12/03/2016 by W. Thomas Chappell
Ballast water management has attracted the attention of regulators both in the United States and internationally recently. If not properly managed, ballast water may introduce invasive species into an ecosystem. This danger occurs when a vessel collects ballast water, including the organisms in that water, into its tanks in one port and then releases that ballast water and those organisms into a different ecosystem when it arrives at a different port. Despite that there is agreement between American regulators and the International Maritime Organization about the need to address this issue, they have established different ballast water management standards.
The United States Coast Guard adopted Ballast Water Management regulations for all non-recreational vessels operating in American waters which were not merely traversing American waters that became effective on June 21, 2012. 33 C.F.R. § 151.2000 et seq. The USCG regulations provide five options for compliance: (1) do not release any ballast water into American waters; (2) install a USCG approved ballast water management system that causes ballast water to contain quantities of organisms below certain levels; (3) use only ballast water from an American public water source; (4) perform a complete ballast water exchange at least 200 miles from any shore before discharging ballast water; or (5) release the ballast waters to a treatment facility onshore or on a different vessel. In the event of noncompliance, the USCG may (1) levy a civil penalty of up to $35,000 per person; (2) hold a vessel operating in violation of the regulations liable in rem; and/or (3) charge a person who knowingly violates the rules with a class C felony.
The International Maritime Organization’s Ballast Water Management Convention, adopted on February 16, 2004, recently was ratified by Finland, putting it over the threshold to become effective. At this point the ratifying countries represent more than 35% of global shipping tonnage by flag state. The Convention’s ballast water management rules will go into effect on September 8, 2017. Under these standards, vessels sailing internationally that have the capability to carry ballast water must have a Ballast Water and Sediments Management Plan approved by the nation under which the vessel is operating and a recordkeeping system to document any operations concerning ballast water.
The Convention provides that vessels shall either complete a ballast water exchange at least 200 miles from shore with at least 95% exchange in volume, or employ a ballast water management system that satisfies rules regarding the concentration of organisms allowed to be in discharged ballast water and that is approved by the nation under which the vessel is operating. The Convention states that violators shall be punished pursuant to the law of the nation under which the vessel is operating.
Operators should pay close attention to the ballast water management standards in the relevant jurisdiction to avoid noncompliance and potential penalties. They should also pay close attention to potential differences in ballast water management rules. For example, the USCG’s requirements for approval of a ballast water management system are particularly strict and may be higher than those required pursuant to the IMO’s standards. Thus, a ballast water management system that complies with the IMO rules may not necessarily satisfy the USCG standards and could be wholly insufficient or acceptable only on a short term for those operating in American waters. To ensure compliance, operators should read the rules closely and consult legal counsel when developing their ballast water management policies.