U.S. Court of Appeals Invalidates Ballast Water Treatment Regulations & Vessel General Permit

On October 5, in the case of Natural Resources Defense Council v. U.S. EPA, the United States Court of Appeals for the Second Circuit invalidated the process USEPA used in promulgating its 2013 Vessel General Permit that sets that agency’s standards for discharges from merchant vessels under the federal Clean Water Act, also setting aside the VGP. Pursuant to the Court’s decision, EPA must completely re-do the regulatory process from the beginning, this time formulating a new VGP taking into account factors including: (1) EPA's previous decision to set the TBELs (Technology-based Effluent limitations) at the IMO (International Maritime Organization) Standard; (2) EPA's failure to consider onshore treatment for ballast water discharges; (3) EPA's decision to exempt pre–2009 Lakers from the TBELS in the 2013 VGP permit; (4) EPA's narrative standard for WQBELs (Water Quality-based Effluent Limitations) and (5) The monitoring and reporting requirements established by EPA for WQBELs.

It is critical to note that the Court also ruled that the 2013 VGP remains in effect until EPA issues a new VGP. As for the Coast Guard’s ballast water regulations, those were primarily promulgated under authority from Non-indigenous Aquatic Nuisance Prevention and Control Act of 1990 and the 1996 National Invasive Species Act (NISA), statutes separate in many respects from the Clean Water Act, and more closely focused on preventing the transport into the U.S. of harmful organisms such as zebra mussels, green crab and certain micro-organisms. That authority and the Coast Guard’s ballast water regulations were not ruled upon in this case.

EPA must choose between re-doing the VGP regulatory process or seeking Supreme Court review of the Second Circuit’s decision. Either way, long-standing issues will likely continue to be unresolved, or at the least unclear. These include the ambiguities between USEPA and USCG responsibilities regarding vessel discharges, the balancing process between TBELs and WQBELs, the problematic aspects of potentially requiring shore-based treatment of ballast water and – most of all – how U.S. environmental regulation can be effectively yet pragmatically be applied to the essentially global shipping industry.


BOEM OCEAN SCIENCE Releases Special Issue on the Arctic Council

BOEM OCEAN SCIENCE, the journal of the U.S. Bureau of Ocean Energy Management, has just distributed hard copies of its special issue on the Arctic Council, for which the United States is currently serving as the Chair. The U.S. is one of eight founding nations (the “Member States”) of the Council, which addresses the environmental, natural resource and cultural issues presented by the opening of the Arctic and its associated Outer Continental Shelf. An electronic copy of the issue may be seen at


Governor of Massachusetts Appoints Verrill Dana Attorney to Seaport Economic Council

On Monday of this week, Massachusetts Governor Charlie Baker issued an Executive Order establishing the Seaport Economic Council and appointed Attorney Harlan Doliner as one the Council’s charter members. The Council’s purpose is to provide statewide coordination of all coastal community planning and investment activities, with its aims including leveraging our marine technology industry to stimulate economic development and create jobs in the maritime economy sector as well as to protect coastal assets that are vital to achieving these aims.

Sworn-in by Lieutenant Governor and Council Chairwoman Karyn Polito, Attorney Doliner joins municipal leaders, representatives from coastal communities, maritime trade associations, and senior level staff from the Commonwealth’s Departments of Transportation and Energy and Environmental Affairs. 

“The maritime economy remains a vital part of Massachusetts and presents an untapped potential for growth in this sector,” stated Lieutenant Governor Polito. “The Council will prioritize innovation in creating ‘blue’ or ocean-based jobs, partnerships with public education institutions, local maritime planning efforts, and supportive coastal infrastructure projects that meet standards of resilience and sustainability.”

“The Seaport Economic Council demonstrates our commitment to promoting economic prosperity in cities and towns of all sizes,” said Governor Baker. “We look forward to the robust role coastal communities can contribute to job and economic growth in the Commonwealth.”

Attorney Doliner, Chair of Verrill Dana’s Maritime Practice Group, serves as President of the Marine and Oceanographic Technology Network (MOTN), a marine tech industry association based in New England and teaches at the Marine Affairs Institute of Roger Williams Univ. Law School. Click here to read the Executive Order establishing the Seaport Economic Council.

  With Lt. Governor Polito standing at his side, Governor Baker signs the executive order establishing the Massachusetts Seaport Economic Council. Council members about to be sworn in are to the right, with Bruce Tarr, Senate Minority Leader (R-Gloucester) in front of the door.

  Lt. Governor Polito administers the oath of office to the new Council members.

 Following the oath, Gov. Baker shaking hands with Attorney Doliner.

 Post ceremony press conference, with Carolyn Kirk, Deputy Secretary of Housing and Economic Development and Executive Director of the Seaport Economic Council (red jacket) and (to the right) Gov. Baker and Atty. Doliner

[All photos by Bob Hamilton, MOTN Board Member and Pres., Woods Hole Group, Inc.]

This is the final blog post by Verrill Dana Summer Associate, Chris Monroe, who is returning for his final year at Maine Law School. Thanks to Chris for his great posts and all his efforts on behalf of our Maritime Group and its clients. Good luck at Maine Law. Fair winds and following seas!


Multinational Trade Specialists Visit Boston to Explore Marine Tech Industry

Attorney Harlan Doliner, chair of Verrill Dana’s Maritime Law Group, and Jeff Komrower, Senior Engineer at Noise Control Engineering, LLC of Billerica, MA, recently briefed a multinational team of Trade Specialists from the U.S. Department of Commerce’s International Trade Administration and Commercial Service during their visit to Boston. The U.S. Commercial Service is the trade promotion arm within the U.S. Department of Commerce responsible for promoting U.S. exports.

The U.S. Commercial Service maintains a world-wide team of Trade Specialists focusing on marine technology, port/maritime security, port operations and shipbuilding. The team is known, coincidentally enough, as the Marine Technology Team. This week, Marine Technology Team members from offices around the world and centers of commerce throughout the U.S. gathered in Boston for training.

Maryanne Burke, Marine Technology Team Leader, invited Verrill Dana and Noise Control Engineering, LLC (both members of the Marine & Oceanographic Technology Network (MOTN) -- a marine tech industry association based in New England), to provide an overview of the U.S. and New England marine tech industries and to provide a business presentation by a representative New England marine tech company.

Additional information on the U.S. Dept of Commerce, Commercial Service is available here. Information concerning the Marine & Oceanographic Technology Network (MOTN) is available at their website.


NOAA Seeks Applicants for Hydrographic Panel

NOAA is soliciting applications for membership on the Hydrographic Services Review Panel, a federal advisory committee that advises the NOAA administrator on the agency’s hydrographic programs, products, and technology. Applications must be received by August 10.

“Quality data is essential to NOAA maritime programs, whether it is developing innovative products for precision navigation, creating richer data streams for ocean observations, or tapping into new possibilities of crowdsourcing and other modes of data collection,” said Russell Callender, Ph.D, acting assistant NOAA administrator for the National Ocean Service. “As we determine future priorities, we depend on advice from actual users of our products, and this panel is a vital part of that information gathering process.”

The panel advises NOAA on operations and research issues related to hydrographic surveying, nautical charts, tides and currents, geodetic and geospatial measurements, and coastal resilience. Applicants should have expertise in marine navigation; port administration; marine shipping or other intermodal transportation industries; cartography and geographic information systems; geodesy; physical oceanography; coastal resource management, including coastal resilience and emergency response; or other science-related fields.

Current panel membership includes individuals with diverse backgrounds in the maritime technology sector including commercial shipping, the cruise industry, industry/trade associations and businesses ranging from small businesses to large consulting firms. HSRP has informally mentioned a particular interest in adding a New England perspective to the panel.

For more information on how to apply, see the Federal Register notice or visit the HSRP website.