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MADISON - Wisconsin Attorney General J.B. Van Hollen, along with legal officers responsible for the enforcement of environmental laws in the Great Lakes States, joined together to ask the members of the United States Senate Committee on Commerce, Science and Transportation to oppose three aspects of the proposed Ballast Water Management Act, Senate Bill 1578. The bipartisan letter, signed by Attorney General Van Hollen, Attorneys General of Illinois, Michigan, Minnesota, and New York, and Pennsylvania's Chief Counsel of the Pennsylvania Department of Environmental Protection, states that the bill as currently comprised would unacceptably:


  • Exempt discharges of pollutants in ballast water from regulation under the Clean Water Act;
  • Preempt states' ability to enforce their own laws that protect against harmful pollutants; and
  • Allow unwarranted delays in the actual enforcement of the new discharge standards proposed in the bill.


Ballast water discharges from oceangoing vessels, including those that travel in the Great Lakes, are the primary pathway through which aquatic invasive species enter the nation's waters.


The letter argues that the Clean Water Act provides for superior controls over vessel discharges, including the discharge of aquatic invasive species contained in ballast water. The letter indicates that because much of the implementation of the Clean Water Act is delegated to the states, exempting ballast-water discharge from the Clean Water Act would remove a significant regulatory tool available to the states to protect waters from environmental harm. Ships' ballast water discharge is currently within the regulatory jurisdiction of the Clean Water Act.


The letter also argues that the proposed legislation unacceptably preempts traditional state legal authority to regulate ballast water discharges, and would allow the unnecessary delay of any ballast water regulation.


Van Hollen's request that federal legislation not displace the Clean Water Act and state enforcement of that act and other traditional state regulation follows Van Hollen's August 6, 2007 letter to EPA that urged it not to over-regulate boating in the name of invasive species control.


On June 21, 2007, the federal Environmental Protection Agency (EPA) issued an early notice announcing the federal agency's intent to begin development of National Pollutant Discharge Elimination System (NPDES) permits under the Clean Water Act for discharges incidental to the normal operation of vessels and soliciting comments. EPA's notice indicated that discharge permits potentially could cover vessels without ballast water tanks, including millions of recreational boats and tens of thousands of commercial fishing vessels. According to the EPA's notice, this action followed a federal court's decision in Northwest Environmental Advocates, et al., v. EPA, holding the EPA was not necessarily limited to vessels with ballast water tanks.


Van Hollen's filed comments sharply disagreeing with EPA's implication that it must require permits for discharges from all vessels without ballast water tanks. "In my view," Van Hollen wrote in August, "if [individual permits are to be required for recreational boats and other vessels without ballast water tanks,] it is because EPA would make it so - not because the court decision in Northwest makes it so." After legally analyzing the Northwest court's decision and recognizing the integral part boating plays in Wisconsin's recreation, tourist, fishing, and water-related industries, Van Hollen's letter concluded that "I do not believe that EPA is legally bound (nor is compelled from a policy perspective) to require individual permits for discharges from recreational vehicles for the control of invasive species."


Wisconsin was one of the prevailing parties in the Northwest case, which is currently being appealed by the United States.


A copy of the September 24, 2007 letter to members of the United States Senate Committee on Commerce, Science and Transportation and a copy of Van Hollen's August 6, 2007 comments on EPA's early notice to develop NPDES permits for discharges incidental to the normal operation of vessels can be found below: