Since 1972, the Clean Water Act has been a powerful tool for regulating waterborne pollutants. Despite the success of the Clean Water Act in mitigating water pollution, unforeseen challenges arise when regulators use the Clean Water Act to regulate nonconventional pollutants, including invasive species. Invasive species continue to wreak havoc on North American ecosystems, notably the Great Lakes. Discharge of ballast water from ships is one of the major ways that invasive species get introduced into aquatic ecosystems. Following the Environmental Protection Agency’s unsuccessful attempts to set appropriate standards for the concentration of invasive species present in ballast water, the court in Natural Resources Defense Council v. EPA found that the current standards for regulating ballast water discharges in the Great Lakes were arbitrary and capricious and directed the Environmental Protection Agency to revise them.
This In Brief will focus on one standard for ballast water discharge, the “technology-based effluent limits,” which adopted criteria from the International Convention for the Control and Management of Ships’ Ballast Water and Sediment (IMO Standard), approved in 2004. The Second Circuit correctly ruled that the use of these criteria as the basis for technology-based effluent limits was arbitrary and capricious, but did not address the fact that the use of a water- quality based effluent limit of zero invasive species per ballast water discharge could be a more effective standard to combat the introduction of invasive species.
