Businesses Form WOC To Participate In Marine Spatial Planning

Jul 29: The World Ocean Council (WOC) convened the first-ever meeting of ocean industries at the National Business Forum on Marine Spatial Planning (MSP), Washington DC, July 13-14, 2011, to foster, facilitate and plan for cross sector business involvement in the U.S. MSP process. Forum participants included representatives from offshore oil and gas, offshore renewable energy, shipping, fisheries, marine recreation, mining, marine technology, marine law, marine environmental services, and other sectors.

 

    On July 19, 2010 the Task Force released a set of final recommendations that set a new direction for improved stewardship of the ocean, our coasts, and the Great Lakes. The recommendations provide: (1) our Nation's first ever national ocean policy; (2) a strengthened governance structure to provide sustained, high-level, and coordinated attention to ocean, coastal, and Great Lakes issues; (3) a targeted implementation strategy that identifies and prioritizes nine categories for action that the United States should pursue; and (4) a framework for effective coastal and marine spatial planning.

 

    The NOAA Ocean Policy Task Force defines coastal and marine spatial planning (CMSP) as "a comprehensive, adaptive, integrated, ecosystem-based, and transparent spatial planning process, based on sound science, for analyzing current and anticipated uses of ocean, coastal, and Great Lakes areas. Coastal and marine spatial planning identifies areas most suitable for various types or classes of activities in order to reduce conflicts among uses, reduce environmental impacts, facilitate compatible uses, and preserve critical ecosystem services to meet economic, environmental, security, and social objectives."

    According to a release, the recently initiated MSP agenda pursuant to President Obama's National Ocean Policy is moving rapidly, creating a critical opportunity for the ocean business community to actively engage in a coordinated, multi-sectoral manner. In 2010, the Federal government established an interagency National Ocean Council (NOC), and marine spatial plans are to be developed by nine regional planning bodies as early as 2015. The NOC issued a Strategic Action Plan Outline in June 2011 and held a national workshop soon after to prepare government agencies for the task of developing the government's MSP Strategic Action Plan. Unlike the ocean industry community, the environmental community has had a national MSP coalition for several years and is actively involved in the MSP process.

    WOC indicates that the ocean business community needs to get equally well organized and integrated into the discussion on MSP. To address this, the WOC brought together leadership companies and associations concerned about access to ocean space and resources in a National Business Forum. The Forum was co-presented by Battelle Memorial Institute with additional sponsorship from the National Ocean Industries Association and Blank Rome.

 

    The Forum was designed for ocean industries to develop a clear understanding of MSP, define and examine the potential business impacts and benefits of MSP, ensure the business community is informed about U.S. MSP processes and plans, and identify the next steps to facilitate and coordinate business involvement in MSP in the U.S. The participants emphasized that MSP must be well-balanced, well-informed and consider socio-economic value and benefits as a key part of the process. Private sector input was clear that MSP needs to have the business community and economic actors involved throughout the process.

    The business community voiced concerns that opportunities for ocean industries to formally contribute to MSP have not targeted engaging those industries which contribute significantly to the U.S. economy and need to become a more structural part of the US MSP process. To address the lack of formal engagement, industry participants at the Forum emphasized the value and strength in bringing together diverse ocean industry sectors to engage with MSP decision makers in a coordinated manner, and to establish formal avenues for frequent and ongoing information exchange and involvement.

    Access a release from WOC (click here, posted soon). Access a list of corporate members (click here). Access the WOC website for more information (click here). Access the NOAA CSMP website for more details and background information (click here).

 

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Lake Carriers' Association v. U.S. EPA

Jul 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1001, consolidated with 09-1010, 09-1076, 09-1115. On Petitions for Review of a Final Action of U.S. EPA. Trade associations representing commercial ship owners and operators petition for review of a nationwide permit issued by U.S. EPA for the discharge of pollutants incidental to the normal operation of vessels. The petitioners raise a number of procedural challenges, all related to EPA's decision to incorporate into the permit, conditions that states submitted to protect their own water quality. The Appeals Court rules, "Because we find that the petitioners have not shown that the additional procedures they request would have had any effect on the final permit, we deny the petition for review."

 

    The Appeals Court explains the background saying Shortly after the CWA was enacted, EPA promulgated a regulation exempting incidental vessel discharges from the permitting (and therefore the certification) requirements of the Act. Exempted discharges included "sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel." 40 C.F.R. § 122.3(a). The regulation was in force for more than thirty years. Then, in 2008, the Ninth Circuit affirmed a district court decision vacating the regulation, finding that EPA lacked authority to exempt incidental vessel discharges. Northwest Envtl. Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008) [See WIMS 7/24/08]. After a stay to allow EPA time to implement a means of issuing permits for vessel discharges, the regulation was finally vacated on

February 6, 2009.

 

    In response to the Ninth Circuit's decision, EPA developed a general permit, pursuant to section 402 of the CWA, to cover the incidental vessel discharges previously exempted by the regulation. See Final National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Vessel, 73 Fed. Reg. 79,473 (Dec. 29, 2008) [See WIMS 12/22/08]. The agency estimated that the Vessel General Permit (VGP) would cover discharges from approximately 61,000 domestic-flagged commercial vessels and 8,000 foreign-flagged vessels. Id. at 79,481. And unlike the majority of permits issued under section 402, which cover discharges originating in only a single state, the VGP would cover discharges in waterways throughout the United States.

 

    On December [29], 2008, EPA's final VGP became effective. Final NPDES General Permit, 73 Fed. Reg. at 79,47[3]. Part VI of the permit, which was not included in the draft VGP, is composed of approximately 100 state certification conditions. U.S. EPA, VESSEL GENERAL PERMIT (VGP) (2008), at 62-104 (J.A. 825-67). Vessels covered by the permit are required to adhere to the general provisions of the VGP with respect to all discharges, and are further required to adhere to any Part VI certification condition imposed by a state into the waters of which the vessel is discharging pollutants.

 

    In 2009, Lake Carriers' Association, Canadian Shipowners Association, and American Waterways Operators filed petitions for review of the final VGP. The petitions were consolidated into the single suit now before us. The trade associations raise three challenges. First, they contend that EPA erred in failing to provide notice and an opportunity for comment on the final VGP, which contained the state certification conditions. Second, they charge that it was arbitrary and capricious for EPA to issue the permit without considering the possible ill-effects of the state certification conditions. Finally, they allege that EPA failed to consider the costs of compliance with state conditions in assessing the impact of the permit on small businesses, as required by the Regulatory Flexibility Act (RFA), 5 U.S.C. § 601 et seq.

 

    The Appeals Court notes in part, ". . .we note that EPA's resolution of this matter does not leave the petitioners without recourse. If they believe that the certification conditions imposed by any particular state pose an inordinate burden on their operations, they may challenge those conditions in that state's courts. . . If they believe that a particular state's law imposes an unconstitutional burden on interstate commerce, they may challenge that law in federal (or state) court. See Am. Trucking Ass'n, 600 F.3d at 628 n.1. And if neither of these avenues proves adequate, they are free to ask Congress to amend the CWA, perhaps by reimposing the exemption for incidental vessel discharges."

 

    The Appeals Court concludes in part, "In sum, given the case law and the arguments that EPA had before it, the agency correctly concluded that it did 'not have the ability to amend or reject conditions in a [state's] CWA 401 certification.' EPA Response to Comments, at 14-11 to 14-12 (J.A. 1062-63) (citing Am. Rivers, Inc. v. FERC, 129 F.3d 99, 107, 110-11 (2d Cir. 1997)). Under those circumstances, providing notice and an opportunity for comment on the state certifications would have served no purpose, and we decline to remand to require EPA to do a futile thing. . . The petitioners' remaining arguments fail for the same reason that their notice-and-comment argument fails. . ."

 

    Access the complete opinion (click here). Access extensive information on the Final Vessel General Permit from U.S. EPA (click here).  [#NPDES]

 

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Great Lakes Regional Body & Compact Council To Meet

Jul 25: The Council of Great Lakes Governors (CGLG) announced that the Great Lakes-St. Lawrence River Water Resources Regional Body (Regional Body) will hold a special meeting on August 4, 2011 at 2:00 PM EDT. The conference call meeting will be open to the public and will include an opportunity for public comments.  An agenda and materials are available from the links below. Additionally, the Great Lakes-St. Lawrence River Basin Water Resources Council (Compact Council) will also hold a special meeting on August 4, 2011. The meeting will begin immediately following the adjournment of the Regional Body, expected at approximately 2:20 PM EDT. The Compact Council conference call meeting will also be open to the public and will include an opportunity for public comments. 

 

    CGLG notes that less than 30 days notice is given for these special meetings because the sole substantive focus will be to vote on budget resolutions for both organizations for FY 2012 (July 1, 2011-June 30, 2012) that were previously posted to both organizations' websites on May 10, 2011. Pursuant to the By-Laws of the Compact Council, the budget serves as authorization for the Executive Director to make expenditures on behalf of the Compact Council. The CGLG serves as Secretariat to the Regional Body and the Compact Council.   

 

    Access a posted announcement of the meetings (click here). Access an agenda and materials for the Regional Body meeting is available (click here). Access an agenda and materials for the Compact Council (click here). Access the CGLG website for additional information (click here). [#Compact]

Asian Carp: 85 eDNA Samples Beyond Electrical Barriers; 7 New

Jul 21: Michigan Attorney General Bill Schuette announced that the U.S. Army Corps of Engineers (ACOE) has posted new environmental DNA (eDNA) test results online for Asian carp in the Chicago Area Waterway System that include seven new positive detections for silver carp beyond all electrical barriers. The positive test results, bringing the total since 2009 to 85, were found on June 23, in Lake Calumet, less than six miles from Lake Michigan. Schuette said, "We often wonder after a tragedy if there had been any warning signs that we missed. We now have 85 warning signs that Asian carp are an impending tragedy for the Great Lakes. Yet the Federal government continues on its five-year study as invasive species continue to move freely in both directions. Losing the Great Lakes is not an option. We don't need any more studies. We need to act. And we need to act now." 

 

    In a release, Schuette indicated that despite the past efforts of the U.S. Army Corps of Engineers and others to downplay the significance of positive eDNA results, the tests have been validated through publication in a prestigious peer-reviewed scientific journal. The eDNA method is the best and most sensitive means of detecting invading Asian carp because even the federal government's leading expert on the subject has admitted the fish are exceptionally difficult to capture with conventional techniques, such as netting and electrofishing.

 

            Schuette said that Michigan's Federal lawsuit, which calls for a permanent ecological barrier between the Great Lakes and Mississippi River basins in a much shorter period of time than the Corps current time frame, continues on with the support of the Attorneys General of Wisconsin, Minnesota, Ohio, and Pennsylvania. He also said he supports the passage of Federal legislation sponsored by U.S. Rep. Dave Camp, which would force similar action.

 

    Michigan U.S. Senator Debbie Stabenow (D), who introduced a companion bill to Rep. Camp's bill, Stop Asian Carp Act in the Senate issued a statement saying, "This has got to serve as a wake-up call that this is an urgent situation for the Great Lakes. I strongly urge the Army Corps to close the locks now while they continue to determine the best way to permanently separate the Chicago Area Waterway System from the Great Lakes. If we do not see action, the Great Lakes will continue to remain vulnerable to irreversible disaster."

 

    Access a release from AG Schuette (click here). Access the ACOE eDNA surveillance results (click here). Access the ACRCC website for more information (click here). Access the statement from Sen. Stabenow (click here).

Registration Open For SOLEC 2011

Jul 19: Registration is now open for the SOLEC 2011. SOLEC, the State of the Lakes Ecosystem Conference, provides Great Lakes decision-makers and scientists with the opportunity to receive the most comprehensive, up-to-date information on the state of the Great Lakes. The Conference, "Linking Land to the Lakes" will be held October 26 & 27, 2011, at the Bayfront Convention Center in Erie, Pennsylvania and will include thought-provoking presentations and opportunities to network with hundreds of stakeholders. SOLEC focuses on the condition of the Great Lakes based on indicator assessments. The conference is hosted by Environment Canada and the U.S. EPA on behalf of Canada and the United States, in response to reporting requirements of the binational Great Lakes Water Quality Agreement.

    Access complete conference and registration information (click here). Access more information on SOLEC and State of the Great Lakes reporting (click here).

OH Governor Vetoes Bill That Would Violate Compact

Jul 15: Ohio Republican Governor John Kasich vetoed HB 231, legislation related to Ohio's participation in the Great Lakes Compact, an agreement between the eight Great Lakes states and two Canadian provinces to provide for management of Great Lakes water [See WIMS 7/14/11]. In vetoing the bill Kasich issued a statement saying, "Lake Erie is an incredible resource that demands our vigilant stewardship to maximize its environmental, recreational and commercial potential for Ohioans. The Great Lakes Compact ensures that Great Lakes states and provinces work together to protect the lakes and the water resources in the basin, and Ohio's legislation is intended to further Ohio's compliance with the compact. While most of HB 231 fulfills Ohio's obligations without concern and helps meet the needs of Ohio's industrial, energy and agricultural water users, portions of it must be improved. Namely, Ohio's legislation lacks clear standards for conservation and withdrawals and does not allow for sufficient evaluation and monitoring of withdrawals or usage. I look forward to working with the General Assembly to make the necessary improvements to the legislation."

 

    The bill was supported by the Coalition for Sustainable Water Management including: Ohio Chamber of Commerce, Ohio Manufacturers Association, Ohio Petroleum Council, Ohio Chemistry Technology Council, Ohio Soft Drink Association, Greater Cleveland Partnership, and Ohio Aggregates & Industrial Minerals Association.

 

    A July 15, letter from U.S. Representative Candice Miller (MI-10), co-chair of the House Great Lakes Task Force (GLTF), along with fellow co-chairs of the House GLTF sent a letter to Governor Kasich expressing concern the bill which they said would allow an excessive amount of water to be withdrawn from Ohio's portion of Lake Erie and its tributaries without any oversight. In the letter the House GLTF members wrote that: "Ohio House Bill 231, amongst other things, would allow an excessive amount of water to be withdrawn from Ohio's portion of Lake Erie and its tributaries without any oversight. Under this legislation a water user would not have to seek a permit unless there was a new withdrawal of five million gallons of water a day averaged from Lake Erie, two million gallons a day averaged from a river or groundwater source, and 300,000 gallons of water a day averaged from a high-quality, small stream.

    "These threshold numbers surpass the states and provinces surrounding Lake Erie and the Great Lakes. The Great Lakes are a shared resource. Withdraws that occur in Ohio's Lake Erie basin do not only impact Ohio, they also impact Indiana, Michigan, New York, Ontario, and Pennsylvania's waters. Three years ago, Ohio made a commitment to the Great Lakes states and provinces to conserve and sustainably use Lake Erie waters. Ohio House Bill 231 does not live up to this commitment and will jeopardize the Great Lakes and the surrounding states and provinces."

    In a letter to Ohio Senate leaders on June 27, one of the authors of the Great Lakes Compact, Sam Speck, Director of the Ohio Department of Natural Resources from 1999 to 2006, who chaired the Great Lakes Commission said, "I am concerned that Substitute House Bill 231 will undermine the resource protections that the Commission worked so hard to establish in the Compact. Should the General Assembly pass the bill as currently written… Ohio will adopt legislation that violates the Great Lakes Compact. What's more, Ohio will adopt the weakest water supply protections of all of the Great Lakes states. . ."

    Access a release from Governor Kasich (click here). Access a release and the letter from the House GLTF (click here). Access a release from the Nature Conservancy and link to the Speck letter (click here). Access a legislative analysis for HB231 (click here). Access further legislative details for HB231 (click here). 

House Subcommittees Hearing On Ballast Water Discharge Regs

Jul 13: The House Transportation &  Infrastructure (T&I) Committee, Coast Guard and Maritime Transportation Subcommittee, chaired by Representative Frank LoBiondo (R-NJ), and the Water Resources and Environment Subcommittee, chaired by Representative Bob Gibbs (R-OH), held a hearing to explore current ballast water and incidental discharge management, as well as potential ways to implement cost effective and common sense approaches to future regulations.

    According to a Republican Committee release, in order to maintain stability during transit, most ocean going vessels fill internal tanks with ballast water during the loading of cargo and then release it during unloading. Ballast water has long been recognized as one of several pathways by which invasive species are transported globally and introduced into coastal waters where they did not live before. The EPA Science Advisory Board (SAB) released a report on the effects of ballast water discharges, which found that any ballast water management strategy that is more stringent than the one being imposed by the International Maritime Organization (IMO) is not currently achievable [See WIMS 7/13/11]. However, some states are pushing for more stringent standards.

    The discharge of ballast water and other substances from vessels are currently regulated by the Coast Guard, the U.S. EPA, 26 states, 2 Indian Tribes and a U.S. territory. The release indicates, "The current overlapping and contradictory patchwork of ballast water regulations hampers the flow of commerce, threatens international trade, unduly burdens vessel operations in U.S. waters, undermines job creation and hurts our economy."

    Chairman LoBiondo said, "We have to overcome this mindset that mandating a dozen different, unachievable standards, each more stringent than the next, somehow protects our environment. It does not. The time has finally come to enact a clear, effective, and uniform national standard that utilizes available and cost effective technology to reduce the risk of future aquatic invasions. We cannot afford to delay any longer as ballast water continues to threaten our environment and our economy." Chairman Gibbs said, "As we consider ballast water standards, we should not burden our shippers with unobtainable, unrealistic, expensive regulations that have not demonstrated a significant environmental benefit. Instead we need a common sense approach that can be enacted quickly, protects the environment, reduces red tape, grows maritime jobs and opens the flow of maritime commerce."

    Thomas Allegretti, President and CEO of the American Waterways Operators testified to the strong economic impacts of ballast water management saying, "We hope that Congress will seize the opportunity to fix this broken system because the economic stakes are very high. Each year, barges and towing vessels -- just one segment of the domestic and international maritime industry that is harmed by the current regulatory patchwork -- safely and efficiently move more than 800 million tons of cargo critical to the U.S. economy such as coal, grain, petroleum products, chemicals, steel, aggregates, and containers. The economic impact of this commerce extends far beyond the maritime industry, to the shippers, producers, and communities that rely on the safe, efficient, and cost-effective transportation of critical commodities, including commodities for export."

    Other witnesses testifying at the hearing included: Vice Admiral Brian Salerno, Deputy Commandant for Operations, U.S. Coast Guard; James Hanlon, Director Office of Wastewater Management, U.S. EPA; the Chair EPA Science Advisory Board; the Chair Committee on Numeric Limits for Living Organisms in Ballast Water, National Research Council; and the President Marine Engineers' Beneficial Association. The hearing focused on options to improve current regulations to ensure the free flow of commerce, grow maritime jobs, and protect the environment.

    Access a Republican release on the hearing (click here). Access the Republican hearing website for background, testimony, video and statements (click here).