BILL REQ. #:  S-2339.2 

READ FIRST TIME 02/28/07.   

     AN ACT Relating to ballast water management; amending RCW 77.120.010, 77.120.020, 77.120.030, 77.120.070, 90.48.020, and 90.48.030; amending 2004 c 227 s 2 (uncodified); adding new sections to chapter 77.120 RCW; repealing RCW 77.120.060, 77.120.080, and 77.120.090; and prescribing penalties.

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

Sec. 1   RCW 77.120.010 and 2000 c 108 s 2 are each amended to read as follows:
     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 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) "Empty/refill exchange" means to pump out, until the tank is empty or as close to empty as the master or operator determines is safe, the ballast water taken on in ports, estuarine, or territorial waters, and then refilling the tank with open sea waters.
     (4) "Exchange" means to replace the water in a ballast tank using either flow through exchange, empty/refill exchange, or other exchange methodology recommended or required by the United States coast guard.
     (5) "Flow through exchange" means to flush out ballast water by pumping in midocean water at the bottom of the tank and continuously overflowing the tank from the top until three full volumes of water have been changed to minimize the number of original organisms remaining in the tank.
     (6) "Nonindigenous species" means any species or other viable biological material that enters an ecosystem beyond its natural range.
     (7) "Open sea exchange" means 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.
     (8) "Recognized marine trade association" means those trade associations in Washington state 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.
     (9) "Sediments" means any matter settled out of ballast water within a vessel.
     (10) "Untreated ballast water" includes exchanged or unexchanged ballast water that has not undergone treatment, boat, barge, or other floating craft.
     (11) "Vessel" means a ((self-propelled)) ship ((in commerce)), boat, barge, or other floating craft of three hundred gross tons or more, United States and foreign, carrying, or capable of carrying, ballast water into the coastal waters of the state after operating outside of the coastal waters of the state, except those vessels described in RCW 77.120.020.
     (12) "Voyage" means any transit by a vessel destined for any Washington port.
     (13) "Waters of the state" means any surface waters, including internal waters contiguous to state shorelines within the boundaries of the state.

Sec. 2   RCW 77.120.020 and 2000 c 108 s 3 are each amended to read as follows:
     (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 (((i))) 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 open sea waters((; or (ii) that does not discharge ballast water in Washington waters)); and
     (c) A vessel in innocent passage, merely traversing the ((internal waters of Washington in the Strait of Juan de Fuca, bound for a port in Canada,)) territorial sea of the United States and not entering or departing a United States port, ((or a vessel in innocent passage, which is a 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((; and
     (d) A crude oil tanker that does not exchange or discharge ballast water into the waters of the state)), and that does not discharge ballast water into the waters of the state.
     (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 or operator 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 or operator 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.

Sec. 3   RCW 77.120.030 and 2004 c 227 s 3 are each amended to read as follows:
     (1) 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, 2007,)) 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 consistent with applicable state and federal laws. ((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) Masters, owners, operators, or persons-in-charge shall submit to the department an interim ballast water management report by July 1, 2006, in the form and manner prescribed by the department. The report shall describe actions needed to implement the ballast water requirements in subsection (2) of this section, including treatment methods applicable to the class of the vessel. Reports may include a statement that there are no treatment methods applicable to the vessel for which the report is being submitted.
     (4) The ballast water work group created in section 1, chapter 282, Laws of 2002 shall develop recommendations for the interim ballast water management report. The recommendations must include, but are not limited to:
     (a) Actions that the vessel owner or operator will take to implement the ballast water requirements in subsection (2) of this section, including treatment methods applicable to the class of the vessel;
     (b) Necessary plan elements when there are not treatment methods applicable to the vessel for which the report is being submitted, or which would meet the requirements of this chapter; and
     (c) The method, form, and content of reporting to be used for such reports.))
     (3) The department, in consultation with the ballast water work group, or similar collaborative forum, shall adopt by rule standards for the discharge of ballast water into the waters of the state and their implementation timelines. The standards are intended to ensure that the discharge of ballast water poses minimal risk of introducing nonindigenous species. In developing these standards, the department shall consider the extent to which the requirement is technologically and practically feasible. Where practical and appropriate, the standards must be compatible with standards set by the United States coast guard, the federal clean water act (33 U.S.C. Sec. 1251-1387), or the international maritime organization.
     (4) If the master, operator, or person in charge of a vessel decides that the open sea exchange or treatment of ballast waters would threaten the safety of the vessel, its crew, or its passengers, because of adverse weather, vessel design limitations, equipment failure, or any other extraordinary conditions, the master, operator, or person in charge of a vessel must chemically treat the ballast water prior to discharge to ensure that aquatic invasive species are destroyed. A master, operator, or person in charge of a vessel who relies on this exemption must file documentation defined by the department, subject to: (a) Payment of a fee not to exceed five thousand dollars; (b) discharging only the minimal amount of ballast water operationally necessary; (c) documenting the location of the discharge, chemical used to treat the ballast water, and amount of chemical applied; (d) ensuring that ballast water records accurately reflect any reasons for not complying with the mandatory requirements; and (e) any other requirements identified by the department by rule as provided in subsections (3) and (6) of this section.
     (5) For treatment technologies requiring shipyard modification ((that cannot reasonably be performed prior to July 1, 2007, the department shall provide the vessel owner or operator with an extension to the first scheduled drydock or shipyard period following July 1, 2007)), the department may enter into a compliance plan with the vessel owner. The compliance plan must include a timeline consistent with drydock and shipyard schedules for completion of the modification. The department shall adopt rules for compliance plans under this subsection.
     (6) For an exemption claimed in subsection (4) of this section, the department shall adopt rules for defining exemption conditions, requirements, compliance plans, and recommended chemicals for treatment and corresponding dose concentration levels to meet the intent of this section.
     (((6))) (7) The department shall make every effort to align ballast water standards with adopted international and federal standards while ensuring that the goals of this chapter are met.
     (((7))) (8) 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 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.
     (((8))) (9) 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   2004 c 227 s 2 (uncodified) is amended to read as follows:
     (1) The director of the department ((of fish and wildlife)) must establish the ballast water work group.
     (2) The ballast water work group consists of the following individuals:
     (a) One staff person from the governor's executive policy office. This person must act as chair of the ballast water work group;
     (b) Two representatives from the Puget Sound steamship operators;
     (c) Two representatives from the Columbia river steamship operators;
     (d) Three representatives from the Washington public ports, one of whom must be a marine engineer;
     (e) Two representatives from the petroleum transportation industry;
     (f) One representative from the Puget Sound water quality action team;
     (g) Two representatives from the environmental community;
     (h) One representative of the shellfish industry;
     (i) One representative of the tribes;
     (j) One representative of maritime labor; ((and))
     (k) One representative from the department ((of fish and wildlife));
     (l) One representative from the department of ecology; and
     (m) One representative from the cruise ship industry.
     (3) The ballast water work group must ((study, and provide a report to the legislature by December 15, 2006, the following issues)) begin operation immediately upon the effective date of this section. The Puget Sound action team or its successor agency must provide staff for the ballast water work group from existing personnel within the action team. The ballast water work group must:
     (a) ((All issues relating to ballast water technology, including exchange and treatment methods, management plans, the associated costs, and the availability of feasible and proven ballast water treatment technologies that could be cost-effectively installed on vessels that typically call on Washington ports;
     (b) The services needed by the industry and the state to protect the marine environment, including penalties and enforcement;
     (c) The costs associated with, and possible funding methods for, implementing the ballast water program;
     (d) Consistency with federal and international standards, and identification of gaps between those standards, and the need for additional measures, if any, to meet the goals of this chapter;
     (e) Describe how the costs of treatment required as of July 1, 2007, will be substantially equivalent among ports where treatment is required;
     (f) Describe how the states of Washington and Oregon are coordinating their efforts for ballast water management in the Columbia river system; and
     (g) Describe how the states of Washington, Oregon, and California and the province of British Columbia are coordinating their efforts for ballast water management on the west coast.
     (4) The ballast water work group must begin operation immediately upon the effective date of this section. The Puget Sound water quality action team must provide staff for the ballast water work group. The staff must come from existing personnel within the team)) Provide a report to the legislature by July 1, 2009, on the progress of the work group on the tasks listed in this section, and report on compliance with this act, and recommendations for improvements, if any, to the ballast water program;
     (b) Work with the state of Oregon to develop a consistent, coordinated, and enforceable ballast water management program for the Columbia river that is acceptable to both states;
     (c) Advise the department as it develops a program to establish and maintain an inventory of introduced nonindigenous plants and animals in state waters in and adjacent to ports, harbors, oil transfer facilities, grain elevators, and other ship-berthing facilities and evaluate the effectiveness of the program and a program to assess vessel-specific risks;
     (d) Help the department review the needs of the ballast water program, including research investments, and identify unmet needs, and work through the Puget Sound action team's and the department's internal budget development process to secure needed funds;
     (e) Help the department develop and align the state program with national and regional ballast water management programs;
     (f) Assist the department by developing a workable technical and financial assistance program to support the shipping industry to comply with state ballast water laws and rules;
     (g) Work with the United States coast guard and the department of ecology to improve coordination and integration of vessel inspection procedures among agencies that board and inspect vessels and identify ways to minimize apparent duplication of effort, work more effectively with vessel masters and crew, and recommend changes to state law to streamline the program, if needed;
     (h) Outline funding, policy, and program recommendations to support the state's management program;
     (i) Coordinate, in association with the departments of fish and wildlife, ecology, and natural resources, the Puget Sound action team, the Washington invasive species council, and other interested parties, the development of a management approach for nonballast water ship vectors as a source of nonindigenous species such as ship hull fouling, sea chests and equipment, and vessels equipped with ballast tanks that carry no ballast onboard;
     (j) Review and provide comment on proposed federal legislation, international and regional programs, and other policy arenas;
     (k) Harmonize the state ballast water program with western coastal states, British Columbia, and Canada;
     (l) Work with the department's science advisory panel to develop a science research plan and estimated costs to answer key research and management questions;
     (m) Provide recommendations and technical information to assist the department in determining if and when it is necessary or advisable to adjust rules and guidance for the ballast water management program to achieve resource goals and objectives;
     (n) Other responsibilities, as necessary.
     (((5))) (4) The director must also monitor the activities of the task force created by the state of Oregon in 2001 Or. Laws 722, concerning ballast water management. The director shall provide the ballast water work group with periodic updates of the Oregon task force's efforts at developing a ballast water management system.
     (((6)(a) The ballast water work group expires June 30, 2007.
     (b) This section expires June 30, 2007.))

Sec. 5   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 department may establish by rule schedules for any penalty allowed in this chapter. The schedules may provide for the incremental assessment of a penalty based on criteria established by rule.
     (2) 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. The penalty shall not exceed ((five)) twenty-seven thousand five hundred dollars for each day of a continuing violation. In determining the amount of a civil penalty, the department shall set standards by rule that 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 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))) (3) The department, in cooperation with the United States coast guard, may enforce the requirements of this chapter.

NEW SECTION.  Sec. 6   A new section is added to chapter 77.120 RCW to read as follows:
     The department may assess a fee for any exemptions allowed under this chapter. Such a fee may not exceed five thousand dollars. The department may establish by rule schedules for any fee allowed in this chapter. The schedules may provide for the incremental assessment of a penalty based on criteria established by rule.

NEW SECTION.  Sec. 7   A new section is added to chapter 77.120 RCW to read as follows:
     (1) The ballast water management account is created in the custody of the state treasurer. All receipts from legislative appropriations, gifts, grants, donations, penalties, and mitigation fees received under this chapter must be deposited into the account.
     (2) The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required. Only the director or the director's designee may authorize expenditures from the account. Expenditures from the account may be used only to carry out the purposes of this chapter or support the goals of this chapter through research and monitoring except:
     (a) Expenditures may not be used for the salaries of permanent department employees; and
     (b) Penalties deposited into the account may be used, in consultation with the ballast water work group created in section 4 of this act, only to support basic and applied research and carry out education and outreach related to the state's ballast water management.

NEW SECTION.  Sec. 8   A new section is added to chapter 77.120 RCW to read as follows:
     The department may issue a special operating authorization for passenger vessels conducting or assisting in research and testing activities to determine the presence of invasive species in ballast water collected in the waters of southeast Alaska north of latitude fifty-four degrees thirty minutes north to sixty-one degrees ten minutes north, extending to longitude one hundred forty-nine degrees thirty minutes west. Such testing and research shall be reviewed by the ballast water work group and the findings included in the report to the legislature referenced in section 4 of this act.

Sec. 9   RCW 90.48.020 and 2002 c 161 s 4 are each amended to read as follows:
     Whenever the word "person" is used in this chapter, it shall be construed to include any political subdivision, government agency, municipality, industry, public or private corporation, copartnership, association, firm, individual or any other entity whatsoever.
     Wherever the words "waters of the state" shall be used in this chapter, they shall be construed to include lakes, rivers, ponds, streams, inland waters, underground waters, salt waters and all other surface waters and watercourses within the jurisdiction of the state of Washington.
     Whenever the word "pollution" is used in this chapter, it shall be construed to mean such contamination, or other alteration of the physical, chemical or biological properties, of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental or injurious to the public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life. "Pollution" shall not include emergency discharge of ballast water as provided under RCW 77.120.030(4).
     Wherever the word "department" is used in this chapter it shall mean the department of ecology.
     Whenever the word "director" is used in this chapter it shall mean the director of ecology.
     Whenever the words "aquatic noxious weed" are used in this chapter, they have the meaning prescribed under RCW 17.26.020.
     Whenever the words "general sewer plan" are used in this chapter they shall be construed to include all sewerage general plans, sewer general comprehensive plans, plans for a system of sewerage, and other plans for sewer systems adopted by a local government entity including but not limited to cities, towns, public utility districts, and water-sewer districts.

Sec. 10   RCW 90.48.030 and 1987 c 109 s 123 are each amended to read as follows:
     The department shall have the jurisdiction to control and prevent the pollution of streams, lakes, rivers, ponds, inland waters, salt waters, water courses, and other surface and underground waters of the state of Washington. The department shall not have jurisdiction over, and this chapter shall not apply to, emergency discharge of ballast water as provided under RCW 77.120.030(4).

NEW SECTION.  Sec. 11   Section 4 of this act is added to chapter 77.120 RCW.

NEW SECTION.  Sec. 12   The following acts or parts of acts are each repealed:
     (1) RCW 77.120.060 (Report to legislature -- Results of chapter) and 2002 c 282 s 4 & 2000 c 108 s 7;
     (2) RCW 77.120.080 (Legislative review of chapter -- Recommendations) and 2000 c 108 s 9; and
     (3) RCW 77.120.090 (Ballast water information system -- Improvements) and 2002 c 282 s 5.