Will Sanity Prevail for Future Regulation of Ballast Water in California?

By John Berge, Vice President of External Affairs

In 1996, Stemming the Tide: Controlling Introductions of Nonindigenous Species by Ships’ Ballast Water was published by the National Research Council. It spelled out in a no-nonsense technical report the urgent need to manage this vector of invasive species transport. Even the most skeptical had to acknowledge the problem.

It has been 23 years since publication, yet only recently has the goal of actively removing invasive species from ship’s ballast become a reality. Since the late 90’s, mid-ocean exchange has been the only tool to reduce invasive species in ballast. And although this management strategy can greatly reduce the number of organisms, it has always been recognized as an interim solution. Actively treating ballast water onboard has always been the goal.

In 2012 the Coast Guard issued their final rule on ballast water management, predicated on a strategy of ships using treatment systems that have received Coast Guard Type Approval after rigorous testing to meet the D2 discharge standard. There was initial excitement that treatment systems that had already met IMO certification through their flag states would rapidly be submitted to the Coast Guard for approval and installed onto ships calling U.S. waters. That turned out to be premature for a variety of reasons, and it wasn’t until December of 2016 when the first type approval was granted. After Optimarin’s treatment system received the first approval other systems followed, and now there are sixteen approved systems with ten more under review. We should expect to see most ships entering US waters to be outfitted within the next five years.

So what took so long? There are a host of technical and logistical issues that slowed progress, but perhaps the greatest impediment to moving forward has been the pursuit of the perfect at the expense of the good. The D2 standard achieves an approximate 4 log or 99.99% reduction in the number of organisms. That sounds pretty good, doesn’t it? Yet some viewed that as a failure of public policy. Why can’t we have a 100% reduction? How about a 99.999% reduction?

Nowhere has that sentiment been expressed more than California. Over the last decade California has been defending a discharge standard up to 1,000 times more stringent than D2. Scientific consensus agrees that it cannot be met, and in fact cannot practically be measured to an acceptable, statistical level. There is a refrain in California that by setting technology forcing standards, lo, it shall appear. But the result of this rigid adherence to orthodoxy has been to place the state’s aquatic invasive species program in a Catch-22 scenario of having a discharge standard that can’t be met, and consequently cannot be enforced, forcing the state to delay enforcement of the standard four times since its adoption in 2006.

It appears that California is now trying to extricate itself from this no-man’s land it has found itself. Of course from a political perspective the state can’t abandon its unachievable standard; this is still California after all. But there is a bill in the Legislature sponsored by the agency responsible for regulation of ship’s ballast water that, in addition to yet again delaying implementation of their unachievable standard, would align California with the federal D2 standard for the immediate future; something I thought I would never live to see.

The California invasive species program statutes are founded on the use of Best Available Technology (BAT), and Coast Guard type approved treatment systems absolutely qualify (BAT) for ships. Our industry is proud of supporting ballast water regulation to a BAT standard. How can anyone envision opposition to this? The cynic in me is waiting for someone in California to say “hold my beer.”