By: Jeffrey Pritchard, Albany Government Law Review
On January 9, 2014, New York State’s Department of Environmental Conservation (DEC) released the text of a proposed rule which aims to fine boaters for the failure to clean and drain a boat prior to entering a New York body of water. This regulation is aimed at curbing the spread of invasive species, which have been located in bodies of water throughout New York State, resulting in damaging effects for native aquatic life. With this proposed rule, the DEC is hoping the possibility of a $250 fine will ensure boaters take proper care of their watercrafts, and prevent further proliferation of invasive species in New York water bodies.
A Tale of Two Invasive Species
The spread of an invasive species such as Hydrilla verticillata (hydrilla) is why the DEC is concerned with proper boat sanitation. Hydrilla is an aquatic plant which appears harmless to the eye, but can have devastating impacts on a water body’s ecosystem. Hydrilla resembles seaweed and can grow to be twenty or thirty feet long. Once hydrilla is in a body of water, it can grow up to an inch in length per day; a fast-paced spread which can prove fatal to native plants in a body of water, since hydrilla blocks sunlight native plants need to survive. Hydrilla can also harm fish by reducing oxygen levels in the water. Hydrilla is widespread in Long Island, and was first located upstate in Cayuga Lake in Ithaca, New York in 2011. Hydrilla has since been discovered in the west end of the Erie Canal in 2012. Considering the distance of Cayuga Lake from the west end of the Erie Canal, this spread was likely the result of a hydrilla stem hitching a ride on a dirty boat from Cayuga Lake to the Canal.
A more widespread invasive species, Dreissena polymorpha (zebra mussel), is also the target of the DEC’s proposed regulation. The zebra mussel is a small organism which attaches easily to boats and other solid surfaces. The zebra mussel’s propensity to stick to boats is not the only troublesome aspect of their ability to attach to surfaces. As a result the zebra mussel’s rapid reproduction, if one latches on to a public water supply pipe it could quickly render that pipe clogged with zebra mussels, resulting in millions of dollars spent by local governments to remove the blockage. The zebra mussel has been found in water bodies throughout New York State, with its spread being undoubtedly assisted by attaching to dirty boats.
Overview of Federal Invasive Species Regulation
Regulation of the methods of travel of invasive species is not a novel concept, as these species were once the target of federal legislation. Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, and its successor, National Invasive Species Act of 1996 (NISA), passed in response to the spread of aquatic invasive species in the United States. Zebra mussels were specifically mentioned by name in these pieces of legislation. In NISA, Congress targeted the introduction of invasive species specifically through ballast water tanks. Ballast water tanks store water that a large boat takes on at the port of departure, and discharges at its destination.
By its very nature, ballast water is a prime vehicle for invasive species transportation. The fact that 10,000 marine species are estimated to be transported by ballast water tanks daily indicates ballast water requires regulation to control the spread of invasive species. NISA provided regulation over ballast water by creating a National Ballast Water Information Database and providing demonstrations on the proper use of existing technologies to treat ballast water to remove invasive species; however, funding for NISA expired in 2002, and Congress has not since renewed funding for limiting the spread of invasive species.
Ballast water dumping was not regulated by the Environmental Protection Agency (EPA) after NISA’s expiration, as the EPA had exempted ballast water from the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) permitting system. The Clean Water Act requires a discharger of any pollutant into the navigable waters of the United States to receive a NPDES permit. In the years after NISA’s expiration, however, New York State joined as a plaintiff in a challenge to the EPA’s ballast water exemption in Northwest Envtl. Advocates v. EPA. In this case, the Ninth Circuit affirmed that it was Congress’s intent for the EPA to regulate ballast water under the Clean Water Act, as ballast water fits the definition of a pollutant. After this ruling, ballast water may not be discharged without an NPDES permit.
The “Clean Your Boat” Rule
The DEC’s new proposed regulation adds to the EPA’s ballast water regulations by using the police power of New York State. The police power is the power of a state to regulate people and property in order to promote the public health and safety. As an arm of the state, the DEC uses this power in order to protect and enhance the environment. The DEC specifically has the authority to manage aquatic wildlife, weeds, and boat launches. This legislative grant of power to the DEC provides the statutory framework for this “Clean Your Boat” rule.
The “Clean Your Boat” rule states that no “watercraft [may be launched in New York] with any plant or animal, or parts thereof, visible to the human eye, in, on, or attached to any part of the watercraft.” Therefore a boat with even one small zebra mussel or hydrilla stem would be subject to a fine, and boaters would need to undergo a thorough cleaning of their craft in order to comply with the regulation by ensuring no invasive species is hitching a ride on the craft. This is a burden on boaters, but, if this regulation is to be effective in stopping the spread of invasive species, banning the transport of any amount of such species is necessary.
The proposed rule defines watercraft as “every motorized or non-motorized boat or vehicle capable of being used or operated as a means of transportation or recreation in or on water,” meaning this rule would apply to canoes, rafts, or even a recreational water tube. Although it seems extreme to subject even a small tube to this regulation, invasive species can travel on non-motorized watercrafts just as well as on motorized ones; therefore, applying this rule to all watercrafts makes it more likely to be effective in controlling the spread of invasive species.
DEC wildlife authorities have the power to search a boat without warrant if there is a suspected violation of fish and wildlife regulations. These DEC agents also have the power to issue fines to a boater not compliant with regulations. This provides the statutory authority for the $250 fine levied for violations of this proposed rule.
Although the DEC states in the notice of the proposed rule that this regulation will have no financial cost to the agency, the DEC does pay the wildlife authorities tasked with inspecting the boats and imposing fines, therefore there is some cost to enforcement of the rule in its current state. As discussed below, any attempts to strengthen the rule would also add additional costs to New York State.
Criticisms and Recommendations
The Lake George area was ahead of the rest of New York State in putting in place invasive species inspections. As of May 2014, all boats launched into Lake George are subject to mandatory inspections to ensure there are no invasive species carried on the boat. The inspections in Lake George are paid half by New York State, and half by a partnership of municipalities and businesses situated around the lake. There is no cost for the inspections, and a boat is cleaned free of charge if it is found carrying an invasive species. In order to get the word out about the new mandatory inspections, the Lake George partnership sponsored a public information campaign with a website entitled “Lake George Boat Inspections”.
A criticism of the “Clean Your Boat” rule advanced by the Times Union is, because the statewide rule lacks mandatory boat inspections, the rule is voluntary and will not be effective. Instead, the argument suggests, there should be mandatory statewide inspection of boats entering the water, similar to the system in place for Lake George. As noted, however, the Lake George area had the funding available to staff inspection sites. Other municipalities across the state which have bodies of water may not have such funding available, especially with many upstate communities struggling economically. The proposal from the Times Union to implement a statewide inspection system modeled after Lake George would likely require a significant financial contribution from New York State. A less expensive alternative would be to use Lake George as a model for getting the word out to the boating public about their new obligations under this rule.
Because ensuring a boat is properly cleaned would be every boater’s legal duty under this regulation, the DEC should clearly communicate to boaters what their obligations are under this regulation. In addition to an information campaign modeled after the Lake George program, the DEC could provide cleaning demonstrations similar to those authorized under the National Invasive Species Act of 1996. In these demonstrations, the DEC could provide demonstrations of cleaning techniques for ballast tanks and boats, as well as examples of boats that would be subject to the fine, and boats that are clean enough to pass an inspection under the new regulation. The aforementioned federal law NISA appropriated $2.5 million dollars for its Ballast Water Management Demonstration Program. The DEC would not need to spend this much money on an educational program, however, they would incur some cost, similar to the informational campaigns for Lake George. The cost of such education programs may be covered by the revenue brought in by fines for non-compliant water crafts, it is important to note that by law the fines levied under this regulation will be paid to the general fund of New York State, not going directly to the DEC.
If the DEC communicates more to boaters about their new obligations under this regulation, this rule could play an important part in controlling the spread of invasive species in New York. Although invasive species such as zebra mussel have already made their way to water bodies throughout New York State, there is still time to stop their further spread, as well as the spread of other less-prevalent species such as hydrilla. The adoption of this regulation, while imposing an additional burden on boaters in New York waters, is a positive step in the fight against the spread of invasive species.
 New York State Dep’t of Envtl. Conservation, DEC Proposes Regulatory Changes to Prevent the Introduction of Aquatic Invasive Species at Boat Launches (2014), http://www.dec.ny.gov/press/95172.html (emphasis added).
 New York Invasive Species Information, Cornell Cooperative Extension Invasive Species Program, (Oct. 2012), http://www.nyis.info/index.php?action=invasive_detail&id=16.
 U.S. Geological Survey, Zebra Mussel FAQs, (Sept. 3, 2013), http://fl.biology.usgs.gov/Nonindigenous_Species/Zebra_mussel_FAQs/zebra_mussel_faqs.html.
 Aquatic Nuisance Prevention and Control Act of 1990, Pub. L. No. 101–646, 104 Stat. 4761.
 National Invasive Species Act of 1996, Pub. L. No. 104–332, 110 Stat. 4083.
 Aquatic Nuisance Prevention and Control Act, supra note 13.
 Northwest Envtl. Advocates v. EPA, 537 F.3d 1006, 1012 (9th Cir. 2008).
 National Invasive Species Act, supra note 14, at Sec. 1102, 1104(b)(1), 110 Stat. 4073-4.
 Id. at 110 Stat. 4090.
 40 C.F.R. § 122.3(a) (2013) (exempting from NPDES permitting the discharge of water in the “normal operations of a vessel” The EPA argued that ballast water release was in the normal operation of boats, therefore, ballast water release was not subject to the NPDES permitting system.).
 33 U.S.C. § 1342(a).
 Northwest Envtl. Advocates v. EPA, 537 F.3d 1006, 1010 (9th Cir. 2008).
 Id. at 537 F.3d 1020–22.
 Final National Pollutant Discharge Elimination System General Permit for Discharges Incidental to the Normal Operation of a Vessel, 73 Fed. Reg. 79473 (Dec. 29, 2008).
 Joseph F. Zimmerman, The Government and Politics of New York State 1–2 (2d ed) (2008).
 See State of New York Management Resources Project, Governing the Empire State 9 (1988).
 N.Y. Envtl. Conservation Law § 3-0301(1)(c) (McKinney 2014).
 Id. at § 3-0301(1)(k).
 Id. at § 11-2101(1)(a).
 State Boat-Launching Sites, Fishing-Access Sites and Fishing Rights Areas, Department of Environmental Conservation Proposed Rule (to be codified at 6 NYCRR 59), http://www.dec.ny.gov/regulations/95111.html.
 N.Y. Envtl. Conservation Law § 71-0907(4)(b) (McKinney 2014).
 Id. at § 71-0923(1).
 State Boat-Launching Sites, Fishing-Access Sites and Fishing Rights Areas, Regulatory Impact Statement, Department of Environmental Conversation (to be codified at 6 NYCRR 59), http://www.dec.ny.gov/regulations/95116.html.
 Editorial, A Naïve Plan For Invasives, Times Union, Jan. 16, 2014, http://www.timesunion.com/opinion/article/Editorial-A-naive-plan-for-invasives-5150183.php.
 National Invasive Species Act, Pub. L. No. 104–332, 110 Stat. 4073, 4084 (1996).
 Id. at 110 Stat. 4091.
 N.Y. Envtl. Conservation Law § 71-0507(4) (McKinney 2014) (directing all fines levied under the Environmental Conservation Law be paid to the New York general fund).