99% pass: how California is building compliance in biofouling regulations

Before going through the more than decade-long timeline of what it took to make biofouling regulations a reality in his state, California State Lands Commission senior environmental scientist on the inter-agency Marine Invasive Species Programme (MISP) Chris Scianni says that biofouling is "just another part of the puzzle" that began when California committed to trying to curb the introduction of non-indigenous species to its waters through ballast water management more than 20 years ago.

Later in his presentation, though, he notes that biofouling management fundamentally differs from ballast water management.

"First and foremost" what those involved have learned from getting the world’s first biofouling regulations from their infancy to implementation, Mr Scianni says, is probably not very surprising but is perhaps underappreciated.

"We are dealing with a different paradigm than with ballast water. For ballast water, vessel crews are responsible for management actions, so if there is non-compliance, it is because the exchange may have happened in an area that was not appropriate or the vessel crew did not use the ballast water treatment system appropriately," he explains.

"But the actions are usually the result of what is going on on the vessel. Whereas with biofouling, especially when we are looking at biofouling management plans, any deficiencies in those are not necessarily the fault of the crew member. A lot of those plans are being developed by the owner, management groups, [or] operations departments."

"For us, it was a lesson to ensure we are having conversations with the appropriate groups and tailoring the talking points to the appropriate groups," he says.

Work on California’s biofouling regulations began in 2005. The regulations were adopted in 2017 – the same year International Maritime Organisation’s (IMO) global regulations on ballast water came into effect – and became effective in October of that year.

In the years since, MISP’s work has not ceased, only shifted into a phased implementation approach which consists of the kind of education and direct industry outreach efforts Mr Scianni mentioned, in addition to inspections, data gathering and reporting on efficacy.

California’s phased implementation for biofouling enforcement began on 1 January 2018 and, for practical considerations, was designed to link in with vessel drydocking schedules.

In addition to preventing port state control mechanisms from being overwhelmed with targets for inspection, the schedule had another pragmatic foundation, which Mr Scianni says was based on the belief that “effective biofouling management is dependent on preventative practices that are best implemented during drydocking”.

In other words, hull cleaning and the protective coatings applied during drydock are the practical measures shipowners can take to reduce or stop transmission of the creatures that attach themselves to hulls and have the power to disrupt entire ecosystems.

"We know that ships coming into California have tens of thousands, hundreds of thousands, millions of organisms associated with their underwater surfaces," Mr Scianni says. "We know from research that we have collaborated on that most of those organisms are likely to be alive and reproductively capable. And we know that up to 60% of currently established non-indigenous species in California’s coastal and estuarine waters were likely introduced through biofouling."

California may be at the low end of the spectrum of biofouling impacts. P&I club Gard cites evidence that suggests 80% of IAS introductions have occurred through biofouling. And the threat posed to ecosystems, by extension, poses a threat to the economic activity that humans rely on. As IMO’s literature on biofouling puts it, "the spread of invasive species is now recognised as one of the greatest threats to the ecological and the economic well-being of the planet".

California’s biofouling regulations apply to vessels that are 300 gross registered tonnes or more and that carry, or are capable of carrying, ballast water. Every vessel subject to the regulations must have a biofouling management plan and a biofouling record book. These, California says, need to be consistent with the IMO biofouling management plan that is included in IMO’s biofouling guidelines. The management plans have to be vessel-specific and current as of the most recent out-of-water maintenance (or delivery). And they need to describe the effective lifespan of any coating used on the vessel and also a set of eight niche area management measures.

IMO’s biofouling guidelines are, for now, voluntary. As California was the first to mandate biofouling management, they expected what Mr Scianni calls "a steep learning curve". To avoid penalising owners who were unaware of the state-specific requirement, MISP introduced a measure to build industry familiarity with the issue: a grace period.

"We knew this was a new regulatory regime and there were not any other jurisdictions out there that had mandatory biofouling management regulations like this so there would be a steep learning curve. And we did not want to start penalising vessels and vessel owners who had been unaware of the requirement. So we included a 60-day grace period provision," Mr Scianni says.

The 60-day grace period works so that, the first time that a vessel subject to the biofouling regulations comes into California waters and fails inspection, the state issues the vessel a 60-day grace period with a follow up inspection that happens the next time the vessel enters California waters after the grace period has expired. However, fail inspection after 60 days and you pay the price.

"If it is not compliant, it is issued with a notice of violation," Mr Scianni says.

And familiarisation efforts are having the intended effect, judging by MISP statistics from the first year of enforcement.

Through 12 months of inspection between August 2018 and July 2019, California inspected one of every five vessels subject to the biofouling regulations. Of the 11,000 or so vessels that entered California during that time, 2,515 were subject to the regulations, and California inspected more than 500. They issued grace periods for 84 vessels. And, upon follow-up inspections, only three – less than 1% – of the vessels inspected remained non-compliant.

Topping the list of reasons for issuing grace periods was the lack of information on coating lifespan. 35% were issued for multiple deficiencies. Nearly three-quarters, 72%, of vessels had no information on expected coating lifespan, 44% had incomplete biofouling management plans and/or biofouling record books and 22% had incomplete niche area management descriptions, mainly due to lack of awareness or detail on management actions for out-of-water support strips.

"We knew there would be learning curves and we are experiencing that. Learning curves for all parties," Mr Scianni says. "And that 60-day grace period provision we implemented was designed to flatten that learning curve. We have seen these grace periods are working effectively."

Moving forward, Mr Scianni says the focus will be on specificity: raising awareness around the requirement for vessel-specific plans and clear, actions-based language within each plan. And, Mr Scianni says, his group will be working on the specifics around enforcement penalties and a shift to a risk-based deployment of resources.

"We will spend part of this year revising our existing enforcement regulations to merge the existing biofouling requirements into them to be able to establish specific penalties associated with violations, for different types of violations so that we can be as transparent as possible about what the penalty will be if you violate A, B or C," he says.

"Right now, we are targeting every vessel that is subject to the biofouling regulations on their first arrival … but as more and more vessels fall under the jurisdiction of these regulations, that will not be sustainable.... So we will better target our inspection resources toward the vessels that are presenting the greatest perceived risk. And we hope to pair that later with ROV surveys to try to validate and revise, if necessary."