BP BHEAD INT S [atlas:bill]

AN ACT Relating to ballast water management; adding a new chapter to Title 75 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that some nonindigenous species have the potential to cause economic and environmental damage to the state and that current efforts to stop the introduction of nonindigenous species from shipping vessels do not adequately reduce the risk of new introductions into Washington waters.

The legislature recognizes the international and rapidly changing dimensions of this issue, and the difficulty that any one state has in either legally or practically managing this issue. Recognizing the possible limits of state jurisdiction over international issues, the state declares its support for the international maritime organization and United States coast guard efforts, and the state intends to complement, to the extent its powers allow it, the United States coast guard's ballast water management program.

NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Ballast tank" means any tank or hold on a vessel used for carrying ballast water, whether or not the tank or hold was designed for that purpose.

(2) "Ballast water" means any water and suspended matter taken on board a vessel to control or maintain trim, draft, stability, or stresses of the vessel, without regard to the manner in which it is carried.

(3) "Exchange" means to replace the water in a ballast tank using either flow through exchange, empty/refill exchange, or as otherwise specified by United States coast guard regulations.

(4) "Nonindigenous species" means any species or other viable biological material that enters an ecosystem beyond its historic range, including such an organism transferred from one country into another.

(5) "Person" includes any individual, trust, firm, joint stock company, or corporation, including, but not limited to, a government corporation, partnership, or association.

(6) "Recognized marine trade association" means those trade associations that promote improved ballast water management practices by educating their members on the provisions of this chapter, participating in regional ballast water coordination through the Pacific ballast water group, assisting the department in the collection of ballast water exchange forms, and the monitoring of ballast water. This includes members of the Puget Sound marine committee for Puget Sound and the Columbia river steamship operators association for the Columbia river.

(7) "Vessel" means a self-propelled ship in commerce of three hundred gross tons or more.

(8) "Voyage" means any transit by a vessel destined for any Washington port from a port or place outside the waters of the state, the Columbia river, or the Straits of Georgia or Juan de Fuca.

(9) "Waters of the state" means any surface waters, including internal waters contiguous to state shorelines within the boundaries of the state.

NEW SECTION. Sec. 3. (1) This chapter applies to all vessels carrying ballast water into the waters of the state from a voyage, except:

(a) A vessel of the United States department of defense or United States coast guard subject to the requirements of section 1103 of the national invasive species act of 1996, or any vessel of the armed forces, as defined in 33 U.S.C. Sec. 1322(a)(14), that is subject to the uniform national discharge standards for vessels of the armed forces under 33 U.S.C. Sec. 1322(n);

(b) A vessel that discharges ballast water or sediments only at the location where the ballast water or sediments originated, if the ballast water or sediments do not mix with ballast water or sediments from areas other than midocean waters; or

(c) A vessel traversing the internal waters of Washington in the Strait of Juan de Fuca, bound for a port in Canada, and not entering or departing a United States port, or a vessel in innocent passage, which is a foreign vessel merely traversing the territorial sea of the United States and not entering or departing a United States port, or not navigating the internal waters of the United States.

(2) This chapter does not authorize the discharge of oil or noxious liquid substances in a manner prohibited by state, federal, or international laws or regulations. Ballast water containing oil, noxious liquid substances, or any other pollutant shall be discharged in accordance with the applicable requirements.

(3) The master, operator, or person in charge of a vessel is responsible for the safety of the vessel, its crew, and its passengers. Nothing in this chapter relieves the master, operator, or person in charge of a vessel of the responsibility for ensuring the safety and stability of the vessel or the safety of the crew and passengers.

NEW SECTION. Sec. 4. No vessel covered by this chapter shall discharge ballast water into the waters of the state unless at least one of the following conditions are met:

(1) The vessel has conducted an open sea exchange of ballast water in compliance with methodologies recognized by the United States coast guard. This subsection does not apply to any vessel if, in the opinion of the vessel's master, the ballast exchange operation or treatment will threaten the safety of the vessel, the vessel's crew, or the vessel design limitations, equipment failure, or any other extraordinary conditions. A vessel shall exchange its ballast water a minimum of fifty miles offshore; or

(2) Beginning January 1, 2002, the vessel has treated its ballast water in such a manner that either the department or the United States coast guard certifies that the ballast water is a minimal threat to introduce a nonindigenous species or pathogen into the waters of the state. The department shall develop and adopt a discharge standard for vessel ballast for the purposes of this subsection.

The requirements of this section do not apply to a vessel discharging ballast water or sediments that originated solely within the waters of Washington state, the Columbia river, or the Straits of Georgia or Juan de Fuca.

NEW SECTION. Sec. 5. (1) All vessels covered by this chapter shall provide to the department the ballast water management information required by the United States coast guard. Any vessel may rely on a recognized maritime trade organization to forward this information to the department.

(2) In order to monitor the effectiveness of national and international efforts to prevent the introduction of invasive species, all vessels covered by this chapter shall submit monitoring data describing any nonnative species that might be present in the vessel's ballast. A vessel covered by this chapter may contract with a recognized maritime trade organization to randomly sample vessels within that organization's membership, and provide aggregate data to the department. Vessels that do not belong to a recognized maritime trade organization must submit individual ballast tank sample data to the department for each voyage.

(3) The department shall develop and adopt ballast sampling and testing protocols for use by vessels or their contractors in reporting data under subsection (2) of this section. These protocols shall consist of cost-effective, scientifically valid methods to verify that the ballast does not contain nonnative or pathogenic species. To the extent practical, these protocols shall utilize easily measured indicators such as salinity, or checks for species that indicate a likely presence of nonnative or pathogenic species. All data submitted to the department under subsection (2) of this section shall be consistent with these sampling and reporting protocols.

NEW SECTION. Sec. 6. The legislature recognizes that international and national laws relating to this chapter are changing and that state law must adapt accordingly. The department shall submit to the legislature, and make available to the public, a report that summarizes the results of this chapter and makes recommendations for improvement to this chapter on or before November 1, 2002. The department shall strive to fund the provisions of this chapter through existing resources, cooperative agreements with the maritime industry, and federal funding sources.

NEW SECTION. Sec. 7. (1) Except as provided in subsection (2) or (3) of this section, the director or the director's designee may impose a civil penalty or warning for a violation of the requirements of this chapter on the owner, operator, or person in charge of a vessel. The penalty shall not exceed five thousand dollars for each violation. Each day of a continuing violation constitutes a separate violation. In determining the amount of a civil penalty, the department shall consider if the violation was intentional, negligent, or without any fault of the person, and shall consider the quality and nature of risks created by the violation. A person subject to such a penalty may contest the determination by requesting an adjudicative proceeding within twenty days. Any determination not timely contested is final and may be reduced to a judgment enforceable in any court with jurisdiction. If the department uses any judicial process to collect a penalty under this section, the department shall also be awarded its costs and reasonable attorneys' fees.

(2) The civil penalty for a person who fails to comply with reporting requirements of section 5 of this act shall not exceed five hundred dollars per violation. Each day of a continuing violation constitutes a separate violation.

(3) Any person who knowingly, and with intent to deceive, falsifies a ballast water control report form is liable for a civil penalty in an amount not to exceed five thousand dollars per violation, in addition to any criminal liability that may attach to the filing of false documents. Each day of a continuing violation constitutes a separate violation.

(4) The department, in cooperation with members of the United States coast guard acting as ex officio officers under RCW 77.08.010, may enforce the requirements of this chapter.

(5) All penalties and payments collected for violations of any requirements of this chapter shall be deposited into the exotic species control account created in section 8 of this act.

NEW SECTION. Sec. 8. The exotic species control account is created in the custody of the state treasurer. All receipts from appropriations or fines received under this chapter must be deposited into the account. Expenditures from the account may be used only for funding state or regional projects that improve the state's ability to prevent or control the accidental or unauthorized introduction of exotic species into state waters. Only the director of fish and wildlife or the director's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

NEW SECTION. Sec. 9. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 10. Sections 1 through 9 of this act constitute a new chapter in Title 75 RCW.