Report for Great Lakes Protection Fund: Potential Federal Preemption of Laws in the Great Lakes States

October 2006

Report for Great Lakes Protection Fund: Potential Federal Preemption of Laws in The Great Lakes States

Environmental Law Institute October 2006

Acknowledgements

This publication is a project of the Institute (ELI). Funding for the study was provided by The Great Lakes Protection Fund. The author of the report was Suellen Keiner. Jason DeRosa and Emily Taylor contributed to this report. Roxanne Thomas, John Pendergrass, Kathryn Mengerink and Elissa Parker provided guidance and review.

ELI is responsible for the views and research contained in this report, including any omissions or inaccuracies that may appear. The information contained in the report was obtained primarily through research conducted in September and October of 2006. The conclusions are solely those of ELI.

About ELI Publications—

ELI publishes Research Reports and briefs that present the analysis and conclusions of the policy studies ELI undertakes to improve environmental law and policy. In addition, ELI publishes several journals and reporters— including the Environmental Law Reporter, The Environmental Forum, and the National Wetlands Newsletter—and books, that contribute to education of the profession and disseminate diverse points of view and opinions to stimulate a robust and creative exchange of ideas. Those publications, which express opinions of the authors and not necessarily those of the Institute, its Board of Directors, or funding organizations, exemplify ELI’s commitment to dialogue with all sectors. ELI welcomes suggestions for article and book topics and encourages the submission of draft manuscripts and book proposals.

Report for the Great Lakes Protection Fund: Potential Federal Preemption of Laws in the Great Lakes States

Copyright © 2006 Environmental Law Institute®, Washington, D.C. All rights reserved. Project No. 0617-01

(Environmental Law Institute®, The Environmental Forum®, and ELR® – The Environmental Law Reporter® are registered trademarks of the Environmental Law Institute.)

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Table of Contents

Report for Great Lakes Protection Fund: Potential Federal Preemption of Laws in the Great Lakes States

I. Introduction 1

II. State Activities on Ballast 1

III. Interpreting the Preemption Language of Two Bills Pending in Congress 2

IV. Illinois Potentially Preempted 5 1. Protecting Public Health 5 2. Controlling Pollution of Water, Wastes, Toxics, and Litter 5 3. Protecting Rivers, Lakes and Streams 6 4. Controlling Injurious Insect Pests and Diseases 7 5. Preventing Harm to Endangered or Threatened Species 7 6. Great Lakes Basin Compact 8

V. Indiana Statutes Potentially Preempted 9 1. Protecting Public and State 9 2. Regulating and 9 3. Controlling Pests and Pathogens 10 4. Managing and Preserving Water Rights 10 5. Controlling Infectious and Pathological Wastes 11 6. Water, Waste and Wetland Laws 11 7. State Environmental Protection Act 12 8. Nuisance Law 12

VI. Michigan Statutes Potentially Preempted 13 1. Fishing, Boating, and Aquatic Nuisance Species 13 2. Controlling Waste, Recovering Natural Damages, and Preventing Pollution 14 3. Protecting the Great Lakes and Submerged Lands 15 4. Protecting , and Native Aquatic Species 15 5. Preventing or Controlling Disease 16

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6. Regulating Ballast Water 16

VII. Minnesota Statutes Potentially Preempted 18 1. Aquatic Species 18 2. and Laws 18 3. Protecting State Water 19 4. Environmental Impact Statement 19 5. Controlling and Waste 19 6. Emergency Preparedness and Response 20 7. Infectious Wastes and Diseases 20

VIII. New York Statutes Potentially Preempted 21 1. Permitting Ballast Water Discharges 21 2. Protecting Fish and 21 3. Licenses for Hunting, Fishing, and Trapping 22 4. Conserving and Protecting 22 5. Controlling Water Pollution 23 6. Managing Solid and Hazardous Wastes 24 7. Enforcing the State’s Environmental Laws 24 8. Great Lakes Basin Compact 25 9. Regulating Navigable Waters and Nuisance 25

IX. Ohio Statutes Potentially Preempted 26

X. Pennsylvania Statutes Potentially Preempted 28 1. Controlling Plants and Noxious Weeds 28 2. Regulating Fishing and Boating 28 3. Hunting of Game and Wildlife 29 4. Preventing Water Pollution 30 5. Managing Solid and Hazardous Waste 30 6. Planning for Adequate Water Supplies 31 7. Protecting Watersheds 31

XI. Wisconsin Statutes Potentially Preempted 32 1. Conservation of Fish, Game, Lakes and Plants 32 2. Water Resources 33 3. Public Health 33 4. Regulating Water Pollution and Hazardous Waste 34 5. Great Lakes Basin Compact 34

XII. Conclusion 35

XIII. Appendix A: Illinois 37 XIV. Appendix B: Indiana 122 XV. Appendix C: Michigan 241 XVI. Appendix D: Minnesota 342 iv Environmental Law Institute

XVII. Appendix E: New York 480 XVIII. Appendix F: Ohio 588 XIX. Appendix G: Pennsylvania 649 XX. Appendix H: Wisconsin 743

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INTRODUCTION

I. Introduction

The Great Lakes Protection Fund has asked the Environmental Law Institute (ELI) to identify the laws currently in effect in the eight Great Lakes states that might be impacted by two bills pending in Congress – Senate Bill 363 and House Bill 5030 – which preempt state statutes regulating ballast water. To ensure this report covers a wide range of potentially preempted state laws, ELI’s researchers examined the statutes of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin by focusing on the following topics:

o Fish, wildlife, and boating requirements o Protection of threatened and endangered species and their habitats o Prevention or control of insect pests and plant diseases o Regulation of invasive and/or non-indigenous species o Public health protection through quarantines and other controls on microbes, pathogens, and medical wastes o Clean Water Act programs, including discharge permits, dredging and filling, total daily maximum loads, and protection of and o Water consumption, use, transfers, intakes, and diversions o Waste dumping, clean-ups, removals, spills, littering, and damages o Regulation of shipping, facilities, and utilities’ water use o Handling materials on the bottoms of lakes and rivers o Prevention of public nuisances and other state public trust responsibilities

In addition to explaining two pending federal bills that would preempt state statutes on some or all of the above topics, this report includes summaries for each of the eight states’ laws on these topics. It also explains briefly how these laws relate to ballast water discharges and therefore might be affected by a federal preemption provision. Readers should note that coverage of the topics listed above varies among the states, and all are not necessarily covered in the laws of the eight Great Lakes states. The texts of those potentially affected state laws are contained in the eight appendices to this report.

II. State Activities to Regulate Ballast Water

The relevance of this report has recently become apparent because two states have now passed laws regulating ballast water. Michigan is the only Great Lake state that has adopted such a law. It was passed in 2005 and takes effect on January 1, 2007 (MCL section 324.3103a). Michigan prohibits untreated discharges of ballast water and outlaws open water disposal of materials dredged up by the intake of ballast water. It also requires all ocean-going vessels to obtain permits by the start of 2007 and to use one of four permissible technologies for treating ballast water prior to its discharge.

On September 18, 2006, California amended its Marine Invasive Species Act to require treatment of ballast water so it will meet standards established by the California State Lands Commission (Public

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STATE ACTIVITIES TO REGULATE BALLAST WATER

Resources Code sections 71204.7, 71205.3, 71207, 71211, 71271, 72423, and 72440). California’s law explicitly provides that it will stay in effect unless a federal program and regulations are equally or more effective at controlling releases of invasive aquatic species from ballast water (section 72440(c)).

Adoption of these two state statutes and the imminent effective date of the Michigan law bring added urgency to building awareness of the pending federal bills that would preempt state laws inconsistent with future federal requirements. It is important to understand how such a federal might impact other state laws related to controlling releases of invasive or non-indigenous species through ballast water intake and discharge. Thus it will be helpful to know how the courts have interpreted other preemption provisions that might be similar to those sections of the two ballast bills currently pending in Congress.

III. Interpreting the Preemption Language of Two Pending Bills

The two bills currently pending in Congress are aimed at preventing the spread of invasive species from ballast water discharges (S.363 and H.R.5030). Both bills require that ships serving US ports implement best management practices and adopt certain treatment standards to control releases of ballast water.

In addition to imposing those requirements, the two bills contain identical language that preempts all state or local laws related to these ballast water practices and standards:

[The subsections on treatment standards and best management practices] supersede any provision of State or local law that is inconsistent with the requirements of those subsections or that conflicts with the requirements of those subsections. The imposition, by State or local law, of greater penalties or fees for acts or omissions that are violations of such law and also violations of this Act shall not be considered to be inconsistent with, or to conflict with, the requirements of those subsections. Nothing in the preceding sentence limits the scope of state or local law provisions that are not to be considered to be inconsistent with, or to conflict with, the requirements of those subsections.

S. 363, section (r)(2) and H.R. 5030, section (t)(1).

Among the eight Great Lakes states, only Michigan has adopted a ballast water law, as discussed above. To understand the impact the pending federal preemption language might have on a variety of state laws, it will be helpful to examine some recent court decisions interpreting similar provisions in other federal laws. Because the federal ballast water bills relate to shipping, the cases most directly relevant to them are decisions that interpret federal statutes related to shipping, vessel safety, and the marine environment. Two fairly recent appeals court cases and two decisions of the Supreme Court appear to be relevant here.

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INTERPRETING THE PREEMPTION LANGUAGE OF TWO PENDING BILLS

In Ray v. Atlantic Richfield Co., 435 US 151, 98 S. Ct. 988 (1978), the Supreme Court held that oil tanker design requirements adopted by Washington state to protect against spills could not be enforced. The Court reached this decision even though the state’s design standards were more stringent than the federal rules, and the federal Ports and Waterways Safety Act of 1972 purportedly prescribed only minimum standards. The Court said the federal Act must “prevail over contrary state judgment” because it “contemplates a uniform federal regime controlling design of oil tankers.” The Court reached this result even though both the federal and state laws shared the same aims of “insuring vessel safety and protecting the marine environment.”

More than 20 years later, Washington state regulations on the operation, design, construction, repair, maintenance, personnel qualifications, and manning of oil tankers were challenged again. And again the Supreme Court ruled that the state law was invalid because the Ports and Waterways Safety Act (PWSA) “left no room for state regulation.” United States v. Locke, 529 U.S.89, 120 S. Ct. 1135 (2000).

This time the Court set forth its standard for evaluating preemption issues related to the regulation of shipping: “In the area of national and international maritime commerce, there is no beginning assumption, for purpose of preemption analysis, that concurrent regulation by a state is a valid exercise of its police powers.” Instead, the Court said it must “ask whether the local laws in question are consistent with the federal statutory structure, which has as one of its objectives a uniformity of regulation for maritime commerce.”

The state argued its rules should be upheld because the Oil Pollution Act (OPA) contains a savings clause that allows states to impose stricter liability and other requirements on those responsible for oil spills. But the Court rejected this argument, saying that the OPA savings clause only relates to compensation for such spills and “does not extend to rules regulating vessel operation, design, or manning.” Because the OPA would not override the preemptive effect of the PWSA, the Court held the state rules were invalid.

The two appellate court decisions explain more succinctly the preemption rules that apply to state laws on shipping. Exxon Corp. v. Chick Kam Choo, 917 F.2d 307 (5th Cir. 1987) held that federal shipping law “preempts whenever uniform rules will facilitate maritime commerce, or conversely, when non- uniform regulation will impress a material disadvantage to commercial actors, and when state law impinges on international or interstate relations.” Similarly, Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623 (1st Cir. 1994), said that even if a state law does not seem to cause “prejudice to a characteristic feature” of federal shipping law, “state legislation is preempted if it interferes with proper harmony and uniformity of maritime law.”

In other areas of law, including protection of the environment and public health, the courts have rather uniformly applied two tests for determining whether state laws are preempted by federal law. This determination has been necessary because – unlike the provisions in S. 363 and H.R. 5030 – Congress frequently does not adopt an explicit provision stating that any similar state law is preempted.

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INTERPRETING THE PREEMPTION LANGUAGE OF TWO PENDING BILLS

Two key Supreme Court cases related to preemption of environmental and health laws were decided in 1992. In Gade v. National Solid Wastes Management Association, 505 U.S. 88, 112 S. Ct. 2374 (1992), the Court held that an Illinois environmental law would be “preempted if it interferes with methods by which a federal statute was designed to reach [the same] goal.” The Court also refused to enforce a New Jersey public health law related to tobacco smoke because “[i]n the absence of express Congressional command, state law is preempted if that law actually conflicts with federal law, or if federal law so thoroughly occupies the legislative field as to make reasonable the inference that Congress left no room for states to supplement it.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S. Ct. 2608 (1992).

In short, even if the preemption sections of S. 363 and H.R. 5030 are eventually removed before Congress passes federal ballast water legislation, there is a strong likelihood that laws adopted by the Great Lake (or any other) states might not survive a constitutional challenge from the shipping industry. Such current or future state ballast water laws are likely to be preempted if a court can find that they are either (i) an obstacle to achieving the purpose of the federal law or (ii) make it physically impossible for a vessel to comply with both state and federal requirements. Both the Michigan and California ballast water laws set treatment standards stricter than those proposed in the pending federal bills, so there is a direct conflict between the two states’ laws and the federal bills.

Beyond this direct conflict, the bills now pending in Congress may have an even broader impact on other state laws because their preemption provisions also apply to any state or local law that is “inconsistent with” the federal requirements. Consequently, this report analyzes many more state statutes that relate to the intake and discharge of ballast water or the materials possibly transported and released by vessels using the Great Lakes.

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IV. Illinois Statutes Potentially Preempted

If the preemption provisions in S. 363 and its companion bill H.R. 5030 are interpreted broadly, a number of Illinois statutes might be affected.

Protecting Public Health

The Illinois Health and Hazardous Substances Registry Act (410 Ill. Comp. Stat. (ILCS) sections 525/1 to 525/14) might be preempted by the federal bills because this state registry of incidents and diseases caused by hazardous substances might cover ballast water releases containing such substances. The Act imposes requirements for facility owners and operators to collect and compile information on exposures to hazardous substances and potential public health problems, and they might apply to vessels transporting or discharging ballast water that contains such substances.

Similarly, the Illinois Vector Control Act (410 ILCS sections 95/1 to 95/11) makes the state Department of Public Health responsible for investigating, monitoring, and eliminating potential threats to public health and vectors of disease, including improper waste disposal. Ballast water that contains insects or other disease vectors could thus be covered by this law, and the Department would have authority to inspect and intervene whenever a vessel might be responsible for dispersing these vectors.

Illinois’ authority to regulate microbes and pathogens may also apply to ballast water if it contains these types of organisms and if they fit the state’s definition of injurious species or qualify as aquatic not indigenous to Illinois (515 ILCS sections 5/1-53 and 5/10-100).

Illinois’ requirements for and drug safety apply to any food containing substances injurious to health, including pesticides and other chemicals; and the state prohibits commerce, delivery, or holding any food that is adulterated (ILCS sections 620/2.3, 620/3, 620/3.1 to 620/3.3, and 620/10). The preemption provision in the two federal ballast water bills might thus apply to these state provisions in two situations. This could happen in situations where fish or crustaceans that might become food are discharged in ballast water, or, if they become contaminated with pesticides or other chemicals while held in ballast tanks and are then released for potential anglers to catch.

Controlling Pollution of Water, Wastes, Toxics, and Litter

Illinois’ environmental protection and safety laws contain a number of provisions that might apply to ballast water and thus be preempted by the federal bills. The state’s definitions of terms like “contaminants,” “disposal,” “hazardous waste,” “open dumping,” “refuse,” “release,” “waste,” and “waters” (415 ILCS sections 5/3.165, 3.185, 3.220, 3.305, 3.385, 3.395, 3.535, and 3.550) are so broad that ballast water intake or discharge might easily be encompassed in the state’s requirements to

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ILLINOIS STATUTES POTENTIALLY PREEMPTED

protect , control waste, establish effluent standards, and require permits for discharges into water (415 ILCS sections 5/911 to 5/13).

The Illinois law on pollution and refuse disposal also applies the same broad definitions; and it prohibits inappropriate transport or disposal of hazardous and solid waste, including open dumping (415 ILCS sections 5/20 to 5/22.10). Again, the state’s definitions of contamination and waste are so broad that ballast water may be considered refuse. If ships release ballast water without obtaining permits for its storage, treatment, or disposal, Illinois could invoke this prohibition on open dumping to regulate the transport or disposal of ballast water. Thus, these state provisions might also be preempted.

The Illinois Water Pollutant Discharge Act contains broad definitions of “other pollutants” and “facility” that could cover vessels containing ballast water (415 ILCS sections 25/2). It then prohibits discharge of such other pollutants “directly or indirectly into the waters” of the state (415 ILCS sections 25/3) and authorizes state and local agencies to hold the owner or operator of a discharging facility (which includes watercraft) liable for the costs of removing these pollutants (415 ILCS sections 25/4 to 25/6).

Illinois has established a Toxic Pollution Prevention program which might apply to intake or discharge of ballast water because it requires that any discharges to surface waters be minimized and that any “person” releasing toxic pollutants must establish a pollution prevention plan (415 ILCS sections 85/1 to 85/7). If ballast water contains toxic pollutants, its release by vessels in state waters of Illinois could trigger these requirements.

The broad definition of “litter” in Illinois’ Litter Control Act similarly could apply to ballast water because it covers “any discarded, used or unconsumed substance or waste” (415 ILCS sections 105/3(a)). The state prohibits littering in any body of water or from any conveyance on a body of water, and creates a rebuttable presumption that the owner or operator of a conveyance or property where litter is found has violated the Act (415 ILCS sections 105/1, to 105/11). Conviction for violating the Act is a misdemeanor leading to imposition of a fine and requirement to remove and properly dispose of the litter (415 ILCS sections 105/8), and any officer of state or local government can enforce the Act (415 ILCS sections 105/11).

Protecting Rivers, Lakes and Streams

The Illinois Rivers, Lakes, and Streams Act authorizes the Department of Natural Resources (DNR) to supervise every body of water within the state and to investigate and prevent any “wrongful invasion and private use” of such waters (615 ILCS sections /5/4.9 and 5/5 to 5/30). It is likely to apply to intake or release of ballast water because it prohibits deposing any earth, sand, or refuse in state waters without a permit (615 ILCS sections 5/18) and asserts title to the bed of Lake Michigan “for the benefit of the People of the State of Illinois” and to prevent any deposits or other unauthorized uses of any state waters (615 ILCS sections 5/24). Whenever any intake of ballast water disturbs the lake bed or is

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released into Lake Michigan, vessels would need a permit from DNR. Thus, these requirements would likely be interpreted as being preempted by the federal ballast water bills.

Controlling Injurious Insect Pests and Plant Diseases

The Illinois Department of Agriculture has authority under the Insect Pest and Plant Disease Act to require permits for any plant infested with an injurious insect pest or plant disease (505 ILCS sections 90/1 to 90/28). The Department may issue permits for shipping such pests or diseases to or within Illinois, but only for purposes of research or diagnosis (505 ILCS section 90/3.02) and may inspect any place infested with such pests or diseases, including vessels (505 ILCS section 90/3). It can also declare a quarantine covering areas infested with such pests or diseases (505 ILCS section 90/20) whenever they present a risk to plants essential to maintaining an ecosystem.

Plants and places within Illinois that are infested with injurious insect pests or plant diseases are declared by statute to be a nuisance (505 ILCS section 90/14). The Department of Agriculture is authorized to require that any person maintaining such a nuisance must abate, eradicate, and control it or prevent its dissemination within a specified period of time (505 ILCS section 90/15). If that person fails to do so, the Department has authority to take action itself to abate the nuisance (ibid.).

The Department of Agriculture has other important powers to enforce its ability to control insect pests and plant diseases: o Destroying or disposing of any injurious material (505 ILCS section 90/18), o Assessing administrative penalties ranging from $150 to $5,000 (505 ILCS section 90/22.01), or o Seeking a civil fine that can range from $500 to $5,000 (ibid.).

To the extent that any or all these provisions might be interpreted as applying to discharges of ballast water, they could potentially be preempted by the federal bills.

Preventing Harm to Endangered or Threatened Species

Releasing certain types of invasive animals or plants in ballast water discharges or some other vector related to shipping could violate the Illinois Endangered Species Protection Act (520 ILCS sections 10/1 et seq.) if those plants or animals might cause any harm to such species or their habitats. Thus, portions of this Indiana law could be preempted by the pending federal bills.

Illinois prohibits a broad array of activities that might “take” an endangered or threatened species by harming them or their habitat. Such a species of animals – including fish, sponges, and mollusks, but not insects – or plants must be on either the federal or Illinois list for the state to take action applying its own requirements (520 ILCS sections 10/7). Illinois’ definition of “take” includes harm, wound, kill,

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destroy, capture, and collect (520 ILCS sections10/2). Thus, Illinois could potentially regulate a predator species released in ballast water and likely to harm a species already on the federal or Illinois lists of threatened or endangered species. But the preemption provision of the federal bills would prevent Illinois from taking such action.

Illinois’ requirements that are perhaps most directly related to ballast water and thus likely to be preempted are in its Fish and Aquatic Life Code. That law requires permits for possessing, transporting, or shipping aquatic invasive species (515 ILCS sections 5/1-25, and 5/1-53). Illinois further prohibits releasing “any aquatic life into the wild” in Illinois without a permit (515 ILCS 5/10-100(a)) and makes it unlawful to “possess, transport, or release any live specimen or viable gametes of any species listed as injurious” (515 ILCS sections 5/10-100(b). To enforce its restrictions on the spread of injurious species (whether aquatic or not), Illinois makes possessing, transporting, or releasing an injurious species a Class A misdemeanor, and violations are punishable by a fine of up to $1,000 (515 ILCS sections 5/10-100(b)).

Two other Illinois requirements for aquatic species might also be preempted by the federal bills because DNR could possibly use them to regulate ballast water discharges. First, the state has authority to control disposal of any aquatic life taken from any Illinois waters if necessary to maintain the biological balance of aquatic life (515 ILCS sections 5/1-135). Second, the state has authority to inspect all buildings, vessels, bags, or other receptacles that may contain aquatic life bought, sold, shipped, or possessed contrary to the Fish and Aquatic Life Code (515 ILCS sections 5/1-185 (emphasis added)).

Great Lakes Basin Compact

Illinois and the other Great Lakes states have all adopted the Great Lakes Basin Compact. In 1986, the Compact was ratified by Illinois and made part of state law (45 ILCS sections 0.01 through 145/4). By adopting the Compact into law, Illinois agreed to work with its sister states (plus the Provinces of Ontario and Quebec) to secure and maintain a proper balance among all the uses of the Basin’s water resources. Among other things, the states agree to combat pollution and cooperate for eradicating “destructive and parasitical forces endangering the wildlife and other water resources” 45 ILCS section 145/1). In situations where Illinois may adopt regulations or take other actions to implement the Compact, these powers might be used in ways that have an impact on the intake or release of ballast water. Consequently, the Illinois law adopting the Compact might be preempted by the federal bills.

Appendix A contains the full text of the Illinois statutes discussed in this section.

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V. Indiana Statutes Potentially Preempted

Indiana has a number of different statutory provisions that might relate to ballast water and thus be affected by the preemption language in the two federal bills.

Protecting Public Waters and State Lands

Indiana’s Natural and Cultural Resources Code (Title 14, Article 8), contains definitions of “animal,” “exotic mammal,” “exotic weed,” and “watercraft” that all might cover ballast water discharges (IC 14-8-2-7, 14-8-2-27, 14-8-2-87.5, and 14-8-2-205). These definitions then are made applicable to IC 14-15-2-7, which relates to water recreation and contains requirements for disposing of in public waters. In the same code, Article 18 on State Land also defines “dock” or “harbor line” and “interested person” (IC 14-18-6-1 and 14-18-6-2). It prohibits filling or construction beyond that line, regulates how to obtain title to submerged real property bordering on Lake Michigan, and requires permits to fill or dump waste on submerged property (IC 14-18-6-4 and 14-18-6-5). Any of these activities might be interpreted as including the intake or release of ballast water. If so, these state laws could be preempted by the federal bills

Regulating Fishing and Hunting

The Natural and Cultural Resources Code includes Indiana’s laws for the regulation of hunting and fishing, which might also be affected by federal preemption. They include prohibitions on how fish are taken (IC 14-22-9-1), how certain fish are transported (IC 14-22-9-4), how waste from fishing in or near Lake Michigan is treated or disposed (IC 14-22-9-6), and stocking fish (IC 14-22-9-8). Indiana also regulates how aquatic vegetation is controlled (IC 14-22-9-10), requires licenses to transport fish outside the state (IC 14-22-10-3), and prohibits possessing, illegally taking, or accidentally killing wild animals, including fish (IC 14-22-10-4 and 14-22-10-5). Such destruction of wild animals by pollutants or by crippling and killing is also prohibited (IC 14-22-10-6). Each of these state laws could be preempted by the federal ballast water bills.

Indiana’s hunting and fishing license requirements (IC 14-22-11-1 to 14-22-11-8) control how and where hunters or anglers are able to obtain fish and thus could apply to owners or operators of ships that may trap or otherwise kill fish during the intake or discharge of ballast water. Similarly, Indiana requires permits for importing animals, prohibits those that may cause damage to native species, and prohibits releasing imported fish without a permit (IC 14-22-25-1 to 14-22-25-4). Indiana’s extensive law for conserving non-game and endangered species could also apply to any damage caused to native plants or animals by intake or release of ballast water (IC 14-22-34-1 to 14-22-34-20).

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INDIANA STATUTES POTENTIALLY PREEMPTED

Controlling Pests and Pathogens

Indiana laws on entomology and plant pathology further control and prevent the likelihood that pests or pathogens could damage public health, crops, the state’s economy, or its environment (IC 14-24-2-1 to 14-24-2-5, 14-24-3-1 to 14-24-3-9, 14-23-4-1 to 14-24-4-5, 14-24-4.5-1 to 14-24-4.5-17). In addition, Indiana’s laws to regulate nurseries contain restrictions to ensure that pests and pathogens do not enter the state and to require labeling and import licenses for nursery stock (14-24-5-1 to 14- 24-5-10, 14-24-6-1 to 14-24-6-7, and 14-24-7-1 to 14-24-7-5). All of these provisions could be violated if releases of ballast water contain pests or pathogens. Thus they might be preempted if Congress adopts a federal ballast water law.

Such preemption could also undermine Indiana’s authorities for enforcing its pest and pathogen controls (IC 14-24-11-1 to 14-24-11-5). Indiana law making it unlawful to distribute seeds within the state without proper testing and labeling (IC 15-4-1-6) might be preempted because seeds can be carried and released in ballast water. Similarly, the state code for pest control and vector abatement, which applies to any microrganism that could transmit pathogens or otherwise affect human health, could be interpreted as including such organisms that might be transported and released in ballast water (IC 16-41-33-1 to 16-41-33-9).

Managing and Preserving Water Rights

Various sections of Indiana’s laws on water rights contain requirements that might relate to ballast water discharges or intakes by ships in the Great Lakes. For its surface waters, Indiana prohibits uses that are not beneficial to the state, obstructions that block releases of water, diversions of water that might injure landowners or users of water, withdrawals of from natural water bodies, and especially diversion of water out of the part of the Great Lakes that lies within Indiana (IC 14-25-1-1 to 14-25-1-11). For its ground water, Indiana restricts withdrawals, transport, use, wastage, and pollution plus requiring permits for withdrawals (IC 14-25-3-1 to 14-25-3-18). If ships withdraw ballast water from the Great Lakes basin and take it elsewhere or if its release carries pollutants that could contaminate ground water, these state requirements might be preempted by the federal bills.

In addition, Indiana has detailed statutory requirements for managing its water resources, which include all boundary and coastal waters (IC 14-25-7-1 to 14-25-7-17). To obtain thorough data for understanding its water resources, the state further requires mapping, monitoring, measurement and surveys of water resources (IC 14-25-8-1 to 14-25-8-3 and 14-25-9-1 to 14-25-9-4). Diversions of state water by intake and release of ballast water would be likely to interfere with Indiana’s ability to document, locate, manage and conserve all its water resources. As a result, the federal preemption bills might apply to these state provisions.

Like the other Great Lakes states, Indiana has ratified the Great Lakes Basin Compact and has enacted the entire compact into law (IC 14-25-13-1 to 14-25-13-9). The ability of Indiana and its sister states

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to implement the compact could be impaired by federally preempting state laws that regulate ballast water discharges because many of the compact’s provisions and powers relate to improving fisheries, conserving water, combating pollution, and eradicating invasive species.

Controlling Infectious and Pathological Wastes

Indiana has extensive controls on the treatment of infectious and pathological wastes (IC 16-41-16-1 to 16-41-16-11). Because such wastes might be picked up or released during the intake or discharge of ballast water, these provisions could also be preempted by the federal ballast water law. Similarly, certain provisions of Indiana’s Health, , and Safety Code might be preempted – especially those relating to water supplies – because they prohibit depositing into the waters of Indiana any substance that is dangerous to public health or agriculture or that could destroy or jeopardize fish and vegetable life in water (IC 16-41-24-1 to 16-41-24-11).

Water, Waste, and Wetland Laws

Indiana’s Environmental Protection Code (Title 13) contains numerous requirements that might apply to ballast water. Its definitions of “contaminants” and “contamination,” “damage,” “discharge,” “environmental defect,” “environmental wastes,” “garbage,” “open dumping,” “regulated substance,” “removal,” “solid waste,” “transporter,” “user,” “wastewater,” and “waters” are all sufficiently broad to be interpreted as encompassing ballast water and vessels carrying it (IC 13-11-2-42, 43, 49, 55, 70, 72, 88, 138, 147, 179, 183, 187, 205, 225, 238, 244, 244.5, 256, and 265).

Assuming these interpretations of the state definitions are correct, then intake or release of ballast water could be regulated by Indiana’s laws on pollution of water (IC 13-18-4-1 to 13-18-4-6), release of hazardous materials (IC 13-18-5-1 to 13-18-5-2), abatement or correction of polluted conditions (IC 13-18-7-1 to 13-18-7-2), regulation of wetlands (IC 13-18-22-1 to 13-18-22-11), and removal and treatment of hazardous substances (IC 13-25-4-26 and 13-25-4-27).

Indiana’s statutory authorities to enforce its environmental code could similarly be undermined by a federal preemption provision to the extent that the state might try to use them for enforcing against illegal intakes or releases of ballast water (IC 13-30-2-1 to 13-3-3-7). The state’s enforcement provisions for inspections, notices of violations, administrative proceedings, and orders to correct violations would not necessarily be protected from preemption by the federal bills’ language preserving the states’ “greater penalties or fees” because Indiana’s potential enforcement actions would go beyond simply requiring that violators pay fines to remedy their non-compliance.

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State Environmental Protection Act

Indiana adopted a “little NEPA” in 1996 (IC 13-12-4-1 to 13-12-4-10). Like the federal National Environmental Policy Act (NEPA), Indiana’s law provides for preparing environmental impact statements (EIS) and making beneficial use of the environment “without degradation, risk to health or safety, or other undesirable and unintended consequences” (IC 13-12-4-4(3)). If Indiana were to adopt controls on intake or release of ballast water and to apply this EIS requirement when implementing its ballast water program, this state law might also be preempted by the federal bills.

Nuisance Law

Indiana’s Property Code (Title 32, Chapter 6) authorizes nuisance actions. It defines “agricultural,” “forestry,” and “industrial operations” (IC 32-30-6-1, 32-30-6-1.5, 32-30-6-2) in ways that might apply to shipping of ballast water. Plus its definitions of “locality” and “nuisance” (32-30-6-3 and 32-30-6-6) suggest that a state or private action to enjoin or abate a nuisance (IC 32-30-6-7 to 32-30-6-9) could possibly be brought against a vessel that carries or releases ballast water if it contains invasive or non- indigenous species.

See Appendix B for the full text of the Indiana statutes discussed in this section.

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MICHIGAN STATUTES POTENTIALLY PREEMPTED

VI. Michigan Statutes Potentially Preempted

A large number of the provisions in the Natural Resources and Environmental Protection Code of Michigan can be interpreted as potentially applicable to intake or release of ballast water. Given the possibility of this interpretation, they might be subject to preemption by the federal bills.

Fishing, Boating, and Aquatic Nuisance Species

Michigan’s fishing law requires licenses for taking any aquatic species, whether taken by a resident or non-resident, and makes it a misdemeanor for anyone over the age of 17 to take or possess an aquatic species without a license (Mich. Comp. Laws (MCL) sections 324.43532, 324.43533, and 324.43558). This prohibition could thus include the removal or killing of fish when they are pulled into a ship’s ballast tank.

Michigan’s water pollution laws contain many definitions relevant to regulating ballast water, including “aquatic nuisance species,” “ballast water,” “ballast water treatment method,” “sediments,” and “waters of the state” (MCL section 324.3101). Those laws then give Michigan’s Department of Environmental Quality (DEQ) extensive authority to protect and conserve the state’s surface and underground waters, to control water pollution, and to regulate waste disposal, including such impacts caused by owners or operators of vessels that discharge ballast water (MCL sections 324.3102, 324.3103, and 324.3103a).

DEQ is further authorized to join the other Great Lakes states in a coalition for reducing and preventing discharges of aquatic nuisance species from oceangoing vessels in the Great Lakes. This is in addition to its many powers to inspect and investigate any sources of water pollution, to establish standards for restricting waste and water pollution in any state waters, and to require permits for discharging waste into those waters, including discharges from oceangoing vessels that use Michigan’s ports (MCL sections 324.3104 to 324.3112).

State enforcement of these statutory provisions can include civil actions brought by the attorney general, temporary or permanent injunctions, fines up to $25,000 per day, and criminal liability for intentional violations; court findings of substantial endangerment to public health, safety, or welfare can result in fines ranging from $500,000 to $5 million for a civil case and $1 million or more, plus 5 years’ imprisonment in a criminal case (MCL section 324.3115).

Michigan law prohibits littering on land or in the water and from motor vehicles or vessels, making littering a misdemeanor and establishing a rebuttable presumption that the driver of a vehicle or vessel is responsible for the litter (MCL sections 324.8901 to 324.8904).

Similar prohibitions apply to littering of infectious or pathological waste, which are punishable by even larger fines and sanctions that include reimbursing the state for the cost of damages to any land,

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water, wildlife, or other natural resources and impoundment of the vessel or vehicle involved in the violation (MCL sections 324.8905, 324.8905a, 324.8950b, and 324.8905c).

Boating requirements in Michigan may be especially susceptible to preemption by the federal bills. The definitions of “discharge,” “litter,” and “watercraft” suggest that ballast water releases would be covered by the state’s prohibitions on discharging (i) any liquid or solid materials that might “be detrimental to public health or welfare or to the enjoyment of the water for recreational purposes” into state waters or (ii) oil into state waters, and by its requirement for installing pollution control devices on watercraft (MCL sections 324.9501 to 324.4505).

To ensure compliance with these provisions, the state may inspect all watercraft, marinas, and docks, establish uniform statewide requirements on discharges from watercraft, promulgate rules for docking facility water supplies, and punish any violations as a misdemeanor by imprisonment or a fine of not more than $500, or both (MCL sections 324.4506 to 324.4510).

Michigan’s Marine Safety laws apply to all types of boats and vessels used in state waters and authorize adoption of performance and safety standards related to boat construction and installation of equipment on boats (MCL sections 324.80101 to 324.80139). While many of these rules relate to concerns about boating safety, some of them apply to how vessels are operated, licensing of vessels, and what equipment they must carry. These elements of the state boating laws may thus be applicable to vessels’ intake and release of ballast water and their operation while in Michigan’s state waters. As a result, these laws may also be vulnerable to preemption by the federal bills.

Controlling Waste, Recovering Natural Resource Damages, and Preventing Pollution

Michigan’s Hazardous Waste Act may also apply to discharges of ballast water due to its broad definitions of “generator” and “hazardous waste” and its applicability to transporting such wastes (MCL sections 324.11103 and 324.11105). If vessels carry and/or discharge ballast water containing materials which qualify as hazardous or infectious waste and may pose hazards to human health or the environment, the state can establish standards for their operations, require them to obtain licenses, inspect them, and bring enforcement actions against them for injunctions, substantial fines up to $250,000, or imprisonment (MCL sections 324.11123, 324.11132a, 324.11133, and 324.1151).

Additional requirements in the Michigan Solid Waste Act for permits to dispose or transport a wide range of solid wastes may also apply to discharges of ballast water because the definitions in that act cover “unusable parts” of aquatic plants and or food wastes (MCL sections 324.11503, 324.11512, and 324.11528). Michigan’s authorities for recovering natural resource damages (MCL sections 324.20126a and 324.20140) might also be preempted by the federal bills if the state were to apply them to situations where the intake or release of ballast water will impair the use of state waters or adjacent state-owned lands.

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The Pollution Prevention Act of Michigan has a similarly broad definition of “environmental wastes” and requires DEQ to prevent, reduce, or eliminate pollution and environmental wastes “as expeditiously as possible” (MCL sections 324.14301 to 324.14303). The state’s Environmental Response Act for cleaning up spills of hazardous substances and recovering for claims of natural resource damages (MCL sections 324.20104, 324.20107a, 324.20114, 324.20115a, 324.20118, and 324.20126) might also be applied to harmful intakes or releases of ballast water. As a result, they too could be preempted by the federal bills.

Protecting the Great Lakes and Submerged Lands

Michigan, like the other Great Lakes states, enacted the Great Lakes Compact into law (MCL sections 324.32101 to 3243.2107). Because the compact authorizes Michigan to cooperate with the other states on managing and controlling marine life in the lakes, these state requirements could also be preempted. Michigan has adopted other requirements to protect the Great Lakes by prohibiting diversions from the lakes, requiring licenses and regular reports for withdrawing water from state waters and authorizing civil actions for any violations of state rules governing such diversions (MCL sections 324.32701 to 324.32713).

In addition, Michigan has laws to protect the state-owned bottomlands and submerged lands in the Great Lakes. Removals of vegetation and excavations or other alterations of any such lands or waters are prohibited and can be punished by imprisonment for not more than one year or a fine up to $1,000, or both (MCL sections 324.32501 to324.32515). Similarly, the state controls the bottomlands and any beds of its lakes, including the Great Lakes, and prohibits removals of any materials from those bottomlands without a lease from the state (MCL sections 324.33936 and 324.33938).

Protecting Wilderness, Endangered Species and Native Aquatic Species

Michigan’s laws for protecting wilderness and natural areas and its endangered species law may also apply to ballast water intakes or releases in the event that such actions remove vegetation, extract , or otherwise disturb or transport endangered or threatened plants or fish that are so designated either on state or federal lists of such species (MCL sections 324.35101 and 324.5105, 324.6105 to 324.4507).

Michigan’s Fish and Game law further protects fish in its waters, including the Great Lakes, from taking or killing unless authorized by state regulation or declaration of an open season (MCL sections 324.41101 to 324.41104). Violations are punishable as a misdemeanor by either imprisonment or a fine (MCL section 324.41105).

Moreover, possessing any aquatic species or taking them from any state waters without a license is explicitly prohibited (MCL section 324.43509); and all fish found in the portions of the Great Lakes within Michigan’s jurisdiction are declared to be the property of the state (MCL section 324.47301). As

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a result, the state has adopted requirements for commercial fishing and its seasons, limits on commercial fishing licenses, prohibitions on operation of vessels in a manner likely to alter the behavior of aquatic species, and protections from interfering with spawning or propagation of fish (MCL sections 324.47301, 324.37301a, 324.37302, and 324.47311 to 324.47319). In addition, Michigan restricts the disposal of refuse from catching fish and prohibits dumping any sand, , or other filth into a lake, with violations punishable by imprisonment, a fine, or civil damages (MCL sections 324.47901 to 324.47904).

Preventing or Controlling Disease

Michigan has enacted laws to prevent and control diseases (MCL sections 333.5209 and 333.5111) and to regulate the handling of medical waste (MCL sections 333.13805, 333.13807, and 333.13809). To the extent that ballast water intakes and releases may promote the spread of infections or other diseases and may interfere with their control, these state provisions might also be preempted.

Regulating Ballast Water

As discussed in section II above, Michigan has recently adopted several laws that explicitly apply to discharges of ballast water. Public Acts No. 32 and 33 (June 6, 2005), plus Public Act No. 97 (April 2, 2006), amended or added MCL sections 324.3101, 324.3104, 324.3109, 324.3109c, and 324.3112. As a result, the state now prohibits any discharge into the waters of the state “that is or may become injurious to … public health, safety, or welfare … to fish, aquatic life or plants or to their growth or propagation, [or] to the value of fish and game.” The same section further provides that “the discharge into the waters of this state from any oceangoing vessel of any ballast water is prima facie evidence of a violation” (MCL section 324.3109(6)).

Companion provisions in Act 97 adopt definitions of “aquatic nuisance species,” ballast water,” and “ballast water treatment method” (MCL section 324.3101) and then prohibit “the open water disposal of contaminated dredge materials” (MCL section 324.3109c), which might often come from , sand, or other materials that had been taken into ballast water.

With the enactment of these laws, Michigan became the first Great Lake state to adopt explicit requirements for vessels to obtain discharge permits for ballast water and to comply with certain treatment standards before ballast water is released. The state’s definition of “ballast water treatment method” specifies four ways to remove or destroy “living biological organisms” from ballast water and sediments: Filtration, application of biocides or ultraviolet light, thermal methods, and any other treatment techniques approved by DEQ (MCL sections 324.3101(c)(i)-(iv).

Permits are then required for discharging “any waste or waste effluent into the waters of the state” (MCL section 324.3112(1). Moreover, beginning on January 1, 2007, “all ocean going vessels engaging in port operations” in Michigan are required to obtain a permit, and DEQ can only issue permits to those vessels if they “can demonstrate that the ocean-going vessel will not discharge aquatic nuisance

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species or if the ocean vessel discharges ballast water or other waste or waste effluent, that the operator of the vessel will utilize environmentally sound technology and methods . . . to prevent the discharge of aquatic nuisance species” (MCL section 324.3112 (6)).

There can be no question that, if Congress adopts a federal ballast water statute, all of these Michigan laws regulating ballast water would be clearly inconsistent with the federal requirements and would thus be preempted.

See Appendix C for texts of the Michigan statutes discussed in this section.

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MINNESOTA STATUTES POTENTIALLY PREEMPTED

VII. Minnesota Statutes Potentially Preempted

Like most of the other Great Lakes states, Minnesota has a number of laws for protecting the environment and public health that might be interpreted as applicable to the intake or release of ballast water. Although the state legislature has not yet passed a law to establish requirements explicitly addressing ballast water, many other current Minnesota statutes may be vulnerable to preemption by the federal bills because of their scope.

Aquatic Species

The Minnesota Department of Agriculture is responsible for establishing rules governing the importation of “exotic or genetically altered aquatic species” so that the integrity of the state’s natural ecosystem will be protected and aquatic farmers will be able to make well-informed business decisions (Minnesota Statutes 2005 (MS) sections 17.497 and 17.4982). Transporting aquatic life within or into the state and its waters requires a state-issued bill of lading or transportation permit (MS section 17.4985). Permits are also required to harvest or destroy aquatic plants or algae (MS sections 103G.615, 103G.621. and 103G.625).

No vessels or watercraft may be placed in state waters if invasive species are attached to them; and violations of these prohibitions are punishable by warnings, civil penalties up to $1,000, or suspensions of licenses (MS sections 84D.10 and 84D.13). These state authorities might be preempted if applied to vessels carrying ballast water that contains aquatic or other invasive species.

Counties in Minnesota are authorized to adopt ordinances or otherwise to regulate how lakes and other bodies of water within their own or shared boundaries can be used, and they can also request that the state adopt particular rules on the uses of watercraft, including prohibitions on disposal of sewage or other wastes into state waters (MS sections 86B.205, 86B.325, and 103F.801). The counties’ ability to adopt such local rules could be preempted by the federal bills.

Fish and Game Laws

Minnesota defines “wild animals” as all living creatures -- including fish, crustaceans, and mollusks -- and protects them from harm, taking, possession or transportation without species-specific permits, licenses, or hunting seasons (MS sections 97A.015, 97A.025, 97A.031, 97A.04597A.083, and 97A.093). Additional requirements for game and fish licenses and for possession or shipping wild animals are set forth in MS sections 97A.501 to 97A.552.

Disturbance of wild animals is not permitted in protected areas for waterfowl or in public water reserves (MS sections 97A.095 and 97A.101). Illegally killing, injuring, or possessing wild animals is punishable by requiring restitution to the state for the value of the animals taken (MS section 97A.341).

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Minnesota has adopted a state endangered species law, which prohibits taking or transporting any endangered or threatened plants, animals, or any parts thereof; and violation of that law constitutes a misdemeanor (MS section 84.0895). Possession and transportation of certain harmful exotic or invasive species of aquatic plants and other species are also prohibited entirely (MS sections 84D.01 to 84D.07).

All of the above protections for fish and game could possibly be used by Minnesota to regulate vessels’ intake or release of ballast water and thus might be preempted by the federal bills.

Protecting State Water Resources

Minnesota has adopted a statutory policy to conserve and use its water resources in the best interests of its people and to promote public health and safety (MS section 103A.201). It also has adopted a Wild and Scenic Rivers Act to preserve and protect the recreational, scientific and other values of its rivers (MS sections 103F.305 to 103F.325). Minnesota’s Clean Water Partnership Law authorizes the state to assist local governments in controlling water pollution and protecting and improving the state’s surface and ground water (MS 103F.701 to 103F.751).

Minnesota further protects its wetlands and public waters from dredging, filling, excavating, or other alterations (MS sections 103G.005 and 103G.241); and failure to obtain permits for any of these activities is illegal (MS section 103G.251). Very large diversions of water also require a permit, including diversions from the Great Lakes; and any use or appropriation of state waters without measuring the quantity is prohibited (MS section 103G.265, 103G.271, 103G.281, and 103G.285). Because intake of ballast water could be covered by these laws and might qualify as any of these illegal activities, these state requirements could be preempted by the federal bills.

Environmental Impact Statement

The Minnesota Pollution Control Agency (MPCA) is responsible for implementing all of the state’s environmental laws. The agency carries out Minnesota’s “little NEPA” (MS sections 116D.01 to 116D.11). This law requires all state agencies to prepare environmental assessments or impact statements for any major agency actions that have the potential for significant environmental effects, including permits and other actions by MPCA itself (MS sections 116.02 and 116.05).

Controlling Water Pollution and Waste

MPCA implements the state water pollution law, which contains broad definitions of “water pollution,” “hazardous waste,” and “other wastes” that readily apply to all the materials that might be discharged from ballast water (MS 115.01). MPCA is empowered to adopt water quality standards, issue permits, and prohibit or abate discharges of any pollution or other wastes into the waters of the state (MS sections 115.03 to 115.061). Enforcement of these requirements can include criminal prosecution,

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recovery of civil or administrative penalties, and injunctions or other orders to compel performance (MS section 115.071).

MPCA has similar authorities to implement and enforce Minnesota’s laws prohibiting litter and regulating the disposal or release of solid and hazardous wastes (MS sections 115A.99, 115B.02 to 115B.28, 116.06 to 116.091, and 116.11 to 116.12). In addition to MPCA’s power to enforce these waste laws, the state has also authorized private rights of action for personal injury or property damage resulting from exposure to harmful substances released by facilities in Minnesota (MS sections 115B.29 to 115B.37).

Minnesota’s Toxic Pollution Prevention Act imposes further requirements for minimizing the transfer of toxic pollutants into the environment and reducing the sources of such pollution (MS sections 115D.01 to 115D.04). All of these state laws for protecting the environment from water pollution and waste discharges could be enforced by MPCA to regulate the intake or release of ballast water and thus might be preempted by the federal bills.

Emergency Preparedness and Response

Minnesota’s law authorizing MPCA to plan for and respond to environmental emergencies applies to all sorts of discharges, including those from vessels (MS section 115E.01). The law commands the owner or operator of a vessel (or any other facility) to prevent discharges of hazardous substances or oil into the waters of the state and to “be prepared at all times to rapidly and thoroughly recover” such discharged substances (MS sections 115E.02 and 115E.03).

Such owners and operators must also maintain a prevention and response plan for a “worst case discharge.” If such discharges occur, responsible parties can be ordered to pay MPCA an amount necessary to cover all reasonable costs incurred in responding to the discharges (MS sections 115E.04 and 115E.05). All of these provisions could be applied to regulate ballast water discharges and might be preempted by the federal bills.

Infectious Wastes and Diseases

Minnesota has adopted an Infectious Waste Control Act that applies to the storage, transportation, and discharge of infectious or pathological waste (MS sections 116.76 to 116.78). Its definitions of “infectious agents” and “infectious waste” could conceivably be applicable to such materials that are transported or discharged in ballast water, so vessels could be required to prepare plans for managing these wastes and could then be liable for mixing them with other waste materials or transporting them without a special registration (MS Sections 116.79 and 116.80). As a result, this could also be preemtpted by the federal bills.

Appendix D contains the text of Minnesota statutes discussed in this section.

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NEW YORK STATUTES POTENTIALLY PREEMPTED

VIII. New York Statutes Potentially Preempted

New York has many laws that relate to protecting the environment, conserving fish and game, regulating water pollution, controlling invasive plants, and preventing improper disposal of hazardous or solid waste. As explained below, most of these state powers could possibly be applied to the intake or release of ballast water and, if so, they could be preempted by the federal bills.

Permitting Ballast Water Discharges

The New York Environmental Conservation Law (ECL) gives the Department of Environmental Conservation (DEC) authority to issue both individual and general permits for projects that may require approval before discharging any air, water, or waste pollution (ECL section 70-0117). This provision explicitly mentions that DEC may issue a general permit “to cover ballast discharges from vessels, including tankers, while moored in port” (Id. at subsection 70-0117(5)(a)). Because this law allows DEC to impose conditions on ballast discharges, especially the types of pollutants, monitoring, and limits them to “minimal adverse cumulative impacts” (ibid.), it conflicts directly with the federal ballast water bills.

Protecting Fish and Wildlife

Articles 11 and 13 of the ECL contain New York’s Fish and Wildlife Law. That law declares that all species of fish, shellfish, and crustacea (plus many other species of game and wildlife) are owned by the state and are protected from any taking, killing, possession, or transporting of them unless allowed by law and in compliance with state regulations (ECL sections 11-0101 to 11-0107). DEC is authorized to set the seasons and size limits for taking fish in Lake Erie (among other boundary waters), and failure to comply with its regulations constitutes a violation of the Fish and Wildlife Law (ECL section 11-0317).

DEC is further authorized to prohibit taking, transporting or possessing any fish that might introduce or spread any disease “which endangers the health and welfare of fish or wildlife populations, or … of the human population”; and it can take any “Fish or wildlife control measures it may deem necessary to eliminate, reduce or confine the disease” (ECL section 11-0325). These provisions of New York law could potentially be used to restrict the intake or release of ballast water, and thus be preempted by the federal bills.

New York also prohibits polluting streams, obstructing the passage of fish in any stream or river, and releasing any fish or fish eggs without a permit (ECL sections 11-0503, 11-0505, 11-0507, and 11- 0511). The state also has adopted an unconditional prohibition on intentionally releasing or transporting zebra mussels (ibid. at subsection 11-0507(4), and has authorized DEC to remove in any manner any fish or shellfish which “hinder the propagation of food fish or shellfish or which are in

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imminent danger of being killed by pollution or otherwise” (ECL section 11-0517). All of these requirements might be readily violated when discharging ballast water that contains sludge, soil, or other pollutants, as well as specific materials like aquatic vegetation, fish, fish eggs, or zebra mussels. If so, these state prohibitions might be preempted by the federal bills.

The state law protecting endangered and threatened species specifically includes fish, shellfish, and crustacea and prohibits any taking, transportation, or possession of such species or any parts thereof, as well as protecting any species of special concern designated by DEC as being at risk of becoming threatened (ECL section 11-0535). Like endangered species acts adopted by the other Great Lakes states, this New York law could be preempted by the federal bills if intake or release of ballast water is found to harm these protected species.

New York further protects these species through its program, which includes the authority for establishing natural heritage areas in state-owned waters or lands where necessary to conserve and support such species (ECL section 11-0539). If ballast water intake or discharges occur within these protected New York waters, they would violate this state law, which might then be vulnerable to preemption.

Licenses for Hunting, Fishing, and Trapping

New York requires a license for any method of taking fish, whether by a resident or non-resident (ECL sections 11-0701 and 11-0703). Failure to carry that license “is presumptive evidence” that a person does not have one; and none of the exemptions from this requirement are applicable to vessels that may take or destroy fish or other aquatic species during the intake or discharge of ballast water (ECL sections 111-0705, 11-0707, and 11-0709).

Conserving and Protecting Water Resources

New York’s authorizes DEC to ensure that all state waters are conserved and developed for public health, safety, and welfare and to use its enforcement powers to control and prevent water pollution (ECL sections 15-0105, 15-0107, 15-0109, and 15-0301 to 15-0315). Additional authorities include a prohibition on disturbing or removing any sand, gravel, or other material from stream beds or navigable waters of the state without a permit (ECL sections 15-0501 and 15-0505). Illegal excavations or fills in state waters can be investigated by DEC, and violators can be assessed penalties or tax levies in amounts necessary to reimburse New York for the costs for removing or correcting such violations (ECL section 15-0511). Because intake and release of ballast water could cause such disturbances to state waters, these laws might be preempted.

New York law declares the state is the trustee for managing its waters to protect the environment to ensure the use and enjoyment of it by its citizens and, for that purpose, authorizes DEC to protect and promote the conservation of waters in the Great Lakes basin (ECL sections 15-1601 and 15-1603). To accomplish that goal, New York prohibits any large withdrawals of water from the Great Lakes without

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first registering with DEC, but DEC must give prior notice and consult with the other Great Lakes states before approving any large withdrawals or diversions of water from the Great Lakes basin (ECL sections 15-1605, 15-1607, 15-1609, 15-1611, 15-1613, and 15-1615). Typical ballast water intakes -- even for very large vessels -- are not likely to exceed New York’s statutory limit of 100,000 gallons per day; but if they ever are that large, this state law would apply to them and thus might be preempted by the federal bills.

Appropriation and use of water is likewise regulated by New York and such diversions or use must first receive a license from DEC, whether for purposes of generating power or otherwise; and the right to divert water from Lake Erie is especially subject to scrutiny by DEC even if previously granted by the state (ECL sections 15-1701, 15-1703, and 15-1749). Certain diversions are prohibited, including water used for commercial purposes and withdrawals that may interfere with navigation (ECL sections 15- 1715 and 15-1745). Thus, intake of ballast water without a state license could violate these provisions, which would make them vulnerable to preemption by the federal bills.

New York has created a state system of wild and scenic rivers designed to protect their recreational, botanical, fish, and other values as well as the lands adjacent to them (ECL sections 15-2701 to 15- 2723). Any activities that interfere with these values will violate this law and are punishable by injunction and a civil penalty of between $100 and $1,000 for each day of violation. Some of the rivers in this system flow into the Great Lakes and the intake or release of ballast water could disrupt the rivers’ ecology – including their plant and aquatic life -- or their recreational values. As a result, this law could also be used to regulate ballast water and thus potentially be preempted.

Controlling Water Pollution

Many of the extensive state provisions for protecting water quality and preventing or controlling water pollution could be applied to restrict intake or release of ballast water. New York classifies its water sources based on their quality and expected uses, establishes water quality standards to protect those uses, and authorizes DEC to issue permits, monitor water quality, and conduct enforcement actions when necessary to abate violations or ensure compliance (ECL sections 17-0103, 17-0105, 17-0301, and 17-0303).

State law explicitly prohibits dumping into its waters any garbage, sludge, sewage, other wastes, or substances injurious to edible fish and shellfish (ECL section 17-0503) and requires certain treatment for all discharges of sewage or other wastes into state waters (ECL sections 17-0509 and 17-0511). State pollution discharge permits are required for any sources of such discharges, and any discharges without a permit are prohibited (ECL sections 17-0801 to 17-0817). Vessels discharging ballast water could be required to obtain state permits and subject to enforcement action if they fail to do so.

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Managing Solid and Hazardous Wastes

Like its , New York’s statutes regulating solid and hazardous wastes are quite extensive. It requires that generation of hazardous and solid wastes be reduced or eliminated to the maximum extent practicable, that they be recovered, reused, or recycled, and then any remaining wastes be treated or destroyed (ECL sections 27-0101, 27-0105, and 27-0106).

Transporting these wastes is regulated to prevent their discharge into the environment and to ensure they are properly treated, stored, or disposed (ECL sections 27-0301 and 27-0303). Most likely, many of the materials found in ballast water – which typically include sludge, other solid or dissolved materials, refuse, and other liquids – would meet the state’s broad definition of “waste” (ECL section 27-0303(7)). As a result these disposal and transport requirements could apply to vessels carrying ballast water and thus possibly be preempted by the federal bills.

Enforcing the State’s Environmental Laws

Title 9 of New York’s Environmental Conservation Law (ECL) contains many of the state’s enforcement authorities that are applicable to the other provisions of the ECL. Violations of the ECL’s requirements can be penalized in many different ways, including inspections, searches, seizures of evidence, arrests, and forfeiture of ownership (ECL sections 71-0901 to 71-0911). For violations in its boundary waters (including the Great Lakes), New York gives reciprocity to its neighboring states for arrest and punishment of violations (ECL section 71-0913). Devices that take fish or crustaceans in violation of any law are declared to be nuisances, which can be abated summarily or the violator can be arrested (ECL section 71-0915).

Separate punishments are spelled out for violations of particular sections of the Fish and Wildlife Law. They range from misdemeanors with various amounts of fines or prison times to civil penalties, mandatory revocation of licenses, and either civil actions or criminal liability for particularly egregious violations (ECL sections 71-0919 to 71-1131). Additional penalties may be assessed for illegal commercialization of fish, shellfish, crustacean, or wildlife or parts thereof, and such violations may even be treated as a felony if the value of the illegally taken species exceeds $1,500 (ECL section 71- 0924).

Violations of specific sections of the state’s water and waste laws are penalized separately, and spelled out specifically for each section of that law. They likewise include misdemeanors with various amounts of fines or prison times, court actions for injunctive relief, criminal liability, and recovery of penalties by local governments affected by such violations (ECL sections 71-1901 to 71-1939). Penalties of $3,750 for an initial spill or release of bulk liquids into the waters of the state and additional penalties up to $750 per day that the liquids continue to reach state waters could be applied to discharges of ballast water (ECL sections 71-941 and 71-943). Consequently, these New York enforcement authorities – and all of the others that relate to violation of the state’s fish or pollution laws – might be preempted by the federal bills.

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NEW YORK STATUTES POTENTIALLY PREEMPTED

Great Lakes Basin Compact

New York has enacted the Great Lakes Basin Compact as part of its Environmental Conservation Law (ECL sections 21-0901 to 21-0915). In addition to codifying the entire compact, just as the other Great Lakes states have done, New York has also established a Great Lakes Basin Advisory Council within DEC to advise the Governor and DEC’s Commissioner about protecting the quality and quantity of water in the Great Lakes. If the state’s authority to implement the Compact or recommendations of this Advisory Council are the basis for DEC actions to regulate intake and discharge of ballast water, these provisions might also be preempted.

Regulating Navigable Waters and Nuisance Plants

New York has its own Navigation Law that might be used to regulate ballast water because it prohibits excavating or placing fill or depositing refuse – including any dead animal, garbage, or “other putrid or offensive matter”– in navigable waters of the state (Navigation Law sections 30, 31 and 33). Depositing such refuse is punishable as a misdemeanor with a fine not to exceed $100 or imprisonment of not more than one year, with repeated fines and prison terms for each violation. Ballast water could contain fill material, dead animals, or other offensive matter and might readily violate these laws.

The Navigation Law also authorizes the state or local governments to regulate vessels, which can include restricting the removal of garbage from them and limiting where they can moor (section 46-a). Such regulations could also apply to ballast water.

New York’s Public Health Law similarly authorizes local boards of health to declare that noxious weeds or plants are a nuisance or danger to public health, and to remove or destroy them (Public Health Law section 1320). A local board may then collect from the violators the expense of removing, destroying, or abating such nuisance plants (section 1321). Because ballast water could frequently contain seeds or entire plants that would qualify as noxious under New York’s law, this provision of the Public Health Law might be preempted by the federal bills.

See Appendix E for the full text of New York statutes discussed in this section.

Report for the Great Lakes Protection Fund: Potential Federal Preemption of Laws in the Great Lakes States 25

OHIO STATUTES POTENTIALLY PREEMPTED

IX. Ohio Statutes Potentially Preempted

Ohio’s coastal management program is designed to preserve, protect, and restore the water, wildlife, and other natural resources of its coastal areas, including the waters of Lake Erie. Its definitions of “coastal areas,” “coastal management,” and the state’s rights to the waters of Lake Erie, along with the powers it assigns to the Ohio Department of Natural Resources (DNR), could all be interpreted as potentially authorizing the state to regulate intakes and releases of ballast water (Ohio Rev. Code Ann. (ORCA) sections 1506.01, 1506.02, and 1506.10).

DNR is also responsible for conserving and managing agricultural lands, as well as abatement of pollution from agricultural operations (ORCA sections 1511.01 and 1511.02). In this capacity, it is responsible for regulating the composting of dead animals including fish (ORCA sections 1501 and 1511.022) and for protecting endangered native plants (ORCA sections 1518.01 and 1518.03). To the extent that dead fish and seeds from invasive plant species may be discharged from ballast into Ohio waters, these state laws might apply to such discharges and thus might be preempted by the federal bills.

DNR is authorized to manage Ohio’s canal lands, to conserve water in its canals, and to regulate any withdrawals or diversions from them (ORCA sections 1520.01, 1520.02, 1520.03, and 1520.99). Similarly, the Division of Water is responsible for developing an inventory and long-range plan for the state’s waters, for cooperating with the other Great Lakes states on managing the waters of Lake Erie, and for regulating any withdrawals, diversions, or consumptive uses of those waters (ORCA sections 1521.01 and 1521.15). If vessels using Lake Erie were to use any canal water or otherwise take and divert ballast water that would be used in a canal or other state waters, they would potentially be covered by all of these requirements. Thus these Ohio laws might be preempted by the federal bills.

DNR’s Division of Wildlife is responsible for protecting, preserving, and managing all wild animals, which include fish, crustaceans, and mollusks (ORCA sections 1531.01, 1531.02, 1531.04, and 1531.08). In this capacity, that division must also protect threatened species, prevent dumping of refuse in waters of the state, seize vessels used to transport or take wild animals, and prevent pollution of state waters (ORCA sections 1531.20, 1531.25, 1531.29, 1531.131, and 1531.201). Ohio’s fish and game laws restrict the taking, possession, and transporting of fish, as well as methods of taking fish (ORCA sections 1533.02, 1533.30, and 1533.37). They also prohibit dumping any wastes or other materials that might be litter into state waters from any vessel (ORCA sections 1547.01 and 1547.49). All of these provisions appear to cover any fish or other materials that might be contained in ship’s ballast water. Therefore, they too could be preempted by the federal bills.

Ohio’s Environmental Protection Agency (Ohio EPA) is empowered to regulate a wide range of activities that might otherwise cause pollution or harm the environment or public health. They include authority to prevent, control, and abate water pollution (ORCA sections 6111.01 and 6111.03), to investigate and enforce against any alleged acts of water pollution (ORCA section 6111.05), and to set discharge limits for any pollutant (ORCA section 6111.13).

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Ohio EPA also has authority for controlling the generation, transportation, disposal, and releases of hazardous, infectious, and solid wastes and for abating sources of water pollution from outside Ohio (ORCA sections 3745.01, 3745.09, 3734.01. 3734.021). To implement this authority, Ohio EPA adopts standards and issues permits for such releases and prohibits disposal of solid wastes by open dumping (ORCA sections 3734.02, 3724.03, and 3734.12). Many – perhaps all – of these powers might be interpreted as applying to intakes and releases of ballast water and might then be preempted by the federal bills.

Ohio’s adoption of the Great Lakes Basin Compact (ORCA section 6161.01) is similarly vulnerable to the interpretation that its powers could be used by the state to regulate the treatment, release, or intake of ballast water. If so, it could also be preempted.

See Appendix F for the full text of the Ohio statutes discussed in this section.

Report for the Great Lakes Protection Fund: Potential Federal Preemption of Laws in the Great Lakes States 27

PENNSYLVANIA STATUTES POTENTIALLY PREEMPTED

X. Pennsylvania Statutes Potentially Preempted

Pennsylvania has a wide range of laws that apply to plants and animals, including fish and crustaceans, which might be picked up or discharged during the intake or release of ballast water. The state’s laws for protecting public health and the environment, as well as for conserving its natural resources, might also apply to ballast water and thus be potentially preempted by the federal ballast water bills.

Controlling Plants and Noxious Weeds

The Pennsylvania Department of Agriculture has extensive authority to regulate “noxious weeds,” which can include any plant that might be injurious to public health (55 Pennsylvania Consolidated Statutes Annotated (Pa.CSA) chapter 391, section 255.2. Once a weed is declared noxious by the Noxious Weed Control Committee (55 Pa.CSA chapter 391, section 255.3), it is illegal to transport or propagate it (55 Pa.CSA chapter 391, section 255.4). Currently, Pennsylvania law lists four weeds as noxious; but the Committee can expand the list to include other plants (55 Pa.CSA chapter 391, section 255.8). Violations of the law are punishable as third degree misdemeanors (55 Pa.CSA chapter 391, section 255.10).

Regulating Fishing and Boating

Pennsylvania’s fishing and boating laws are administered by the Fish and Boat Commission, and the fishing laws are sufficiently broad to apply to ballast water intake or release. First, the definitions in the fishing laws include all types of aquatic organisms, vessels, and waters that might relate to the intake, transport, or discharge of ballast (30 Pa.CSA sections 102, 901, and 2101 to 2108).

Pennsylvania’s laws on threatened and endangered species also protect these species from catching, killing, transportation, taking, removal, and possession; they prohibit fishing or entry in any areas designated as refuges for such species and impose a third degree misdemeanor for any violations (30 Pa.CSA sections 2305 to 2307). It is unlawful to possess, transport, capture, or kill threatened and endangered species; and violations are third degree misdemeanors (34 Pa.CSA section 2167).

Pennsylvania further protects its waters, stream beds, watersheds, and any lands adjacent to or contiguous to them from any disturbance or digging that might cause damage to or loss of fish without obtaining permits (30 Pa.CSA sections 2501 to 2502). Similarly, the state fishing law prohibits littering and pollution along or in its waters, and such litter or pollution also includes any debris or other substance destructive to fish (30 Pa.CSA 2503 and 2504).

The state’s Fish and Boat Commission is authorized to protect fish and impose penalties for killing fish by pollution or littering, as well as to recover damages in a civil action (30 Pa.CSA 2506). All persons who catch fish must have proper fishing licenses or special permits to fish in Lake Erie and failure to obtain them is a third degree misdemeanor (30 Pa.CSA sections 2703 t0 2705, 2904, and 2907.2 to 2908). Moreover, transportation, importation, or introduction of any species of fish, bait fish, or bait

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for recreational fishing is prohibited (30 Pa.CSA section 3107). To the extent that all these provisions of the fishing laws might apply to ballast water, they could be preempted by the federal bills.

Pennsylvania has a separate boating law that might also apply to vessels carrying ballast water and thus be preempted by the federal bills. It authorizes the Fish and Boat Commission to adopt regulations for the operation and management of boats to protect fish and other aquatic life in the waters of the Commonwealth (30 Pa.CSA section 5123). Penalties for violations of those regulations are a third degree summary offense.

Like its sister states around the Great Lakes, Pennsylvania has enacted into law the Great Lakes Basin Compact (32 Pa.CSA chapter 34, section 817.1). The compact authorizes the states to combat pollution, conserve the waters of the Basin, improve and maintain its fisheries, and eradicate “destructive … forces endangering the fisheries, wildlife and other resources” of the Basin (Articles VI and VII). When the states exercise any of these powers, their actions could be preempted by the federal bills.

Hunting; Game and Wildlife

Pennsylvania regulates the hunting of wildlife and birds separately from its regulation of fishing and boating, but its hunting laws might also be preempted to the extent that they may apply to species of wildlife that are wounded, killed, or transported by the intake or release of ballast water. The state’s definitions of “hunting” and “wildlife” are quite broad and encompass a wide range of aquatic animals or birds (34 Pa.CSA section 102); and violations of hunting regulations adopted by the gaming commission may be penalized as a fifth degree summary offense (34 Pa.CSA sections 728 and 2102).

State enforcement officers have wide powers to investigate potential violations of the hunting laws (34 Pa.CSA section 901). A wide range of hunting activities are declared to be unlawful, including taking or possessing wildlife, removing wildlife from its place of refuge, failure to report killing of wildlife, and neglecting to care for the carcass or any part of wildlife (34 Pa.CSA sections 2126, 2307, and 2309), as well as killing wildlife by mistake (34 Pa.CSA section 2306(a)). The state is authorized to recover compensatory and punitive damages for disturbing, injuring or destroying wildlife; and to require payment of restitution by anyone who kills wildlife, including threatened or endangered species (34 Pa.CSA sections 2161 and 2306(b)).

None of the exemptions from these provisions apply to owners or operators of vessels that kill wildlife during intake or release ballast water (34 Pa. CSA sections 2162 and 2308(b)). Moreover, one of the unlawful methods for taking wildlife is “a conveyance of any kind or its attachment propelled by other than manpower” (34 Pa.CSA 2308(a)). Such methods might include mechanisms for ballast water intake or discharge that cause the death of fish or other species.

Report for the Great Lakes Protection Fund: Potential Federal Preemption of Laws in the Great Lakes States 29

PENNSYLVANIA STATUTES POTENTIALLY PREEMPTED

Preventing Water Pollution

The Pennsylvania Department of Environmental Protection (DEP) is responsible for controlling pollution and managing water quality in the state, including issuing permits, adopting water quality standards, and issuing orders to ensure compliance with its regulations (35 Pa.CSA 691.5). The definitions and other regulatory provisions of the state’s wide-sweeping Clean Streams Law could apply to discharges of ballast water if it qualifies as pollution, industrial waste, or sewage (35 Pa.CSA 691.1).

To discharge ballast water that meets Pennsylvania’s definition of industrial waste, a vessel’s owner or operator would first need to obtain a permit; and discharging such wastes without a permit is declared a nuisance (35 Pa.CSA section 691.307). In addition, DEP has the power to require permits for any activity potentially creating a danger of water pollution or requiring regulation to avoid such pollution, and failure to obtain a permit for such activities is also declared to be a nuisance (35 Pa.CSA section 691.402).

Managing Solid and Hazardous Waste

Pennsylvania defines “aquaculture,” “disposal,” “pollution,” “residual waste,” and “treatment” in ways that might cover discharges of ballast water (35 Pa.CSA section 6018.103). In particular, the definition of “residual waste” includes any “garbage, refuse, other discarded material or other waste” in a liquid or semi solid form. Among other regulatory powers, DEP is authorized to issue permits, conduct inspections or searches, bring enforcement actions, and abate public nuisances all related to residual and other forms of waste (35 Pa.CSA section 6018.104). Any violation of the act constitutes a public nuisance, and violators are liable for the costs of abating any pollution or other public nuisance (35 Pa.CSA section 6018.601).

Pennsylvania further requires that owners or operators who ship or transport hazardous waste to, within, through, or across the state must immediately report any releases of such substances; and the only releases not covered are those that are exempt under another federal or state law (35 Pa.CSA section 6022.206 (a) and (e)). When such emergency releases must be cleaned up by a hazardous material response team or some other emergency group, the transporter or other person who causes the release will be liable for the costs of that response, including the costs of removal and disposal of the waste (35 Pa.CSA section 6022.210).

Facilities, vehicles, or other sites that produce, store, or distribute any liquid or other hazardous materials must allow emergency planning officials to enter and inspect, as well as to test any substances they find during an inspection or emergency (35 Pa.CSA section 6022.211). Violations of these emergency reporting and related requirements may result in a civil penalty of $1,000 to $25,000; and any person who knowingly fails to report a release or obstructs a response may be found guilty of a second or third degree misdemeanor leading to imprisonment of up to one or two years (35 Pa.CSA section 6022.302). Failure to comply with these requirements may also lead to a civil action by the

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Attorney General, DEP’s Chief Counsel, or a county attorney; and willful violations may lead to criminal action by the Attorney General or the district attorney (35 Pa.CSA section 6022.303).

Planning for Adequate Water Supplies

Pennsylvania has adopted an extensive law to maintain and enhance the state’s supply of water. DER and regional watershed committees are responsible for preparing statewide and regional plans for availability of water supplies, preserving waters that provide natural or recreational values, and limiting withdrawals of surface and ground water (27 Pa.CSA sections 3103 to 3116).

DEP must establish a statewide data system of all the state’s water resources, and the Environmental Quality Board must adopt regulations requiring registration, reports, and recordkeeping for all withdrawals of water (27 Pa.CSA sections 3117 and 3118). Violations of these statutory requirements or the rules of the Board constitute a public nuisance and can be enforced by compliance orders or civil actions to abate the nuisance, plus collection of penalties up to $1,000 per day for each violation (27 Pa.CSA 3132 to 3136).

Protecting Watersheds

Pennsylvania’s Environmental Stewardship and Watershed Protection Act declares the importance of providing new and improved sources of water for public drinking water, recreational uses, and fish and wildlife habitats (27 Pa.CSA sections 6101 to 6103). It is designed to protect the Lake Erie watershed (among others) and establishes an Environmental Stewardship Fund for this purpose, composed of appropriations plus penalties and fees recovered by the state (27 Pa.CSA section 6104).

That fund can be used to improve impaired watersheds and otherwise promote water quality (27 Pa.CSA section 6105). A similar fund for Wild Resource Conservation is also established to promote projects that will preserve and enhance wild resources (27 Pa.CSA section 6108). To the extent that these funds could recover penalties or fees paid by owners or operators of vessels for illegal intake or release of ballast water, their continued operation might be challenged as being preempted by the federal bills.

See Appendix G for the full text of Pennsylvania statutes discussed in this section.

Report for the Great Lakes Protection Fund: Potential Federal Preemption of Laws in the Great Lakes States 31

WISCONSIN STATUTES POTENTIALLY PREEMPTED

XI. Wisconsin Statutes Potentially Preempted

Wisconsin has many resource conservation and environmental protection laws, similar to its sister Great Lakes states; and its laws too could possibly be interpreted as applying to the intake and release of ballast water, given their broad scope.

Conservation of Fish, Game, Lakes, and Plants

Chapter 23 of Wisconsin’s statutes contains numerous provisions that might be invoked by the state for regulating ballast water. The Department of Natural Resources (DNR) has extensive authorities to protect the state’s natural resources by establishing fish refuges, working with counties to manage fish and game, and controlling invasive species – including noxious weeds and aquatic plants -- that may cause harm to the environment, public health, or the economy (Wisconsin Statutes (WS) sections 23.09, 23.22, 23.235, and 23.24).

Distribution of invasive aquatic plants is illegal and is punishable as a nuisance by fines, forfeiture, or injunction requiring restoration of any natural resources damaged by the plants (WS 23.24(5) and (6)). DNR is also responsible for preparing biennial reports to the legislature about the economic and environmental impacts of aquatic nuisance species and its activities to reduce those risks (WS section 30.1255). Because ballast water can contain invasive plants and aquatic nuisance species, as well as many other species or materials that might harm the state’s economy, health, or the environment, its intake or release could potentially violate these laws and thus they might be preempted by the federal bills.

Chapter 29 is Wisconsin’s fish and game law, which makes DNR responsible for regulating “the enjoyment, use, disposition, and conservation” of all wild animals in the state; and it defines “wild animal” as “any … fish or other creature of a wild nature endowed with sensation and the power of voluntary motion” (WS sections 29.01(90) and 29.011). Among DNR’s broad powers to regulate fish and game, it must establish open and closed seasons, require licenses, implement the multi-state wildlife violator compact, and ensure the propagation of non-game species (WS sections 29.014.29.024, 29.03, 29.038, 29.039, and 29.041). It is then unlawful to possess, control, or transport wild animals or their carcasses during closed seasons; and DNR is authorized to limit the taking or transport of certain wild animals including fish, as well as to require fishing licenses for non-residents (WS sections 29.053, 29.057, 29.192, 29.228, 29.357, and 29.407).

It is also unlawful to take, capture, or kill fish by using any noxious or deleterious substances or devices; and the only exceptions to this law do not include intake or release of ballast water (WS 29.601). Wisconsin has adopted its own law to protect threatened and endangered species (WS 29.604), and it authorizes the propagation, removal, or importation of fish only when permits are issued by DNR (WS 29.701, 29.705, and 29.735).

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In addition to fines or forfeiture for violating these wildlife protection laws, Wisconsin also allows its courts to impose surcharges for protecting wild animals or commercial fish; and these fees are deposited into the state’s conservation fund (WS sections 29.983 and 29.984). All of the above fish and game laws thus could enable DNR to bring enforcement actions if any fish or other protected species are killed by the intake or release of ballast water. As a result, these laws might be vulnerable to preemption by the federal bills.

Water Resources

In order to protect its navigable waters, Wisconsin requires permits for depositing any materials, including sand, gravel, or stone, in its navigable waters (WS sections 30.01 and 30.12). It also requires permits for diverting water from any lakes or streams and makes DNR responsible for preserving a system of wild rivers once they are so designated by the legislature (WS sections 30.18 and 30.26). Withdrawals or diversions of large water quantities from the Great Lakes to other watersheds must be registered with and approved by DNR, and any proposal for a large loss of water from the Great Lakes basin must be submitted for consultation with other Great Lakes states (WS sections 281.35 and 281.81 to 281.85).

Wisconsin further protects its navigable waters by gathering data on the sources of pollution and making plans to prevent degradation of water quality or to rehabilitate already polluted waters (WS sections 33.001, 33.01, 33.11 to 33.15, and 218.31). To the extent that ballast water discharges are one of the causes of water pollution in the state’s waters, vessels making those discharges may be subject to regulation under these water protection laws.

Similarly, DNR is responsible for protecting the state’s groundwater and for preventing or minimizing any substances that might contaminate drinking water that is drawn from groundwater sources (WS sections 160.001, 160.01 to 160.36). DNR is authorized to adopt enforcement standards and other preventive action limits that will provide adequate safeguards for public health (ibid.). To the extent that ballast water might contain such contaminants that could reach groundwater or drinking water supplies after they are discharged, it might be possible to interpret these laws as regulating ballast water and thus make them vulnerable to preemption by the federal bills.

Public Health

The Wisconsin Department of Health is responsible for preventing or controlling hazards to human health including restricting swimming due to unsanitary conditions at beaches and abating any substances, nuisances, or other activities that have the potential to cause illness or death (WS sections 254.01, 254.46, and 254.59).

The Department of Health is also responsible for administering Wisconsin’s Pure Drinking Water law by enforcing standards and safeguards to protect water supplies from pollution (WS sections 280.01,

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WISCONSIN STATUTES POTENTIALLY PREEMPTED

280.11, 280.13, and 280.25). If ballast water intake or release could spread the risk of health hazards or could cause violations of the drinking water standards, the state might use these laws to regulate ballast water, making them subject to preemption.

Regulating Water Pollution and Hazardous Waste

The state laws regulating water and sewage authorize prevention and abatement of water pollution and the adoption of water quality standards to protect human health, fish and aquatic life, and other environmental values (WS sections 281.11 to 281.17). These requirements may be enforced through adopting rules and permits for operating domestic and industrial wastewater treatment systems, as well as inspecting those systems and bringing enforcement actions to abate any nuisance created by such systems that may affect waters of the state, including non-point sources of pollution that violate water quality standards or impair aquatic habitat or organisms (WS sections 281.19 and 281.20).

Wisconsin’s statutes also establish a water pollution discharge elimination system, which requires permits for all discharges of any pollutant into any waters of the state (WS sections 283.001, 283.01, 283.11 to 283.19, and 283.31). If water pollution degrades any natural resources, the state may recover monetary damages to compensate for the lost resources (WS 283.87). Discharges of ballast water might easily cause violations of any of these state restrictions on water pollution, so Wisconsin’s water pollution laws could possibly be preempted by the federal bills.

Similarly, the state laws regulating hazardous waste authorize DNR to prohibit certain methods for treatment or disposal of such wastes and to require permits or licenses for generating, transporting, treating, and storing them (WS 291.07 to 291.11 and 291.23). Violations of these requirements can lead to revocation of permits or licenses, as well as penalties, and citizens or a municipality can petition DNR to review any alleged violation of hazardous waste regulations (WS section 291.89).

Great Lakes Basin Compact

Chapter 14 of Wisconsin law contains its adoption of the Great Lakes Basin Compact (WS sections 14.78 (1) to 14.78(4)). It declares that the policy of Wisconsin is to carry out the Compact and for state officials to “do all things falling within their respective jurisdictions necessary or incidental to carrying out such compact” (WS section 14.78(4)). The wide range of activities authorized by the Compact and this broad authority for Wisconsin officials to implement the Compact could possibly lead to situations where Wisconsin’s regulatory or other actions might affect the intake or release of ballast water. As a result, this Wisconsin law could be preempted by the federal bills.

See Appendix H for the ful text of Wisconsin statutes discussed in this section.

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CONCLUSION

XII. Conclusion

This report examines the potential impacts of preemption provisions in two pending federal bills (S. 363 and H.R. 5030) on a variety of statutes adopted by the eight Great Lakes states: Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin. The first section explains the fundamental precedents and patterns of court rulings that frequently favor federal preemption of state laws attempting to regulate shipping or maritime practices. The courts are even more likely to uphold federal preemption when a lack of uniformity among state requirements will create some disadvantages for business. These court decisions highlight the potential impacts on a wide variety of state laws if the preemption language in S. 363 and H.R. 5030 is adopted by Congress.

Michigan has taken the lead among Great Lakes states in adopting a detailed ballast water law that takes effect on January 1, 2007. Under this rule vessels must treat ballast water before it is discharged and must obtain permits prior to such discharges; open water dumping of dredged bottom materials is also banned (MCL section 324.3103a). Michigan’s requirements are much stricter than the two federal bills.

If Congress passes one of the federal bills, including their current preemption provisions, they will directly conflict with and overrule Michigan’s stricter law. Any similar or future legislation passed by other Great Lakes states may thus be greatly limited, and those states may be prevented from adopting sufficient requirements to protect the entire Great Lakes basin from nuisance species introduced and spread by ballast water.

As the preceding sections of this report make clear, the two bills currently pending in Congress, when interpreted broadly, could preempt state statutes that regulate fishing and hunting, control boating, license recreational or commercial activities on state waters, and protect threatened or endangered species and their habitats. The federal bills could also preempt state laws to control insect pests, plant diseases, or other nuisances, protect public health, and regulate invasive and/or non-indigenous species.

A number of delegated state Clean Water Act programs -- including authorities that regulate sources of water pollution, or dredging and filling, and drinking water or ground water protection -- might also be preempted. In addition, the federal bills could limit the states’ ability to control their own state waters -- including water consumption, use, transfers, intakes, diversions and the handling of materials from lake or river bottoms -- as well as their ability to regulate waste dumping and to protect other state-owned or controlled natural resources. Finally, states’ regulation of shipping, energy facilities, or utilities’ water intake and discharge could conflict or be inconsistent with the two federal ballast water bills and thus might also be preempted.

It is necessary to recognize that the federal bills currently pending in Congress are aimed at preventing the spread of invasive species from ballast water discharges. The pending legislation protects some

Report for the Great Lakes Protection Fund: Potential Federal Preemption of Laws in the Great Lakes States 35

CONCLUSION

state laws from preemption, if they impose “greater penalties or fees.” However, this protection of state laws may have little practical effect because only Michigan and California have adopted their own standards for treatment or management of ballast water.

It is critically important to account for current and future efforts by states to adopt their own legislation, in addition to the enforcement of a variety of current state statutes, that will be limited by the preemption provisions of the federal bills. The impact of this language, when viewed with a wide lens, threatens the ability of the Great Lakes states to protect their own waters, shores, plants, fish, wildlife, and people from the adverse economic, environmental, and health impacts of invasive species and diseases that may often be transported by ballast water.

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