Invasive Species Settlement: New Ballast Water Permit Should Help Protect American Coasts, Lakes and Rivers

March 8, 2011–PEAC is delighted to announce a major settlement that was entered today in the D.C. Circuit. Led by PEAC Staff Attorneys Allison LaPlante and Dan Mensher, we have settled a case between Northwest Environmental Advocates (along with numerous other conservation organizations) and the U.S. Environmental Protection Agency (EPA) regarding EPA’s regulation of pollution from vessels. Specifically, the agreement requires EPA to complete two in-depth scientific reviews and issue a new permit based on this science to regulate ballast water discharges from vessels. Today’s settlement will help curtail invasive species that have been wreaking havoc on our country’s waters for decades. This represents a major victory in PEAC’s ten-year-plus effort to address this significant - and until recently, unregulated - source of water pollution. 

Ballast water, discharged by ships for stabilization, is a major source of invasive species (such as zebra and quagga mussels, mitten crabs, and the so-called “fish Ebola” virus) and other pollutants in waters of the United States. Invasive species in ballast water threaten the natural environment, destroy human infrastructure, and cost billions of dollars per year. In 1999, PEAC (led by a student) petitioned EPA to repeal a regulatory exemption from the Clean Water Act’s NPDES permit program for vessel discharges. After years of litigation (led by former PEAC professor Melissa Powers), PEAC obtained a ruling from the Ninth Circuit in 2008 confirming that EPA’s exemption was illegal. EPA was ordered to withdraw the illegal exemption.

To replace the exemption, EPA issued an NPDES General Permit for Discharges Incidental to the Normal Operation of a Vessel (“VGP”) on December 29, 2008. Unfortunately, the permit was far from adequate under the Clean Water Act. The permit failed to meet federal requirements because, among other reasons, it still allowed ships to discharge untreated ballast water containing invasive species.

As a result, in January 2009, on behalf of Northwest Environmental Advocates, Center for Biological Diversity, and People for Puget Sound, we filed a petition for review of the VGP in the Ninth Circuit. Because several other petitions for review were filed in the D.C. Circuit and another in the Second Circuit, the Multi District Litigation Panel consolidated the cases in the D.C. Circuit. After two years of settlement negotiations, we (along with other conservation organizations, including the Natural Resources Defense Council and National Wildlife Federation, and the Stanford Environmental Law Clinic) have finally resolved the case with EPA. 

We believe that today’s settlement represents a significant step forward for the environment, and is a significant victory for PEAC and all of the amazing law students who have worked on the lawsuits over the last decade. 

You can follow these links for the press release and settlement agreement for this case.