The pollution EPA refuses to regulate

The Clean Water Act turned 50 last month. There was much to celebrate, but it’s also a good time to reflect on a critical task that remains undone.

Recently, 160 organizations — environmental and public health organizations, Native American tribes, water agencies and others — asked President Biden to direct the Environmental Protection Agency (EPA)  to finally establish discharge standards for ships’ ballast water that comply with the Clean Water Act. Back in June, 34 members of Congress wrote EPA Administrator Michael Regan with the same request.

Ships adjust their buoyancy and trim by taking up, transporting and discharging ballast water, to compensate for changes in cargo loads. This water can carry harmful invasive organisms as well as human and animal pathogens, which have damaged ecosystems, destroyed fisheries, resulted in massive economic costs and sickened and killed people. The health risks from these discharges are greatest in communities with substandard water or wastewater treatment services; these tend to be poor communities, whose residents are often predominantly people of color.

At its enactment, the Clean Water Act directed EPA to regulate all pollution discharges into U.S. waters. If EPA had at that time obeyed the law and established regulations for ballast discharges, it could have prevented the invasion of the Great Lakes by Zebra and Quagga Mussels and their subsequent spread to rivers, lakes and ponds throughout the country. If EPA had just done its job, the Asian Clam likely would not have covered the bottom of San Francisco Bay, the Japanese Shorecrab would not have invaded the Atlantic Coast, and Gulf Coast oysters would not have been infected by pandemic bacterial pathogens carried in ballast tanks.

Despite its authority, for 36 years EPA left ballast water discharges unregulated, claiming incorrectly that they cause little harm. Even after Zebra and Quagga Mussels had decimated native mussel populations, damaged fisheries, fouled beaches and clogged the pipelines supplying water to cities and power plants, EPA still did not regulate. Even after the U.S. Food and Drug Administration discovered the pathogen that causes pandemic cholera in fish and oysters in Mobile Bay, Alabama, and determined that it had arrived in ballast water, EPA still did not regulate. Even after EPA’s own scientists confirmed that ballast water introductions had caused entire fisheries to collapse, rendered shellfish unsafe for human consumption, disrupted water supplies, and caused hundreds of millions of dollars in damage, EPA still did not regulate.

Notably, 23 years ago environmental groups, commercial fishermen, water agencies, Native American tribes and members of Congress asked EPA to regulate ballast water discharges, but EPA refused. When the courts eventually forced EPA to establish regulations, the agency simply adopted discharge standards that duplicated existing federal requirements — which of course did nothing to reduce the discharge of harmful organisms, and which the courts rejected. Now, EPA is proposing to re-issue precisely the same discharge standards, word-for-word.

Under the Clean Water Act, ballast water discharge standards are supposed to require the use of the best available treatment technology, but EPA’s proposed standards would allow ships to use treatment systems that are tens to thousands of times less effective at eliminating harmful organisms than the best commercially-available systems. Clearly, we know how to do a good job of removing or killing organisms that are trapped in a tank of water. The law says EPA must require ships to use that ability to treat their ballast discharges.

After 50 years, it is long past time for EPA to do so. EPA must establish the discharge standards required by the Clean Water Act and protect the health and environment of all Americans as Congress intended.

Andrew Cohen conducts and publishes research on the science and policy of biological invasions. He is a Pew fellow in marine biology, was a co-director of the Western Regional Panel on Aquatic Nuisance Species and an alternate member of the National Aquatic Nuisance Species Taskforce. He also served as the chair of California’s Science Advisory Panel on the Zebra and Quagga Mussel Invasion, as well as a member of the Environmental Protection Agency’s (EPA) Science Advisory Board Panel on Ballast Water Treatment. He is the co-author of “Accelerating Invasion Rate in a Highly Invaded Estuary,” published in Science, which was recognized as one of the 30 most frequently cited papers in invasion biology and one of the 10 most important scientific papers on the ecology of San Francisco Bay.