Greens Say NY Gives a Pass to ‘Bio-Invaders’

ALBANY, N.Y. (CN) - The National Wildlife Federation claims in court that New York state is failing to stop ships from dumping ballast water that carries invasive species, threatening the Great Lakes and the St. Lawrence Seaway.

The environmental group sued the New York Department of Environmental Conservation and its Commissioner Joseph Martens, in Albany County Supreme Court.

The Wildlife Federation wants state environmental officials ordered to strengthen requirements on ship permits so that any discharges of ballast water meet New York water-quality standards.

The Department of Environmental Conservation in September issued a series of conditions for permits for commercial and large recreational vessels, to go along with proposed new U.S. Environmental Protection Agency permits to control what ships discharge.

Ships hold fresh or salt water in ballast tanks or cargo holds to promote stability and maneuverability during transit, according to the MIT Sea Grant Coastal Resources program.

Ships may pick up water in one port after unloading cargo, then discharge it in another port when taking on a new load - collecting tiny animals and fish along with the water and releasing them to new regions where they may not be indigenous.

Such "bio-invaders" - including zebra and quagga mussels, spiny water fleas, Asian shore crabs and round gobies - cost the Great Lakes region an estimated $100 million annually, according to the Wildlife Federation's complaint.

The Reston, Va.-based group works with other organizations to protect the Great Lakes region. Its website puts the number of invasive species in the lakes at 185, many carried there by ships that use the St. Lawrence Seaway on New York's northern border with Canada to get inland from the Atlantic Ocean.

The bio-invaders disrupt the food chain, foul beaches and damage infrastructure, the group says.

"The predominant path for AIS [aquatic invasive species] entry into the Great Lakes is the ballast water of oceangoing vessels," the complaint states. The untreated discharges by these "salties," as the ships are known, "have created serious, damaging impacts" that threaten the lakes' ecological and economic health.

"Lakers" - ships that ply the Great Lakes - then spread the bio-invaders through their own ballast discharges.

The EPA first proposed permits in 2008 that would regulate discharges incidental to the normal operation of vessels, including releases of ballast water. New York agreed to certify that vessels issued permits under the program would meet state water-quality standards under the Clean Water Act.

The 2008 program permits are due to expire in December 2013.

Late last year, the EPA proposed new 2013 permit rules that, among other things, set an effluent limitation for "salties," but not for "lakers." Department of Environmental Conservation (DEC) feedback on the proposal in February suggested tighter effluent limitation to better fight the bio-invaders.

But after the DEC issued draft certification standards for state participation in the 2013 program and took public comment, it failed to incorporate any of the revisions called for by the Wildlife Federation, according to the complaint.

The group claims the draft is "insufficient to assure that ballast water discharges will comply with New York water-quality standards, because it would not prevent the introduction or spread of new aquatic non-indigenous species or the establishment or spread of new aquatic invasive species."

The DEC approved the new certification standards on Sept. 26.

The EPA is scheduled to take final action on the 2013 permit rules before Nov. 30.

The Wildlife Federation claims the regions it protects will be harmed because "[t]here is yet no known concentration of organisms small enough to prevent the risk of invasion.

"Members of NWF are concerned that the certification will result in the invasion or spread of aquatic non-indigenous species, which will interfere with or eliminate their use and enjoyment of New York waters," the complaint states.

The Federation says the DEC erred in basing the conditions for certification on "a 'reasonable assurance'" that dischargers meeting them will not violate New York water-quality standards, while the Clean Water Act requires conditions "necessary to 'assure'" compliance.

The conditions also lack effluent limitations "as stringent as necessary to assure that vessels discharging ballast water will comply with New York water-quality standards," the complaint states.

The National Wildlife Federation is represented by Susan Kraham of the Columbia University School of Law's Environmental Law Clinic in New York City.

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