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EPA Must Regulate Ship Wastewater, Court Rules

SAN FRANCISCO (CN) - The Environmental Protection Agency illegally exempted ship water discharge from federal regulation, including shower, laundry, sink and ballast water that might carry deadly bacteria and other invasive organisms from port to port, the 9th Circuit ruled.

A three-judge panel upheld the district court's conclusion that the agency had exceeded its authority in allowing ships to dump so-called "graywater" into navigable U.S. waters without permits. The government also granted an exemption for "marine engine discharges," which include unburned fuel and various kinds of oil.

Three environmental groups and five states challenged the exemptions, especially the allowance made for ballast-water discharges. Ballast water is used to stabilize ships as cargo is loaded and unloaded, and as the ships burn through fuel and supplies.

Ships take in ballast water at one port and carry it to the next, along with various ocean organisms. Each day, "more than 10,000 marine species ... hitch rides around the globe in the ballast water of cargo ships," the ruling states. More than 21 billion gallons of ballast water are released in the United States each year, allowing non-native species to multiply in the absence of natural predators and take over native ecosystems. Invasive species cost billions of dollars in estimated damages to the U.S. economy.

Foreign organisms can cause "severe problems" in their new marine habitats, the plaintiffs claimed. In 1991, a strain of cholera bacteria picked up by a Chinese freighter caused the deaths of 10,000 people in Latin America.

Invasive species such as the Asian clam and Chinese mitten crab "are clogging the intake pipes of drinking water facilities and power plants, harming the commercial fishing industry and destroying native species habitat," said Sejal Choksi of San Francisco Baykeeper.

The district court agreed that Congress never authorized the EPA to make these exemptions, and ordered the agency to regulate ship discharges by September 2008.

The government appealed, but the appellate court rejected its claim that even if it lacked authority to grant exceptions to the Clean Water Act, Congress "subsequently acquiesced" in its interpretation of the law.

Judge Fletcher called this a "heroic argument" that ultimately failed to meet the high standard of evidence.

Plaintiffs were Northwest Environmental Advocates, The Ocean Conservancy and San Francisco Baykeepers. The states of Illinois, Michigan, Minnesota, New York, Pennsylvania and Wisconsin intervened as plaintiffs in the suit.

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