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Chapter 79.100 RCW

DERELICT VESSELS

RCW Sections

79.100.005Findings.
79.100.010Definitions.
79.100.020Chapter not exclusive remedy.
79.100.030Authority of authorized public entity -- Owner retains primary responsibility -- Limitation on civil liability.
79.100.040Obtaining custody of vessel.
79.100.050Use or disposal of vessel.
79.100.060Reimbursement for costs.
79.100.070Contract with private company/individual.
79.100.080Chapter not exclusive.
79.100.100Derelict vessel removal account.
79.100.110Vessel abandoned or derelict upon aquatic lands -- Causing a vessel to block a navigational channel -- Penalty.
79.100.120Contesting an authorized public entity's decision to take temporary custody or possession of a vessel -- Contesting the amount of reimbursement.
79.100.130Private moorage facility owner may contract with a local government -- Contract requirements.
79.100.140Authority to board a vessel -- Administrative search warrant.
79.100.150Transfer of certain vessels -- Inspection required -- Secondary liability.
79.100.160Voluntary vessel turn-in program.
79.100.900Severability -- 2002 c 286.
79.100.901Effective date -- 2002 c 286.


79.100.005
Findings.

The legislature finds that there has been an increase in the number of derelict and abandoned vessels that are either grounded or anchored upon publicly or privately owned submerged lands. These vessels are public nuisances and safety hazards as they often pose hazards to navigation, detract from the aesthetics of Washington's waterways, and threaten the environment with the potential release of hazardous materials. The legislature further finds that the costs associated with the disposal of derelict and abandoned vessels are substantial, and that in many cases there is no way to track down the current vessel owners in order to seek compensation. As a result, the costs associated with the removal of derelict vessels becomes a burden on public entities and the taxpaying public.

[2002 c 286 § 1.]




79.100.010
Definitions.


     *** CHANGE IN 2014 *** (SEE
2457-S2.SL) ***

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

     (1) "Abandoned vessel" means a vessel that has been left, moored, or anchored in the same area without the express consent, or contrary to the rules of, the owner, manager, or lessee of the aquatic lands below or on which the vessel is located for either a period of more than thirty consecutive days or for more than a total of ninety days in any three hundred sixty-five-day period, and the vessel's owner is: (a) Not known or cannot be located; or (b) known and located but is unwilling to take control of the vessel. For the purposes of this subsection (1) only, "in the same area" means within a radius of five miles of any location where the vessel was previously moored or anchored on aquatic lands.

     (2) "Aquatic lands" means all tidelands, shorelands, harbor areas, and the beds of navigable waters, including lands owned by the state and lands owned by other public or private entities.

     (3) "Authorized public entity" includes any of the following: The department of natural resources; the department of fish and wildlife; the parks and recreation commission; a metropolitan park district; a port district; and any city, town, or county with ownership, management, or jurisdiction over the aquatic lands where an abandoned or derelict vessel is located.

     (4) "Department" means the department of natural resources.

     (5) "Derelict vessel" means the vessel's owner is known and can be located, and exerts control of a vessel that:

     (a) Has been moored, anchored, or otherwise left in the waters of the state or on public property contrary to RCW 79.02.300 or rules adopted by an authorized public entity;

     (b) Has been left on private property without authorization of the owner; or

     (c) Has been left for a period of seven consecutive days, and:

     (i) Is sunk or in danger of sinking;

     (ii) Is obstructing a waterway; or

     (iii) Is endangering life or property.

     (6) "Owner" means any natural person, firm, partnership, corporation, association, government entity, or organization that has a lawful right to possession of a vessel by purchase, exchange, gift, lease, inheritance, or legal action whether or not the vessel is subject to a security interest.

     (7) "Vessel" means every species of watercraft or other mobile artificial contrivance, powered or unpowered, intended to be used for transporting people or goods on water or for floating marine construction or repair and which does not exceed two hundred feet in length. "Vessel" includes any trailer used for the transportation of watercraft, or any attached floats or debris.

[2007 c 342 § 1; 2006 c 153 § 2; 2002 c 286 § 2.]




79.100.020
Chapter not exclusive remedy.

This chapter is not intended to limit or constrain the ability and authority of the authorized public entities to enact and enforce ordinances or other regulations relating to derelict and abandoned vessels, or to take any actions authorized by federal or state law in responding to derelict or abandoned vessels. This chapter is also not intended to be the sole remedy available to authorized public entities against the owners of derelict and abandoned vessels.

[2002 c 286 § 3.]




79.100.030
Authority of authorized public entity — Owner retains primary responsibility — Limitation on civil liability.

(1) An authorized public entity has the authority, subject to the processes and limitations of this chapter, to store, strip, use, auction, sell, salvage, scrap, or dispose of an abandoned or derelict vessel found on or above aquatic lands within the jurisdiction of the authorized public entity. A vessel disposal must be done in an environmentally sound manner and in accordance with all federal, state, and local laws, including the state solid waste disposal provisions provided for in chapter 70.95 RCW. Scuttling or sinking of a vessel is only permissible after obtaining the express permission of the owner or owners of the aquatic lands below where the scuttling or sinking would occur, and obtaining all necessary state and federal permits or licenses.

     (2) The primary responsibility to remove a derelict or abandoned vessel belongs to the owner, operator, or lessee of the moorage facility or the aquatic lands where the vessel is located. If the authorized public entity with the primary responsibility is unwilling or unable to exercise the authority granted by this section, it may request the department to assume the authorized public entity's authority for a particular vessel. The department may at its discretion assume the authorized public entity's authority for a particular vessel after being requested to do so. For vessels not at a moorage facility, an authorized public entity with jurisdiction over the aquatic lands where the vessel is located may, at its discretion, request to assume primary responsibility for that particular vessel from the owner of the aquatic lands where the vessel is located.

     (3) The authority granted by this chapter is permissive, and no authorized public entity has a duty to exercise the authority. No liability attaches to an authorized public entity that chooses not to exercise this authority. An authorized public entity, in the good faith performance of the actions authorized under this chapter, is not liable for civil damages resulting from any act or omission in the performance of the actions other than acts or omissions constituting gross negligence or willful or wanton misconduct. Any person whose assistance has been requested by an authorized public entity, who has entered into a written agreement pursuant to RCW 79.100.070, and who, in good faith, renders assistance or advice with respect to activities conducted by an authorized public entity pursuant to this chapter, is not liable for civil damages resulting from any act or omission in the rendering of the assistance or advice, other than acts or omissions constituting gross negligence or willful or wanton misconduct.

[2011 c 247 § 4; 2002 c 286 § 4.]




79.100.040
Obtaining custody of vessel.

(1) Prior to exercising the authority granted in RCW 79.100.030, the authorized public entity must first obtain custody of the vessel. To do so, the authorized public entity must:

     (a) Mail notice of its intent to obtain custody, at least twenty days prior to taking custody, to the last known address of the previous owner to register the vessel in any state or with the federal government and to any lien holders or secured interests on record. A notice need not be sent to the purported owner or any other person whose interest in the vessel is not recorded with a state or federal agency;

     (b) Post notice of its intent clearly on the vessel for thirty days and publish its intent at least once, more than ten days but less than twenty days prior to taking custody, in a newspaper of general circulation for the county in which the vessel is located; and

     (c) Post notice of its intent on the department's internet web site on a page specifically designated for such notices. If the authorized public entity is not the department, the department must facilitate the internet posting.

     (2) All notices sent, posted, or published in accordance with this section must, at a minimum, explain the intent of the authorized public entity to take custody of the vessel, the rights of the authorized public entity after taking custody of the vessel as provided in RCW 79.100.030, the procedures the owner must follow in order to avoid custody being taken by the authorized public entity, the procedures the owner must follow in order to reclaim possession after custody is taken by the authorized public entity, and the financial liabilities that the owner may incur as provided for in RCW 79.100.060.

     (3)(a) Any authorized public entity may tow, beach, or otherwise take temporary possession of a vessel if the owner of the vessel cannot be located or is unwilling or unable to assume immediate responsibility for the vessel and if the vessel:

     (i) Is in immediate danger of sinking, breaking up, or blocking navigational channels; or

     (ii) Poses a reasonably imminent threat to human health or safety, including a threat of environmental contamination.

     (b) Before taking temporary possession of the vessel, the authorized public entity must make reasonable attempts to consult with the department or the United States coast guard to ensure that other remedies are not available. The basis for taking temporary possession of the vessel must be set out in writing by the authorized public entity within seven days of taking action and be submitted to the owner, if known, as soon thereafter as is reasonable. If the authorized public entity has not already provided the required notice, immediately after taking possession of the vessel, the authorized public entity must initiate the notice provisions in subsection (1) of this section. The authorized public entity must complete the notice requirements of subsection (1) of this section before using or disposing of the vessel as authorized in RCW 79.100.050.

     (4) An authorized public entity may invite the department of ecology to use the authority granted to it under RCW 90.56.410 prior to, or concurrently with, obtaining custody of a vessel under this section. However, this is not a necessary prerequisite to an authorized public entity obtaining custody.

[2013 c 291 § 37; 2007 c 342 § 2; 2006 c 153 § 3; 2002 c 286 § 5.]




79.100.050
Use or disposal of vessel.

(1) After taking custody of a vessel, the authorized public entity may use or dispose of the vessel in any appropriate and environmentally sound manner without further notice to any owners, but must give preference to uses that derive some monetary benefit from the vessel, either in whole or in scrap. If no value can be derived from the vessel, the authorized public entity must give preference to the least costly, environmentally sound, reasonable disposal option. Any disposal operations must be consistent with the state solid waste disposal provisions provided for in chapter 70.95 RCW.

     (2) If the authorized public entity chooses to offer the vessel at a public auction, either a minimum bid may be set or a letter of credit may be required, or both, to discourage future reabandonment of the vessel.

     (3) Proceeds derived from the sale of the vessel must first be applied to any administrative costs that are incurred by the authorized public entity during the notification procedures set forth in RCW 79.100.040, removal and disposal costs, and costs associated with environmental damages directly or indirectly caused by the vessel. If the proceeds derived from the vessel exceed all administrative costs, removal and disposal costs, and costs associated with environmental damages directly or indirectly caused by the vessel, the remaining moneys must be applied to satisfying any liens registered against the vessel.

     (4) Any value derived from a vessel greater than all liens and costs incurred reverts to the derelict vessel removal account established in RCW 79.100.100.

[2002 c 286 § 6.]




79.100.060
Reimbursement for costs.


     *** CHANGE IN 2014 *** (SEE
2457-S2.SL) ***

(1) The owner of an abandoned or derelict vessel, or any person or entity that has incurred secondary liability under RCW 79.100.150, is responsible for reimbursing an authorized public entity for all reasonable and auditable costs associated with the removal or disposal of the owner's vessel under this chapter. These costs include, but are not limited to, costs incurred exercising the authority granted in RCW 79.100.030, all administrative costs incurred by the authorized public entity during the procedure set forth in RCW 79.100.040, removal and disposal costs, and costs associated with environmental damages directly or indirectly caused by the vessel. An authorized public entity that has taken temporary possession of a vessel may require that all reasonable and auditable costs associated with the removal of the vessel be paid before the vessel is released to the owner.

     (2) Reimbursement for costs may be sought from an owner, or any person or entity that has incurred secondary liability under RCW 79.100.150, who is identified subsequent to the vessel's removal and disposal.

     (3) If the full amount of all costs due to the authorized public entity under this chapter is not paid to the authorized public entity within thirty days after first notifying the responsible parties of the amounts owed, the authorized public entity or the department may bring an action in any court of competent jurisdiction to recover the costs, plus reasonable attorneys' fees and costs incurred by the authorized public entity.

[2013 c 291 § 40; 2006 c 153 § 4; 2002 c 286 § 7.]




79.100.070
Contract with private company/individual.

An authorized public entity may enter into a contract with a private company or individual to carry out the authority granted in this chapter.

[2002 c 286 § 8.]




79.100.080
Chapter not exclusive.

The rights granted by this chapter are in addition to any other legal rights an authorized public entity may have to obtain title to, remove, recover, sell, or dispose of an abandoned or derelict vessel, and in no way does this chapter alter those rights, or affect the priority of other liens on a vessel.

[2002 c 286 § 9.]




79.100.100
Derelict vessel removal account.


     *** CHANGE IN 2014 *** (SEE
2457-S2.SL) ***

(1)(a) The derelict vessel removal account is created in the state treasury. All receipts from RCW 79.100.050 and 79.100.060 and those moneys specified in RCW 88.02.640 must be deposited into the account. The account is authorized to receive fund transfers and appropriations from the general fund, deposits from the derelict vessel removal surcharge under RCW 88.02.640(4), as well as gifts, grants, and endowments from public or private sources as may be made from time to time, in trust or otherwise, for the use and benefit of the purposes of this chapter and expend the same or any income according to the terms of the gifts, grants, or endowments provided those terms do not conflict with any provisions of this section or any guidelines developed to prioritize reimbursement of removal projects associated with this chapter.

     (b) Moneys in the account may only be spent after appropriation. Expenditures from the account may only be used by the department for developing and administering the vessel turn-in program created in RCW 79.100.160 and to reimburse authorized public entities for up to ninety percent of the total reasonable and auditable administrative, removal, disposal, and environmental damage costs of abandoned or derelict vessels when the previous owner is either unknown after a reasonable search effort or insolvent. Reimbursement may not be made unless the department determines that the public entity has made reasonable efforts to identify and locate the party responsible for the vessel, or any other person or entity that has incurred secondary liability under RCW 79.100.150, regardless of the title of owner of the vessel.

     (c) Funds in the account resulting from transfers from the general fund or from the deposit of funds from the watercraft excise tax as provided for under RCW 82.49.030 must be used to reimburse one hundred percent of costs and should be prioritized for the removal of large vessels.

     (d) Costs associated with the removal and disposal of an abandoned or derelict vessel under the authority granted in RCW 53.08.320 also qualify for reimbursement from the derelict vessel removal account.

     (e) In each biennium, up to twenty percent of the expenditures from the derelict vessel removal account may be used for administrative expenses of the department of licensing and department of natural resources in implementing this chapter.

     (2) Priority for use of this account is for the removal of derelict and abandoned vessels that are in danger of sinking, breaking up, or blocking navigation channels, or that present environmental risks such as leaking fuel or other hazardous substances. The department must develop criteria, in the form of informal guidelines, to prioritize removal projects associated with this chapter, but may not consider whether the applicant is a state or local entity when prioritizing. The guidelines must also include guidance to the authorized public entities as to what removal activities and associated costs are reasonable and eligible for reimbursement.

     (3) The department must keep all authorized public entities apprised of the balance of the derelict vessel removal account and the funds available for reimbursement. The guidelines developed by the department must also be made available to the other authorized public entities. This subsection (3) must be satisfied by utilizing the least costly method, including maintaining the information on the department's internet web site, or any other cost-effective method.

     (4) An authorized public entity may contribute its ten percent of costs that are not eligible for reimbursement by using in-kind services, including the use of existing staff, equipment, and volunteers.

     (5) This chapter does not guarantee reimbursement for an authorized public entity. Authorized public entities seeking certainty in reimbursement prior to taking action under this chapter may first notify the department of their proposed action and the estimated total costs. Upon notification by an authorized public entity, the department must make the authorized public entity aware of the status of the fund and the likelihood of reimbursement being available. The department may offer technical assistance and assure reimbursement for up to two years following the removal action if an assurance is appropriate given the balance of the fund and the details of the proposed action.

[2013 c 291 § 2; 2010 c 161 § 1161; 2007 c 342 § 4; 2006 c 153 § 6; 2002 c 286 § 11.]

Notes:

     Effective date -- Intent -- Legislation to reconcile chapter 161, Laws of 2010 and other amendments made during the 2010 legislative session -- 2010 c 161: See notes following RCW 46.04.013.




79.100.110
Vessel abandoned or derelict upon aquatic lands — Causing a vessel to block a navigational channel — Penalty.

(1) A person who causes a vessel to become abandoned or derelict upon aquatic lands is guilty of a misdemeanor.

     (2) A person who intentionally, through action or inaction and without the appropriate state, local, or federal authorization, causes a vessel to sink, break up, or block a navigational channel upon aquatic lands is guilty of a misdemeanor.

[2011 c 247 § 1; 2006 c 153 § 1.]




79.100.120
Contesting an authorized public entity's decision to take temporary custody or possession of a vessel — Contesting the amount of reimbursement.


     *** CHANGE IN 2014 *** (SEE
2457-S2.SL) ***

(1) A person seeking to contest an authorized public entity's decision to take temporary possession or custody of a vessel under this chapter, or to contest the amount of reimbursement owed to an authorized public entity under this chapter, may request a hearing in accordance with this section.

     (2)(a) If the contested decision or action was undertaken by a state agency, a written request for a hearing related to the decision or action must be filed with the pollution control hearings board and served on the state agency in accordance with RCW 43.21B.230 (2) and (3) within thirty days of the date the authorized public entity acquires custody of the vessel under RCW 79.100.040, or if the vessel is redeemed before the authorized public entity acquires custody, the date of redemption, or the right to a hearing is deemed waived and the vessel's owner is liable for any costs owed the authorized public entity. In the event of litigation, the prevailing party is entitled to reasonable attorneys' fees and costs.

     (b) Upon receipt of a timely hearing request, the pollution control hearings board shall proceed to hear and determine the validity of the decision to take the vessel into temporary possession or custody and the reasonableness of any towing, storage, or other charges permitted under this chapter. Within five business days after the request for a hearing is filed, the pollution control hearings board shall notify the vessel owner requesting the hearing and the authorized public entity of the date, time, and location for the hearing. Unless the vessel is redeemed before the request for hearing is filed, the pollution control hearings board shall set the hearing on a date that is within ten business days of the filing of the request for hearing. If the vessel is redeemed before the request for a hearing is filed, the pollution control hearings board shall set the hearing on a date that is within sixty days of the filing of the request for hearing.

     (c) Consistent with RCW 43.21B.305, a proceeding brought under this subsection may be heard by one member of the pollution control hearings board, whose decision is the final decision of the board.

     (3)(a) If the contested decision or action was undertaken by a metropolitan park district, port district, city, town, or county, which has adopted rules or procedures for contesting decisions or actions pertaining to derelict or abandoned vessels, those rules or procedures must be followed in order to contest a decision to take temporary possession or custody of a vessel, or to contest the amount of reimbursement owed.

     (b) If the metropolitan park district, port district, city, town, or county has not adopted rules or procedures for contesting decisions or actions pertaining to derelict or abandoned vessels, then a person requesting a hearing under this section must follow the procedure established in subsection (2) of this section.

[2013 c 291 § 32; 2010 c 210 § 34; 2006 c 153 § 5.]

Notes:

     Intent -- Effective dates -- Application -- Pending cases and rules -- 2010 c 210: See notes following RCW 43.21B.001.




79.100.130
Private moorage facility owner may contract with a local government — Contract requirements.


     *** CHANGE IN 2014 *** (SEE
2457-S2.SL) ***

(1) A private moorage facility owner, as those terms are defined in RCW 88.26.010, may contract with a local government for the purpose of participating in the derelict vessel removal program.

     (2) If a contract is completed under this section, the local government shall serve as the authorized public entity for the removal of a derelict or abandoned vessel from the property of the private moorage facility owner. The contract must provide for the private moorage facility owner to be financially responsible for the removal and disposal costs that are not reimbursed by the department as provided under RCW 79.100.100, and any additional reasonable administrative costs incurred by the local government during the removal of the derelict or abandoned vessel.

     (3) Prior to the commencement of any removal which will seek reimbursement from the derelict vessel removal program, the contract and the proposed vessel removal shall be submitted to the department for review and approval. The local government shall use the procedure specified under RCW 79.100.100(6).

     (4) If the private moorage facility owner has already seized the vessel under chapter 88.26 RCW and title has reverted to the moorage facility, the moorage facility is not considered the owner under this chapter for purposes of cost recovery for actions taken under this section.

[2013 c 291 § 4; 2011 c 247 § 2; 2007 c 342 § 3.]




79.100.140
Authority to board a vessel — Administrative search warrant.

(1) An officer or employee of an authorized public entity, or the department of ecology at the request of an authorized public entity, may, consistent with subsection (2) of this section, board any vessel at any reasonable time for the purpose of:

     (a) Administering this chapter, including identifying ownership of a vessel, assessing the structural integrity of a vessel, and assessing whether a vessel meets the criteria described under RCW
79.100.040(3); or

     (b) For the department of ecology only, mitigating a potential threat to health, safety, or the environment under the authority provided in chapter 90.56 RCW.

     (2)(a) Prior to boarding any vessel under the authority of this section, an officer or employee of an authorized public entity or the department of ecology must apply for and obtain an administrative search warrant in either Thurston county superior court or the superior court in the county where the vessel is located, unless a warrant is not otherwise required by law. The court may issue an administrative search warrant where the court has reasonable cause to believe it is necessary to achieve the purposes of this section.

     (b) Prior to requesting an administrative search warrant under this subsection, the officer or employee must make a reasonable effort to contact the owner or the owner's designee and obtain consent to board the vessel.

     (3) Nothing in this section affects an authorized public entity's authority to carry out actions under RCW 79.100.040 or any agency's existing authority to enter onto vessels under any other statute.

[2013 c 291 § 35.]




79.100.150
Transfer of certain vessels — Inspection required — Secondary liability. (Effective July 1, 2014.)


     *** CHANGE IN 2014 *** (SEE
2457-S2.SL) ***

(1) A vessel owner must obtain a vessel inspection under this section prior to transferring a vessel that is:

     (a) More than sixty-five feet in length and more than forty years old; and

     (b) Either:

     (i) Is registered or required to be registered under chapter 88.02 RCW; or

     (ii) Is listed or required to be listed under chapter 84.40 RCW.

     (2) Where required under subsection (1) of this section, a vessel owner must provide a copy of the vessel inspection documentation to the transferee and, if the department did not conduct the inspection, to the department prior to the transfer.

     (3) Failure to comply with the requirements of subsections (1) and (2) of this section will result in the transferor having secondary liability under RCW 79.100.060 if the vessel is later abandoned by the transferee or becomes derelict prior to a subsequent ownership transfer.

[2013 c 291 § 38.]

Notes:

     Effective date -- 2013 c 291 § 38: "Section 38 of this act takes effect July 1, 2014." [2013 c 291 § 48.]




79.100.160
Voluntary vessel turn-in program.

(1) The department may develop and administer a voluntary vessel turn-in program.

     (2) The purpose of the vessel turn-in program is to allow the department to dismantle and dispose of vessels that pose a high risk of becoming a derelict vessel or abandoned vessel, but that do not yet meet the definition of those terms. The department shall design the program with the goal of dismantling and disposing of as many vessels as available resources allow, particularly those vessels posing the greatest risk of becoming abandoned or derelict in the future.

     (3) The department shall disseminate information about the vessel turn-in program, including information about the application process, on its internet site and through appropriate agency publications and information sources as determined by the department. The department shall disseminate this information for a reasonable time as determined by the department prior to accepting applications.

     (4) The department shall accept and review vessel turn-in program applications from eligible vessel owners, including private marinas that have gained legal title to a vessel in an advanced state of disrepair, during the time period or periods identified by the department. In order to be eligible for the vessel turn-in program, an applicant must demonstrate to the department's satisfaction that the applicant:

     (a) Is a Washington resident or business;

     (b) Owns a vessel that is in an advanced state of disrepair, has minimal or no value, and has a high likelihood of becoming an abandoned or derelict vessel; and

     (c) Has insufficient resources to properly dispose of the vessel outside of the vessel turn-in program.

     (5) Decisions regarding program eligibility and whether to accept a vessel for dismantling and disposal under the turn-in program are within the sole discretion of the department.

     (6) The department may take other actions not inconsistent with this section in order to develop and administer the vessel turn-in program.

     (7) The department may not spend more than two hundred thousand dollars in any one biennium on the program established in this section.

[2013 c 291 § 42.]




79.100.900
Severability — 2002 c 286.

If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

[2002 c 286 § 25.]




79.100.901
Effective date — 2002 c 286.

This act takes effect January 1, 2003.

[2002 c 286 § 26.]