 CFR 131.6( d); 40 CFR 131.12), EPA is obligated to issue WQBELs that 

will not cause a contravention of any state's water quality standards. This obligation exists even 

if the supporting data are sparse, as is often the case. Agencies are typically able to issue 

numerical WQBELs "by making 'conservative' assumptions, using safety factors similar to those 

used in ecological risk assessments for pollutants, and/or by setting the standards based on the 

upper confidence limits of predictions of invasions.,,36 EPA has often relied on this type of 

29 Strayer, D.L., N.F. Caraco, J.1. Cole, S. Findlay, and M.L. Pace. 1999. Transfonnation offreshwater ecosystems 


by bivalves: a case study of zebra mussels in the Hudson River. 49 BioScience 19-27. 


30 Strayer, D.L., K. Hattala, and A. Kahnle. 2004. Effects of an invasive bivalve (Dreissena polymorpha) on fish 


populations in the Hudson River estuary. 61 Canadian Journal ofFisheries and Aquatic Sciences 924-941. 


31 Strayer, D.L., and H.M. Malcom. 2007. Effects of zebra mussels (Dreissenapolymorpha) on native bivalves: the 


beginning ofthe end or the end of the beginning? Journal of the North American Benthological Society 26: 111-122. 


32 Connelly, N.A.; O'Neill, C.R.; Knuth, B.A. and Brown, T.L. 2007. Economic impacts of zebra mussels on 


drinking water treatment and electric power generation facilities. 40 Environ. Mgmt. 105-112. 


33 Strayer, D.L. 2006. Alien species in the Hudson River, pp. 296-310 in: 1.S. Levinton and J.R. Waldman (eds.). 


The Hudson River estuary. Cambridge University Press. 


34 Id.; MacDonald, J.A., R. Roudez, T. Glover, and J.S. Weis, 2007, The invasive green crab and Japanese shore 


crab: behavioral interactions with a native crab species, the blue crab, 9 Biological Invasions 837- 848; NOBANIS, 


2008, Invasive species fact sheet. Eriocheir sinensis. http://www.nobanis.org/files/factsheets/Eriocheir _sinensis.pdf. 


35 Ricciardi, A., 1998, Global range expansion ofthe Asian mussel Limnoperna fortunei (Dunker, 1857) (Bivalvia: 


Mytilidae): another fouling threat to freshwater systems, 13 Biofouling 97-106; Ricciardi, A., and J.B. Rasmussen, 


1998, Predicting the identity of future biological invaders: a priority for aquatic 


resource management, 55 Canadian Journal ofFisheries and Aquatic Sciences 1759-1765. 


36 H. Lee et ai., Density Matters: Review ofApproaches to Setting Organism-Based Ballast Water Discharge 


Standards, U.S. EPA Office of Research and Development, National Health and Environmental Effects Research 


Laboratory, Western Ecological Division, EPAl600/R-10/03l (2010), at 6. 


Page 7 of II 
conservative approach to derive water quality standards or limits for heavy metals and organic 

chemicals when toxicological datasets have been incomplete. In cases where a federal agency 

issues a permit such as the VGP that does not include a numerical WQBEL, states can and 

should do so. New York's obligation to do so is driven by its water quality standards, set forth in 

6 NYCRR Section 703.2, which prohibit the discharge to state waters of any "deleterious 

substances" that would violate the best usage of those waters. Biological pollutants, such as AIS, 

qualify as such substances, and have already significantly impacted the biological integrity of 

New York's waters. New York has maintained, and successfully defended in Court (Port of 

Oswego Auth. v. Grannis, 70 A.D.3d 1101 (3rd Dep't), Iv. to appeal denied, 14 N.Y.3d 714 

(2010)), its rights to assert this standard in a water quality certification, and to exercise its 

statutory and regulatory authority to adopt WQBELs containing standards at least two orders of 

magnitude more stringent than the IMO D-2 standard. 

In general, WQBELs are necessary to control pollutants which EPA "determines are or may be 

discharged at a level which will cause, have the reasonable potential to cause, or contribute to an 

excursion above any State water quality standard." 40 C.F.R. § 122.44(d)(I)(i). WQBELs are 

not based on available control technology, but on what is necessary to achieve water quality 

standards, see Am. Paper Inst., Inc., v. Us. EPA, 996 F.2d 346,350 (D.C. Cir. 1993); 40 C.F.R. 

§ 122.44(d)(1). EPA has a legal obligation to ensure that water quality standards are protected in 

any permit that it issues, including the VGP. See, e.g., Defenders of Wildlife v. Browner, 191 

F.3d 1159, 1163 (9th Cir. 1999) (noting that, under the CWA, EPA "is under specific obligation 

to require that level of effluent control which is needed to implement existing water quality 

standards"). This water quality obligation extends to ensuring that the VGP is consistent with 

the CWA's anti-degradation policy and to provide full protection of existing and designated uses 

such as the protection and propagation of fish, shellfish, and wildlife, as well as recreation, from 

aquatic invasive species. See 40 C.F.R. § 131. 12(a) (anti-degradation); id. § 131.6 (designated 

uses); see also PUD No.1 ofJefferson County v. Washington Dept. ofEcology, 511 U.S. 700, 

715-19 (1994). In addition, it is clear that narrative water quality standards can be the basis for a 

Section 401 Water Quality Certification. See PUD No.1. 

The requirements for a WQBEL in the VGP are consistent with the established CWA procedures 

for developing any NPDES permit. EPA - or otherwise a State or Tribe - must evaluate the 

discharge to determine compliance with Sections 101 and 301 (b)(1)(C) of the CWA, and 40 CFR 

122.44(d)(I). These require that permits include limits for all pollutants or parameters which are 

or may be discharged at a level that will cause or contribute to an excursion above any State 

water quality standard, including State narrative criteria for water quality. Therefore, any limits 

must be stringent enough to ensure that water quality standards are met. 

As explained by the U.S. Supreme Court in PUD No.1, the purpose of narrative standards is to 

allow states to develop numeric limits to address unforeseen new issues that might arise in 

individual locations on specific facts. Narrative criteria such as "there shall be no discharge of 

toxic pollutants in toxic amounts" therefore "must be translated into specific limitations for 

individual projects" PUD No.1 v. Washington Dep't ofEcology, 511 U.S. 700, 716 (1994). The 

Supreme Court explained that it would be burdensome for a state to be required to study every 

surface water in the state to a level of great specificity before establishing numeric criteria for a 

specific site. The Court thus provided states with the flexibility to use narrative criteria that can 

Page 8 of 11 
be translated into numeric limitations for new individual projects with the level of specificity 

required based on the particular characteristics and designated best uses of the water body where 

the discharge would occur. Id. at 717-18. See also Islander East Pipeline Co. v. McCarthy, 525 

F.3d 141, 145 (2d Cir. 2008), which notes that "In applying open-ended standards, ... a state is 

expected to translate its narrative criteria into 'specific limitations for individual projects'." 

EPA's own 'narrative' WQBEL in the draft VGP incorporates the general requirement that the 

vessel owner/operator must control the discharge(s) such that states' water quality standards are 

not violated. However, since the IMO D-2 standard may not adequately treat all AIS,37 any 

discharge of ballast water at the IMO D-2 concentration has the potential to violate state water 

quality standards and thus violate the VGP. It has been found, for example, that "even with the 

IMO standards, per-ship discharges in excess of 106 total zooplankton remain possible.,,38 This 

would result in a strong likelihood that ballast water discharges subject only to the IMO D-2 

standard would have the potential to discharge AIS under the draft VGP. 

Thus, a numeric WQBEL is needed but will apparently not be provided by EPA in the 

foreseeable future. According to the VGP Fact Sheet, EPA determined that it is infeasible to 

calculate numeric WQBELs for ballast water because "at this time the lack of available data and 

information prevents a precise quantification of the invasion risk associated with ballast water 

discharges." Draft VGP Section 1.9.1 (Modification of the VGP) indicates that EPA will 

consider modifying the permit after the "scientific understanding of ... invasion biology has 

evolved such that new information would have justified the application of significantly more 

stringent effluent limitations ... had this been understood at the time of permit issuance ... " The 

National Research Council (NRC) Committee's report indicates a 10 to 15 year time horizon will 

be required to obtain the experimental and field data needed to parameterize and ground-truth the 

risk/release models. While these concerns about data gaps cannot be dismissed, they need to 

balanced against the likelihood of additional invasions ofU.S. and state waters during EPA's 

proposed WQBEL development period of 10 to 15 years. During this period, the IMO D-2 

standard will not be adequately protective. New York finds that numeric WQBELs more 

stringent than IMO D-2 are justified, and can be developed in the future based on additional data 

collection, analysis, and modeling. Putting in place a process for developing technologies to 

meet such standards is consistent with the CWA's technology-forcing requirements. 

Basis for Certification conditions 

Condition #2 of the Department's 2012 Certification, applicable to vessels entering New York 

waters from outside the EEZ, effectively serves as an interim WQBEL that will be protective of 

state water quality until a numeric WQBEL is developed and implemented. Condition #2 

37U.S. EPA, Draft VGP Fact Sheet, p. 125 (" ...even at the IMO level of discharge, reasonable potential exists for 


such discharges to cause or contribute to violations of applicable water quality standards ..."); also u.S. Coast Guard, 


Final Programmatic Environmental Impact Statement for the Ballast Water Discharge Standard, February 2012, esp. 


pp. ES-7, 4-l3 through 4-16, G-ll, and G-23 .. 


38 M.S. Minton et aI., "Reducing propagule supply and coastal invasions via ships: Effects of emerging strategies," 


Front. Ecol. Environ. 3(6),304-308 (2005). 


Page 9 of 11 
requires operation of a treatment system that meets IMO D-2 requirements in conjunction with 

ballast water exchange or flushing. This interim WQBEL, justified partly by the known 

effectiveness of exchange and flushing alone39 and partly by recent research by Canada's 

Department of Fisheries and Oceans on the benefits of combining exchange and flushing with 

treatment,40 has recently undergone land-based testing at the GSI test facility in Superior, 

Wisconsin.41 Early results from the GSI land-based tests are consistent with the goal ofreducing 

propagule pressure,42 at least for fresh and brackish receiving waters, in order to achieve an 

invasion risk "at least 10 times lower" than would be achieved using ballast water treatment 

alone. 43 In DEC's judgment, the interim WQBEL meets antidegradation and anti-backsliding 

requirements relative to DEC's currently effective certification because 1) the treatment-system 

performance will exceed IMO D-2 for the reasons described above; 2) the exchange and flushing 

alone will keep "risky" organism concentrations at or below an adverse effects level; and 3) the 

more stringent conditions of DEC's existing certification are not yet considered technologically 

achievable and are not yet in effect. In accordance with 40 CFR § 124.53(e)(2), this condition 

cannot be made less stringent and still comply with the requirements of State law, including State 

water quality standards. 

Condition #4 of the Department's 2012 Certification, setting best management practices (BMPs) 

for confined laker vessels, is needed to control impacts from these vessels which collectively 

transport 70 million tons of ballast water per year within the Great Lakes. Their transfers of 

ballast water transfers may contribute to species introductions and "are likely the most important 

ballast-mediated pathway of secondary spread within the Great Lakes.,,44 In accordance with 40 

CFR § 124.53(e)(2), this condition cannot be made less stringent and still comply with the 

requirements of State law, including State water quality standards. 

39 Most of the water and most of the organisms carried in a vessel's ballast tanks are physically expelled during midocean exchange or flushing, and many of the remaining organisms are then killed by salinity shock (osmotic stress) 

from the ocean water with which the ballast tanks are refilled. See paper submitted by Canada to the IMO, BLG 

15/5/7, S.A. Bailey et aI., "Evaluating Efficacy of an Environmental Policy to Prevent Biological Invasions," 

Environ. Sci. TechnoI. 45,2554-61 (2011), at 2557 and 2559, paragraphs 8 and 9; S.A. Bailey et aI. (2011), op. cit., 

at 2555-56. In our existing certification dated 2008, we indicated that ballast water exchange produces variable 

results and is "therefore unprotective as an ongoing permit condition;" however, the effectiveness of exchange and 

flushing has been (re)confirmed by recent work. See S.A. Bailey et aI. (2011), op. cit., E. Briski et aI., Efficacy of 

'saltwater flushing' in protecting the Great Lakes from biological invasions by invertebrate eggs in ships' ballast 

sediment, Freshwater Biology 55, 2414-2424 (2010); S. Ellis and H. MacIsaac, Salinity tolerance of Great Lakes 

invaders, Freshwater Biology 54, 77-89 (2009); S. Santagata et aI., Effects of osmotic shock as a management 

strategy to reduce transfers of non-indigenous species among low-salinity ports by ships, Aquatic Invasions 3, 61-76 

(2008); D.F. Reid et aI., Identifying, Verifying, and Establishing Options for Best Management Practices for 

NOBOB Vessels, Final Report, NOAA (June 2007). 

40 Paper submitted by Canada to the IMO, BLG 15/5/7, op. cit. Note that, in addition to the benefits derived from 

physical expulsion and salinity shock, the combined process allows treatment systems to operate on a more uniform 

and more biologically sparse feed water. 

41 Publication of test results pending. 

42 Sarah Bailey, DFO Canada,pers. comm. (describing early results in general terms). 

43 Paper submitted by Canada to the IMO, BLG 15/5/7, op. cit., paragraph 18. 

44 M.P. Rup et aI., Domestic ballast operations on the Great Lakes: potential importance of Lakers as a vector for 

introduction and spread ofnon-indigenous species, Canadian Journal of Fisheries and Aquatic Sciences 67(2), 256­

268 (2010). 

Page 10 of 11 
In Condition #S of the Department's 2012 Certification, the monitoring requirements for >SO 11m 

and 10-S0 11m organisms are needed as a check on the effectiveness of Conditions #2 and #3 as 

interim WQBEL measures, i.e., whether they serve as protective interim substitutes for the 

WQBEL. The monitoring condition will thus satisfy 40 CFR § 122.44 (i), which requires 

monitoring to assure compliance with permit limitations at a minimum frequency of once per 

year. Implementation of the above monitoring requirements will also build capacity for the 

expertise and types of specialized equipment needed for effective and economical monitoring of 

ballast water discharges. Note that the results of such monitoring will need to be interpreted with 

caution for fresh and brackish receiving waters, since total organism concentrations will typically 

differ from "risky" organism concentrations. "Non-risky" organisms may include those 

discussed above that are unlikely to survive in brackish and freshwater environments, and may 

also include those that cannot be considered invasive because they are native to and/or already 

established in the receiving waters.45 In accordance with 40 CFR § 124.S3(e)(2), this condition 

cannot be made less stringent and still comply with the requirements of State law, including State 

water quality standards. 

Condition #6 the Department's 2012 Certification, prohibiting discharge of bilge water in New 

York waters, is consistent with Condition #S ofthe Department's currently effective certification 

dated December 17,2008. The bilge water discharge prohibition in Condition #6 is necessary 

because the suite of bilge water BMPs proposed in the VGP is insufficient. These BMPs include 

prohibitions on releases of certain chemicals, including dispersants, detergents, emulsifiers, 

chemicals, and other substances that remove the appearance of a visible sheen from bilge water 

discharges; however, DEC finds that an outright prohibition on bilge water discharge is needed 

to protect water quality. Bilge water is waste water accumulated in the bottom part of a vessel 

from the engine room and other mechanical parts ofthe vessel. It is typically contaminated with 

petroleum including volatile and semi-volatile organic compounds like benzene and polycyclic 

aromatic hydrocarbons. Even with the BMPs in the VGP, bilge water could contain elevated 

level of hazardous chemicals that could be harmful to the ecosystem. The discharge of bilge 

water qualifies as a pollutant discharge from a point source, pursuant to the Clean Water Act and 

State law, and should be properly regulated to protect the waters of the United States. In 

accordance with 40 CFR § 124.S3(e)(2), this condition cannot be made less stringent and still 

comply with the requirements of State law, including State water quality standards. 

It should be noted that the discharge of sewage is not covered by either this certification or the 

VGP because sewage discharge is governed by the Marine Sanitation Devices requirements of 

the Clean Water Act, 33 U.S.C. 1322. 

45 See comment on NOBOB vessels submitted 2121112 by B. Smith, Docket No. EPA-HQ-OW-2011-0141-0553. 

Page 11 of11