BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session AB 1323 (Frazier) Version: June 10, 2015 Hearing Date: July 14, 2015 Fiscal: Yes Urgency: No BCP SUBJECT Marine debris: removal and disposal DESCRIPTION This bill would authorize a public agency to remove and dispose of marine debris after 10 days if the marine debris is floating, sunk, partially sunk, or beached in or on a public waterway, public beach, or on state tidelands or submerged lands, as specified. This bill would allow marine debris that constitute a public nuisance or a danger to navigation, health, safety, or the environment, to be removed and disposed of immediately, unless the marine debris is whole and the owner of the marine debris is identifiable, in which case the bill would require the marine debris to be maintained or stored for 10 days. This bill would authorize a public agency to recover costs incurred for removal and disposal of marine debris from the owner or other specified persons, and require the State Lands Commission, on or before January 1, 2017, to adopt best management practices for salvage of marine debris, as specified. BACKGROUND The Division of Boating and Waterways (DBW) administers the Abandoned Watercraft Removal Program to provide grants to local agencies to help pay the costs of abatement, removal, storage, and disposal of abandoned, wrecked, and dismantled vessels or parts of those vessels that pose navigational hazards on the AB 1323 (Frazier) Page 2 of ? public waterways. That program is funded by the Abandoned Watercraft Abatement Fund (AWAF). As an example of the issues posed by abandoned watercraft, the Sacramento News and Review's August 28, 2008 article entitled "Wreckage on the river," reported: Government officials touring the Sacramento-San Joaquin Delta in July gasped when they saw the wreckage. They'd heard of the problem with abandoned boats sinking and polluting our waterways, but most had not seen for themselves the extent of the trash. They gasped loudest in Fisherman's Cut, off Franks Tract State Recreation Area, a place local fisherman call "The Shipyard," where roughly a dozen vessels languish, including a few barges and tugboats and, strangely, a vessel that once served as a floating schoolhouse with two classrooms, now half-sunken in the blue water. Inside some of these vessels may be lead-acid batteries, gasoline, lead paint, asbestos, antifreeze, plastic items, appliances and refrigerants from air-conditioning units. And when boats sink, these hazardous materials go straight into the water, affecting sensitive surrounding habitat[s], wetlands, protected wildlife and levees. To further address the issue of abandoned vessels, this bill seeks to create a streamlined process for the removal of marine debris from a public waterway, public beach, or on state tidelands or submerged lands. This bill was heard by the Senate Committee on Natural Resources and Water on June 23, 2015, and passed out on a vote of 9-0 . CHANGES TO EXISTING LAW Existing law provides that any peace officer, lifeguard or marine safety officer employed by a county, city, or district while engaged in the performance of official duties, may remove, and if necessary, store a vessel removed from a public waterway under specified circumstances. (Harb. & Nav. Code Sec. 523.) Existing law provides that, except for the urgent and immediate concern for the safety of those aboard a vessel, a person shall not abandon a vessel upon a public waterway or public or private AB 1323 (Frazier) Page 3 of ? property without the express or implied consent of the owner or person in lawful possession or control of the property (Harb. & Nav. Code Sec. 525(a).) Existing law provides that the abandonment of a vessel in the manner described above is prima facie evidence that the last registered owner of record, not having notified the appropriate registration or documenting agency of any relinquishment of title or interest therein, is responsible for the abandonment and is thereby liable for the cost of removal and disposition of the vessel. (Harb. & Nav. Code Sec. 525(b).) Existing law provides that the state shall not assume liability for any injuries or damages to a person or entity, public or private, connected to or resulting from the processing or disposal of a surrendered vessel. (Harb. & Nav. Code Sec. 525(e).) Existing law authorizes the State Lands Commission (SLC) to take immediate action, without notice, to remove from areas under its jurisdiction a vessel that is left unattended and is moored, docked, beached, or made fast to land in a position as to obstruct the normal movement of traffic or in a condition as to create a hazard to navigation, other vessels using a waterway, or the property of another. (Pub. Resources Code Sec. 6302.1(a)(1).) Existing law similarly allows the SLC to take immediate action to remove a vessel that poses a significant threat to public health, safety, or welfare or to sensitive habitat, wildlife, or water quality, or that constitutes a public nuisance. (Pub. Resources Code Sec. 6302.1(a)(2).) Existing law provides that a vessel removed by the SLC under the above provisions that remains unclaimed for 30 days after notice of removal is abandoned property. (Pub. Resources Code Sec. 6302.1(a)(3).) This bill would provide that, notwithstanding any other law, marine debris that is floating, sunk, partially sunk, or beached in or on a public waterway, public beach, or on state tidelands or submerged lands may be removed and destroyed, or otherwise disposed of, by any state, county, city, or other public agency having jurisdiction over its location or having authority to remove marine debris or solid waste, subject to the following conditions: the object meets the definition of marine debris and has no AB 1323 (Frazier) Page 4 of ? value or a value that does not exceed the cost of removal and disposal; if there is no discernable registration, hull identification number, or other identification insignia, a peace officer or authorized public employee securely attaches to the marine debris a notice stating that the marine debris shall be removed by the public agency if not claimed or removed within 10 days; if there is discernable registration, hull identification number, or other identification insignia, a notice is attached to the marine debris and sent to the owner of the marine debris, if known, at the owner's address of record with the Department of Motor Vehicles, by certified or first-class mail; and the marine debris remains in place for 10 days from the date of attaching the notice to the marine debris or from the date the notice letter was sent, whichever is later, before being removed. This bill would require the notice attached to the marine debris to state the name, address, and telephone number of the public agency providing the notice. A notice sent to the owner must contain that same information and further state that the marine debris will be removed and disposed of within 10 days if not claimed, and that the marine debris may be claimed and recovered upon the payment of the public agency's costs. This bill would provide that, notwithstanding the above, marine debris that constitute a public nuisance or a danger to navigation, health, safety, or the environment may be removed and disposed of immediately, unless the marine debris is whole or not demolished during removal, in which case it shall be maintained or stored for 10 days to permit notification of the owner. If the owner of the marine debris is not identifiable, the marine debris may be immediately destroyed or otherwise disposed of. This bill would provide that costs incurred by a public agency for removal and disposal of marine debris may be recovered from an owner or any person or entity who placed the marine debris in or on or caused the marine debris to be in or on the public waterway, public beach, or state tidelands or submerged lands through any appropriate legal action in the courts of this state or by administrative action. AB 1323 (Frazier) Page 5 of ? This bill would require the SLC, on or before January 1, 2017, to adopt, at a public meeting and after consultation with interested state and local agencies, best management practices for the salvage of marine debris. These best management practices shall be published by the SLC on its Internet Web site. The SLC may amend the best management practices from time to time by the same process, as the State Lands Commission deems necessary. This bill would define "vessel" as including every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation by water. This bill would define "marine debris" as a vessel or part of a vessel, including a derelict, wreck, hulk, or part of any ship or other watercraft or dilapidated vessel, that is unseaworthy and not reasonably fit or capable of being made fit to be used as a means of transportation by water. COMMENT 1. Stated need for the bill According to the author The purpose of this bill is to allow for an expedited removal process for derelicts, wrecks, hulks and parts of ships that are no longer truly vessels that [litter] and pollute our state waterways, beaches and tide[,] and submerged land. This proposal draws the distinction between a seaworthy vessel and a vessel or parts of a vessel that are unseaworthy, i.e., one longer capable of performing its purpose or function, and defines it as marine debris. Such marine debris in a state waterway, on a public beach or on state tide[,] and submerged lands may be posted for removal by a state, county, city or other local entity with jurisdiction over the area and removed after 30 day[s]. If an owner can reasonably be determined, a written notice by mail is also required. Removal can be done immediately if it is a public nuisance or a hazard to health, safety or the environment. 2. Streamlined process for removal AB 1323 (Frazier) Page 6 of ? Under existing law, any wrecked property that is an unseaworthy derelict or hulk, abandoned property, or property removed from a navigable waterway may be sold or otherwise disposed of by the public agency that removed the property. (Harb. & Nav. Code Sec. 526.) That removal is conditioned upon various requirements, including, an appraisal, attaching a notice prior to removal, notifying registered and legal owners, and a hearing, if requested under certain circumstances. The author asserts that "[b]ecause the current process prescribed by [the] Harbor & Navigation Code is so impractical[,] it is seldom used and[,] as a result[,] broken or disintegrated vessels and parts of them remain and continue to pollute our waterways and the environment," Accordingly, this bill seeks to enact a streamlined process for the removal of marine debris from a public waterway, public beach, or on state tidelands or submerged lands. To create the streamlined process, this bill would allow a public agency with jurisdiction over the location of the marine debris or the authority to remove those debris or solid waste to remove, destroy, or otherwise dispose of the debris. That process would be subject to the following conditions: (1) the object has no value or a value that does not exceed the cost of removal and disposal; (2) if there is no discernable registration, a public employee attaches a notice 10 days before removal; (3) if there is a discernable registration, a notice is attached and mailed to the owner; and (4) the marine debris remain in place for 10 days from the date of attaching the notice to the marine debris or from the date the letter was sent. Staff notes that while a 10-day notice of removal may appear to be a short amount of time, the bill would only apply to "marine debris," which would be defined as a watercraft or vessel that is unseaworthy and not reasonably fit or capable of being made fit to be used as a means of transportation by water. As a result, this bill would appear to only apply to vessels and watercraft that are no longer usable, cannot be fixed, and have been abandoned by their owners. The California State Lands Commission, in support, writes: "[AB 1323] would create a simple and logical process for removal of derelict vessels that constitute marine debris from a public waterway, public beach, or on state tidelands or submerged lands. Derelict vessels and parts thereof are a hazard to navigation and the environment. While responsible owners AB 1323 (Frazier) Page 7 of ? dispose of vessels lawfully, other owners dump them on state waterways where they disintegrate and pollute the environment and impede navigation." The California Association of Harbor Masters and Port Captains, the California Yacht Brokers Association, the Marina Recreation Association, the National Marine Manufacturers Association, and the Worldwide Boaters Safety Group note that this bill creates an efficient and cost effective method of removing hazards to navigation and that: "California has the second largest boating population in the United States. There are over 800,000 registered vessels, not including federally documented vessels, and boating activity generates roughly $8.9 billion to the State's economy. . . . A byproduct of this economic and boating activity is a continual problem with the abandonment of vessels that are beyond their useful life. This bill will allow for a streamlined process to remove these vessels, thereby not only removing the hazards to navigation and the threat to the environment, but will improve our waterways, which can only enhance this significant aspect of our economy and State's cultural heritage." It should be noted that in cases where the marine debris constitute a public nuisance or a danger to navigation, health, safety or the environment, this bill would allow the debris to be removed and disposed of immediately. That provision would not apply if the marine debris are whole or not demolished during removal, in which case the marine debris would be stored for 10 days to permit notification to the owner (if identifiable). Additionally, this bill would allow a public agency to recover their costs for removal and disposal of marine debris through any appropriate legal or administrative action. Despite that allowance, it is unclear whether the owner of marine debris could realistically be tracked down due to the nature of the debris (primarily abandoned vessels) that would be removed pursuant to this bill. Support : Alameda Marina; California Association of Harbor Masters and Port Captains; California Boating Safety Officers Association; California State Lands Commission; California State Sheriffs' Association; California Yacht Brokers Association; Marina Recreation Association; National Marine Manufacturers Association; Recreational Boaters of California; Worldwide Boaters Safety Group Opposition : None Known AB 1323 (Frazier) Page 8 of ? HISTORY Source : Author Related Pending Legislation : None Known Prior Legislation : AB 166 (Lieu, Chapter 416, Statutes of 2009) established a pilot program that authorizes the sale of surrendered recreational vessels prior to their potential or eventual abandonment. Prior Vote : Senate Natural Resources and Water Committee (Ayes 9, Noes 0) Assembly Floor (Ayes 74, Noes 0) Assembly Appropriations Committee (Ayes 17, Noes 0) Assembly Natural Resources Committee (Ayes 9, Noes 0) **************