[atlas:bill]

AN ACT Relating to ballast water management on the Columbia river; amending RCW 77.120.030, 77.120.040, 77.120.060, and 77.120.070; adding a new section to chapter 77.120 RCW; and creating new sections.

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

NEW SECTION. Sec. 1. The legislature recognizes that western states bordering on the Pacific Ocean have approved separate laws on ballast water that affect commercial shipping for the protection of waterways from aquatic nuisance species. Legislatures in these states have recognized the international threat to waterways and the difficulty that any one state has in legally and cost-effectively managing this issue.

The states of Washington and Oregon have a unique stewardship and challenge in jointly managing issues affecting the navigable waters of the Columbia river system. This joint stewardship must deal efficiently and effectively with ballast water management in order to have an effective aquatic nuisance species prevention program, but not unduly impair the regional and international trade that is so important to our economies. When practical and cost-effective, implementation of ballast water management laws, rules, and regulations adopted by the states of Washington and Oregon should be coordinated among all affected parties, including all public agencies and private interests.

NEW SECTION. Sec. 2. (1) For ballast water management in the navigable waters of the Columbia river system, the director of the department of fish and wildlife must monitor the activities of the task force created by the state of Oregon in 2001 Or. Laws 722, concerning ballast water management. Before ballast water treatment technologies go into effect for the navigable waters of the Columbia river system, the director, in consultation with the task force, must:

(a) Determine practical and cost-effective ballast water treatment technologies suitable for the navigable waters of the Columbia river system;

(b) Determine appropriate standards for discharge of treated ballast water in the navigable waters of the Columbia river system;

(c) Determine the degree to which exchange of ballast water decreases the risk of transporting aquatic nuisance species into the navigable waters of the Columbia river system;

(d) Determine the compatibility of treatment with laws enacted by the United States congress and regulations promulgated by the United States coast guard and ballast water regulations by other western states and British Columbia;

(e) Research requirements for ballast water treatment technology and other areas of concern related to the possible introduction of aquatic nuisance species; and

(f) Recommend amendments to the National Invasive Species Act of 1996, P.L. 104-332, for a single national system of regulation.

(2) The director of the department of fish and wildlife must submit a report to the natural resources committees of the legislature by January 2003. The report must contain the findings and recommendations required in subsection (1) of this section, including a recommendation for a date to require treatment of ballast water.

Sec. 3. RCW 77.120.030 and 2000 c 108 s 4 are each amended to read as follows:

The owner or operator in charge of any vessel covered by this chapter is required to ensure that the vessel under their ownership or control does not discharge ballast water into the waters of the state except as authorized by this section.

(1) Discharge into waters of the state is authorized if the vessel has conducted an open sea exchange of ballast water. A vessel is exempt from this requirement if the vessel's master reasonably determines that such a ballast water exchange operation will threaten the safety of the vessel or the vessel's crew, or is not feasible due to vessel design limitations or equipment failure. If a vessel relies on this exemption, then it may discharge ballast water into waters of the state, subject to any requirements of treatment under subsection (2) of this section and subject to RCW 77.120.040.

(2) After July 1, 2002, except for the navigable waters of the Columbia river system, discharge of ballast water into waters of the state is authorized only if there has been an open sea exchange or if the vessel has treated its ballast water to meet standards set by the department. When weather or extraordinary circumstances make access to treatment unsafe to the vessel or crew, the master of a vessel may delay compliance with any treatment required under this subsection until it is safe to complete the treatment.

(3) 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 navigable waters of the Columbia river system, or the internal waters of British Columbia south of latitude fifty degrees north, including the waters of the Straits of Georgia and Juan de Fuca.

(4) Open sea exchange is an exchange that occurs fifty or more nautical miles offshore. If the United States coast guard requires a vessel to conduct an exchange further offshore, then that distance is the required distance for purposes of compliance with this chapter.

Sec. 4. RCW 77.120.040 and 2000 c 108 s 5 are each amended to read as follows:

The owner or operator in charge of any vessel covered by this chapter, except vessels traversing the navigable waters of the Columbia river system, is required to ensure that the vessel under their ownership or control complies with the reporting and sampling requirements of this section.

(1) Vessels covered by this chapter must report ballast water management information to the department using ballast water management forms that are acceptable to the United States coast guard. The frequency, manner, and form of such reporting shall be established by the department by rule. Any vessel may rely on a recognized marine trade association to collect and forward this information to the department.

(2) In order to monitor the effectiveness of national and international efforts to prevent the introduction of nonindigenous species, all vessels covered by this chapter must submit nonindigenous species ballast water monitoring data. The monitoring, sampling, testing protocols, and methods of identifying nonindigenous species in ballast water shall be determined by the department by rule. A vessel covered by this chapter may contract with a recognized marine trade association to randomly sample vessels within that association's membership, and provide data to the department.

(3) Vessels that do not belong to a recognized marine trade association must submit individual ballast tank sample data to the department for each voyage.

(4) All data submitted to the department under subsection (2) of this section shall be consistent with sampling and testing protocols as adopted by the department by rule.

(5) The department shall adopt rules to implement this section. The rules and recommendations shall be developed in consultation with advisors from regulated industries and the potentially affected parties, including but not limited to shipping interests, ports, shellfish growers, fisheries, environmental interests, interested citizens who have knowledge of the issues, and appropriate governmental representatives including the United States coast guard.

(a) The department shall set standards for the discharge of treated ballast water into the waters of the state. The rules are intended to ensure that the discharge of treated ballast water poses minimal risk of introducing nonindigenous species. In developing this standard, the department shall consider the extent to which the requirement is technologically and practically feasible. Where practical and appropriate, the standards shall be compatible with standards set by the United States coast guard and shall be developed in consultation with federal and state agencies to ensure consistency with the federal clean water act, 33 U.S.C. Sec. 1251-1387.

(b) The department shall adopt ballast water sampling and testing protocols for monitoring the biological components of ballast water that may be discharged into the waters of the state under this chapter. Monitoring data is intended to assist the department in evaluating the risk of new, nonindigenous species introductions from the discharge of ballast water, and to evaluate the accuracy of ballast water exchange practices. The sampling and testing protocols must consist of cost-effective, scientifically verifiable methods that, to the extent practical and without compromising the purposes of this chapter, utilize easily measured indices, such as salinity, or check for species that indicate the potential presence of nonindigenous species or pathogenic species. The department shall specify appropriate quality assurance and quality control for the sampling and testing protocols.

NEW SECTION. Sec. 5. A new section is added to chapter 77.120 RCW to read as follows:

(1) The director of the department of fish and wildlife must adopt rules for ballast water management in the navigable water of the Columbia river system. The rules must include, but are not limited to, provisions pertaining to reporting requirements and ballast water discharge. No rules regarding ballast water treatment technologies for use in the Columbia river system may be adopted until after the conclusion of the 2003 regular legislative session.

(2) The monitoring, sampling, testing protocols, and methods of identifying nonindigenous species in ballast water for the navigable waters of the Columbia river system must be adopted by the department by rule. In developing the rule, the department must take into account the research and activities of the task force created under section 2 of this act in order to coordinate the collection of sampling and testing data. The department may use third parties, research organizations, or colleges and universities to collect sampling and testing data, including appropriate scientific methods and protocols, frequency of sampling, and other appropriate procedures.

(3) Rules adopted under this section must not be more restrictive than rules adopted by the state of Oregon for ballast water management in the navigable waters of the Columbia river system.

Sec. 6. RCW 77.120.060 and 2000 c 108 s 7 are each amended to read as follows:

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 December 1, 2001, and a second report on or before December 1, 2004. The 2001 report shall describe how the costs of treatment required as of July 1, 2002, will be substantially equivalent among ports where treatment is required. The 2004 report must describe how the states of Washington and Oregon are coordinating their efforts for ballast water management on the Columbia river. The department shall strive to fund the provisions of this chapter through existing resources, cooperative agreements with the maritime industry, and federal funding sources.

Sec. 7. RCW 77.120.070 and 2000 c 108 s 8 are each amended to read as follows:

(1) Except as limited by 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 or operator in charge of a vessel who fails to comply with the requirements imposed under RCW 77.120.030 ((~~and~~)), 77.120.040, and section 5 of this act. The penalty shall not exceed five thousand dollars for each violation. In determining the amount of a civil penalty, the department shall consider if the violation was intentional, negligent, or without any fault, and shall consider the quality and nature of risks created by the violation. The owner or operator 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 prevails using 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 violation of reporting requirements of RCW 77.120.040 or section 5 of this act shall not exceed five hundred dollars per violation.

(3) Any owner or operator who knowingly, and with intent to deceive, falsifies a ballast water management 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.

(4) The department, in cooperation with the United States coast guard, may enforce the requirements of this chapter.