Big boats can't mix water, Ninth Circuit says

John O'Brien Jul. 23, 2008, 4:36pm


SAN FRANCISCO (Legal Newsline) - Six Great Lakes states have won a court order prohibiting oceangoing freight ships from discharging ballast water -- without a permit.

The decision, affirmed Wednesday by the Ninth Circuit Court of Appeals, requires freighters to comply with the federal Clean Water Act. Ballast water discharges occur when a vessel is moved from one body of water to another and the old water it carries is released in the new body of water.

The EPA exempted the discharges from the Clean Water Act. Now, the agency will have to issue permits to ships that wish to do so.

"The district count's order requires the EPA to perform a substantial task -- to bring the discharges previously exempted by (the EPA) within the permitting process of the CWA," Judge William Fletcher wrote.

"Neither the district court nor this court underestimates the magnitude of the task."

Members of the Attorney General's office in all six states (New York, Minnesota, Pennsylvania, Wisconsin, Illinois and Michigan) contributed.

"Today's decision is a huge win in protecting New York state's Great Lakes from invasive species and pollution that for too long have threatened our local ecosystems, economies and our health," New York Attorney General Andrew Cuomo said.

"Preserving Lake Erie and Lake Ontario for years to come is vital to our quality of life, our economic growth and our environment.

He added that the decision will reduce pollution and ensure that commercial and recreational fishing are not harmed, and that billions of dollars in damage has been done to fishers, recreation and public infrastructure by the aquatic invasive species epidemic.

Specifically, the zebra mussel has spread through the Great Lakes and other waterways, causing damage to water and power plants by clogging intake pipes, Cuomo said.

He added that a 2001 EPA report indicated that a strain of cholera killed 10,000 people in Latin America in 1991 was introduced by the bilge water of a Chinese freighter. The strain was detected in oyster and finfish samples in Alabama before the water could be transferred to American waterways.

Both houses of Congress passed legislation that exempted small recreational boaters from the ballast water regulations on Tuesday.

From Legal Newsline: Reach John O'Brien by e-mail at

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