On December 4, President Trump signed into law S. 140, the Frank LoBiondo Coast Guard Authorization Act of 2018, which authorizes appropriations for the U.S. Coast Guard and the Federal Maritime Commission through fiscal year 2019, reauthorizes the Department of Commerce's National Oceanic and Atmospheric Administration's hydrographic services program through Fiscal Year 2023, and modifies the regulation of vessel incidental discharges and ballast water.
As noted, Title IX of the law incorporates the Vessel Incidental Discharge Act (VIDA), which establishes a new framework for the regulation of vessel incidental discharges. It adds a new section to the Clean Water Act (CWA) - Uniform National Standards for Discharges Incidental to Normal Operation of Vessels.
The U.S. maritime industry has long advocated a uniform federal standard for ballast water and other incidental discharges rather than the discordant patchwork of state, local and tribal waters regulations with which vessels transiting varying regulatory zones must comply.
The Lake Carriers' Association, company members of which operate several vessels aboard which members of American Maritime Officers work on the Great Lakes, lauded the inclusion of VIDA in the 2018 U.S. Coast Guard Authorization Act as the legislation advanced through Congress in November.
"Lake Carriers' Association is pleased with the Senate passage of the 2018 U.S. Coast Guard Authorization Act including the Vessel Incidental Discharge Act (VIDA). VIDA is the result of many stakeholders coming to the table to craft this final version. VIDA is a good balance, achieving protection of both the economy and the environment. Importantly, it includes Great Lakes-specific provisions that provide the flexibility to establish uniform practices and standards more protective of our Great Lakes. Over the next few years, LCA looks forward to engaging with our government and regional partners to develop practical and implementable regulations to meet the letter and spirit of the bill."
The Environmental Protection Agency announced the Vessel General Permit (VGP), which expired in December, will not be reissued, but existing 2013 VGP requirements remain in effect beyond the expiration date until new regulations are finalized and enforceable. Specifically, the provisions of the 2013 VGP will apply until the EPA publishes National Standards of Performance and the U.S. Coast Guard develops implementing regulations for those standards.
The language of VIDA extensively addresses ballast water treatment standards, regulations and acceptable systems, and as noted, specifically addresses requirements for Great Lakes states. The law provides processes for states to object to forthcoming standards, and to seek establishment of no-discharge zones.
Notably, VIDA amends regulations to explicitly define organisms rendered non-viable and unable to reproduce as not considered to be living. Within 180 days of the law's enactment, the Coast Guard is required to publish a draft policy letter, based on the best available science, describing type-approval testing methods and protocols for ballast water management systems.
As noted by the EPA, the Coast Guard must consider type-approval testing methodologies that determine the number of viable organisms in ballast water capable of reproduction. Reproductive methodologies have been used by the International Maritime Organization for several years.