Q&A with Emily S. Huggins Jones of Thompson Hine LLP

For this new series, we speak to Emily S. Huggins Jones of Thompson Hine LLP about her recent commentary “What’s all the fuss about ballast water? New environmental regulations for the Great Lakes commercial shipping industry” published in the Westlaw Journal Environmental this summer.

In her commentary, Emily discusses the problem of invasive species, the harm they can pose to bodies of water in the United States and the current laws regulating ballast water discharges, one of the ways that invasive species reach our aquatic ecosystems.

Westlaw Journals: In your commentary, you mention Asian Carp as one of the notable invasive species. How was the Asian Carp introduced to bodies of water in the United States and has it been introduced in the Great Lakes?

Emily S. Huggins Jones: Asian Carp are largely thought to have been introduced to U.S. waters by aquaculture farms, and were intended to control parasites and weeds. An unexpectedly aggressive species, however, they have migrated up the Mississippi River and are knocking on the door of the Great Lakes. In fact, Asian Carp DNA has been identified in the Chicago River, and in places in Lake Michigan, prompting concerns that the species will spread to the Great Lakes generally.

WJ:  What other invasive species are problematic for U.S. waters and the Great Lakes in particular?

ESHJ: A large number of species, both on land and in the water, could be considered problematic. With respect to the Great Lakes specifically, current headliners include the zebra mussel, the quagga mussel, the round goby and the sea lamprey. Although less sexy, by the far the most common invasive species are plankton, arthropods and mollusks.

A Giant African land snail, one of the world's most destructive invasive species

WJ: What is ballast water and can you explain the difference for our readers between Salties (oceangoing vessels) and Lakers (Great Lakes-only vessels) when it comes to discharging invasive species in ballast water?

ESHJ: Ballast water is carried in the hull of ships to provide stability and trim. A ship’s ability to take on and discharge ballast water is fundamental to its safe operation. As a ship loads or unloads cargo or takes on or consumes fuel, the ship must accommodate changes to its displacement and trim by taking on or discharging ballast water. Ballast water is taken on through openings near or on the bottom of a ship’s hull and is pumped in or out of a ship through piping connected to ballast pumps which are located in the ship’s lower machinery space. Without these ballast water operations, a ship cannot be operated safely. The water pumped into a ship’s ballast tanks must inevitably be pumped out when the ship takes on cargo.

Both Salties and Lakers take on and discharge ballast water. The key difference between the two lies in the fact that Lakers do not leave the Great Lakes. Salties, therefore, are the only source of invasive species introductions to the waters of the Great Lakes. Lakers merely take on and discharge water already in the Great Lakes, and by extension, they only take in and discharge invasive species that already exist in the water on the Great Lakes.

WJ: What about the technology limitations of Lakers when attempting to limit ballast water discharges?

Fisherman holds a sea lamprey

ESHJ: Lakers already currently implement best management practices to minimize ballast water discharge as part of their daily operations. The challenge for Lakers lies in the fact that technology does not currently exist to treat ballast water (chemically or through some other process) prior to its discharge on the Great Lakes. The fresh water does not permit current salt-water catalyst systems to translate to Great Lakes ships, thus the technology void, coupled with size limitations on Lakers, currently make ballast water treatment a significant challenge. Research and development for Great Lakes ballast water treatment systems is ongoing, however.

WJ: How is the shipping industry coping with the differing regulations from the Environmental Protection Agency, the Coast Guard and individual states?

ESHJ: The patchwork nature of environmental regulation presents a significant challenge to the shipping industry, but compliance and environmental protection are integral parts of the Great Lakes shipping culture. Industry works closely with regulators, at local, state and federal levels, to ensure that the industry remains a responsible steward of the environment in which it operates. Where regulatory zeal outpaces compliance technology, the industry routinely works with regulators and legislators to adapt regulatory goals to match technological capabilities and operational feasibility.

WJ: Without nationwide standards for ballast water management, what do you think will happen to the Great Lakes commercial shipping industry?

ESHJ: The cost of compliance is significant for an industry that operates on relatively tight margins. Over-zealous regulation could feasibly put Great Lakes shippers out of business altogether. Thus far, the majority of the regulatory community has demonstrated its understanding of the unique challenges facing the Great Lakes shipping industry, working with shippers to arrive at compliance goals that are attainable. Although, initiatives in states like New York and Minnesota have threatened the passage of regulations that quite simply would shut down Great Lakes shipping. Further challenges are posed by environmental groups seeking the passage of even more stringent regulations, with which current vessel technology cannot comply. Nationwide standards would ensure uniformity, and most importantly, feasibility.

WJ: Thank you so much for your time!

If you have any ideas for commentaries or would like to do a short Q&A on a hot legal topic, please contact Melissa Sachs at melissa.sachs at thomsonreuters dot com.