Invasive Species

Politics hold up historic ballast legislation

As Congress entered its August recess, two powerful Senate committee chairpersons were at loggerheads over ballast water legislation aimed at preventing new invasive species introductions from ocean ships.

When Congress returns next week it will mean a short window to pass legislation that sets a global precedence for protection from aquatic invasive species. After this window closes the session ends and politicians become absorbed in fall election campaigns. The opportunity to pass this bill will not come again until next year.

Behind the scenes, work is non-stop trying to resolve differences and pass a ballast bill this year. Prior to the recess, the House of Representatives had passed the ballast bill through the Coast Guard Authorization in a landslide vote of 395 to 7. However, the bill is held up in the Senate because of a political logjam.

After decades of slow and inadequate federal leadership, Senators are at odds over who deserves to have authority over ballast, and what kind of authority it should be. With the Great Lakes being permanently changed and real people and their livelihoods impacted by invasions, this is a “form over function” debate that doesn’t resonate strongly with many outside the Beltway.

The dispute is focused on two Democrats, Senator Barbara Boxer from California, who chairs the Environment and Public Works Committee and has the U.S. Environmental Protection Agency (EPA) under her jurisdiction, and Senator Daniel Inouye from Hawaii, chairman of the Commerce, Science and Transportation Committee, who has the Coast Guard under his. Both Senators clearly want the problem solved and are from states so severely impacted by invasive species that state programs have already been put in place.

Boxer is blocking a ballast bill passed by Inouye’s committee over questions regarding how the federal authority of the Clean Water Act, and the ability of citizens to sue that it includes, would be impacted. There is also concern that state ballast programs, such as California’s, would be preempted.

Inouye proposed a single national program to give shippers some level of certainty and aimed to make it stringent enough so that a state would not need to set higher standards. Inouye’s bill also largely keeps the program in the hands of the Coast Guard and doesn’t carve out the right for citizens to sue the industry directly like the Clean Water Act did 35 years ago. Unlike in the House, in the Senate, opposition from a single senator is enough to stop a bill.

It’s been slow going at a time when every day counts. Fortunately, some of the divides are being bridged. The main opposition to Inouye’s insistence that there be a single federal standard has been appeased. California’s state standards were very close to the ones proposed in the federal legislation, but overall, were slightly better. The Senate Commerce Committee has redrafted the bill to address California’s objections, including setting the California state standards as the federal U.S. standards. Now with the changes, the California State Lands Commission, the agency in charge of regulating ballast in the state has endorsed the bill.

The second point of contention, dealing with who should be responsible for a ballast program, stems from a July 2008 win in a federal appeals court that requires the EPA to regulate ballast water discharge under the Clean Water Act. As a result, the EPA is finalizing a five year permit that requires ballast water exchange and NOBOB saltwater flushing — basically rubber stamping procedures already in place for all ships entering the Great Lakes under regulations put in place by the Coast Guard, Transport Canada and St. Lawrence Seaway. Over at least the next five years, the EPA permit would afford much weaker standards than those proposed in the Coast Guard program. However, some environmental groups view the ruling as a starting point that will enable them to sue for stronger rules going forward. At the time of writing, this issue has not been resolved.

The bottom line is that if we all share the goal of stopping the next invader, differences will be reconciled and this bill will pass. If negotiations fail, the bill would have to go back to committee under the new 111th Congress, delaying implementation of a globally precedent-setting program and possibly losing some of the strong provisions painstakingly crafted.

As the fall election approaches and the Congressional clock ticks down, every day counts as we work to bridge divides and build support for this excellent bill. If parties come out of their corners, ready to reconcile their differences and not fight over territory, we will see the best protections from aquatic invasive species that the world has ever seen.

© 2009 Great Lakes News.