GLIN==> News Release: Ballast Water Law Reviewed

["Marie E. Zhuikov" <mzhuikov@d.umn.edu>]

                                MN SEA GRANT
                                NEWS RELEASE

12/20/06
Contact: Marie Zhuikov, (218) 726-7677, mzhuikov@umn.edu

Michigan Ballast Water Law Takes Maiden Voyage -- Has Legal 
Implications for Other States

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 
Great Lakes.

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.

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