Today's Law As Amended

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AB-912 Marine invasive species: ballast water and biofouling management requirements.(2019-2020)



SECTION 1.

 Section 71200 of the Public Resources Code is amended to read:

71200.
 Unless the context otherwise requires, the following definitions govern the construction of this division:
(a) “Ballast tank” means a tank or hold on a vessel used for carrying ballast water, whether or not the tank or hold was designed for that purpose.
(b) “Ballast water” means 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.
(c) “Biofouling” means the attachment or association of marine organisms to the wetted portion of a vessel or its appurtenances, including, but not limited to, sea chests, propellers, anchors, and associated chains.
(d) “Board” means the State Water Resources Control Board.
(e) “Coastal waters” means estuarine and ocean waters within 200 nautical miles of land or less than 2,000 meters (6,560 feet, 1,093 fathoms) deep, and rivers, lakes, or other water bodies navigably connected to the ocean.
(f) “Commission” means the State Lands Commission.
(g) “EEZ” means exclusive economic zone, which extends from the baseline of the territorial sea of the United States seaward 200 nautical miles.
(h) “Exchange” means to replace the water in a ballast tank using either of the following methods:
(1) “Flow through exchange,” which means to flush out ballast water by pumping three full volumes of mid-ocean water through the tank, continuously displacing water from the tank, to minimize the number of original coastal organisms remaining in the tank.
(2) “Empty/refill exchange,” which means to pump out, until the tank is empty or as close to 100 percent empty as is safe to do so, the ballast water taken on in ports, or estuarine or territorial waters, then to refill the tank with mid-ocean waters.
(i) “Land” means the material of the earth, whether soil, rock, or other substances, that sits landward of, or at an elevation higher than, the mean high-tide line of the ocean, including any rock outcroppings or islands located offshore.
(i) (j)  “Mid-ocean waters” means waters that are more than 200 nautical miles from land and at least 2,000 meters (6,560 feet, 1,093 fathoms) deep.
(j) (k)  “Nonindigenous species” means any species, including, but not limited to, the seeds, eggs, spores, or other biological material capable of reproducing that species, or any other viable biological material that enters an ecosystem beyond its historic range, including any of those organisms transferred from one country into another.
(k) (l)  “Pacific Coast Region” means all coastal waters on the Pacific Coast of North America east of 154 degrees W longitude and north of 25 20  degrees N latitude, exclusive inclusive,  of the Gulf of California. The commission may modify these boundaries through regulation if the proponent for the boundary modification presents substantial scientific evidence that the proposed modification is equally or more effective at preventing the introduction of nonindigenous species through vessel vectors as the boundaries described herein. 
(l) (m)  “Person” means an individual, trust, firm, joint stock company, business concern, or corporation, including, but not limited to, a government corporation, partnership, limited liability company, or association. “Person” also means a city, county, city and county, district, commission, the state, or a department, agency, or political subdivision of the state, an interstate body, or the United States and its agencies and instrumentalities, to the extent permitted by law.
(m) (n)  “Port” means any port or place in which a vessel was, is, or will be anchored or moored, or where a vessel will transfer cargo.
(n) (o)  “Sediments” means matter settled out of ballast water within a vessel.
(o) (p)  “Waters of the state” means surface waters, including saline waters, that are within the boundaries of the state.
(p) (q)  “Wetted portion of a vessel” means all parts of a vessel’s hull and structures that are either submerged in water when the vessel is loaded to the deepest permissible legal draft or associated with internal piping structures in contact with water taken onboard.
(q) (r)  “Vessel” means a vessel of 300 gross registered tons or more.
(r) (s)  “Voyage” means any transit by a vessel destined for a California port from a port outside of the coastal waters of the state.

SEC. 2.

 Section 71201 of the Public Resources Code is amended to read:

71201.
 (a) This division applies to all vessels, 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 Section 71202.
(b) This division applies to all ballast water and associated sediments taken on a vessel, and to all biofouling.
(c) This division may be known, and may be cited, as the “Marine Invasive Species Act.”
(d) The Legislature finds and declares all of the following:
(d) (1)  The Legislature finds and declares that the  purpose of this division is to move the state expeditiously toward elimination of the discharge of nonindigenous species into the waters of the state or into waters that may impact the waters of the state, based on the best available technology economically achievable. This division shall be implemented in accordance with this intent, except as expressly provided by this division.
(2) The federal Vessel Incidental Discharge Act, which was enacted on December 4, 2018, preserves the rights of states to petition the federal government to review any standard of performance, regulation, or policy if new information exists that could result in a change to that standard, regulation, or policy.
(3) Nothing restricts the authority of California to respond to an aquatic invasive species emergency in its waters using California’s police powers.
(4) The Legislature strongly and unequivocally objects to any loss of state authority to regulate vessel discharges in California waters.

SEC. 3.

 Section 71203 of the Public Resources Code is amended to read:

71203.
 (a) The master, operator, or person in charge of a vessel is responsible for the safety of the vessel, its crew, and its passengers.
(b) (1) The master, operator, or person in charge of a vessel is not required by this division to conduct a ballast water management practice, including exchange, if the master determines that the practice 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.
(2) If a determination described in paragraph (1) is made, the master, operator, or person in charge of the vessel shall do all of the following:
(2) (A)  If a determination described in paragraph (1) is made, the master, operator, or person in charge of the vessel shall take  Take  all feasible measures, based on the best available technologies economically achievable, that do not compromise the safety of the vessel to minimize the discharge of ballast water containing nonindigenous species into the waters of the state, or waters that may impact waters of the state.
(B) Include in the ballast water log for the vessel a description of how conducting a ballast water management practice would have risked the safety of the vessel, its crew, or its passengers consistent with the determination made pursuant to paragraph (1).
(C) Notify the commission of the determination at the earliest practicable time.
(D) Provide a copy of the description included in the ballast water log referenced in subparagraph (B) to the commission upon request.
(c) Nothing in this division 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, or any other responsibility.

SEC. 4.

 Section 71204.6 of the Public Resources Code is amended to read:

71204.6.
 On or before January 1, 2012, the commission, in consultation with the board, the United States Coast Guard, and a technical advisory group consisting of interested persons persons,  including, but not limited to, shipping, port, and environmental conservation representatives, shall develop and adopt regulations governing the management of biofouling on vessels arriving at a California port or place. The commission shall consider vessel design and voyage duration in developing the regulations. The regulations shall be based on the best available technology economically achievable and  achievable, regularly reviewed and revised as appropriate, and  shall be designed to protect the waters of the state.

SEC. 5.

 Section 71204.7 of the Public Resources Code is repealed.

71204.7.
 (a) On or before July 1, 2005, the commission, in consultation with the United States Coast Guard, shall adopt regulations governing the evaluation and approval of shipboard experimental ballast water treatment systems.
(b) The regulations shall include criteria for the development of a formal application package to use those systems.
(c) (1) If an owner or operator of a vessel applies to install an experimental ballast water treatment system, and the commission approves that application on or before January 1, 2020, the commission shall deem the system to be in compliance with any future treatment standard adopted, for a period not to exceed five years from the date that the interim performance standards adopted pursuant to paragraphs (1) and (2) of subdivision (a) of Section 71205.3 would apply to that vessel.
(2) The commission may rescind its approval of the system at any time if the commission, in consultation with the board and the United States Coast Guard, and after an opportunity for administrative appeal with the executive officer of the commission, determines that the system has not been operated in accordance with conditions in the agreed upon application package, or that there exists a serious deficiency in performance, human safety, or environmental soundness relative to anticipated performance, or that the applicant has failed to provide the commission with required test results and evaluations.
(d) The commission shall not approve an experimental ballast water treatment system unless the owner or operator demonstrates that the system has significant potential to improve upon the ability of existing systems to kill, inactivate, or otherwise remove nonindigenous species from ballast water.
(e) The commission shall disseminate to the public the test results and evaluations regarding experimental ballast water treatment systems described in this section.

SEC. 6.

 Section 71204.9 of the Public Resources Code is repealed.

71204.9.
 (a) (1) On or before January 31, 2006, the commission, in consultation with the board and in consideration of the advisory panel recommendations described in subdivision (b), shall submit to the Legislature and make available to the public, a report that recommends specific performance standards for the discharge of ballast water into the waters of the state, or into waters that may impact waters of the state. The performance standards shall be based on the best available technology economically achievable and shall be designed to protect the beneficial uses of affected, and potentially affected, waters. If the commission, based on the best available information, and in consultation with the board and in consideration of the advisory panel recommendations, determines that it is technologically and economically achievable to prohibit the discharge of nonindigenous species, the commission shall include this recommendation in the report to the Legislature.
(2) As appropriate, the commission may recommend different performance standards for vessels arriving from mid-ocean waters, for vessels that travel exclusively within the Pacific Coast Region, for new or existing vessels, or for different vessel types. Each set of performance standards shall be based on the best available technology economically achievable for the described category of vessel.
(b) (1) The commission shall convene and consult with an advisory panel in developing the report required by subdivision (a). The advisory panel shall be comprised of persons concerned with performance standards for the discharge of treated ballast water. The advisory panel shall include, but not be limited to, representatives from one or more California regional water quality control boards, the Department of Fish and Wildlife, the United States Coast Guard, the United States Environmental Protection Agency, and persons representing shipping, port, conservation, fishing, aquaculture, agriculture, and public water agency interests. The commission shall ensure that the advisory panel meets in a manner that facilitates the effective participation of both the public and panel members.
(2) The advisory panel shall make recommendations regarding the content, issuance, and implementation of the performance standards to the commission.
(3) (A) The advisory panel’s meetings shall be open to the public.
(B) The commission shall provide notice of the advisory panel’s meetings to any person who requests that notice in writing, as well as on the commission’s Internet Web site. The commission shall provide that notice at least 10 days before an advisory panel meeting and shall include a brief general description of the meeting’s agenda and the name, address, and telephone number of a person who can provide additional information before the meeting.
(4) The advisory panel shall submit its recommendations to the commission on or before July 1, 2005.

SEC. 7.

 Section 71205.3 of the Public Resources Code is amended to read:

71205.3.
 (a) The commission shall adopt regulations that do all of the following:
(1) Require an owner or operator of a vessel carrying, or capable of carrying, ballast water that operates in the waters of the state to implement the ballast water discharge performance standards set forth in Section 151.2030(a) of Title 33 of the Code of Federal Regulations, or as that regulation may be amended.
(2) Require an owner or operator of a vessel carrying, or capable of carrying, ballast water that operates in the waters of the state to comply with the performance standards set forth in Section 151.2035(b) of Title 33 of the Code of Federal Regulations or as that regulation may be amended, except as prescribed in Section 151.2036 of Title 33 of the Code of Federal Regulations, or as that regulation may be amended.
(1) (3)  Except as provided in Section 71204.7, require  Require  an owner or operator of a vessel carrying, or capable of carrying, ballast water that operates in the waters of the state to implement the interim performance standards for the discharge of ballast water recommended in accordance with Table x-1 X-1  of the California State Lands Commission Report on Performance Standards for Ballast Water Discharges in California Waters, as approved by the commission on January 26, 2006. 2006, by January 1, 2030. 
(2) Except as provided in Section 71204.7, require an owner or operator of a vessel carrying, or capable of carrying, ballast water that operates in the waters of the state to comply with the interim performance standards by the applicable following date:
(A) Upon first arrival at a California port for new vessels constructed on or after January 1, 2020.
(B) As of the first scheduled drydocking on or after January 1, 2020, for all other vessels.
(3) (4)  Notwithstanding Section 71204.7, require  Require  an owner or operator of a vessel carrying, or capable of carrying, ballast water that operates in the waters of the state to meet the final performance standard for the discharge of ballast water of zero detectable living organisms for all organism size classes by January 1, 2030. no later than January 1, 2040. If, based on a review of ballast water treatment technologies submitted in a report to the Legislature in conformance with provisions of subdivision (b), achievement of the final performance standard becomes practicable sooner than January 1, 2040, the commission shall establish an earlier effective date in regulation. 
(b) (1) Not less than 18 months prior to  before  January 1, 2020, 2030,  and January 1, 2030, 2040,  the commission, in consultation with the board, the United States Coast Guard, and the an  advisory panel described in subdivision (b) of Section 71204.9,  paragraph (3),  shall prepare, or update, and submit to the Legislature a review of report on  the efficacy, availability, and environmental impacts, including the effect on water quality, of currently available technologies for ballast water treatment systems. If technologies to meet the performance standards are determined in a review to be unavailable, the commission shall include in that review an assessment of why the technologies are unavailable.
(2) The advisory panel described in paragraph (3) shall make recommendations regarding the content and issuance of the report and implementation of the performance standards to the commission.
(3) (A) The advisory panel shall include, but not be limited to, representatives from one or more state regional water quality control boards, the Department of Fish and Wildlife, the United States Coast Guard, the United States Environmental Protection Agency, and other persons representing shipping, port, conservation, fishing, aquaculture, agriculture, and public water agency interests. The commission shall ensure that the advisory panel meets in a manner that facilitates the effective participation of both the public and private members. The advisory panel’s meetings shall be open to the public.
(B) The commission shall provide notice of the advisory panel’s meetings to any person who requests that notice in writing, as well as on the commission’s internet website. The commission shall provide that notice at least 10 days before an advisory panel meeting and shall include the meeting’s agenda and the name, address, and telephone number of a person who can provide additional information before the meeting.
(2) (4)  (A) The requirement for submitting a report imposed under this subdivision is inoperative on January 1, 2024, 2034,  for the interim performance standards, standard,  and January 1, 2034, 2044,  for the final performance standard, pursuant to Section 10231.5 of the Government Code.
(B) A report required  to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.

SEC. 8.

 Section 71210 of the Public Resources Code is amended to read:

71210.
 (a) The commission, in consultation with the board, the United States Coast Guard, the United States Environmental Protection Agency,  and a technical advisory group made up of interested persons, including, but not limited to, shipping and port representatives, shall sponsor pilot programs for the purpose of evaluating alternatives for treating and otherwise managing ballast water and biofouling. The goal of this effort shall be the meaningful participation of the State of California in federal rulemaking actions and the  reduction or elimination of the discharge of nonindigenous species into the coastal waters of the state or into waters that may impact coastal waters of the state. Whenever possible, the pilot programs shall include funding from federal grants and appropriations, vendor funding, and state bond funds, including, but not limited to, bond funds from the Water Security, Clean Drinking Water, Coastal and Beach Protection Act of 2002. Priority shall be given to projects to test and evaluate treatment technologies that can be used to prevent the introduction and spread of nonindigenous aquatic species into coastal waters of the state by ship-mediated vectors.
(b) (1) The commission shall provide biennial summaries to the Legislature and the public, beginning on or before January 31, 2005, of the results of the pilot programs conducted pursuant to this section. These summary reports shall include, but not be limited to, a description of the projects, the relative effectiveness of the technologies examined in minimizing the discharge of nonindigenous species, and the costs of implementing the technologies.
(2) The summary reports required by this subdivision shall be in compliance with Section 9795 of the Government Code.

SEC. 9.

 Section 71213 of the Public Resources Code is amended to read:

71213.
 (a)  The commission, the board, and the Department of Fish and Wildlife, in consultation with interested stakeholders, shall identify and conduct any other research determined necessary to carry out the requirements of this division. The research may relate to the transport and release of nonindigenous species by vessels, the methods of sampling and monitoring of the nonindigenous species transported or released by vessels, the rate or risk of release or establishment of nonindigenous species in the waters of the state and resulting impacts, and the means by which to reduce or eliminate a release or establishment. The research shall focus on assessing or developing methodologies for treating or otherwise managing ballast water and biofouling to reduce or eliminate the discharge or establishment of nonindigenous species.
(b) The commission may also take samples of ballast water, sediment, and biofouling from arriving vessels subject to this division for research purposes.