Pacific Maritime Magazine - Marine Business for the Operations Sector

California's Marine Invasive Species Program Needs to Adopt IMO Standards


In 2003, the California Marine Invasive Species Act named the State Lands Commission as custodian of California waters. The Act, and the regulations that followed, established a program to safeguard our ports and harbors from invasive aquatic species. The funding for this program comes, in part, from a fee based on ship calls at California ports. On September 23rd, 2016, the State Lands Commission (CSLC) announced a proposed fee increase from $850 per ship call to $1,000. We are currently in the 45-day comment period.

After thirteen years of research, paid for by these fees and taxpayer dollars, State Lands Commission has found that most ships do not need to discharge ballast in California. This is less scientific research than common sense. Since the US has a large trade imbalance with Asia, most container ships arrive heavily laden. A heavily laden ship needs little or no ballast. These ships will take on ballast in California ports in order to safely transit back to the Far East.

Since the International Maritime Organization (IMO) regulations came into effect, most passenger and container ships are making internal transfers in order to maintain stability in port without discharging Ballast Water. Crude tankers usually arrive fully laden, bringing oil from Alaska and other parts of the world, to supply the local California refineries. Coastal tankers and bulk ships often discharge ballast for stability, but most ships are taking on ballast in California, not discharging it. Seafarers appear to be more diligent with Ballast Water management due to international regulations. In spite of this, it is important that we move forward with installation of Ballast Water management equipment and mandated Ballast Water testing.

Ballast Water may contain marine invasive species, but may also contain bacteria and viruses such as Escherichia Coli, Vibrio Cholerae, and Hepatitis. The types of health risks and environmental risks vary depending on where the Ballast Water is sourced. According to the State Lands Commission Marine Invasive Species website, “Nonindigenous species are organisms that pose significant threats to human health, the economy, and the environment.” As of January 1st of this year, the compliance dates have once again been pushed back to 2020 for interim standards, and 2030 for full compliance with the California standards.

Testing protocols for the State of California’s Ballast Water Program have been a topic of discussion and meetings of the Technical Advisory Group for several years. Protocols have still not been finalized.

Without written protocols for taking samples, time limits for getting the samples to a lab, and a list of specific tests required to be performed, Ballast Water sampling would not hold up to either scientific or legal scrutiny. The explanation for the lack of testing protocols appears to be that the regulations are still considered to be unattainable. In the absence of Ballast Water testing, development of a Ballast Water treatment system that would meet the California standards is not possible.

It would stand to reason that if one cannot test for efficacy, there is no system that will comply. This type of “Catch-22” has plagued the California MIS Program since its inception.

The California regulations were written so that ships are only required to submit Ballast Water reports after they depart from their first California port. This would be after they have discharged their ballast, which would ensure that a Ballast Water report would never have to be revised. Unless of course, Commission personnel allow them to be revised. This brings us to the next problem with the Program. Ships are given an opportunity to revise their reports if Commission personnel find a discrepancy. If a ship is notified of a problem with its Ballast Water report, ship personnel may change the coordinates on the form (Latitude and Longitude). In this way, a ship is given an opportunity to alter the Ballast Water report in order to avoid penalties.

In lieu of Ballast Water treatment systems, ships calling at California ports are allowed to do either a complete “flow-through” or “empty and refill” Ballast Water exchange in mid-ocean. The IMO outlines this process as the D-1 standard. This international standard requires a minimum of 95 percent volumetric exchange.

The IMO has standards that are attainable. They have approved several Ballast Water treatment systems that comply with their standards. They also have protocols for testing which are already in use.

The IMO standards, although less stringent than the California standards, are a global standard. This allows ships to have one standard for every port in the world instead of separate standards for each state or country where a ship may call.

California has continued to extend the deadline for compliance with their regulations. The interim standards (BWE) are the IMO D-1 standards. Overall, regulated stakeholders, (the shipping companies), have been adhering to the IMO interim standards. Non-compliance is usually due to confusion, such as the definition of the location of a mid-ocean exchange of Ballast Water. A proper exchange should take place at least 200 nautical miles from land and in not less than 2,000 meters of water depth. The confusion comes when ships are traveling across the Pacific Ocean using small scale, general charts. It is relatively easy to pass inside 200 NM of an atoll or a small island while in the process of a mid-ocean exchange. One ship was in danger of being fined for unintentionally coming within 196 nautical miles of an atoll during a mid-ocean exchange. Another captain was not aware that the 200 miles from land included the coast of Mexico because of the way the no-ballast zone was depicted on the CSLC website. California regulation lacks a penalty section to set forth fines for non-compliance. However, CSLC may be able to utilize other regulations, other than the Articles dealing with marine invasive species, to levy a fine.

In order to abide by the mandate of the Marine Invasive Species Act, the CSLC must test Ballast Water. CSCL admits the standard that was set by MIS Program management many years ago is unattainable since there is no way to test to that standard. Without testing protocols, physical sampling, scientific testing labs, and a framework for levying fines, this program is completely ineffective in its mission to prevent the introduction of marine invasive species into California waters.

The state regulation was written to require that testing be performed during Ballast Water discharge. The reason behind this discharge standard was to accommodate Ballast Water treatment systems that may require a neutralizing step, or a secondary treatment during discharge. Equipment for sampling Ballast Water during discharge did not exist when the regulations were written. Subsequently, a large sum of money was paid by the State of California, to a consulting company in Seattle, to develop a sampling tool. The device that was created weighs approximately 50 pounds and there is only one unit for the entire state of California.

The Marine Invasive Species Program has a history of wasteful spending. Between 2012 and 2015, the Program hired two additional, highly paid, scientists. During that time, two other scientists were promoted and given substantial pay increases.

In the spring of 2015, a containership company and a tanker company agreed to allow the California MISP inspectors to sample Ballast Water on the companies’ ships. The Program Manager did not follow up on this offer, ignoring an opportunity to put the sampling tool to work in real-life situations. This would have been the perfect opportunity to also utilize the $50,000 worth of unused microscopes purchased by the Program.

Under the mandates of the California MIS Act, inspectors are required to board ships and sample Ballast Water. Without the tools, the testing protocols, or any contracted labs to carry out the testing, how are they meeting that mandate? The State of California inspectors test Ballast Water coming from foreign ports for only one thing, salinity. They do not test for E-Coli, other bacteria, viruses, or invasive species that may destroy our native aquatic species.

According to a scientific research article, discussing the US and New Zealand, it is difficult, if not impossible, to detect differences in salinity between water sourced from a mid-ocean Ballast Water exchange (BWE) and Ballast Water sourced from Pacific Rim ports. “In both countries, Ballast Water with salinity between 30 and 40 is considered consistent with BWE. However, this criterion fails to reliably detect Ballast Water originating in Pacific Rim ports, since many ports in this region have high salinities either seasonally or year-round.”

Washington State also has a Ballast Water program modeled after California’s program. In the 12 years it has been in existence, Washington has never charged a fee. According to a representative of Washington State Fish and Wildlife, samples have been pulled from Ballast Water tanks for testing. These tests, conducted by the University of Washington, included assessment of organisms in the Ballast Water.

It is now time for California regulations to align with IMO regulations until the US Coast Guard (USCG) approves a Ballast Water treatment system which will meet the US standards. The Coast Guard standards are less stringent than those of California. Type-approval for Ballast Water treatment systems that meet the US standards has been difficult to achieve. It appears there may be some treatment systems that are close to meeting the US standards, but there is no system that can be proven to meet California’s.

After thirteen years, the California Marine Invasive Species Program should be a leader in genuine scientific research. With progress being made by the International Maritime Organization, it is time for the State of California to abandon their Marine Invasive Species Program and defer to an organization that continues to search for serious resolutions to this global problem.

California’s program is stymied by the state’s own unrealistic and unattainable standards. In order to prevent any further invasions of non-native aquatic species, California State Lands Commission needs to begin actual testing of Ballast Water as mandated by the Marine Invasive Species Act. Since they are not able to test to the California standards, they should be testing to the IMO standards until the USCG has approved Ballast Water treatment equipment that satisfies the US standards and the US regulations go into effect.

The World Shipping Council website states “Like the IMO type approval regime, the US protocol requires that systems be tested in both land-based and shipboard testing environments. During the 2 years and 2 months that have elapsed since the Coast Guard designated the first independent laboratory, the agency has received nine letters of intent to test with an independent laboratory, although not all of these vendors have begun testing. While more than 50 treatment technology vendors have earned IMO type approval to date, none have yet earned US type approval.”

There is no logical reason for the State of California to increase their fees, or for continuing on this futile path. It is time for California to utilize IMO standards, existing testing protocols, and testing labs that have already been approved by the State. Every day California delays realistic implementation, more untreated Ballast Water is discharged into bays and harbors across the State.

Laura Kovary holds an Unlimited Tonnage Master’s License and has sailed onboard tankers, freighters, container, and passenger ships. She holds a BS from California Maritime Academy and a MS in Maritime Management from Maine Maritime Academy, and is presently an Instructor for UCLA Extension, a partner at Training Compliance Solutions, and Principal at Environmental Maritime Services, consulting for the oil and maritime industries on training, port security, and environmental issues.


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