United States: Just When You Thought It Was Safe To Go Back In The Water…

Last Updated: December 15 2016
Article by Joe Walsh

The California State Lands Commission ("SLC") is accepting public comment concerning proposed regulatory action expanding the California effort to protect against nonindigenous marine species.1 If approved, the new rule would become effective July 1, 2017 and carry into force several important changes affecting vessel biofouling management and reporting while in California ports.2 The draft states all San Francisco Bay Area ports "East of the Golden Gate bridge, including the Ports of Stockton and Sacramento" would be considered one California Port; in southern California, "the Ports of Los Angeles, Long Beach, and the El Segundo marine terminal shall be interpreted as the same 'California port.'"3

The California Marine Invasive Species Act ("MISA") requires the SLC regulate biofouling management.4 Presently, the SLC claims that gaps exist between California law and federal biofouling rules.5 For example, the US Coast Guard Ballast Water Management Report form6 does not contain sufficient detail to satisfy California state legal requirements. Similarly, US Environmental Protection Agency ballast water management rules7 lack adequate inspection and maintenance requirements to meet the California standard. By mandating vessel specific Biofouling Management Plans and collecting additional vessel information, SLC's proposed rule seeks to close the shortfall between California law and federal rules.

At present, state law requires biofouling removal within 60 mos. of a vessel's last drydocking, or prior to the expiration of either the vessel's US Coast Guard Certificate of Inspection or Cargo Ship Safety Construction Certificate.8 The SLC rule proposal represents a significant step towards implementing a statewide biofouling management program. The rule would regulate vessel practices, documentation, and reporting requirements by introducing vessel-specific Biofouling Management Plan standards, Biofouling Record Book requirements, and a new biofouling reporting form.9

As it is currently proposed, the SLC rule will require all vessels 300 GRT or greater to maintain a Biofouling Management Plan ("Plan") onboard and ready for inspection. The Plan must be vessel specific, describe the vessel's hull and niche area anti-fouling systems, adhere to IMO ballast water guidelines,10 and include the ship's International Anti-fouling System Certificate.

Additionally, each Plan would have to provide biofouling management practices commensurate to the vessel's biofouling operational profile. Minimally, the vessel operational profile should consider the ship's intended out-of-water maintenance interval, transit speeds, activity level, and geographic area of operation. All biofouling inspections and records would be documented and kept onboard in a new Biofouling Record Book.

The SLC action also puts forward a new mandatory vessel submission, the Marine Invasive Species Program Annual Vessel Reporting Form.11 The new form would replace the existing Hull Husbandry Reporting Form12 by incorporating it nearly verbatim and adding a ballast water treatment section focused on system use, malfunction, repair, and testing. The new form would replace the Ballast Water Treatment Technology Annual Reporting Form, as well.13

In addition, the proposal addresses vessel hull and niche area cleaning standards and defines key terms. Of note, the pending rule defines a port visit lasting forty-five consecutive days or longer as an Extended Residency Period ("ERP"). After the last out-of-water cleaning, a vessel with an ERP would be required to direct special attention towards accumulated biofouling. The rule would also allow some vessels to employ alternative measures to reach compliance, subject to approval from the SLC Marine Environmental Protection Division Chief.

The SLC believes vessels costs associated with compliance will be minimal because some vessels have already undertaken compliance with voluntary international guidelines with planning and documentation requirements.14 However, some vessels operating within California ports, namely smaller barge companies, may incur outsize planning, documentation, and cleaning compliance costs.15

If implemented, these changes will be mandatory and subject to civil and criminal enforcement under the California Public Resources Code.16

Written public comments to the proposed rules are due by 5:00pm on January 10, 2017 and should be addressed to:

Ravindra Varma,
Supervisor, Planning Branch,
California State Lands Commission,
Marine Environmental Protection Division,
200 Oceangate, Suite 900,
Long Beach, CA 90802

Public comment will be accepted if sent by facsimile at (562) 499-6317 or by email sent to CSLC.MEPDRegulations@slc.ca.gov with "Article 4.8 Comments" in the subject line.


1 California Regulatory Notice Register 2016, No. 48-Z, p. 2033, available at http://www.oal.ca.gov/files/2016/11/48z-2016.pdf

2 California Regulatory Notice Register 2016, No. 48-Z, p. 2033 (proposed Nov. 25, 2016) (to be codified at 2 CCR §§ 2298.1-2298.9.1), proposed regulatory text available at http://www.slc.ca.gov/Laws-Regs/Article4.8/OriginalRegText.pdf

3 California State Lands Commission, supra note 2, at § 2298.1(c).

4 Marine Invasive Species Act, Cal. Pub. Res. Code § 71201.7 (West 2016).

5 California State Lands Commission, California's Marine Invasive Species Program and the United States Federal Programs That Manage Vessels as Vectors of Nonindigenous Species (December 2013), http://www.slc.ca.gov/Info/Reports/MISP/MISP_ComparisonReport_2Dec13.pdf.

6 U.S. Coast Guard, Ballast Water Management Report, OMB No. 1625-0069 (Nov. 30, 2016), http://invasions.si.edu/nbic/forms/BallastWaterForm.pdf.

7 U.S. Environmental Pollution Agency, National Pollution Discharge Elimination System General Permit for Discharge Incidental to the Normal Operation of a Vessel at 52-54 (Dec. 19, 2013), https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0141-0949.

8 Marine Invasive Species Act, Cal. Pub. Res. Code § 71204(f) (West 2016).

9 California State Lands Commission, supra note 2.

10 IMO Guidelines for the Control and Management of Ships' Biofouling to Minimize the Transfer of Invasive Species, International Maritime Organization (July 15, 2011) http://www.imo.org/en/OurWork/Environment/Biofouling/Documents/RESOLUTION%20MEPC.207%5b62%5d.pdf

11 California State Lands Commission, Marine Invasive Species Program Annual Vessel Reporting Form (Nov. 30, 2016), http://www.slc.ca.gov/Laws-Regs/Article4.8/SLC_600.12_FORM.pdf.

12 California State Lands Commission, Hull Husbandry Reporting Form (Nov. 30, 2016), http://www.slc.ca.gov/Forms/MISP/HullReportingForm_2009.pdf.

13California State Lands Commission, Ballast Water Treatment Technology Annual Reporting Form (Nov. 30, 2016), http://www.slc.ca.gov/Forms/MISP/TrtFormAnnual_9Nov2010.pdf.

14 California Regulatory Notice Register 2016, No. 48-Z, p. 2039 available at http://www.oal.ca.gov/files/2016/11/48z-2016.pdf.

15 Id. at 2040.

16 Marine Invasive Species Act, Cal. Pub. Res. Code §§ 71216-71217 (West 2016).

Just When You Thought It Was Safe To Go Back In The Water...

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