Key Words: ballast water, Alaska, plankton, transfer patterns, tankers

Although most studies of introduced species in marine ecosystems are for temperate latitudes, limited published research indicates invasions may also be common at high latitude. We are assessing the risk of biological invasions for Prince William Sound, Alaska, where tankers deliver large quantities of ballast water when loading crude oil from the trans-Alaska pipeline in Port Valdez. The study provides the first detailed analysis of the biological characteristics of tanker ballast water. Abundant and diverse plankton is being released in segregated (non-oily) ballast from source ports along the US west coast and some Asian ports. Plankton in ballast water varies significantly among years, seasons, and source ports. Temperature and salinity of ballast water is often similar to receiving water; and short-term tolerances of ballast water plankton overlaps the receiving conditions. Sediment in ballast tanks sometimes also contains abundant macro-invertebrates. Bottom fouling of tankers is usually minimal, but sometimes develops rich communities. Field surveys, fouling plate studies, and literature search identified several nonindigenous species already present in Alaskan waters. However, the Alaskan biota is characterized by many cryptogenic species, and few previous studies have focused on invasive species. On-going research is supported by a highly cooperative consortium of industry, government agencies, academic institutions, and private citizens.

Author to Contact: Anson H. Hines
Smithsonian Environmental Research Center
PO Box 28
Edgewater, MD 21037
T 301-261-4190 x 208
F 301-261-7954
Email: Hines@serc.si.edu

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One of the major management concerns regarding salt marshes on the east coast is the replacement of existing salt and brackish vegetation by Common Reed, (Phragmites australis). This invasive grass thrives in areas where tidal flushing has been reduced by dikes, embankments, and undersized culverts. Phragmites habitats are thought to be of substantially less wildlife value than the marsh vegetation they replace. There is, however, little documentation of this assertion. With support from the Oak Knoll Foundation, we have carried out three seasons of quantitative bird censuses in Phragmites, Spartina, and coastal Typha marshes in northern Massachusetts. Census methodologies have included visual observation, passive listening and playback techniques in 50-meter radius point count circles. All birds seen or heard were recorded. Circles were selected that had various amounts of woods, Phragmites, Spartina, or Typha within them. Where the vegetation was tall, censuses were carried out from a 6-10 foot step ladder.

The number of bird species commonly encountered in each habitat appears to differ, with Spartina and Phragmites marshes having the most and coastal Typha marshes the least number of species. Preliminary analysis of data on redwings, marsh wrens, Virginia rails, and salt marsh sharp-tailed sparrows indicates that the amount of Phragmites present within each point count circle has little impact on the numbers of these birds seen there. If the amounts of Typha and Phragmites within the point count circles are combined, a measure of the importance of tall structured marshes can be calculated. Marsh wrens are strongly impacted by increases in the amount of either salt marsh or woods present. No preference has been detected between Phragmites, and Typha, but they clearly seem to prefer either to salt marsh or woods. Redwings exhibited no such preferences, and appear to be about equally abundant in all plant communities sampled. Virginia rails did not exhibit a strong preference for Phragmites or Typha marshes over salt marsh habitats. Rather a moderate negative impact of Phragmites and a weaker positive impact of Typha was detected. This may, however, reflect the inadequacy of limiting comparisons of the abundance of plant communities to the point count circles alone. We plan to investigate the impact of differences in the amount of Phragmites outside of the sampling area as well. Finally, it is clear that variables other than the plant communities present have a major role in determining the distributions of most bird species encountered. Understanding what these factors are may have a major impact on how Phragmites is managed in the coastal environment.

Author to contact: Robert Buchsbaum
Massachusetts Audubon: North Shore
Endicott Regional Center
346 Grapevine Road
Wenham, MA 01984
T978-927-1122
F978-922-8487
Email: Rbuchsbaum@massadubon.org
Eric Holt : rickeyholt@aol.com

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In November 1997, the International Maritime Organization (IMO) developed Resolution A. 868(20), Guidelines for the Control and Management of Shipsí Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens. The resolution includes guidelines for ballast water management procedures for ships and port states and calls for other research to be conducted to minimize the risk associated with ballast water transfers. In an effort to reduce the risk to the waters of the United States, the U.S. Congress in 1990 enacted the Nonindigenous Aquatic Species Prevention and Control Act (NASPCA). In 1996, The National Invasive Species Act (NISA) was passed to expand the control of ballast water regulations to all vessels with ballast tanks. The law directs the Secretary of Transportation to develop guidelines to prevent the introduction and spread of nonindigenous species into U.S. waters via the ballast waters of commercial vessels. These guidelines, when developed, will apply to vessels that operate outside the exclusive economic zone and enter U.S. waters. The guidelines direct these vessels to undertake a ballast water exchange on the high seas if possible.

To comply with NISA, the USCG in April 1998 proposed voluntary guidelines to help control the invasion of nonindigenous species (US Federal Register, 1998). The proposed guidelines include voluntary ballast exchange for foreign ships entering all U.S. ports and making ballast water exchange reporting mandatory. The proposed guidelines provide a three-year window for voluntary compliance by ships entering all US waters after which the level of voluntary compliance will be assessed, and if compliance is insufficient, ballast water exchange may become mandatory in the U.S. and carry heavy penalties for noncompliance. One challenge facing the U.S. and other national regulators and enforcement agencies is how to verify whether ships are complying with mid-ocean exchange requests.

This paper describes an evaluation of potential measurements that could be used to develop accurate and defensible measurement technologies for verifying at-sea exchanges. A substantial set of parameters and techniques that could potentially be used to verify open ocean ballast water exchange were identified and evaluated. While no simple readily available technique was found, measurement of the optical properties of sea water using fiber optic techniques was identified as a method that could likely meet the goals of an easy to use, portable field unit, with high potential for discriminating water types.

A preliminary feasibility study was conducted to further assess the potential of this technique. Coastal samples collected from the major estuaries of the east coast of the United states, a set of coastal and harbor samples from New Zealand, plus samples from the Gulf Stream east of Miami, Florida and the Mediterranean sea off the coast of northern Sardinia, Italy were analyzed using high resolution excitation emission fluorescence techniques to develop 3-D Excitation Emission Spectra. The spectral data developed in the study were subjected to advanced statistical analysis to identify differences among the samples. These techniques demonstrated that the methodology could clearly measure differences among the various samples and indicated that the technique would likely provide the ability to discriminate between coastal and open ocean waters.

Author to contact: Carlton D. Hunt
Battelle
397 Washington St.
Duxbury, MA 02332
T 781-952-5374
F 781-934-2124

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Key Words: ballast water, clean water act, management

I. The Plain Language of the Clean Water Act Requires NPDES Permits for Ballast Water Discharges

The Clean Water Act (CWA) prohibits "the discharge of any pollutant by any person" except as in compliance with specified sections of the Act, including the permitting provisions of § 402. 33 U.S.C. § 1311(a). The phrase "discharge of a pollutant" is defined to include "any addition of any pollutant to the navigable waters from any point source." 33 U.S.C. § 1362(12). Vessels are specifically defined as point sources in the CWA. 33 U.S.C. § 1362(14). Moreover, the CWA specifically includes "biological materials" in its definition of pollutants. 33 U.S.C. § 1362(6). The discharge of ballast water from vessels is a discharge of pollutants because ballast water is known to contain invasive plant and animal species as well as bacteria and viruses associated with human sewage. All of these pollutants qualify as "biological materials" within the meaning of the CWA. Additionally, ballast water is likely to contain other pollutants, such as oil, chipped paint, sediment, and toxins contained in ballast sediment.

Under the CWA, vessels qualify as point sources. Accordingly, when they discharge pollutants, they are required to have National Pollutant Discharge Elimination System (NPDES) permits. Although EPA has purported to exempt "discharge[s] incidental to the normal operation of a vessel" from the requirement to obtain a permit, 40 C.F.R. § 122.3(a), nothing in the CWA gives EPA the power to create categorical exemptions. Natural Resources Defense Council v. Costle, 568 F.2d 1369, 1377 (1977) (Costle). While EPA is given substantial deference in interpreting the CWA, it cannot rely upon regulations that are clearly contrary to the express statutory requirements. Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), City of Chicago v. Environmental Defense Fund, 114 S.Ct. 1588 (1994).

The CWA does contain certain limited exemptions relating to the need to obtain NPDES permits for ballast water and other discharges incidental to the normal operation of vessels. None of these exemptions can reasonably be construed as permitting the blanket exemption contained in 40 C.F.R. § 122.3(a). First, the CWA excludes incidental discharges from vessels made in the "contiguous zone" and the "ocean" from having to obtain an NPDES permit. 33 U.S.C. § 1362(12)(B). These terms have clear statutory definitions: the "contiguous zone" begins three miles from shore and extends seaward to twelve miles from shore; and the "ocean," is any portion of the high seas beyond the contiguous zone. 33 U.S.C. § 1362(9) and (10). Thus, the effect of this exemption is that incidental discharges (such as ballast water) made outside of three miles from shore are not required to have NPDES permits. It cannot, however, reasonably be construed as applying inside the three mile contiguous zone boundary.

Second, the CWA specifically excludes two types of discharges from its definition of "pollutants." 33 U.S.C. § 1362(6)(A). The Act states that neither discharges of "sewage from vessels or a discharge incidental to the normal operation of a vessel of the Armed Forces," are to be considered pollutants. Id. (emphasis added). As a result of the second aspect of this exclusion, discharges incidental to the normal operation of Armed Services vessels are not required to have an NPDES permit. However, this exemption is specifically limited to Armed Services vessels; EPA cannot reasonably expand it to apply to all vessels, as it has done in 33 C.F.R. § 122.3(a).

It is important to note that, in exempting both sewage discharges and incidental discharges from Armed Services vessels, Congress specifically provided alternative programs for control of such discharges under other sections of the CWA. See 33 U.S.C. § 1322(b) (addressing sewage discharges) and (n) (addressing incidental discharges from Armed Forces vessels). The fact that there is no similar statutory or regulatory provision which addresses incidental discharges from non-Armed Services vessels under the CWA further highlights the Congressional intent that ballast water discharges be regulated under § 402 of the CWA .

The Act is clear that ballast water releases that contain biological materials qualify as point source discharges of a pollutant and that such discharges require NPDES permits under § 402. 40 C.F.R. § 122.3(a) runs directly counter to this plain statutory requirement and should therefore be repealed.

II. Existing Case Law Unequivocally Indicates that EPA Does Not Have the Discretion to Exempt Incidental Discharges from the Requirements of the CWA.

In Costle, the D.C. Circuit addressed the question of whether EPA could exempt agricultural return flows from the requirements of the CWA. 568 F.2d 1369 (D.C. Cir. 1977). The court unambiguously stated that the EPA did not have the authority to exempt discharges from the requirements of § 402. Finding that § 402 permits were central to achieving the stated goals of the CWA, the court found that "[t]he wording of the statute, legislative history, and precedents are clear: the EPA Administrator does not have authority to exempt categories of point sources from the permit requirements of §402." Id. at 1377; see also NRDC v. U.S. E.P.A., 966 F.2d 1292, 1305 (9th Cir. 1992); Carr v. Alta Verde Industries Inc., 931 F.2d 1055,1060 (5th Cir. 1991); Sierra Club v Abston; 620 F.2d 41, 44 (5th Cir. 1980); and U.S. v. Earth Sciences, Inc., 599 F.2d 368, 372 (10th Cir. 1979).

In reaching its result, the Costle court relied on both the language of the statute itself and its underlying legislative history. As noted by the court, the House Report addressed the effect of § 301 in the following terms:

Any discharge of a pollutant without a permit issued by the Administrator under section 318, or by the Administrator or State under 402 or by the Secretary of the Army under 404 is unlawful.

568 F.2d at 1374, citing H.Rep.No.92-911, 92d Cong., 2d Sess. 100 (1972), reprinted in Legislative History at 787. The court further noted that there were:

innumerable [other] references in the legislative history in the legislative history to the effect that the Act is founded on the "basic premise that a discharge of pollutants without a permit is unlawful and that discharges not in compliance with the limitations and conditions for a permit are unlawful."

Id. at 1375.

In promulgating 40 C.F.R. § 122.3(a), EPA acted in direct violation of the straightforward rule established in NRDC v. Costle. EPA has created a categorical exclusion in a statutory scheme that permits of none.

III. Benefits of Clean Water Act Regulation.

Control under the CWA would have two components. First, EPA would be required to develop technology-based controls based on the "best available technology that is economically achievable" (BAT). Before EPA were to set this standard, the permit issuers (typically the states under the CWA) would be required to exercise their "best professional judgment" in trying to anticipate what the BAT standard would be when it were to come out. Thus, all ballast water dischargers would immediately become subject to technology-based controls.

As importantly, the permit issuers would be required to ensure--on a case-by-case basis--that the relevant dischargers would comply with water quality standards. Given that few (if any) states have water quality standards that directly address the issue of invasive species, the key short-term issue here would be compliance with the antidegradation policy. Under this policy, no discharge can be permitted if it will impair any "existing use" of the relevant waterbody. 40 C.F.R. § 131.12. Existing uses are defined to include any species that have inhabited a particular waterbody since November 28, 1975. 40 C.F.R. § 131.3(e). Thus, under the antidegradation policy, the permit issuer would be required to perform an analysis--as a precondition to permitting a discharge of ballast water to occur--that would be designed to preclude the possibility that any invasive species present in the ballast water might outcompete any existing (i.e., native) species.

Author to Contact: Craig N. Johnston
Lewis & Clark Law School
Portland, OR
Email: craigj@lclark.edu

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Key Words: Fishes, species interactions, water quality, Lake Victoria

A series of deliberate and accidental introductions into the worldís largest tropical lake can shed light on the dynamics of invasive species in semi-enclosed and isolated marine water bodies. We have examined the landscape dynamics and conservation genetics of the interaction between a rich indigenous fish fauna and three highly disruptive invaders in the context of chronic, progressive eutrophication in Lake Victoria, East Africa. The invading species are Nile perch (Lates cf. niloticus), Nile tilapia (Oreochromis niloticus) and water hyacinth (Eichornia crassipes). Following a series of rapid and catastrophic initial impacts including a mass extinction, a still-rich remnant indigenous fauna has exhibited an astonishing tenacity and resiliency. This is attributable mostly to the spatial and temporal complexity of refugia, the powerful shaping influence of water column conditions, and counterintuitive interactions between invaders and their indigenous relatives. Maintenance of indigenous taxa is partly dependent upon the amelioration of chronic water quality insults unrelated to the invasions themselves. Analogies are drawn to impacted and invaded coral reef systems.

Author to Contact: Les Kaufman
Boston University Marine Program
Department of Biology, Boston University
5 Cummington Street, Boston, MA 02215
T 617-353-5560
F 617-353-6340
Email: lesk@bio.bu.edu

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Key Words: Petrolisthes armatus, oyster reefs, rocky shores, South Atlantic Bight

The green porcelain crab, Petrolisthes armatus (Gibbes, 1850), has a widely reported distribution in tropical western Africa and in the eastern Pacific from the Gulf of California to Peru. In the western Atlantic, it is found in Bermuda, the Gulf of Mexico, Caribbean, and south to Brazil. The species was collected from the Florida Atlantic coast at Biscayne Bay and Miami Beach as early as the 1930s, but it was still rare in the Indian River area as late as 1977. Although it has become well established in the Indian River system since that time, it was not reported north of Cape Canaveral, Florida until 1994. Faunal surveys at St. Catherines Island, GA did not reveal the presence of P. armatus prior to the fall of 1994, after which time it underwent a dramatic increase in abundance, becoming the dominant decapod crustacean on rocky substrates and tidal creek oyster bars by the following spring. In South Carolina, it was first observed in low densities in the spring of 1995 at various locations, becoming quite abundant by the fall of that year. It is now well established on rocky rubble, oyster reefs and other shallow subtidal and intertidal habitats throughout Georgia and South Carolina. The most northern collection to date is Winyah Bay, SC. Qualitative and quantitative data on abundance, geographic distribution, length-frequency, sex ratio, and reproductive status are presented to document the introduction of this species into the South Atlantic Bight. There are several possible pathways for the introduction of P. armatus into the SAB, both natural and anthropogenically assisted. Although we have no data to suggest which of these are the principal means of its establishment in this region, a number of those possibilities are presented. Studies are planned to examine the recruitment of this species and co-occurring decapods and to evaluate interactions between them.

Author to Contact: David Knott
SC Department of Natural Resources
Marine Resources Research Institute
PO Box 12559
Charleston, SC 29422-2559
T 843-762-5038
F 843-762-5110
Email: knottd@mrd.dnr.state.sc.us

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Key Words: Gulf of Mexico, nonindigenous species, ballast water

The Gulf of Mexico is considered a large marine ecosystem (LME) because of its hydrography, geomorphology and the inter-relationship of its flora and fauna. It contains two zoogeographic provinces along with tropical, subtropical and temperate flora and fauna shared between three countries.

A series of NOAA-EPA co-sponsored workshops on the introduction of nonindigenous species (NIS) in the Gulf of Mexico was held from June 1997 - September 1998. The workshops characterized the extent of NIS introduction phylogenetically and geographically, an overview of bioinvasion pathways, and a discussion of preventive recommendations and subsequent actions to be taken.

This phylogentic and geographical overview will address the introduction of primary shrimp viruses, zebra and brown mussels, coastal fishes, nutria and introduced flora. Pathways and unintentional distributions of species will be discussed with emphasis on the extent of shipping and potential ballast water exchanges in major Gulf of Mexico ports.

Author to contact: Herb Kumpf
U.S. Dept of Commerce, NOAA
National Marine Fisheries Service
3500 Delwood Beach Rd.
Panama City, FL 32408
Telephone: (850) 234-6541
Fax: (850) 235-3559
Email: herb.kumpf@noaa.gov

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The fact that "bioinvaders are here to stay" provides a strong motivation to prevent new introductions, in part because it infers an inability to address the problem once it arrives. However, despite our best efforts to eliminate the vectors of marine alien introductions, we will not be able to prevent all introductions. We will receive the burden of those that will come in addition to the very substantial economic and ecological burden of those that are already here. Prevention of further introductions will always be the most desirable option. But, prevention cannot supplant our duty to mitigate pests that are already here or who are yet to come. Further, if eradication of pests is the only meaningful outcome of a mitigation program, then we are doomed to fail.

Faced with the permanent reality of past invasions and the likelihood of future arrivals, some, perhaps out of fear or pessimism about the potential to control invaders, have embraced fatalism and say, "we will just have to learn to live with them." In many cases, this is wholly appropriate considering that only a proportion of introductions will have measurable ecological and economic impacts. However, when this fatalism extends to those species that are truly serious pests, it is an attitude that seems unique to the marine environment. For no other type of pest does our society generally first respond with "we can learn to live with it." Not for rabbits in Australia, the silverleaf whitefly in California, malaria nor AIDS. And when we do abandon control efforts, the cost can be awesome (e. g., fire ants in the southeastern USA). There is danger in the hypocrisy of this perspective because if there really are no marine pests that merit attempts at control programs, then why should the shipping industry and others be asked to bear such great costs in the prevention of introduction and spread of such pests? Let us instead move on to other problems such as trawling, over-fishing and pollution.

The conceptual salvation for this quandry is that not all introductions are pests and that the control of pests does not require eradication. If we can substantially reduce pest densities then we will greatly alleviate their impact. With this in mind, the great potential for economic and ecological impacts due to the high abundance of some existing introduced marine pests (e.g., mitten crab, Caulerpa, green crab, north Pacific starfish, shell-modifying sabellid) warrants considering a control strategy.

A proactive effort to control introduced marine pests requires an Integrated Pest Management (IPM) approach. This starts with a coherent general strategy and applies the principles from related and much more advanced pest control programs. Notably these are for agricultural insect pests, weeds, infectious agents and their vectors. These have all converged on some very basic principles of IPM:

1. Early detection of the introduced pest.
2. Rapid evaluation of the risk of their establishment and spread.
3. A generous evaluation of their potential impact and of the cost of no action.
4. Prompt detection of their natural enemies and other limiting factors where the pest is native.

This perspective generally calls for an aggressive and sometimes relatively expensive attempt to eradicate the newly established pest, and a longer term control plan including chemical and biological controls and other environmental manipulations. Biological controls are often the focus of these IPM strategies because of their proven environmental safety.

Ironically, some argue against the concept of biological control under the view that all introductions must be resisted with equal force because all introductions remove us from our goal of a pristine environment. This sort of romantic naturalism is a fantasy in our modern world. "Pristine" is an anachronism. As Dan Janzen emphasized in his seminal essay on "gardenification" (1998. Science 279:1312.), "the question is not whether we must manage nature, but rather how we shall manage it." In this context, the introduction of a biological control makes sense if it has good potential to reduce pest abundance with little risk of otherwise impacting the ecosystem. With Janzen, I believe ecologists must step up to the plate and use appropriate science to help solve these problems instead of simply calling out that the sky is falling.

Author to Contact: Armand Kuris
Marine Science Institute and Department of Ecology, Evolution and Marine Biology
University of California
Santa Barbara, CA 93106
T: 805-893-3998; F: 805-893-4724;
Email: kuris@lifesci.ucsb.edu

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