AQUATIC INVASIVE ALIEN SPECIES AND THE
EVOLUTION OF CANADIAN AND U.S. BALLAST
WATER REGULATIONS IN THE GREAT LAKES-

ROWING IN TANDEM OR MUDDYING THE
WATERS?

Cole Atlin*

INTRODUCTION

Ballast water released from large ships is a vector for the introduction
of aquatic invasive alien species.' The establishment of these foreign plants,
animals, and organisms has significant economic and ecological impacts.2

Due to high ship traffic on the St. Lawrence Seaway and the Great Lakes,
many bio-invasions have resulted from ballast water release. Since the late
1980s, the United States and Canada have introduced regulations
concerning the release of ballast water, evolving from ineffective voluntary
guideline measures to more stringent mandatory ones.

Both countries took similar, corresponding management measures,
until late in the 2000s when the United States applied its Clean Water Act
to ballast water release.s The State of New York enforced this new
application rigorously, and generated strict regulations.6 Canada
vociferously denounced the enhanced regulations. In February 2012, New
York decided to discontinue these more stringent ballast water regulations
and wait for the enactment of stricter federal ballast regulations.

However, if New York had continued to apply a more stringent

* MA, MSL, PhD Candidate.
1. Jennifer L. Molnar et al., Assessing the Global Threat of Invasive Species to Marine

Biodiversity, 6 FRONTIERS IN ECOLOGY AND THE ENV'T 485-92 (2008).
2. HAROLD A. MOONEY ET AL., INVASIVE ALIEN SPECIES: A NEW SYNTHESIs 2 (2005).

3. JEFF ALEXANDER, PANDORA'S LOCKS: THE OPENING OF THE GREAT LAKEs-ST.

LAWRENCE SEAWAY 103 (1st ed. 2009).
4. EUGENE H. BUCK, CONG. RESEARCH SERV., BALLAST WATER MANAGEMENT TO

COMBAT INVASIVE SPECIES (2012), archived at http://perma.ccN26F-QMQD; GREAT LAKES

SEAWAY BALLAST WATER WORKING GROUP, 2012 SUMMARY OF GREAT LAKES SEAWAY

BALLAST WATER WORKING GROUP 11-14 (2013), archived at http://perma.cc/Q5JV-2YKL.
5. Donald E. Tuxill, Ballast Water Discharges: Protecting New York's Waters from

Invasive Species, N.Y. STATE DEPT. OF ENVTL. CONSERVATION, http://www.dec.ny.gov/
chemical/79079.html (last visited Dec. 30, 2013, archived at http://perma.cclXZE7-B8RT).

6. Id.
7. Ballast Water and the Great Lakes-St. Lawrence Seaway System, TRANSPORT CAN.,

http://www.tc.gc.ca/eng/mediaroom/backgrounders-bl l-hs007-6535.htm (last updated Oct.
23, 2012, archived at http://perma.cc/Z5S9-B9P2).

8. Government of Canada Applauds New York State for Withdrawing its Ballast Water
Requirements, TRANSPORT CAN. (Feb. 23, 2012), http://news.gc.ca/web/article-
en.do?nid=659649, archived at http://perma.cc/567V-WVZ3.



IND. INT'L & COMP. L. REV.

regulation, Canada could have challenged this regulation under provisions
contained in the Boundary Waters Treaty (BWT) of 1909, including the
concept of free, navigable waters.9 This approach could have been used -as
legal grounds to bring the regulations to the International Joint Commission
(IJC) for revocation.' 0

In this paper, I outline the management structures surrounding the
Great Lakes, the threat that aquatic invasive alien species (IAS) generate,
and the concept of ballast water technology. Following these introductions,
I consider the development of international norms of transboundary harm
and international agreements surrounding ballast water. I will also outline
ballast water regulations, and the loophole present for ships carrying little
ballast water in the regulations of both countries, and examine the US case
from 2005 that enabled ballast water to be viewed as a pollutant under the
Clean Water Act. Canada's approach to lobbying New York to rescind its
regulations related to the Clean Water Act is examined. Finally, how future
Great Lakes ballast water regulations will evolve, particularly in relation to
a recent additional annex in the Great Lakes Water Quality Agreement for
aquatic invasive alien species," the reiteration of the Vessel General
Permit, and the eventual enactment of the International Convention for the
Control and Management of Ships' Ballast Water and Sediments, will be
discussed.

WATERBORNE IAS

The use of the St. Lawrence and the Great Lakes shipping route
expanded greatly during the industrial boom of the 1800s.12 Global trade
linkages and technological development increased the variety and frequency
of vectors for biotic transfer. The impact of the industrial revolution on bio-
invasions can be seen in the building of the Welland Canal, linking Lakes

9. Treaty Between the United States and Great Britain Relating to Boundary Waters,
and Questions Arising Between the United States and Canada, U.S.-Gr. Brit., Jan. 11, 1909,
36 Stat. 2448 [hereinafter Boundary Waters Treaty].

10. JOHN H. CURRIE ET AL., INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY
349 (2007); Who We Are, INTL JOINT COMM'N,
http://www.ijc.org/en/backgroundX/ijccmi nature.htm (last updated Jan. 25, 2013,
archived at http://perma.cc/FN2J-CWSF); see also Boundary Waters Treaty, supra note 9,
arts. 3, 8.

11. Agreement on Great Lakes Water Quality, U.S.-Can., Apr. 15, 1972, 23 U.S.T. 301
(superseded by Great Lakes Water Quality Agreement of 1978, U.S.-Can., Nov. 22, 1978, 30
U.S.T. 1383, as amended Oct. 16, 1983, and Nov. 18, 1987) [hereinafter GLWQA]; see also
Protocol Amending the Agreement Between Canada and the United States of America on
Great Lakes Water Quality, 1978, as amended on October 16, 1983, and on November 18,
1987, U.S.-Can., Sept. 7, 2012 [hereinafter Protocol Amending GLWQA], archived at
http://perma.cc/3CQZ-NYEG.

12. ALEXANDER, supra note 3, at xxviii.

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Ontario and Erie in the 1830s, and in the development of a lock system
from 1847 to 1855 on the St. Lawrence River.'3 This series of technological
innovations allowed the St. Lawrence Seaway to become a major artery for
international trade, as ships could pass from the Atlantic Ocean to Lake
Superior uninterrupted. After World War II, with intensified trade, a need
arose to expand the navigable waters of the Seaway, prompting dredging to
expand its depth.14 The increased trade and transit post industrialization
generated a new vector for bio-invasion, since ships released untreated
ballast water into the waterways." Untreated ballast water contains alien
species, and some of these species have the characteristics necessary to
invade Great Lakes ecosystems.

The Canadian Invasive Alien Species Strategy defines non-native
species as "species of plants, animals, and micro-organisms introduced by
human action outside their natural past or present distribution." Non-
native species do not always constitute invasive species because many do
not take over ecosystems. Non-native species can be helpful and
aesthetically pleasing, and are used in agriculture and landscaping.
However, IAS are "harmful alien species whose introduction or spread
threatens the environment, the economy, or society, including human
health."' 7 The release of ballast water into the Seaway and the Great Lakes
as a result of the industrial boom resulted in the introduction of a significant
number of IAS.18

By 1990, "hundreds of exotic algae, fish, invertebrates, and various
plant invaders [had] become established in the Great Lakes basin." 9 The
rate of bio-invasion has drastically increased concurrently with global trade
and has placed more pressure on the Great Lakes ecosystem. "More than
one-third of these invasive organisms were introduced since the 1960s, and
many now dominate the aquatic community in both numbers and
biomass." 2 0 Ballast water release has resulted in the establishment of at least
twenty-four invasive species in the Great Lakes since 1959.21 IAS
established in the Great Lakes include "common carp, Eurasian ruffe,
Eurasian water milfoil, purple loosestrife, quagga mussel, round goby, rusty

13. Id.
14. Id.
15. Id. at xxi.
16. Gov'T OF CAN., AN INVASIVE ALIEN SPECIES STRATEGY FOR CANADA 1 (2004),

archived at http://perma.cc/D7NG-TEQY.
17. Id.
18. Joel T. Bowers, Little Leviathans: Michigan's Battle Against Invasive Species in the

Great Lakes, 52 WAYNE L. REv. 1249, 1249-50 (2006).
19. GREAT LAKES SCIENCE CENTER, STRATEGIC SCIENCE PLAN 38 (2005), archived at

http://perma.cc/C8MK-NVK9 [hereinafter STRATEGIC SCIENCE PLAN].
20. Id.
21. Christopher Costello et al., Evaluating an Invasive Species Policy: Ballast Water

Exchange in the Great Lakes, 17:3 ECOLOGICAL APPLICATIONS 655, 655 (2007).

2014] 67



IND. INT'L & COMP. L. REV.

crayfish, sea lamprey, spiny waterflea, and the zebra mussel."22

IAS constitute a significant threat to aquatic ecosystems, and as a
result, impact the economic function of industries that require healthy
aquatic ecosystems. These species can out-compete native species, transmit
diseases, or inter-breed with native species, contaminating the genome.23

"These . . . species alone have contributed to massive extinctions of native
fauna, severe alterations in local food webs . . . and in cases such as the
zebra mussel, have resulted in millions of dollars of damage to water intake
and treatment facilities."2 4 IAS have also caused botulism in species that
feed on them, as well as thiamine deficiency syndrome. 2 5 They have caused
blue-green algal blooms and contributed to the expansion of the "dead
zone" in Lake Erie.26

Due to the extensive impacts of IAS, it is of crucial importance to
prevent their introduction as effectively as possible. As ballast water is a
primary vector for their entry, the regulation of ballast water has been of
significant concern to both US and Canadian officials.

AN OVERVIEW OF BALLAST TECHNOLOGY

Ballast is defined by the Canadian government as "any solid or liquid
that is brought on board a vessel to increase the draft, change the trim,
regulate the stability or to maintain stress loads within acceptable limits., 27

Ballast technology has been employed to stabilize ships since the
Phoenicians began to trade by sea. Since that time, the seemingly
innocuous release of ballast has been a primary vector for IAS. Even prior
to the use of water as ballast, bio-invasions resulted from the release of
gravel or dirt ballast.2 9 This dirt and gravel contained insects, microbes, and
plant seeds. 30 For example, some experts believe purple loosestrife was
introduced initially to North America through dirt ballast from European

22. STRATEGIC SCIENCE PLAN, supra note 19, at 38-39.
23. Jeremy Firestone & James J. Corbett, Coastal and Port Environments: International

Legal and Policy Responses to Reduce Ballast Water Introductions of Potentially Invasive
Species, 7 SUSTAINABLE DEv. L. & POL'Y 45, 45 (2006).

24. STRATEGIC SCIENCE PLAN, supra note 19, at 39.
25. See Invasive Species - Rochester, NY Area, ROCHESTERENVIRONMENT.COM,

http://rochesterenvironment.cominvasive-species.htm (last visited Dec. 30, 2013, archived
at http://perma.cc/ZP6B-Z3XR).

26. Id.
27. Ballast Water Defined, TRANSPORT CAN., http://www.tc.gc.caleng/marinesafety/oep-

environment-ballastwater-defined-249.htm (last updated Jan. 21, 2010, archived at
http://perma.cc/EY95-N7GQ).

28. Firestone & Corbett, supra note 23.
29. JASON VAN DRIESCHE & Roy G. VAN DRIESCHE, NATURE OUT OF PLACE:

BIOLOGICAL INVASIONS IN THE GLOBAL AGE 56 (2000).
30. Id.

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AQUATIC INVASIVE ALIEN SPECIES

ports.'

The transition to water ballast increased the frequency and magnitude
of aquatic bio-invasion. In addition, the globalization of trade, in
combination with increases in the number, size, and speed of ships, created

32more opportunity to introduce species to new aquatic environments.
Marine transportation is the primary agent of international trade, and the
volume of international trade has increased greatly in the last century.
Therefore, marine transportation has become the primary vector for
invasive species introduction.33

Current shipping technology uses water almost exclusively as ballast.
Water enters onboard tanks through pumping or gravity.34 The International
Maritime Organization (IMO), in the International Convention for the
Control and Management of Ships' Ballast Water and Sediments (BWM)
defines "ballast water" in article I as "water with its suspended matter taken
on board a ship to control trim, list, draught, stability or stresses of the
ship"35 and "sediments" as "matter settled out of Ballast Water within a
ship."36

WATER MANAGEMENT AND THE GREAT LAKES

The Great Lakes and the St. Lawrence Seaway are under the shared
jurisdiction of the United States and Canada.3 7 These complex ecosystems
are significant watercourses for shipping. When considering the general
principles of international law related to shared waterways, harm is
discussed most frequently in the context of how a development will harm
ecosystem health or navigability of a waterway to the detriment of a
neighboring riparian state.38 If one state actor initiates a development that
threatens the sustainable utilization of a specific inland waterway, that
offending state has an obligation to mitigate its effects.39

It is nearly impossible to determine liability for an accidental species
introduction via ballast water based on common law tort principles, and the

31. Id.
32. Firestone & Corbett, supra note 23.
33. Id.
34. Id.
35. International Conference on Ballast Water Management for Ships, Feb. 16, 2004,

Adoption of the Final Act and Any Instruments, Recommendations and Resolutions Resulting
from the Work of the Conference, International Convention for the Control and Management
of Ships' Ballast Water and Sediments, IMO Doc. BWM/CONF/36, Annex, art. 1, para. 2
[hereinafter BWM], archived at http://perma.cc/JX9X-HMXV.

36. Id. Annex, art. 1, para. 11.
37. ALEXANDER, supra note 3, at xii.
38. The 1966 Helsinki Rules on the Uses of the Waters of International Rivers, Int'l

Law Ass'n, art. 7, Aug. 1966, (1967), archived at http://perma.cc/J77Z-KTVX.
39. CURRIE ETAL., supra note 10, at 348.

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IND. INT'L & COMP. L. REV.

challenge also applies to various other environmental law situations.
Environmental legal scholar Albert Lin states:

In such instances, common law tort provides neither
sufficient redress for widespread harms nor adequate
mechanisms for anticipatory intervention. To address these
shortcomings, the legal system turned to public law-legal
structures based on statutes and administrative regulations.
For nearly the last four decades, direct governmental
regulation has been the principal means of addressing
environmental harm.40

Thus, domestic, bi-national, and international regulatory schemes
have been the best means of discouraging the transfer of IAS.

Developing regulations related to the Great Lakes is a challenging
endeavor for international law because of both the significance of the
ecosystem and the shared nature of the resource. The Great Lakes-St.
Lawrence River Basin contains 21 percent of the world's fresh water and 84
percent of North America's fresh surface water.4 1 More than 150 native
species of fish and more than 50 native plant communities are threatened by
IAS in the Great Lakes system.42 The problem of jurisdiction presents an
enormous challenge for Great Lakes management. Their management
requires not only the cooperation of two federal governments, but also
harmonization with the regulatory approaches of ten states and provinces.4 3

The St. Lawrence Seaway is considered a boundary waterway, and it
falls within the jurisdiction of the Canadian and US federal governments
under the BWT." The BWT is administered by the IJC. The governments
established the IJC to settle boundary water related disputes.4 5 However,
provinces and states also have the right to develop policies surrounding the
protection of the aquatic environment. The federal, state, and provincial
actors have signed environmental protection policies that bind both
countries and the affected states and provinces. 46

40. Albert C. Lin, The Unifying Role ofHarm in Environmental Law, 2006 Wis. L. REV.
897, 908 (2006).

41. Basic Information, ENVTL. PROT. AGENCY, http://www.epa.gov/greatlakes/
basicinfo.html (last updated July 5, 2012, archived at http://perma.cc/5YUF-7FWV).

42. David Pimentel et al., Environmental and Economic Costs ofNonindigenous Species
in the United States, 50 BIOSCIENCE 53 (2002).

43. Alan M. Schwartz, The Canada-US Environmental Relationship: Calm Waters but

Slow Sailing, 60 INT'L J. 437, 437 (2005).
44. Boundary Waters Treaty, supra note 9.
45. Who We Are, supra note 10.
46. See, e.g., Great Lakes-St. Lawrence River Basin Sustainable Water Resources

Agreement, Dec. 13, 2005 [hereinafter Sustainable Water Resource Agreement], archived at
http://perma.cc/9225-UR5F.

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Despite the divergent rights and responsibilities of various
jurisdictions, cooperation has been the most common approach to Great
Lakes management. Following the BWT of 1909 and the establishment of
the IJC, other agreements stand in testament to a desire to harmonize
approaches to their management. The Great Lakes Water Quality
Agreement (GLWQA) was signed in 1972 to maintain and restore the
ecosystem function of the Basin.47 The GLWQA, with the cooperation of
ministries and departments on both sides of the border, attempts to meet bi-
national water quality standards. 48 The GLWQA establishes a cooperative
framework to manage the Great Lakes ecosystem.49

Comparatively, the IJC is an investigative body formed to settle
disputes along the boundary waters of Canada and the United States.5 0 The
IJC can monitor and recommend actions on problems like pollution.5'

The GLWQA, the BWT, and the IJC are the joint agreements
between Canada and the United States that can be applied to the prevention
and monitoring of IAS. The GLWQA now specifically refers to IAS in
Annex 6.52 These agreements could be applied to managing IAS introduced
through ballast water if ballast water containing foreign biota was
determined to constitute pollution under law. The United States recently
adopted a policy where ballast water constitutes pollution under the Clean
Water Act.53 Canada does not yet recognize ballast water as pollution.5 4

However, both countries have developed national ballast water
regulations and throughout their histories have attempted to harmonize their
management policies. The desire for harmonized policies has been
particularly apparent when considering the shared waterways of the Great
Lakes and the St. Lawrence Seaway.

INTERNATIONAL OBLIGATIONS RELATING TO BALLAST WATER

International law clearly identifies IAS as harmful to ecosystem
function. Under the Convention on Biological Diversity (CBD), article 8(h)
requires that parties "shall, as far as possible and as appropriate: . . .
[p]revent the introduction of, control or eradicate those alien species which

47. See generally GLWQA, supra note 11.
48. Treaties and Agreements, INT'L JOINT COMMN, http://www.ijc.org/rel/agree/

quality.html (last visited Oct. 19, 2013).
49. Id.
50. Who We Are, supra note 10.
5 1. Id.
52. See Protocol Amending GLWQA, supra note 11, Annex 6 (referred to as Aquatic

Invasive Species [AIS]) (Discussed in greater depth infra notes 222-228 and accompanying
text.)

53. Clean Water Act, 33 U.S.C. § 402 (2012) [hereinafter CWA].
54. Ballast Water Defined, supra note 27.

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IND. INT'L & COMP. L. REV.

threaten ecosystems, habitats or species. . . ."" Similarly, the United
Nations Convention on the Law of the Sea (UNCLOS) provides in article
196 that "[s]tates shall take all measures necessary to prevent, reduce and
control . . . the intentional or accidental introduction of species, alien or
new, to a particular part of the marine environment, which may cause
significant and harmful changes thereto."56

These articles imply an obligation to prevent harm and that a nation
should attempt to prevent the spread of IAS. However, it is nearly
impossible to determine ex post facto liability for an accidental species
introduction via ballast water based on these bodies of law. The
international obligation that arises from CBD and UNCLOS relates to a
state's responsibility not to generate harm, 8 and, thus, flagships have a duty
to reduce the risk of introduction. This obligation is most often fulfilled by
flagships' obeying the domestic laws regarding ballast water release. The
flagship has no obligation to exceed its domestic regulations, unless duty-
bound by its flag state. 59 Thus, the international obligation requires ships to
follow the mandates of the state's waters into which they are venturing even
though they may exceed the regulations of their flag country.

However, the International Marine Organization (IMO) developed a
new ballast water treaty called the International Convention for the Control
and Management of Ships' Ballast Water and Sediments (BWM) in 2004.60
It addresses both the responsibility of domestic and regional fleets to do no
harm, and the need to create ballast water regulations within a country's
domestic waters. 6 1 The BWM expects countries to eventually apply
stringent regulations on ballast release on their own fleet.62 It also expects
signatories to apply stringent regulations on ships entering their waters.
The BWM is not yet in force since entry into force requires the
endorsement of thirty states that represent at least 35 percent of world

55. United Nations Convention on Biological Diversity art. 7, June 5, 1992, 1760
U.N.T.S. 79, archived at http://perma.cc/CND4-NRZ6 [hereinafter CBD] (alteration added).

56. United Nations Convention on the Law of the Sea art. 196, para. 1, Dec. 10, 1982,
U.N. Doc. A/CONF.62/122, 21 I.L.M. 1261 (1982), archived at http://perma.cc/YX2L-
UVA2 [hereinafter UNCLOS] (alteration added).

57. Suzanne Bostrom, Halting the Hitchhikers: Challenges and Opportunities for
Controlling Ballast Water Discharges and Aquatic Invasive Species, 39 ENvTL. L. 867, 871-
72 (2009).

58. Justin Pidot, The Applicability of Nuisance Law to Invasive Plants: Can Common
Law Liability Inspire Government Action?, 24 VA. ENvt. L.J. 183 (2005); but see Daniel P.
Larsen, Combating the Exotic Species Invasion: the Role of Tort Liability, 5 DUKE ENVTL. L.
& POL'Y F. 21 (1995).

59. CRAIG R. JOHNSON, SEAWEED INVASIONS: A SYNTHESIS OF ECOLOGICAL, EcoNOMIC

AND LEGAL IMPERATIVES 119 (2008).
60. BWM, supra note 35.
61. Id. art. 2.
62. Id.
63. JOHNSON, supra note 59, at 443.

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merchant shipping tonnage.6 Currently, the Convention has 33 signatories,
representing 26.46 percent of world tonnage. Canada is a contracting state
party as of April 8, 2010, but the United States is not. However, both
countries frequently cite the IMO BWM, making it the standard measure by
which ballast regulation is measured.

Canada and the United States measure their domestic programs
against the standards of the IMO BWM." The BWM requires all ships to
manage their ballast water discharge as per Regulation D-2. 6 9 The Ballast
Water Performance Standard for the BWM states:

Ships conducting ballast water management shall discharge
less than 10 viable organisms per cubic metre greater than
or equal to 50 micrometres in minimum dimension and less
than 10 viable organisms per milliliter less than 50
micrometres in minimum dimension and greater than or
equal to 10 micrometres in minimum dimension; and
discharge of the indicator microbes shall not exceed the
specified concentrations.7 0

This measure provides a specific maximum concentration of living
material to determine what constitutes a harmful discharge of ballast. Small
concentrations of materials can contribute to a species establishment but the
less biotic material present, the lower the chances that bio-invasions will
occur.71 The standard will be phased in slowly, and gradually become more
stringent over time. 72 The BWM also calls for an on-board ballast water
treatment system.

Ballast water treatment refers to chemical or mechanical means of
removing aquatic IAS and their propagules. Mechanical means of ballast

64. BWM, supra note 35, at art. 18, para. 1.
65. Ballast Water International Efforts, NAT'L OCEANIC AND ATMOSPHERIC ADMIN.,

http://www.gc.noaa.gov/gcil-ballast intl.html (last updated Aug. 12, 2013, archived at
http://perma.cc/JXR4-UQR9).

66. Id.
67. BWM, supra note 35.
68. See Ballast Water and the Great Lakes-St. Lawrence Seaway System, supra note 7;

see also NAT'L OCEANIC AND ATMOSPHERIC ADMIN., CURRENT STATE OF UNDERSTANDING
ABOUT THE EFFECTIVENESS OF BALLAST WATER EXCHANGE (BWE) IN REDUCING AQUATIC
NONINDIGENOUS SPECIES (ANS) INTRODUCTIONS TO THE GREAT LAKES BASIN AND
CHESAPEAKE BAY, USA: SYNTHESIS AND ANALYSIS OF EXISTING INFORMATION 27 (Gregory

M. Ruiz & David F. Reid eds., 2007), archived at http://perma.cc/KMG7-XX3Y.
69. BWM, supra note 35, at 22.
70. Id.
71. CHARLES PERRINGS ET AL., BIOINVASIONS AND GLOBALIZATION: ECOLOGY,

ECONOMICS, MANAGEMENT AND POLICY (Oxford Univ. Press, 2010).
72. BWM, supra note 35 at 22.
73. BWM, supra note 35, at regulation D-2.

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IND. INT'L & COMP. L. REv.

water treatment include filtration and separation. Physical methods include
sterilization by ultraviolet light, ozone, heat, electric current, or ultrasound.
Chemical methods include the use of biocides. However, many of these
treatments can generate harmful environmental discharges or can be
challenging or unsafe for crews to complete, corrosive to ballast tanks, or
expensive.74 Since these technologies are expensive, jurisdictions are
allowing the ballast water exchange approach for the intermediary time.7 s
This BWM standard requires extensive procedural checks, including the
pumping of ocean water through tanks three times.76 Ballast water exchange
is discussed in greater depth below.

In addition, the transboundary harm principle is essential to
understanding ballast water regulation. For the purposes of this paper, I rely
on the concept of harm as "damage to things, setting back of another's
interests, or wrongful violation of another's rights."77 The international
harm doctrine is a customary international legal norm that operates upon the
understanding that if a state's action or threatened action generates a serious
threat to another state's environment, the offending state has the duty to
take preventative measures. Unlike the precautionary principle, where the
threat is unknown, the "do no harm" principle focuses upon a scientific
understanding of an actual potential threat from an activity. One of the
first applications of this principle was the Trail Smelter arbitration.

Transboundary sulphur dioxide pollution produced by the
Consolidated Mining and Smelting Company Limited of Canada in Trail,
British Columbia, resulted in significant harm to the State of Washington.
The emissions crossed the international boundary and caused damage to the
Columbia River Valley.80 Canada and the United States underwent legal
arbitration at the IJC twice, once from 1928 to 1931 and again from 1935 to
1941 .8 Each arbitration concluded with Canada paying damages to the
United States.82

The arbitrations resulted in the establishment of the customary norm
of "do no harm" responses to transboundary pollution. After the 1941
arbitration, the smelter had to refrain from causing any serious damage by
altering its production rate based on wind velocity and direction,
turbulence, barometric pressure, and the concentration of sulfur dioxide

74. U.S. GEOLOGICAL SURVEY, BALLAST WATER RESEARCH AT THE WFRC (2006),
archived at http://perma.cc/TN6Z-YWY5.

75. Bostrom, supra note 57, at 876.
76. ALEXANDER, supra note 3, at ch. 9.
77. Lin, supra note 40, at 924.
78. Id. at 921 n.148.
79. J.E. Read, The Trail Smelter Dispute, 1 CAN. YEARBOOK INT'L L. 213 (1963).
80. Id.
81. Id.
82. Id.

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AQUATIC INVASIVE ALIEN SPECIES

emissions.83 The emissions had to be kept at or below the level determined
by the IJC.84 This testing occurred in order to prevent further harm, and to
hold Canada accountable for harm if it did occur." Therefore, the Trail
Smelter arbitrations established a standard approach to transboundary
environmental harm where offending states must take responsibility for
their actions. In addition, scientific knowledge played a key role in
generating responsibility.86

The customary law that emerged was that states were responsible for
damages that they caused. Transboundary environmental harm requires that
physical impacts will occur or have occurred, that those impacts were
caused by humans, that the damage is severe or substantial, and that this
harm is present in a state adjacent to the other state where the activity
occurs. 87 The harm generated by aquatic IAS in the St. Lawrence-Great
Lakes basin fulfills all of these components. Due to the fact that the
transboundary harm presented by IAS is non-accidental - meaning, it
occurs gradually and incrementally after repeated incidents of ballast water
release - prevention, mitigation, and cooperation are more appropriate
resolutions. Actions of everyday life, such as ballast water release, will
have cumulative impacts. However, the threshold for severity must be
determined by both the acting state and the offended state. 9 Determining
the threshold of severity for the Great Lakes has been challenging due to the
multitude of perspectives. In particular, the debate between Canada and
New York State indicates the divergent understandings of that threshold. In
the following section, I will discuss the development of bi-national
regulatory thresholds for ballast water discharge.

BALLAST WATER REGULATION FOR THE GREAT LAKES FROM 1989 To 2008

According to the Geological Survey Western Fisheries Research
Center, "[o]ne ship may contain more than 12 million gallons of ballast
water providing a very efficient vector for aquatic microbes, plants, and
animals. In fact, it is estimated that 7,000 different species are transported
around the world daily in ballast water."90 In 2006, there were more than
45,000 commercial cargo-carrying vessels that used ballast water.9 '

83. Id. at 217-20.
84. Id. at 220.
85. Id.
86. See TRANSBOUNDARY HARM IN INTERNATIONAL LAW: LESSONS FROM THE TRAIL

SMELTER ARBITRATION 6-8 (Rebecca M. Bratspies & Russell A. Miller eds., 2006), archived
at http://perma.cc/3YX-TBEB.

87. HANQIN XUE, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW ch. 1 (2003).
88. Id at 13-14.
89. Id. at 15.
90. U.S. GEOLOGICAL SURVEY, supra note 74 (alteration added).
91. Id.

2014] 75



IND. INT'L & COMP. L. REV.

Historically, this water was released without consideration of its ecosystem
effects.92 The first regulatory approaches attempted to reduce the impact of
species introduction by encouraging voluntary ballast water exchange.93

Ballast water exchange (BWE) is a simple process, and requires no
new technology. A ship takes in coastal ballast water in port. During a
crossing in international ocean waters, the ship exchanges the coastal water
for mid-ocean water. When the ship reaches its destination port, it

94discharges the mid-ocean water. Freshwater and coastal ecosystems are
drastically different from their mid-ocean counterparts, thus drastically
reducing the likelihood of establishing species from mid-ocean ecosystems
into coastal ecosystems.95 In addition, in freshwater ecosystems like the
Great Lakes, seawater rinses can kill freshwater organisms.9 6 The
Smithsonian Environmental Research Center states that "[c]orrectly
completed mid ocean ballast water exchange can replace up to 99% of the
volume of initial coastal waters with ocean waters and can remove over
90% of the coastal zooplankton trapped within the ballast tank, depending
on ship type and ballast tank design."9 7

Due to the simplicity and relative ease of this process, ballast water
exchange has been the regulatory focus of both the Canadian and US
regimes until very recently.9 8 Voluntary provisions for ballast water
exchange were first introduced in Canada in 1989 for ships traveling to the
Great Lakes.99 Similar voluntary guidelines were implemented into law in
the United States in the Nonindigenous Aquatic Nuisance Prevention and
Control Act of 1990.100 The international community followed suit in 1991
with the IMO introducing voluntary BWE guidelines.o'0 The United States
made the voluntary BWE guidelines mandatory in the Great Lakes in

92. PERRINGS ET AL., supra note 71, at 3.
93. Preface, TRANPORT CAN., http://www.tc.gc.ca/eng/marinesafety/tp-tpl3617-preface-

2086.htm (last updated Jan. 18, 2010, archived at http://perma.cc/ZRZ6-NGZG).
94. Mid Ocean Ballast Water Exchange, SMrrHSONIAN ENVTL. RESEARCH CTR.,

http://www.serc.si.edullabs/marineinvasions/vectorecology/bwexchange.aspx (last
visited Oct. 19, 2013, archived at http://perma.cc/9GVM-N3WH).

95. See Id.
96. Id.
97. Id. (alteration added).
98. ENvTL. PROT. AGENCY, 2013 FINAL ISSUANCE OF NATIONAL POLLUTANT DISCHARGE

ELIMINATION SYSTEM (NPDES) VESSEL GENERAL PERMrr (VGP) FOR DISCHARGES

INCIDENTAL TO THE NORMAL OPERATION OF VESSELS: FACT SHEET § 4.4.3.5.1 (2013),
archived at http://perma.cc/C797-3Q6M (stating the benefits of ballast water treatment
systems over current standards of ballast water exchanges).

99. Preface, supra note 93.
100. Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, Pub. L. No.

101-646, § 1101, 104 Stat. 4761 (codified as amended in scattered sections of 16, 18, and 33
U.S.C).

101. BUCK, supra note 4, at 10.

76 [Vol. 24:1



AQUATIC INVASIVE ALIEN SPECIES

1992.102 However, the BWE regulations remained voluntary in all other US
waters until 1996.103 There was a low compliance rate for the voluntary
BWE program in both jurisdictions.'04

BWE became a requirement throughout the United States when the
National Invasive Species Act (NISA) 05 supplanted the Nonindigenous
Aquatic Nuisance Prevention and Control Act for ships entering US
waters.'06 Reports confirming BWE activities became mandatory in 2004
for all ships entering the Great Lakes,107 and in 2005, ballast water reporting
became mandatory in all US waters. 08 This 2005 amendment meant ships
that were traveling only within the US Exclusive Economic Zone must
undergo BWE, even if travel was solely within US waters.109 This provision
attempted to prevent the spread of invasive species between US ports.
Initially, reporting compliance was low, as only 30.4 percent of vessels
entering the US Exclusive Economic Zone filed reports." 0 The regulations
established penalties for failure to report non-compliance and the Coast
Guard began to enforce this law, entrenching the norm that ballast water
management is mandatory. I

In Canada, the voluntary guidelines were revised and expanded in
2000 to cover all waters under Canadian jurisdiction.112 The guidelines were
still voluntary and were renamed Guidelines for the Control of Ballast
Water Discharge from Ships in Waters under Canadian Jurisdiction, TP
13617. 113 The management companies for the St. Lawrence Seaway, the
Canadian owned St. Lawrence Seaway Management Corp., and the
American owned St. Lawrence Seaway Development Corp. agreed in 2002
to amend their joint practices and procedures to comply with the best
practice provisions of the guidelines.1 4 These regulations were further
bolstered by Canada's entry into the BWM in 2004, which expanded
standards for ballast water treatment.'" This standard was applied to all
Canadian waters in 2006 through an amendment to the Canadian Shipping

102. Id.at3.
103. Id. at 4.
104. ALEXANDER, supra note 3, ch. 9.
105. National Invasive Species Act of 1996, Pub. L. No. 104-332, 110 Stat. 4073 (1996)

(codified as amended in scattered sections of 16 U.S.C.).
106. BUCK, supra note 4, at 4.
107. Id.
108. Id.
109. See id.
110. Id.
111. ALEXANDER, supra note 3, ch. 19.
112. Preface, supra note 93.
113. Id.
114. Id.
115. NAT'L OCEANIC AND ATMOSPHERIC ADMIN., supra note 68.

2014] 77



IND. INT'L & COMP. L. REV.

Act.' 16

Within these regulatory regimes, a major gap existed. Fully loaded
freighters, with no ballast on board, known as "NoBOBs,""i7 carry a muddy
slop at the bottom of tanks that contains significant foreign invader
propagules." 8 When BWE regulations emerged, they were only applied to
ships with full ballast tanks entering Canadian or US waters.1 19 Ships that
declared that they did not have pumpable volumes of ballast water did not
have to undergo BWE.120 Thus, NoBOBs were not required to flush their
tanks with ocean water before entering the seaway.12' Transport Canada
estimates that "90 per cent of ships entering the Great Lakes through the St.
Lawrence Seaway are fully loaded with cargo and therefore do not require
ballast water for stability or safe operation."l22

NoBOBs are a major vector for IAS. The average NoBOB actually
carries 157 metric tons of slop, and when considered within the context of a
year, the NoBOB loophole resulted in the release of 858 million tons of
ballast water and sediment into the Great Lakes based on 1995 data.123 This
NoBOB component represents 84 percent of ballast water released.124 Jeff
Alexander, in his book Pandora's Locks, describes the means by which
NoBOBs release ballast water into the Great Lakes:

When NoBOBs dropped off cargo at a Great Lakes port,
the vessels sucked lake water into their ballast tanks to
maintain stability during the next leg of their journey. That
lake water mixed with the residual sediment and water in
ballast tanks, which was hauled into the lakes from ports
overseas. The ship would then discharge some, if not all, of
that mix of domestic and foreign ballast water-and all that
lived in it-when taking on cargo at another Great Lakes
port.125

By flushing NoBOB tanks with salt water, 95 percent of organisms

116. Ballast Water Control and Management Regulations, SOR/2011-237, 1-2 (Can.),
available at http://laws-lois.justice.gc.ca/PDF/SOR-2011-237.pdf.

117. Ballast Water Management, TRANSPORT CAN., http://www.tc.gc.ca/eng/
marinesafety/oep-environment-ballastwater-management-1963.htm (last updated Aug. 4,
2011, archived at http://perma.cc/EN7T-GDEQ).

118. Id.
119. ALEXANDER, supra note 3, ch. 9.
120. Ballast Water Management, supra note 117.
121. ALEXANDER, supra note 3, at 138.
122. Ballast Water Management, supra note 117.
123. ALEXANDER, supra note 3, at 140.
124. Id.
125. Id. at 141.

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AQUATIC INVASIVE ALIEN SPECIES

are killed or purged in ballast water.126 Thus, by considering the remnant
remains within a tank as ballast water requiring BWE, one can drastically
reduce the threat of IAS.

The US, Canadian, and IMO standard definition of ballast water does
not specify the amount of water or sediment required to constitute ballast.127

Thus, Canadian and US jurisdictions should interpret even a marginal
amount of sludge at the bottom of tanks as ballast requiring BWE. This
understanding of what constitutes ballast water is underscored by the
acknowledgement of the Canadian government that Canadian BWE
regulations must be harmonized to the maximum possible extent with US
and international provisions.12 8

However, this harmonization began to fracture in the late 2000s.
Canada closed the NoBOB loophole in 2006, and follows a "Best Practices"
guideline in line with the IMO's BWE standards for NoBOBS. 129 The
loophole in the United States was closed in 1996 by requiring BWE for all
vessels with ballast tanks including NoBOBs.' 30 However, despite the
regulatory change, the Coast Guard did not implement BWE monitoring for
NoBOBs and did not enforce BWEs for NoBOBs.131 The St. Lawrence
Seaway Development Corp. managed to develop a means of overcoming
the US Coast Guard's lack of enforcement related to NoBOBs.13 2 The
American agency that is responsible for the US portion of the seaway
required a ballast water rinse similar to the Canadian regulations before
entering the waterway. 3 3 This approach compensated for the inactions of
the US Coast Guard. Now, "[v]irtually every ship entering the Seaway
System undergoes inspection in Montreal by the US Coast Guard, Transport
Canada, and the two Seaway Corporations to assure they are compliant with
the saltwater flushing and exchange requirements." 3 4 Thus, the St.
Lawrence Seaway Development Corp. dealt with the problem of NoBOBs
before the US Coast Guard was willing to, despite the fact that the US
Coast Guard was the agency charged with their management.

Despite improvements in ballast water release management in the
Great Lakes and the St. Lawrence Seaway, the inaction of the US Coast
Guard created significant problems. The fact that "the number of [LAS] in

126. Id. at 148.
127. Id.
128. Preface, supra note 93.
129. Id.
130. ALEXANDER, supra note 3, at 148.
131. Id.
132. Id
133. Id.
134. GREAT LAKES BALLAST WATER WORKING GROUP, 2007 SUMMARY OF GREAT LAKES

BALLAST WATER MANAGEMENT 4 (2008), archived at http://perma.cc/P7VQ-46YG
(alteration added).

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IND. INT'L & COMP. L. REV.

the lakes soared from 139 in 1990 to 186 in 2008, a 34 percent increase,"
suggests that the regulatory design was ineffective.13 5 Twenty of the new
species introduced after 1993 could be directly attributed to ballast water.'3 6

However, since the introduction in 2006 of the bi-national inspection and
enforcement process in the St. Lawrence Seaway to ensure BWE and salt
water flushing, no new species have been established within the Great
Lakes. 37

The enforcement process for the bi-national inspection requires that
ballast tanks are physically checked before entering the Seaway.' The
process is under the shared responsibility of the US and Canadian Seaway
Corporations, and Transport Canada.139 The US Coast Guard also
participates in the monitoring, now that the US Seaway Corporation has
made it mandatory.14 0 The monitoring consists of an onboard verification
process whereby ballast tanks are physically checked and the water tested to
ensure reported salinity levels are valid.141 By confirming that the salinity
levels are in compliance, the inspectors can ensure that saltwater flushing
actually occurred.14 2

NORTHWEST ENVIRONMENTAL ADVOCATES V. EPA

Ballast water regulation continues to evolve as a result of a case
successful for environmental activists: Northwest Environmental Advocates
v. EPA.14 3 Environmental groups consisting of Northwest Environmental
Advocates, the Ocean Conservancy, and Waterkeepers Northern California,
and the plaintiff intervenor states of New York, Illinois, Michigan,
Minnesota, Wisconsin, and Pennsylvania challenged the US Environmental
Protection Agency's exemption of ballast water under the Clean Water
Act.'" In 1973, the US EPA declared ballast water exempt from the Clean
Water Act.145 In 1999, the plaintiff groups filed a petition against the Clean

135. ALEXANDER, supra note 3, at 150 (alteration added).
136. Id.
137. Ballast Water and the Great Lakes-St. Lawrence Seaway System, supra note 7.
138. THE ST. LAWRENCE SEAWAY MGMT. CORP., BACKGROUND PAPER 1 (2008), archived

at http://perma.cclNR6-72NP.
139. Id.
140. Id.
141. Id.
142. Id.
143. Nw. Envtl. Advocates v. EPA, No. C 03-05760 SI, 2006 WL 2669042 (N.D. Cal.

Sept. 18, 2006).
144. Id. at *1; Clean Water Act, 33 U.S.C. §§ 1251-1387.
145. Nw. Envtl. Advocates, 2006 WL 2669042, at *1 n.2 ("The following discharges do

not require NPDES permits: (a) Any discharge of sewage from vessels, effluent from
properly functioning marine engines, laundry, shower, and galley sink wastes, or any other
discharge incidental to the normal operation of a vessel.").

80 [Vol. 24:1



AQUATIC INVASIVE ALIEN SPECIES

Water Act exemption.146 The EPA denied this petition in 2003.147 Following
the denial, the exemption was challenged again in 2005 in the United States
District Court for the Northern District of California when these groups
claimed that ballast discharge resulted in bio-invasions, and that ships must
comply with the provisions of the Clean Water Act and obtain a permit to
release ballast water. 148 This approach would make ballast water discharge a
point-source pollutant.149 The District Court concluded that exempting
ballast water from the Clean Water Act was beyond the EPA's authority
and that these discharges would require permits.150 The Non-Indigenous
Aquatic Nuisance Prevention Act of 1990 and the National Invasive
Species Act of 1996 did not excuse the EPA from its regulatory
responsibilities under the Clean Water Act.' 5' The court revoked the ballast
water exemption in the Clean Water Act and ordered that ballast water
discharges be regulated nationwide by September 30, 2008.152 The EPA and
the shipping industry appealed the decision in 2008, but in the Court of
Appeals, the ruling was upheld. 53

By concluding that ballast water should be regulated under the Clean
Water Act, all ships would require ballast treatment systems and a permit to
emit untreated or partially treated water.154 Regulations developed from the
ruling are much more stringent than current provisions. In November 2011,
the EPA proposed developing and augmenting the Vessel General Permit
(VGP) to regulate ballast emissions by creating a numerical incident
discharge effluent requirement on the amount of living biological material
present, along with stricter administrative requirements. 5 5 As the first
iteration of the VGP expired on December 18, 2013,156 the EPA has
implemented a new form of the regulation. This version sets numeric
effluent limits for ballast water discharges from large commercial
vessels.'5 7 In addition, it reduces the duplication of documentation for

146. Id. at *5.
147. Id.
148. Id. at *6.
149. Loren Remsberg, Too Many Cooks in the Galley: Overlapping Agency Jurisdiction

ofBallast Water Regulation, 76 GEO. WASH. L. REv. 1412, 1415 (2007).
150. Nw. Envtl. Advocates, 2006 WL 2669042, at *12, *15.
151. ALEXANDER, supra note 3, at 266.
152. Nw. Envtl. Advocates, 2006 WL 2669042, at *15.
153. Remsberg, supra note 149, at 1414.
154. Clean Water Act, 33 U.S.C. §§ 1251-1387.
155. VESSEL GENERAL PERMIT FOR DISCHARGES INCIDENTAL TO THE NORMAL OPERATION

OF VESSELS (VGP): AUTHORIZATION TO DISCHARGE UNDER THE NATIONAL POLLUTANT

DISCHARGE ELIMINATION SYSTEM No. 9733-7 (2013) [hereinafter VGP 2013], archived at
http://perma.cc/VV62-T88R.

156. H.R. REP. No. 112-266, at 18 (2011), archivedat http://perma.cc/5MPU-ZUCB.
157. VGP 2013, supra note 155, pt. 2.2.3.5.

2014] 81



IND. INT'L & COMP. L. REV.

vessel owners and operators by streamlining the process.ss The new VGP
took effect December 19h, 2013 and expires December 18th, 2019.159

The new VGP introduces numeric limits on living organisms for
ballast water discharge.16 0 The EPA concludes that treatment technologies,
such as biocides, are now economically achievable.'61 The new VGP uses
the IMO's standards from the BWM agreement. The numeric limitations on
biocide discharges can be met in four different ways: (1) discharging treated
ballast water meeting the applicable numeric limits (i.e., by using treatment
technology); (2) transferring the ship's ballast water to a third party for on-
shore treatment; (3) using treated municipal/potable water as ballast water;
or (4) not discharging ballast water.162

Water quality concerns related to biocides and pesticides being added
to ballast water to prevent IAS are also areas of major concern for the VGP,
as this issue is new and previously unaddressed.' 63 The Clean Water Act,
along with state specific water quality legislation could preclude the
dumping of chemically treated ballast water.IM However, the EPA is
between a rock and a hard place - without using the best available
technology, new IAS may be introduced but alternatively, biocide
treatments could introduce synthetic chemicals into the ecosystems. The
introduction of chemical treatment into ballast water will be an important
problem to monitor. The VGP acknowledges that ballast water treatment
systems and the use of biocides may contribute to the violation of state-
based water quality standards.165 The VGP sets the limits of effluents at
"200 micrograms per liter (ptg/l) of chlorine dioxide, 500 gg/l of peracetic
acid, 100 tg/l of ozone, and 1,000 gg/l of hydrogen peroxide."166

The new VGP will be phased in gradually over a four-year period. 6 1

Certain new vessels will not be impacted by the numeric limits of the draft
VGP, including vehicles "that operate solely within the Great Lakes
(commonly known as Lakers)." 68 Therefore, ballast water treatment is not

158. Id. pt. 1.
159. Id.
160. Id.
161. CLAUDIA COPELAND, EPA's VESSEL GENERAL PERMIT: BACKGROUND AND ISSUES 7

(2013) [hereinafter VGP BACKGROUND], archived at http://perma.cc/3JYP-Y79G.
162. Id.
163. Id. at 6-7, 12 n.27.
164. Id. at 12-14.
165. VGP 2013, supra note 155, pt. 2.2.3.5.1.1.5.
166. VGP BACKGROUND, supra note 161.
167. Id. ("Under the VGP, new vessels constructed after December 1, 2013, must comply

with the permit's numeric limits upon delivery. . . . [E]xisting vessels, constructed before
[that date, must] comply under a staggered schedule. . . . The IMO D-2 standard includes a
phased schedule for similar ballast water capacity sizes of vessels, but with slightly different
implementation dates.").

168. Id.

82 [Vol. 24:1



AQUATIC INVASIVE ALIEN SPECIES

yet required in the Great Lakes.' 69 However, if treatment technologies for
Lakers become available during the permit term, EPA will "promptly
exercise the permit reopener to modify the permit" sooner than the
proposed four-year limit to modify these requirements accordingly.170

Therefore, Canadian ships may be significantly impacted in the near
future by another country's regulatory scheme. The EPA suspects that this
program will be successful in reducing the introduction of IAS and
estimates that "2,880 domestic and 5,270 foreign vessels are potentially
subject to the ballast water standards because they operate with on-board
ballast water tanks, and the agency anticipates that about 40% of covered
vessels will comply by installing a ballast water treatment system."' 7' The
cost of introducing these systems is estimated at approximately $315,000
per vessel.172 The reactions of various states to the updated VGP, in
particular New York, has yet to be seen. In the following section, the
ramifications of the slow inclusion of ballast water into previous iterations
of the VGP and the bi-national strain it created are discussed.

CANADA AND NEW YORK STATE, DIVERGING PERSPECTIVES

Due to the slow progress of the Vessel General Permit ballast
regulation system, New York State, in 2011, declared its intention to
develop regulations based on the Clean Water Act. Within section 401(d) of
the Clean Water Act, a state can develop further, more stringent conditions
as part of a federal emissions permit in order to protect the state's own
water quality. 173 A Vessel General Permit is

required for most commercial vessels greater than 79 feet
in length that operate in US waters. The [Vessel General
Permit] regulates 26 different discharges from vessels that
are incidental to the normal operation of a vessel. Some of
these discharges are deck runoff, bilge water, gray water,
chain locker effluent, and ballast water. 174

"Part 6.22 of the Vessel General Permit contains the additional
requirements provided to the EPA by New York in its Water Quality

169. VGP 2013, supra note 155, pt. 2.2.3.4.
170. VGP BACKGROUND, supra note 161.
171. Id.
172. BAY PLANNING COMMISSION, BALLAST WATER & INVASIVE SPECIES (2012), archived

at http://perma.cc/RT9M-PQUD.
173. Vessel General Permit, N.Y. STATE DEPT. OF ENvTL. CONSERVATION,

http://www.dec.ny.gov/permits/72399.html (last visited Oct. 19, 2013, archived at
http://perma.cc/A446-SUAE).

174. Id. (alteration added).

2014] 83



IND. INT'L & COMP. L. REv.

Certification."' 75 Based on this rationale, New York State developed a
regulatory scheme within the Vessel General Permit that would require the
treatment of ballast water within the Vessel General Permit prior to its
discharge.

Cost estimates of ballast water treatment vary based on the type of
treatment and the type of vessel being used. However, the average "cost of
retrofitting vessels to treat ballast water on board is estimated at between
$200,000 and $310,000 per vessel for mechanical treatment and around
$300,000 for chemical treatment." 77 The shipping industry considers this
expense prohibitive.17 8 However, for NoBOBs, treatment may prove the
best means of preventing the spread of propagules as BWE is not sufficient
according to the scientific community.179

The regulations for ballast water treatment could apply to any vessel
within New York State waters. 80 Two of the locks within the St. Lawrence
Seaway fall entirely within New York jurisdiction.' 8' Therefore, these
regulations applied to all ships entering the Great Lakes via the St.
Lawrence Seaway. In a Fall 2011 press release, New York State laid out the
proposed and subsequent expectations related to their ballast water
regulations:

1. Ballast water exchange and/or flushing for all vessels
is required in entering New York's waters, not just
vessels from outside 200 miles of New York's coast.

2. All vessels, except military vessels, will comply with
ballast water discharge standards starting on January
1, 2012, which will require the installation of ballast
water treatment.

3. Ships constructed on or after January 1, 2013 are to
employ technology to meet ballast water discharge
standards, which are even more protective of New
York's waters.182

175. Id.
176. Id.
177. OFFICE OF THE GOVERNOR, STATE OF WASH., PUGET SOUND ACTION TEAM, BALLAST

WATER MANAGEMENT IN WASHINGTON STATE: RECOMMENDATIONS FOR IMPROVEMENT 19

(Kevin Anderson ed., 2007), archived at http://perma.cc/Q57V-PXVF.
178. Ballast Water Management, supra note 117.
179. Mid Ocean Ballast Water Exchange, supra note 94.
180. Tuxill, supra note 5.
181. GREAT LAKES BALLAST WATER WORKING GROUP, supra note 134 at 11.
182. Tuxill, supra note 5.

[Vol. 24:184



AQUATIC INVASIVE ALIEN SPECIES

The regulation had stringent numeric limits of biota and rapid onset
expectations, 8 3 as the proposed above schedule demonstrated. As a result
of this regulatory approach, New York State faced significant opposition
from municipalities, states, shippers, and the Canadian government.'8 The
Port of Oswego Authority challenged the regulations in the New York
Supreme Court, where the Court found that the regulatory proposal was
reasonable and consistent with the state's authority within the Clean Water
Act.'85 This ruling affirmed that New York had both the grounds and
authority to implement these regulations.18 6

New York State's application of the provisions within the Clean
Water Act created a complicated scenario for Canadian legislators. Canada
argued that New York's proposed regulations were 100 to 1000 times more
stringent than those of the US Coast Guard.'87 Canada began to lobby
extensively against the New York regulatory approach.'88 On the Transport
Canada website in November 2011, the Canadian government issued an
appeal to the public and to New York in an attempt to dissuade them. 8 9 The
language used in the appeal is strong and condemningly stated:

1. Approved ballast water treatment systems are not
available to meet the required standard. The EPA
Science Advisory Board recently concluded that no
current treatment system types will be able to meet
New York's standard. The requirements are therefore
creating uncertainty for shipowners and delaying
installation of available ballast water treatment
systems. This in turn delays environmental
protection.

2. It is not possible to test systems to the level required.
There is no approval protocol to test the operation of
ballast water treatment systems beyond the
International Maritime Organization's standard.

183. Id
184. Battle over Ballast Water, 116:11 MARINE LOG 37, 37 (2011), archived at

http://perma.ccl877Q-B8NE.
185. Matter of Port of Oswego Auth. v. Grannis, 881 N.Y.S.2d 283, 289-90 (N.Y. Sup.

Ct. 2009).
186. Tuxill, supra note 5.
187. Battle over Ballast Water, supra note 184.
188. Press Release, Statement by the Parliamentary Secretary to the Minister of

Transport, Infrastructure and Communities, Pierre Poilievre, on Ballast Water Management
for the Great Lakes-St. Lawrence Seaway System (Nov. 17, 2011), archived at
http://perma.cc/54XD-4EPT [hereinafter Statement by the Parliamentary Secretary].

189. Ballast Water and the Great Lakes-St. Lawrence Seaway System, supra note 7; see
also Statement by the Parliamentary Secretary, supra note 188.

2014] 85



IND. INT'L & COMP. L. REv.

Testing these systems is a complex and difficult
process, requiring significant laboratory work and
large volumes of water. The EPA Science Advisory
Board recently concluded that current available
methods prevent testing of New York's standard.

3. The requirements apply to all vessels operating in
New York waters, regardless of whether they plan to
discharge ballast water. As two Seaway locks near
the entrance to the Great Lakes lie within New York
waters, enforcement of the requirements on transiting
ships would stop commercial traffic on the Seaway,
including domestic ships travelling between
Canadian ports. Additionally, Canadian shipments to
and from the Port of New York and New Jersey
would be curtailed.1 90

Canada goes on to estimate the economic impacts to the St. Lawrence
Seaway at almost $11 billion in revenue and more than 72,000 jobs lost in
Canada and the United States.' 91 Canada developed an extensive lobbying
strategy to prevent a unilateral decision by New York that Canada felt
would undermine twenty years of cooperative regulatory approaches.192

Within their appeal, they requested that New York adopt an internationally
compatible approach in line with IMO standards, particularly for ships that
are merely traveling through New York waters or locks on their way to
ports in other jurisdictions. 19 3 Canada encouraged New York to take an
ecosystem approach,19 4 meaning one that "places humans within and
dependent on the functioning ecosystem rather than apart and independent
from the natural system."l 95

If New York had gone through with its proposed ballast water
regulatory approach, Canada may have attempted to use legal recourse to
prevent the regulation. Canada could have argued to the IJC that the
regulations were in contravention of article 1 of the Boundary Waters
Treaty (BWT) of 1909.196 article 1 states:

190. Ballast Water and the Great Lakes-St. Lawrence Seaway System, supra note 7.
191. Id.
192. Id.
193. Id.
194. Id.
195. Jamie Benidickson, The Great Lakes and the Mediterranean Sea: Ecosystem-

Management and Sustainability in the Context of Economic Integration, 14 J. ENVTL. L. &
PRAc. 107, 108 (2004).

196. Boundary Waters Treaty, supra note 9.

86 [Vol. 24:1



AQUATIC INVASIVE ALIEN SPECIES

The High Contracting Parties agree that the navigation of
all navigable boundary waters shall forever continue free
and open for the purposes of commerce to the inhabitants
and to the ships, vessels, and boats of both countries
equally, subject, however, to any laws and regulations of
either country, within its own territory, not inconsistent
with such privilege of free navigation and applying equally
and without discrimination to the inhabitants, ships,
vessels, and boats of both countries.1 97

By requiring significant ballast regulation, trade on the waterways
would have been inhibited. There is no definition in the text of the BWT to
explain what is meant by the freedom of navigation. It could be interpreted
to suggest that extensive law and regulation harming the economic viability
of the St. Lawrence Seaway could interfere with freedom of navigation.
Generally, within the principles of navigable waterways, national laws
cannot interfere with the freedom of navigation.199

The concept of "rights of police" can apply to navigable waterways,
based on the Helsinki Rules on the Uses of the Waters of International
Rivers.2 00 Jurisdictions have the right to regulate for health and safety over
the portion of the river that is subject to their own jurisdiction. 20 1 However,
they must not interfere with the freedom of navigation.202

As a result, the IJC, the body that deals with pollution-based debates
between parties, would alternatively have to determine whether New York
State was exercising its right to police or interfering with the freedom of
navigation. The IJC would have to determine if the regulations developed
were reasonable, and whether the damage that the regulations would have to
the economy outweighed the potential environmental damage. This
predicament may still occur if ballast water regulations are not harmonized
bi-nationally.

This debate is complicated by the complexities associated with
determining non-accidental environmental harm. One state could view the
environmental harm as severe and promote vigorous restrictions on transit,
while the other might view the damage as within tolerable limits. For the
process of regulation to be viable, the determination of the threshold of
severity must be a cooperative effort, since the burden of environmental
harm is shared between New York and Canada. Conceivably, in the context

197. Id. art. I (emphasis added).
198. CURRIE ET AL., supra note 10, at 354.
199. Id.
200. Int'l Law Ass'n, The 1966 Helsinki Rules on the Uses of the Waters of International

Rivers, art. 4, Aug. 1966, archived at http://perma.cc/XM8H-GY69.
201. CURRIE ET AL., supra note 10, at 349.
202. Id.

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IND. INT'L & COMP. L. REV.

of the Great Lakes and St. Lawrence River, Canada has a greater burden of
harm due to its extensive coastline. For example, potential impacts to the
fishery of Lake Superior would not be viewed by New York State as
consequential.

In the Trail Smelter case, the IJC was able to determine Canada's
culpability for the damage in Washington State.203 The threshold for
pollution was ill-defined, and consequentially was set by the IJC.2 04 If

Canada were to bring New York State to the IJC, it would need to
determine if New York State's proposed threshold limit to its coastal waters
was too severe, and beyond the cooperative and agreed upon threshold
previously generated in harmonized legislation. Therefore, the rights to
police and to determine the severity of threshold for environmental harm
are muddled by an ineffective legal regime in determining non-accidental
harm. The regulations within the Clean Water Act may be interpreted to
often apply to scenarios of non-accidental harm where this harm can be
regulated with emission permits and threshold limits.

Due to the amendment to the Clean Water Act, ballast water would
likely be viewed as water pollution by the IJC, despite the fact that to date
Canada does not equate ballast water with pollution and the GLWQA does
not define IAS as pollution. The IJC, in a conference presentation,2 05

considers policies related to ballast water and IAS as follows in article 4 of
BWT: "the waters herein defined as boundary waters and waters flowing
across the boundary shall not be polluted on either side to the injury of
health or property on the other." 2 06 Therefore, the IJC would likely interpret
ballast water as pollution if Canada took action against New York's
regulations.

Therefore, any challenges Canada brought to the Commission would
hinge on the interpretation of freedom of navigation and whether the
pollution that ballast release generates would be consistent with New York
State's right to police.

However, international legal approaches never needed to be applied.
In late February 2012, New York State folded to considerable lobbying
pressure related to the tremendous economic impacts that the proposed
regulations would generate. 207 The delight of the Canadian government was

203. TRANSBOUNDARY HARM IN INTERNATIONAL LAW: LESSONS FROM THE TRAIL

SMELTER ARBITRATION, supra note 86, at 3.
204. Id.
205. BINATIONAL AQUATIC INVASIVE SPECIES RAPID RESPONSE AND ASSESSMENT

PLANNING- INTERNATIONAL JOINT COMMISSION WORKING GROUP COMMITTEE, PRESENTED AT

THE 17TH ANNUAL INTERNATIONAL CONFERENCE ON AQUATIC INVASIVE SPECIES (2010),
archived at http://perma.cc/8LK5-UAEU.

206. Boundary Waters Treaty, supra note 9, art. IV.
207. Government of Canada Applauds New York Statefor Withdrawing its Ballast Water

Requirements, supra note 8.

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AQUATIC INVASIVE ALIEN SPECIES

apparent in a press release issued shortly after the New York Department of
Environmental Conservation Commissioner, Joe Martens, agreed to pursue
national regulatory approaches proposed by the EPA to ballast water
discharges managed under the Clean Water Act and to rescind the state-
based regulatory approach.208 In the release, Parliamentary Secretary to the
Minister of Transport, Infrastructure and Communities Pierre Poilievre said,
"Canada applauds New York State for withdrawing its unattainable ballast
water requirements and agrees that uniform standards are the best way to
protect the marine environment. . . . We welcome this action as enforcement
of the rules on transiting ships would have stopped commercial shipping on
the Seaway." 20 9

As the new iteration of VGP ballast water release standards under the
Clean Water Act emerges, the focus of the regulatory regime seems to be
moving towards harmonizing standards between not only Canada and the
United States, but also internationally. New York's actions were
vehemently attacked by Canada as uncooperative, damaging, and
unattainable. 2 10 They were particularly unattainable because they were
approached without multi-lateral cooperation and not consistent with
international standards developed by the IMO.2 11 The Canada-New York
ballast water release battle resulted in a disappointing pandering towards
less stringent regulations than initially proposed.2 12 However, the New York
regulatory design was formulated without due consideration for technology
available and the needs of other jurisdictions.213 The impacts of the new
VGP may go a long way for developing a united vision of ballast water.
Future regulatory design will need to focus upon harmonization and
managing the costs of technological requirements to treat the ballast water.

FUTURE REGULATIONS

Currently, US environmental and regulatory authorities have more
restrictive policies where physical or chemical ballast treatments are
mandated.2 14 Despite Canada's aggressive lobbying against New York
State's ballast water treatment requirements,' the IMO BWM calls for the
eventual phasing out of BWE in favor of more effective ballast treatment

208. Id.
209. Id.
210. Id.
211. Id.
212. New York State Will Follow National Ballast Water Standard, CANADIAN SAILINGS,

http://www.canadiansailings.ca/?p=3810 (last updated March 5, 2012, archived at
http://perma.cc/3856-AWGB).

213. Government of Canada Applauds New York State for Withdrawing its Ballast Water
Requirements, supra note 8.

214. VGP 2013, supra note 155.
215. Statement by the Parliamentary Secretary, supra note 188.

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IND. INT'L & CoMP. L. REV.

technology. 216 Canada has acknowledged its commitment to phase out
BWE in favor of ballast water treatment by signing the Treaty and by
acknowledging its intent on the Transport Canada website.2 17 However, as
the Treaty is not yet in force, Canada has no international obligation to
comply at this time. Once the Treaty is in force, Canada will need to
develop means of ballast water treatment and must ensure regulations are
met in Canadian waters. 218

Concurrently, the proposed VGP will also pressure Canadian ships
219into treatment technologies, particularly if lakers are eventually included

in the numeric limitation guidelines. Lakers are bulk carriers that move
within the shared waterways of the Great Lakes and St. Lawrence Seaway.
The VGP will apply to all vessels entering US waters,220 meaning that all
Lakers, as well as salties (sea-going cargo ships) and other vessels that are
Canadian must comply with the ballast water treatment standards. Thus,
Canadian vessels in the Great Lakes must comply with the US standard,
despite the fact that it lacks a Canadian equivalent. BWE is still the
minimum treatment level required in Canadian waters.2 2 1

The updated approach to invasive species in the Great Lakes Water
Quality Agreement (GLWQA) also affirms the tandem approach that the
United States and Canada need to take. Annex 6 ratifies that the United
States and Canada will develop a bi-national invasive species strategy, in
particular, implementing a ballast water discharge program, 222 based on the
request of the IMO that standards be set based on the BWM's standards
when possible.223 The GLWQA also calls for coordinated risk assessments,
education and outreach strategies, early detection and rapid response
strategies, and scientific investment.224 The reporting of progress towards
Annex 6's goals is required every three years. 225 The inclusion of an
invasive species strategy and a ballast water strategy in the GLWQA
agreement shows a significant stride towards policy development. Bi-
nationally, governments responded to the increased stress and included the
risk of IAS within the GLWQA. Developing bi-national standards for
ballast water treatment could be the next logical step.

Standards for ballast water discharge, meaning the amount of

216. Preface, supra note 93.
217. See id.
218. See id.
219. VGP 2013, supra note 155 at 17.
220. Id.
221. Ballast Water Control and Management Regulations, SOR/2011-237, (Can.),

available at http://laws-lois.justice.gc.ca/PDF/SOR-2011-237.pdf.
222. GLWQA, supra note 11, Annex 6 (referred to as biofouling in Annex 5).
223. VGP 2013, supra note 155 at 36.
224. GLWQA, supra note 11, Annex 6.
225. Id.

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AQUATIC INVASIVE ALIEN SPECIES

acceptable species or propagules within ballast water, are necessary so that
industries can evolve their technology and treatment standards to meet that
level.226 This approach, as recommended in the IMO BWM, standardizes
the amount of acceptable biological pollution within ballast water. 227 Ballast
water treatment technology must be developed that is cost effective, non-
toxic, and removes IAS propagules. Concurrently, ballast water regulations
must be generated that require the use of the best available technology. The
proposed Vessel General Permit legislation related to the Clean Water Act
will require the best available technology and could meet these demands.228

However, Canada needs to participate actively if the permit is reopened to
prevent conflict.

The United States can now proceed on a new legislative and
enforcement approach due to the inclusion of ballast water within the Clean
Water Act. They will soon have to treat ballast water before releasing it due
to the development of ballast water discharge standards in the proposed
VGPs. The United States has thus begun to regulate ballast water as
pollution.229

226. ALEXANDER, supra note 3, at 150.
227. Id.
228. VGP 2013, supra note 155, pt. 4.1.1.
229. The United States has officially defined ballast water as pollution within the

proposed VGP:
In today's permit, EPA is establishing effluent limitations to control a variety
of materials, which, for the purposes of this fact sheet, have been classified into
7 major groups: Aquatic Nuisance Species (ANS), nutrients, pathogens
(including E. coli & fecal coliform), oil and grease, metals, most conventional
pollutants (Biochemical Oxygen Demand, pH, Total Suspended Solids), and
other toxic and non-conventional pollutants with toxic effects. EPA is
establishing effluent limitations to control these materials, because such
materials are constituents in the, depending on the particular vessel, industrial
waste, chemical waste and/or garbage 'pollutant' discharge resulting from the
activities of these vessels. 'Industrial waste,' 'chemical waste' and 'garbage'
are expressly included in the CWA's definition of 'pollutant,' which governs,
among other things, which discharges are properly subject to CWA permitting.
See CWA § 402(a) (allowing EPA to issue permits for a 'discharge of any
pollutant'); CWA § 502(12) (defining 'discharge of a pollutant' to include 'any
addition of any pollutant to navigable waters from any point source'); and
CWA § 502(6) (defining 'pollutant' as 'dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal and agricultural
waste discharged into water' [emphasis added]). The discharge from vessels
addressed in today's permit - a worthless or useless flow discharged during a
vessel's normal operations - falls within those broad pollutant categories. See,
e.g., Webster's II New Riverside University Dictionary (1988) (defining
'waste' as 'a worthless or useless by-product' or 'something, such as steam,
that escapes without being used'; 'industrial' as 'of, relating to, or derived from
industry' and 'industry['] as 'the commercial production and sale of goods and

2014] 91



IND. INT'L & COMP. L. REV.

Canada, in following with the spirit of harmonization that has guided
many of its previous ballast water policies, may need to treat ballast water
similarly under domestic legislation. The required legislation will seek to
change the standards for Canadian flagships in the Great Lakes and mean
new technological requirements. Regulatory design that mirrors this
development seems inevitable. Identifying ballast water as a polluting
substance would lead to a regulatory shift in how invasive species are
viewed within Canada, as it did within the United States.2 30 This transition
could ensure that tighter regulatory approaches are generated towards not
only ballast water, but also IAS as a whole.

CONCLUSION

Ballast water release requirements in the Great Lakes have evolved
slowly. The regulatory evolution has been outpaced by the bio-invasions of
stowaway foreign matter in ballast tanks. Through trial and error, ballast
water regulations have become more stringent. The development of stricter
BWE standards, the inclusion of ballast water within the Clean Water Act,
and mounting international pressure resulting from the BWM may result in
extensive reductions in ballast water induced bio-invasions. Economic and
environmental concerns must be balanced to ensure the continuance of the
shipping economy and the health of the Great Lakes and St. Lawrence
Seaway.

services'; 'chemical' as 'of or relating to the action of chemicals'; and
'garbage' as 'worthless matter, trash'). . . . EPA understands that a lot of
attention has been paid to whether, under various circumstances, ANS are
properly considered 'pollutants' under CWA §502(6). Today's permit controls
ANS because such ANS are one constituent of concern in the waste stream that
constitutes the 'pollutant' subject to today's permit.

ENVTL. PROT. AGENCY, 2008 FINAL ISSUANCE OF NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM (NPDES) VESSEL GENERAL PERMIrr (VGP) FOR DISCHARGES

INCIDENTAL TO THE NORMAL OPERATION OF VESSELS: FACT SHEET § 3.4 (2008), archived at
http://perma.cc/46LN-XZFA.

230. Id.

92 [Vol. 24:1