Washington State Begins BAP Rule Update
In February, the Washington State Department of Ecology launched the 2025 Best Achievable Protection (BAP)initiative, marking the start of a new rulemaking cycle to update the state’s oil spill contingency planning regulations under WAC 173-182.
To kick off the process, Ecology hosted an online meeting with plan holders and stakeholders, followed by a public survey that invited input on where the current rules could be improved. Based on the feedback received, Ecology identified four priority areas, each of which will be addressed by a dedicated technical workgroup. WSMC is proud to announce that we will have a representative on each workgroup, ensuring our members’ interests and operational realities are well represented.
The Four BAP Workgroups
Below is an overview of the four focus areas, the rationale behind each, and the current regulatory context.
1. Non-Floating Oil Response
Why it matters:
The potential for increased transport of heavy crude oils—such as diluted bitumen (dilbit)—through Washington waters has raised concerns about the ability to detect and recover oil that may submerge or sink. While Canadian crude production has seen modest growth, the actual impact on Washington remains uncertain.
Current rule:
WAC 173-182-030(31) defines "nonfloating oil" as oil that may submerge due to physical properties, weathering, or environmental factors. WAC 173-182-324 outlines planning standards requiring plan holders to identify at-risk benthic and seafloor resources and describe appropriate response strategies.
WSMC's position:
WSMC supports contingency planning that addresses nonfloating oils but emphasizes that the regulation of Canadian oil exports falls outside Ecology’s jurisdiction. We support proactive, risk-based planning for any product that could impact Washington's marine environment—while avoiding speculative rulemaking driven by external market conditions.
2. Whale and Wildlife Deterrence
Why it matters:
Protecting endangered species such as Southern Resident Killer Whales (SRKW) during spill events is a growing concern. Delays during the 2022 Aleutian Isle fishing vessel response highlighted logistical challenges in deploying deterrent teams. However, the Aleutian Isle was not a Covered Vessel under state law and was not required to meet WAC 173-182 standards.
Proposals to expand deterrence responsibilities must consider legal and jurisdictional boundaries. Under the Endangered Species Act (ESA), any effort to intentionally alter the behavior of a listed species may constitute harassment—a federal offense unless specifically authorized by NOAA Fisheries.
Current rule:
WAC 173-182-540 requires plan holders to:
Maintain contact information for aerial reconnaissance and whale identification resources.
Identify equipment and personnel for wildlife deterrence.
Demonstrate the ability to deploy deterrence within 12 hours of notification.
Maintain a vetted list of trained vessels capable of supporting SRKW deterrence operations.
This information must be tested through tabletop and deployment drills.
WSMC’s position:
WSMC supports the existing planning framework in WAC 173-182-540 but strongly opposes assigning deterrence implementation to plan holders. These actions must be led by agencies with the legal authority and expertise—such as NOAA Fisheries and the Washington Department of Fish and Wildlife. WSMC and its members are committed to supporting deterrence efforts logistically but will advocate for a science-based, legally sound framework that maintains clear roles and responsibilities.
3. Shoreline Clean-up and Assessment (SCAT)
Why it matters:
SCAT is a globally accepted method for documenting shoreline oiling and guiding appropriate cleanup. Survey participants called for clearer requirements regarding SCAT personnel qualifications, deployment procedures, and integration into the ICS structure.
Current rule:
WAC 173-182-522 outlines shoreline cleanup planning standards but does not require plan holders to specifically address SCAT resource availability, personnel qualifications, or command structure integration.
WSMC’s position:
WSMC supports strengthening SCAT planning while maintaining flexibility for plan holders. We advocate for:
Describing access to SCAT capability, including qualified contractors.
Recognizing SCAT’s role in net environmental benefit determinations and cleanup endpoints.
Avoiding rigid mandates for named SCAT Program Managers or automatic deployment in low-risk spills.
Preventing increased administrative burden or audit exposure that doesn’t translate into environmental benefit.
Experience from the 2024 MOE mystery oiling event showed the importance of SCAT but also revealed gaps in coordination and execution. WSMC will advocate for scalable, practical improvements that enhance response while respecting the diverse capabilities of our members.
4. Aerial Surveillance of Oil Spills
Why it matters:
Aerial surveillance helps responders track slick location, movement, and characteristics. While current regulations emphasize manned aircraft with thermal imaging, stakeholders have highlighted the growing value of uncrewed aerial systems (UAS) like drones. These tools are cost-effective and particularly useful in geographically constrained areas, such as the Aleutian Falcon ship fire.
Current rule:
WAC 173-182-320 (facilities) and WAC 173-182-321 (covered vessels) require access to manned aircraft with trained observers and thermal sensors but do not address UAS, creating a gap between current practice and regulatory language.
WSMC’s position:
WSMC supports formally recognizing UAS as a valuable surveillance tool—in addition to, not in place of, manned aircraft. Surveillance platforms should be matched to the scenario, and regulatory flexibility is key.
We will advocate for:
Acknowledging UAS as a complementary tool, especially where manned flight is limited.
Allowing tiered surveillance strategies based on spill size and location.
Avoiding assumptions that drones can fully replace manned aircraft in all cases.
Recognizing UAS limitations, including FAA restrictions and technical constraints.
WSMC brings a practical, operations-based perspective to the table and will work to ensure aerial surveillance rules keep pace with technology without sacrificing effectiveness.
Looking Ahead
The BAP workgroups will begin meeting this spring to develop recommendations for Ecology’s future rulemaking. WSMC will participate in each group to ensure our members' needs and real-world experience are reflected in the process.
Our focus remains on striking a balance between environmental stewardship and operational feasibility. We encourage members with expertise in any of the four areas—non-floating oil response, whale deterrence, SCAT, or aerial surveillance—to reach out and share input.
If you have questions or want to contribute insight to help guide our engagement in these workgroups, please contact me directly at dansmiley@wsmcoop.org.
Together, we can help shape smart, effective rules that protect both Washington’s waters and the vital work of our maritime community.