California - Ballast Water *Update*

18 October 2021

The State of California adopted new legislation on ballast water management, with new discharge standards taking effect on 1 January 2022.

The California State Lands Commission (SLC) adopted new rules on ballast water management which took effect in the State of California on 1 July 2017. These rules codify enforcement of the Californian Marine Invasive Species Act (MISA).

When calling at ports in the United States or sailing through US waters, it’s always important to remember that State laws may be in force as well as the federal USCG rules. These State regulations are usually more stringent than those set by the national government and carry different penalties. Furthermore, the California MISA does not provide for an exemption for vessel deviation, whereas federal rules may allow this. The SLC clarifies this position in their letter of 2014 which can be read here.

The State rules apply to vessels over 300GT that are capable of carrying ballast water. The ballast water management requirements address:

1. Vessels arriving in California Waters from a port or place outside the Pacific Coast Region*.
2. Vessels arriving in California Waters from a port or place within the Pacific Coast Region, with ballast water from the Pacific Coast Region.

*The Pacific Coast Region (PCR) comprises the waters within 200nm of land on the Pacific Coast of North America east of 154°W longitude and north of 25°N latitude, excluding the Gulf of California.

The options on methods of compliance are as follows:

• Retain all ballast water (no discharge)
• Exchange ballast water by either the empty refill method (100% volumetric replacement) or flow through method (300% volumetric replacement):
  •  Vessels arriving from outside the Pacific Coast Region (‘mid-ocean’) – exchange to be carried out more than 200nm from land at least 2,000m deep
  • Vessels arriving from within the Pacific Coast Region, with ballast water from the Pacific Coast Region (‘near-coastal’) – exchange to be carried out more than 50nm from land at least 200m deep
• Discharge ballast water at the same location where the ballast water originated
• Use an alternative, environmentally sound, SLC or US Coast Guard-approved method of treatment
• Discharge to an approved reception facility (none currently exist)
• Under extraordinary circumstances, perform a ballast water exchange within an area agreed to in advance by the SLC

Penalties for MISA Violations

MISA authorises the SLC to pursue civil penalties which should not exceed US$27,500 per violation. The violations can be categorised as:

Civil Penalties for Improper Ballast Water Exchanges

The following classes of penalty apply for vessels that discharge ballast in Californian water and failed to carry out a ballast water exchange in accordance with MISA:

Civil Penalties for Improper Ballast Water Recordkeeping and Reporting

The regulations require vessels to maintain onboard ballast water management plans and records as well as the submission of Ballast Water Management Reports, Annual and Supplemental Technology Reports (relating to ballast water treatment system usage) and Hull Husbandry Reports (relating to anti-biofouling).

The following penalties for violations of ballast water recordkeeping and reporting requirements apply:

It is also important to note that the falsification of records and reports is punishable by up to one year in jail.

Ballast Treatment Performance Standards

Ballast water performance standards are limits on the number of organisms that may be discharged in ballast water. When it took effect in 2017, the Californian MISA required strict – and quite possibly technically unachievable – ballast water treatment performance standards to be implemented in 2020 and 2030. These were significantly more stringent in comparison to the federal USCG Final Rule and IMO International Ballast Water Management Convention.

In October 2021, U.S. law firm Murphy, Rogers, Sloss, Gambel & Tompkins advise that the California State Lands Commission announced that they will implement the U.S. federal ballast water discharge standards for vessels arriving at California ports, taking effect on 1 January 2022.

The details of these ballast water discharge standards are in the following table:

California Ballast Water Reporting Requirements

New report submission requirements related to the Californian Marine Invasive Species Program took effect on 1 January 2021.

Since 1 January 2015, any vessel calling at a port or place within the state of California is required, under Section 71200 of the Marine Invasive Species Act, to submit the following reports to the California State Lands Commission:

• Ballast Water Treatment Technology Annual Reporting Form
• Ballast Water Treatment Supplemental Reporting Form
• Hull Husbandry Reporting Form

Failure to comply with the form submission requirements may result in an administrative civil penalty. Penalties may be applied to the master, owner, operator, agent, or person in charge of the vessel in an amount not to exceed US$ 27,500 per violation, with each day of a continuing violation constituting a separate violation.

US law firm Murphy, Rogers, Sloss, Gambel & Tompkins have advised of a recent bulletin released by the California State Lands Commission (SLC) that addresses the requirements for submitting the Marine Invasive Species Program Annual Vessel Reporting Form and the Ballast Water Management Report.

The Marine Invasive Species Program Annual Vessel Reporting Form (AVRF) must be submitted through the web-based platform, MISP.IO. The AVRF must still be submitted once each calendar year and at least 24 hours prior to a vessel’s first arrival at a California port. Note that the AVRF can be submitted earlier during the calendar year if desired, and can be submitted by anyone affiliated with the vessel (e.g., ownership, management, crew). Violations may be issued for failure to submit an AVRF at least 24 hours prior to a vessel’s first arrival at a California port each calendar year. However, for the duration of 2021, the SLC has committed to not enforce violations of the new requirement to submit the AVRF via MISP.IO.

Presentations on the new AVRF submission requirements are available on the California State Lands Commission website (https://www.slc.ca.gov/marine-invasive-species-program/reports-presentations-funded-research/).

Vessel owners or operators that are unable to submit the AVRF via MISP.IO are encouraged to contact the Marine Invasive Species Program as soon as possible.

All vessels that arrive at California ports must submit the Ballast Water Management Report 24 hours prior to arrival at each port in California. If a vessel’s voyage is less than 24 hours, then the report shall be submitted upon departure from the last port of call prior to arrival.

Send all completed Ballast Water Management Reports to:
Online: MISP.IO
Email: bwform@slc.ca.gov
FAX: 562-499-6444

Please also be aware of the Marine Invasive Species Fee which is collected by the California Department of Tax and Fee Administration (CDTFA) from the owner or operator of each vessel that arrives at a California port or place from a port or place outside of California per qualifying voyage. In the past, this payment was usually made by the ship’s agent and recovered from the ship operator, however, some shipowners have reported receiving payment requests directly from the CDTFA. Guidance on the new arrangements for allowing payments by agents can be found here: https://www.cdtfa.ca.gov/taxes-and-fees/marine-inv-spec-fee.htm#Marine

For more information about the regulations administered by the Marine Invasive Species Program, visit http://www.slc.ca.gov/Programs/MISP.html.

The California State Lands Commission issued a letter relating to the reporting requirements, a copy of which can be read here. They further confirmed in their letter of July 2017 that they accept the use of either a USCG type approved ballast water treatment system or a USCG accepted alternative management systems (AMS) as an alternative to their stated ballast water exchange requirements. Reporting requirements still stand, however. The letter can be read here.