New York State Appellate Division upholds NY State standards for discharge
of ballast water in State waters

On February 4, 2010, the New York Supreme Court, Appellate Division, held that certain water quality certification conditions issued by the New York State Department of Environmental Conservation, were permissibly issued in accordance with the Clean Water Act and relevant New York State laws.

In order to regulate the discharge of ballast water from vessels operating in U.S. waters, in 2008 the United States Environmental Protection Agency issued a proposed Vessel General Permit for Discharges Incidental to the Normal Operation of Commercial Vessels and Large Recreational Vessel ("VGP"). Thereafter, the New York Department of Environmental Conservation ("DEC"), in accordance with the Clean Water Act § 401, issued a certification of the VGP, including several conditions necessary to protect New York State's waters from the harmful effects caused by the release of ballast water. The Petitioners, a group comprised of public corporations, shipping companies and other entities involved in maritime trade in New York waters and ports, brought an action challenging the DEC's certification. This case arises from the Petitioners' appeal of the New York State Supreme Court ruling that the certification conditions were procedurally and substantively proper.

The conditions challenged by the Petitioners' were:

  • (1) Vessels conducting voyages within the exclusive economic zone [the area extending from "the base line of the territorial sea of the United States seaward 200 [nautical] miles," 33 CFR 151.1504] are required to perform either a ballast water exchange or a saltwater flush at least fifty (50) nautical miles from shores and at least two hundred (200) meters deep
  • (2) Vessels are required to install ballast water treatment systems before January 1, 2012 in order to comply with numeric standards for invasive species discharges (resulting from ballast water discharges into new ecosystems)
  • (3) Vessels constructed on or after January 1, 2013 are required to meet more rigid standards for invasive species discharges

The Appellate Division upheld the prior dismissal of the Petitioners' application to review the certification conditions. The Court based its holding on the well-settled principle that in a proceeding seeking review of an agency decision, the court "may not substitute its judgment for that of the agency" unless the agency's determinations are found to "lack a rational basis or are arbitrary and capricious."  The Court found that the record consisted of sufficient scientific evidence and expert opinion to support the DEC's decision to impose the certification conditions and that the conditions are reasonable restrictions intended to facilitate compliance with New York's water quality standards. In further support of its position, the Court cited provisions of the Clean Water Act, specifically CWA § 401(d), which allow States to implement more stringent conditions to VGP certification than the base conditions imposed by the Environmental Protection Agency.

Additionally, the Appellate Division rejected all alternative arguments presented by the Petitioners. Specifically, the Panel found that, since the Petitioners only alleged economic harm to themselves and speculative ecological injury to the public, they lacked standing to challenge the DEC's compliance with the State Environmental Quality Review Act. The Court also found Petitioners' argument that the certification conditions violate the Commerce Clause of the Constitution to be without merit, as the Clean Water Act expressly permits the DEC to issue the certification conditions to the VGP.

Read a copy of the NYS Appellate Division's decision

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