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Bush administration says EPA won't regulate ships' ballast water
By Paul Rogers
Knight Ridder Newspapers

Skirting what some scientists say is the most significant water quality threat to San Francisco Bay and other ports - invasive species - the Bush administration on Tuesday announced that the U.S. Environmental Protection Agency will not regulate ballast water discharges from ships.

A coalition of 15 environmental and fishing groups had asked the EPA to declare that ballast water was a pollutant that could be regulated under the federal Clean Water Act.

That tactic represents the best hope, the groups said, of reigning in the billions of tiny crabs, fish, clams, plants and other organisms that are sucked into ships' ballast tanks in foreign harbors, and then pumped out in U.S. waters when they unload cargo. The tiny stowaways kill native species, clog water pipes and disrupt the food chain.

San Francisco Bay is among the most severely affected places in North America. A study done in 1998 found that there were at least 234 invasive species in the bay, many of which had no natural predators and were crowding out native species for food and habitat.

Some species, such as the Chinese mitten crab, also have cost millions to remove from water treatment systems and water pipes after they have moved up the bay's delta and clogged water facilities at the Central Valley Project. Mitten crabs also have burrowed into levees around the bay and delta, increasing flood risks.

Similarly, the hardy zebra mussel, which federal officials estimate will cost $5 billion to remove from the Great Lakes, has jammed water pipes and cooling systems at power plants across the Midwest, and has crowded out native clams and fish.

But the EPA on Tuesday said it would not step in. The Coast Guard has already taken the lead in dealing with the problem, EPA officials said, and it would be duplicative if EPA also began regulating commercial shipping.

"We consider ballast water and invasive species a real concern," said Jim Hanlon, EPA's director of wastewater management in Washington, D.C.

"But EPA really doesn't have a presence on vessels across the U.S. The Coast Guard is the arm of the government there. Vessels are part of their mission. Our feeling is that adding ballast water to their responsibilities is better than adding vessel management to EPA's."

Environmental groups said it is likely they will now sue the EPA to attempt to convince a judge to force the agency to use the Clean Water Act in the fight against invasive species.

"EPA has completely abdicated its responsibility," said Linda Sheehan, Pacific Region director of the Ocean Conservancy, an environmental group based in San Francisco.

"Invasive species are like chemical pollutants that mate. Once they are here they are here to stay. They cost hundreds of millions of dollars a year to keep in check, and environmentally they push threatened and endangered species over the edge."

Were EPA to regulate ballast water under the Clean Water Act, it could declare large cargo ships, oil tankers and other vessels as "point sources" of water pollution - like floating factories. Under the Clean Water Act, such sources require permits and can be fined for exceeding pollution levels in those permits.

Deborah Sivas, an attorney with the Earthjustice Environmental Law Clinic at Stanford University, said although the Coast Guard has put in place some regulations, they are voluntary nearly everywhere in the United States.

The Clean Water Act also allows citizen suits, she said, which can increase enforcement.

"This is an opportunity for EPA to take the lead," she said. "Until you get some kind of federal permits in place, you aren't going to have the industry moving on it. You need the legal leverage."

California has among the toughest ballast water laws in the nation. A law passed by former Assemblyman Ted Lempert, D-Palo Alto, in 1999 required ships from foreign ports to exchange their ballast water 200 miles from the California coastline. Critics say it is a good start, but that there is little enforcement. Oregon and Washington have copied it.

"There's virtually no monitoring and enforcement," said Andrew Cohen, director of the biological invasions program at the San Francisco Estuary Institute, in Oakland. "Even if caught red handed, the maximum penalty is only $5,000. These are multi-million dollar vessels. That level of fine is not much to change their behavior."

This summer, the Coast Guard began a process to write a similar nationwide rule that would largely mirror California's. Meanwhile researchers are working on systems, such as ozone treatment and nitrogen gas, that could kill the tiny stowaways.

"We're on top of it," said John Berge, vice president of the Pacific Merchant Shipping Association in San Francisco.

"We are working together with the environmental community and the state agencies to tackle this difficult problem. Eventually we hope to have technology develop that will provide onboard treatment of ballast water of ships so there is zero discharge. We're confident that will happen."

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