Ballast Water and Biofouling Regulatory GAP Analysis Report

This study compares regulatory code requirements intended to prevent the introduction of aquatic introduced species to Washington State waters via commercial shipping vectors. Code requirements were compared between Washington State and federal-level authorities for the ballast water vector, and between Washington State, regional, and federal-level authorities for the biofouling vector.

The purpose of this gap analysis is to identify key regulatory code gaps, which may include code discrepancies, inconsistencies, and duplications, that may put Washington State waters at higher risk of nonindigenous species introductions by regulated vessels, and to identify areas where cooperative management between the regulatory agencies can be improved in order to avoid unnecessary duplication of effort. This report is not intended to prescribe specific regulatory or statutory actions or to evaluate all known or potential gaps in the regulations. An additional purpose of this report is to provide direction and guidance to the Washington Department of Fish and Wildlife (DFW) in future development of six-year strategic plans for ballast water and biofouling management programs.

The gaps identified in this report have particular importance to environmental protection and shipping commerce in state waters. In preparation of this report, DFW's primary role was to provide the institutional knowledge and historical context of the current regulatory language. Additionally, members of DFW's stakeholder Ballast Water Work Group (BWWG), which included a strong representation of the regulated community, identified gaps of concern to vessel operations.

Washington State regulates nonindigenous species through the DFW, and water quality issues related to ballast water and biofouling discharges through the Department of Ecology (ECY). Both agencies fall under the state's Revised Code of Washington (RCW) and Washington Administrative Code (WAC). DFW's legislative mandate is to protect state waters by preventing the harmful discharge of nonindigenous species. ECY's legislative mandate within the scope of ballast water and biofouling is to protect state waters by preventing the harmful discharge of any associated chemical and biological pollutants. Federal-level nonindigenous species regulations come from the U.S. Coast Guard (USCG) in the Code of Federal Regulations (CFR), and from the U.S. Environmental Protections Agency (EPA)'s Vessel General Permit (VGP). The regulatory codes of the aforementioned agencies were compared, along with the codes of regional and international agencies on certain topics. Protocol and policy documents were also compared for topics where implementation of the code was relevant.

his study compared ballast water and biofouling codes between Washington State agencies, the USCG, and the EPA. In combination with feedback from the BWWG, the study identified 14 primary regulatory gaps, which are summarized in the following table. Due to time lag since the state's last regulatory code changes in 2009 and changes made to federal-level codes since then, it is assumed that many DFW regulatory codes could be made more consistent with federal language to reduce confusion where provisions are substantively similar. This study addresses the gaps currently identified by DFW, BWWG, and the authors. As additional gaps are identified, the format and process within can serve as a template moving forward (see Appendix B).