National Wildlife Federation and Minnesota Conservation Federation Launch Lawsuit to Protect the Great Lakes from Invasive Species

EPA rule blocks state decisions to protect water quality

10-06-2011 // Jordan Lubetkin
Zebra mussels on a stick

The National Wildlife Federation (NWF) and the Minnesota Conservation Federation (MCF) filed suit against the Environmental Protection Agency (EPA) in federal court in Washington, D.C., to prevent the EPA from ignoring state measures to protect water quality.  The lawsuit was prompted by concerns about the harm invasive species cause the Great Lakes.

Under the Clean Water Act, any vessel that may discharge ballast water in rivers, lakes, or coastal waters must be covered under an EPA permit.  This is because ballast water may contain non-native species.  Non-native species like the zebra mussel that have invaded the Great Lakes have caused great economic, environmental, and ecological harm. 

Ballast water discharges are the leading source of aquatic invasive species in the Great Lakes.  These invasive species cause more than $200 million per year in damages and control costs.

Minnesota and other Great Lakes states had to certify that the ballast water discharges allowed by the EPA permit will comply with state water quality standards.  But when NWF and MCF challenged the Minnesota Pollution Control Agency’s (MPCA’s) certification because it was too lenient to protect Minnesota’s water quality, the state court dismissed the case, saying an EPA rule made the case moot.  Essentially, the rule says that court-ordered modifications of a certification made after EPA issues a permit are ineffective. This rule is the subject of the lawsuit.

NWF and MCF want the rule thrown out so the Minnesota court will consider whether the MPCA’s certification was insufficient to protect water quality.  Furthermore, EPA is working on the next national ballast water permit, so NWF and MCF need the flexibility to challenge unprotective state certifications of that permit. 

“The power to certify is there to enable the states to block federal permits that do too little to protect their water quality,” said Neil Kagan, Senior Counsel for NWF.  “The EPA rule interferes with the states’ role as the guardians of their water quality.  It allows EPA to ignore corrections to certifications that state courts find necessary to prevent discharges that impair water quality.”

“Invasive species are discharged through ballast water and then spread into state lakes and rivers,” said Gary Botzek, Executive Director of MCF.  “We need a meaningful way to protect the Great Lakes and our inland lakes and streams from this costly and damaging problem.”

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