Ballast Water Law: Invasive Species and Twenty-Five Years of Ineffective Legislation
By Christopher J. Patrick
INTRODUCTION
The Welland Canal, constructed in 1919 as a bridge between Lake Erie and Lake Ontario, allowed for modern ships to navigate from the Atlantic Ocean to the central Great Lakes. In addition to ships, however, a silent invader called the sea lamprey also used the canal to reach Lake Erie for the first time.
The sea lamprey is a predator of game fish and is well suited to life in the Great Lakes. After introduction, it rapidly spread through Lake Erie into Lakes Huron and Michigan and exploded in those two lakes by preying upon lake trout and lake whitefish, two of the most economically important fish in the Great Lakes. By 1948, lamprey populations were so dense that fishermen reported that the water roiled and frothed as huge schools of lamprey neared the surface. Commercial fisheries in the lakes crashed. In 1943, the Lake Michigan fishing catch was seven million pounds; by 1953, it was less than four thousand pounds.
Today, sea lamprey populations are controlled to some degree by active management, but the lake trout and lake whitefish populations have never recovered to anywhere near their previous levels. While there are other contributing factors, it is impossible to downplay the massive effect that a single invasive species has had on the ecology and economy of the Great Lakes region. The lamprey managed to swim its way into the lakes after humans opened a door through shipping corridors. Despite this ecological catastrophe and others in the past, shipping activity continues to aid invasive species. Humans now directly aid such species' invasion by transferring species in the ballast water of large commercial ships.
“Ballast” refers to any weighted material used to balance ships and prevent them from capsizing in turbulent weather; modern ships use water as ballast. Typically, an empty cargo ship will take on water prior to its voyage to achieve a desirable weight and degree of stability. Upon reaching its destination, the ship will then release the ballast water and subsequently take on cargo. A single ship weighing 200,000 tons typically carries 60,000 tons of ballast water on a voyage. In any given year, three to ten billion tons of water are transported as ballast.
Invariably, when a ship takes on water, it also takes on organisms present in that water. These organisms range from microscopic organisms to fish. Microscopic organisms include not only adults, but also the larval forms of organisms that, when fully grown, would be too large to be transported via ballast water. Estimates place between three and ten thousand different species in an average cubic meter of ballast transported each day. Though many of these organisms die during the trip or are ill-suited to their new environment once deposited, a small percentage of transported organisms are viable in the new habitat, and a few will even thrive.
For decades, environmental groups, local governments, national governments, and the international community have recognized economic, health, and environmental issues stemming from the transport of non-indigenous organisms. Despite this awareness, ballast water-mediated transport of organisms remains an unresolved problem that is growing in magnitude. This Note seeks to review the history of ballast water-mediated transport of non-indigenous organisms and legal responses to the problem. I examine the nature of invasive species and the problems they cause, as well as solutions to the problem and how the law may facilitate solutions. I look at multiple existing international agreements that touch upon the issue and take an in-depth look at United States law, both at the federal and state level. Within the existing national and international ballast water legislation, I identify key problems, including a lack of suitable standards and implementation plans, and recommend a direction for Congress and state legislatures to fix this pressing problem.
The Welland Canal, constructed in 1919 as a bridge between Lake Erie and Lake Ontario, allowed for modern ships to navigate from the Atlantic Ocean to the central Great Lakes. In addition to ships, however, a silent invader called the sea lamprey also used the canal to reach Lake Erie for the first time.
The sea lamprey is a predator of game fish and is well suited to life in the Great Lakes. After introduction, it rapidly spread through Lake Erie into Lakes Huron and Michigan and exploded in those two lakes by preying upon lake trout and lake whitefish, two of the most economically important fish in the Great Lakes. By 1948, lamprey populations were so dense that fishermen reported that the water roiled and frothed as huge schools of lamprey neared the surface. Commercial fisheries in the lakes crashed. In 1943, the Lake Michigan fishing catch was seven million pounds; by 1953, it was less than four thousand pounds.
Today, sea lamprey populations are controlled to some degree by active management, but the lake trout and lake whitefish populations have never recovered to anywhere near their previous levels. While there are other contributing factors, it is impossible to downplay the massive effect that a single invasive species has had on the ecology and economy of the Great Lakes region. The lamprey managed to swim its way into the lakes after humans opened a door through shipping corridors. Despite this ecological catastrophe and others in the past, shipping activity continues to aid invasive species. Humans now directly aid such species' invasion by transferring species in the ballast water of large commercial ships.
“Ballast” refers to any weighted material used to balance ships and prevent them from capsizing in turbulent weather; modern ships use water as ballast. Typically, an empty cargo ship will take on water prior to its voyage to achieve a desirable weight and degree of stability. Upon reaching its destination, the ship will then release the ballast water and subsequently take on cargo. A single ship weighing 200,000 tons typically carries 60,000 tons of ballast water on a voyage. In any given year, three to ten billion tons of water are transported as ballast.
Invariably, when a ship takes on water, it also takes on organisms present in that water. These organisms range from microscopic organisms to fish. Microscopic organisms include not only adults, but also the larval forms of organisms that, when fully grown, would be too large to be transported via ballast water. Estimates place between three and ten thousand different species in an average cubic meter of ballast transported each day. Though many of these organisms die during the trip or are ill-suited to their new environment once deposited, a small percentage of transported organisms are viable in the new habitat, and a few will even thrive.
For decades, environmental groups, local governments, national governments, and the international community have recognized economic, health, and environmental issues stemming from the transport of non-indigenous organisms. Despite this awareness, ballast water-mediated transport of organisms remains an unresolved problem that is growing in magnitude. This Note seeks to review the history of ballast water-mediated transport of non-indigenous organisms and legal responses to the problem. I examine the nature of invasive species and the problems they cause, as well as solutions to the problem and how the law may facilitate solutions. I look at multiple existing international agreements that touch upon the issue and take an in-depth look at United States law, both at the federal and state level. Within the existing national and international ballast water legislation, I identify key problems, including a lack of suitable standards and implementation plans, and recommend a direction for Congress and state legislatures to fix this pressing problem.
