Michigan ballast water law takes maiden voyage; has legal implications for other states
Published December 20, 2006
For the first time, a state plans to regulate ballast water beyond national standards. On January 1, Michigan Senate Bill 332 goes into effect.
Although the new law has raised legal questions about a state's right to regulate international commerce and provoked criticism from the shipping industry, it is lauded by some as an important step towards curbing the movement of aquatic invasive species.
"Commerce on navigable waters is typically the domain of the federal government, not state government," said Dale Bergeron, Minnesota Sea Grant's maritime transportation extension educator. "I suspect that the new ballast water law, if it isn't defeated in a legal challenge, could deter shipping traffic from Michigan's ports."
The Michigan bill mandates that all ships with ballast tanks that have floated on salt water and then expect to use Michigan ports must either keep their ballast onboard or use a state-approved method to treat the aquatic life in outgoing water. To show their compliance, each vessel must carry a $150 annual ballast permit from the Michigan Department of Environmental Quality.
"Similar ballast laws are being considered in Minnesota, Wisconsin, and Indiana," said Bergeron. "What happens with the Michigan law will likely impact what these states attempt."
Bergeron consulted with staff at the National Sea Grant Law Center in Mississippi to evaluate the rights of a state regulating shipping. They concluded that although states have a right to protect their waters, an international ballast water treaty, four Congressional bills, and several clauses in the U.S. Constitution could preempt Michigan's ballast water law. Since many fleet operators would need to install new equipment, retrofit existing infrastructure, and train personnel to comply, legal challenges may cite that Bill 332 damages international commerce.
The U.S. and Canadian Coast Guards shoulder the burden of keeping aquatic invasive species out of the Great Lakes. They require ocean-going ships carrying ballast water to either exchange the water offshore, or keep it onboard. Of the roughly 500 ocean-going vessels entering the Great Lakes in a year, about 90 percent are exempt from these regulations because they are cargo-laden and report no ballast onboard (NOBOB). NOBOB vessels must submit ballast water reporting forms and are encouraged to flush their ballast tanks mid-ocean (swish and spit) but they may still carry residual water or sediments into the
By ratifying Bill 332 two years ago, Michigan legislators indicated dissatisfaction with the efficacy of mid-ocean ballast flushing and endorsed four ballast treatment systems considered experimental by many experts.
Among Michigan ports, Detroit and Menominee could be most affected by the new law since they handle the majority of saltwater ships in the state. However, the number of ships is very small since most of the salties on the Great Lakes are bound for Canadian ports and terminals in other states. To date, no shipping companies have applied for a Ballast Water Control General Permit from Michigan -- although there is still time, since the ocean-going shipping season doesn't begin until late March.
A virus responsible for massive fish die-offs in the Lower Great Lakes and the St. Lawrence Seaway has fueled additional ballast water discussions across the Great Lakes. In November, Michigan requested that the federal government order an emergency ban on freighters filling their ballast tanks in waters where the VHS virus has been found. Shipping industry representatives fear that such a ballast ban would cripple shipping within the Great Lakes.
A copy of the National Sea Grant Law Center's ballast water white paper is available online: http://seagrant.umn.edu/downloads/ballast.pdf.