New York Ballast Rules
Canadian shipowners are warning that new ship ballast regulations crafted with little notice by New York state could cripple the St. Lawrence Seaway and commercial shipping on the Great Lakes. The move came as a surprise to the shipowners. They said the state did nothing to advise them of its intentions and allowed only a 30-day comment period when it issued the notice on Nov. 4. Even Canadian government officials were unaware of the move. Don Morrison, president of the Canadian Shipowners Association, said the requirements for onboard ballast treatment systems in existing ships by 2012 go well beyond what the International Maritime Organization recommends. Even more alarming, he said, is a regulation that would require a Canadian ship that leaves the Seaway to pick up a cargo on the St. Lawrence River to sail out into the Gulf of St. Lawrence to conduct a ballast water exchange before it could re-enter the system, adding days and delays to any trip. “What’s more, not all lakers are certified to sail in the gulf,” Morrison said.
The regulations could prevent ocean-going vessels from entering the Seaway, said Caroline Gravel, director of environmental affairs for the Shipping Federation of Canada. The requirements of the New York system “would be 100 times higher than the IMO standard for existing ships and 1,000 times higher for any vessels built after 2012,” she said, referring to the International Maritime Organization.
The on-board systems would be prohibitively expensive for shipowners to retrofit into existing ships, and there isn’t any proven technology that does what New York wants, Gravel added. Shipping lines are also worried about the evolution of a patchwork of regulatory requirements among the Great Lakes states. Steve Fisher, president of the American Great Lakes Ports Association, said the shipping industry would be satisfied with new ballast standards the Environmental Protection Agency will proclaim on Dec. 19.
But there’s nothing to prevent individual states from imposing higher standards, he said. He described the New York requirement as “shooting for the moon. The conditions they want are very onerous for shipping lines.” Michigan, Minnesota and California already have gone further than the EPA plan to set best management practices for ships to keep unwanted aquatic species from entering North American waters. Canada and the U.S. require ships entering the Seaway to prove they conducted a ballast water exchange at sea.
New York says the EPA rules aren’t consistent with state water goals. The Canadian government has responded cautiously to the New York action, even though it would appear to violate the 1909 Boundary Waters Act, which prohibits either Canada or the United States from interfering with the other’s shipping in the Seaway and Great Lakes. Officials from both the transport and foreign affairs ministries have discussed Canada’s concerns with U.S. federal officials.
Thus far, New York officials have dismissed concerns about the act. The two U.S. locks on the Seaway are in New York state and lawyers are trying to determine whether the state rules can apply to international waterways. There are 13 Canadian locks. Morrison wondered what the reaction would be if Ontario imposed ballast rules that blocked American ships from sailing the Detroit River. It would be ironic if the U.S., which objects to Canadian efforts to control shipping in the Northwest Passage, allowed a state to interfere with international shipping in the Seaway.
Meanwhile, a U.S. federal appeals court has upheld Michigan’s law requiring ocean-going ships to obtain a ballast water permit before entering the state’s ports. The 6th U.S. Circuit Court of Appeals in Cincinnati ruled Nov. 21 in favor of the state’s right to make special requirements for ship owners and operators to protect its waters from aquatic nuisance species. The decision upholds the ruling by a U.S. district court judge in Detroit last year. ‘‘Michigan, for undisputedly legitimate reasons, has enacted legislation of a type expressly contemplated by Congress,” the panel of three judges stated in its unanimous ruling. ‘‘We have no basis to disrupt the result of those democratic processes.”
The Shipping Federation of Canada, the Seaway Great Lakes Trade Association, the American Great Lakes Ports Association, Fednav, Canadian Forest Navigation Co., Nicholson Terminal and Dock Co., Baffin Investments and Canfornav had jointly challenged the law. The panel said the plaintiffs failed to demonstrate how any of them had been injured by Michigan’s requirement. While nobody disputed that a ballast water treatment system costs upwards of $500,000, the judges noted that none of the plaintiffs “had spent a single dollar, or otherwise been harmed, because of the treatment requirement.”