Enjoy the Donut: A Regulatory Response to the White Paper on Preventing Invasion of the Great Lakes by Exotic Species

The adverse economic and environmental consequences associated with the invasion and establishment of exotic species have raised significant concerns among the Great Lakes community. In September 1999, the International Joint Commission (IJC) hosted a workshop on exotic policy, drawing upon the expertise of biologists, lawyers and public officials, to consider means of preventing exotic species invasions. The White Paper on Policies for the Prevention of the Invasion of the Great Lakes by Exotic Organisms served as the centerpiece for discussion at the workshop. The White Paper concludes that economic initiatives, such as subsidies or taxation, would be the most viable way to prevent introductions through ballast water, a primary means for invasion by exotic species in the Great Lakes. This article suggests instead that regulation under the Clean Water Act (CWA) is an effective solution, at least with respect to ships traversing United States waters. Not only is federal regulation required under the plain language of the CWA, it could most expediently address the invasion of exotics through ballast water discharges. The U.S. Environmental Protection Agency (EPA), however, has issued a regulatory exclusion for incidental ballast water discharges. This exclusion, which has been challenged by a coalition of environmental groups, finds no support in the statute. Under the CWA, contaminated ballast discharges from vessels are prohibited as discharges of pollutants from point sources, unless a permit is obtained. Ballast water discharge permits would incorporate effluent limitations reflecting the best technology available, a marked improvement over the status quo. Once a threshold level of treatment is established by the CWA, perhaps economic initiatives could provide additional incentives for compliance and technological innovation. To put the issues in context, this article will first provide background regarding the effects of exotic species introduced into the Great Lakes through ballast water as well as current legal controls. It will then turn, in Section 11, to the relevant sections of the CWA and the federal regulations. Section I11 explains the advantages of a regulatory permit system, particularly in comparison to economic approaches. Finally, Section IV assesses the practical implications of implementing the CWA permit system to control ballast water discharges