AQUATIC INVASIVE SPECIES S.B. 508, 509, & 510: COMMITTEE SUMMARY
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Senate Bills 508, 509, and 510 (as introduced 6-21-11)
Sponsor: Senator Tom Casperson (S.B. 508) Senator Howard C. Walker (S.B. 509) Senator Goeff Hansen (S.B. 510)
Committee: Outdoor Recreation and Tourism


Date Completed: 9-7-11

CONTENT
The bills would add Part 414 (Aquatic Invasive Species Advisory Council) to the Natural Resources and Environmental Protection Act to create the Advisory Council and require it to make recommendations to address aquatic invasive species (AIS).


Senate Bill 509 would do the following:

-- Create the AIS Advisory Council within the Department of Environmental Quality (DEQ).
-- Require the Council to make recommendations to the DEQ on a final update to the Michigan AIS Management Plan.
-- Require the Council to provide its recommendations to the Governor upon request.
-- Require the Council to submit to the Governor and the Legislature a report containing recommendations on funding to implement the Plan.


Senate Bill 510 would do the following:

-- Require the Council to submit to the Governor and the Legislature a report containing recommendations for legislation or rules to prevent the introduction and spread of AIS through trade.
-- Repeal Part 414 four years after its enactment.


Senate Bill 508 would do the following:

-- Define terms used in Part 414.
-- Require the Council to develop recommendations regarding Michigan's comments on the Federal draft next Vessel General Permit (VGP), including a proposed ballast water treatment standard.
-- Require the Council to provide its recommendations to the Governor upon request.

The bills are tie-barred to each other. They are described below in further detail. (The Michigan AIS Management Plan and the VGP are described below, under BACKGROUND.)

Senate Bill 509

Aquatic Invasive Species Advisory Council


 The bill would create the Council within the DEQ. The Council would have to consist of the following people or their designees:

-- The DEQ Director.
-- The Director of the Department of Natural Resources.
-- The Director of the Department of Agriculture and Rural Development.
-- The Director of the Michigan Department of Transportation.
-- The Attorney General.


In addition, the Council would have to include the following members appointed by the Governor:

-- -- A representative of the U.S. Department of the Interior, National Park Service.
-- A representative of an association of Great Lakes shipping companies.
-- A representative of the horticulture industry.


The Council also would have to include the following members appointed by the Senate Majority Leader:

-- A representative of a statewide private conservation organization.
-- A representative of the Great Lakes Commission created by the Great Lakes Basin Compact.
-- A representative of a statewide association of businesses.
-- A representative of an association of Indian tribes.

(The Great Lakes Basin Compact was established by joint legislative action of the Great Lakes states in 1955 and granted congressional consent through Public Law 90-419.)


Additionally, the Council would have to include the following members appointed by the Speaker of the House of Representatives:

-- A representative of a regional or national private conservation organization.
-- A representative of an association of industries in the Great Lakes region.
-- A representative of a public utility.
-- A representative of a statewide association of local units of government.


The members first appointed to the Council would have to be appointed within 30 days after the bill took effect. Members would serve for the life of the Council. If a vacancy occurred, it would have to be filled in the same manner as the original appointment was made. The appointing officer could remove a member for incompetence, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office, or any other good cause.


The DEQ Director, or his or her designee, would have to call the first Council meeting. At that meeting, the Council would have to elect a chairperson and other officers it considered necessary or appropriate. After the first meeting, the Council would have to meet at least quarterly, or more frequently at the call of the chairperson or if requested by at least three members.


The Council would be subject to the Open Meetings Act and the Freedom of Information Act.


Council members would serve without additional compensation, but could be reimbursed for their actual and necessary expenses incurred in the performance of their official duties as Council members.


The Council could adopt technical advisory committees of individuals with relevant specific technical, scientific, or legal expertise, or relevant expertise in a trade listed in Section 41409, or could appoint such individuals as adjunct members of the Council without voting rights. (Senate Bill 510 would add Section 41409. That section pertains to the introduction and spread of AIS through trade, including the aquarium, bait, pet, water garden, horticulture, aquaculture, and shipping trades.)


Council Recommendations


 Within 180 days after the bill took effect or within 60 days after the issuance of a draft update to the Michigan Aquatic Invasive Species Management Plan by the DEQ, whichever was later, the Council would have to provide recommendations to the DEQ on a final update to the Plan. The final update would have to address AIS prevention, monitoring, and control and eradication, including rapid response to new infestations. In preparing the final update to the Plan, the DEQ would have to consult with the Council.


The Council would have to give its recommendations to the Governor upon request. The recommendations would be advisory and nonbinding, and could be used at the discretion of and in the manner determined by the Governor. The recommendations would have to be suitable for the executive branch to use in collaborating with other Great Lakes states and Canadian provinces to create or strengthen regional programs or coordinate state and provincial programs to achieve the bill's purposes.


Within 60 days after a final update to the Plan was issued, the Council would have to submit a report with recommendations on the funding necessary to implement the Plan and the method of providing that funding. The Council would have to submit the report to the Governor, the Senate Majority Leader, the Speaker of the House, and the standing committees of the Senate and House with primary responsibility for natural resources, conservation, agriculture, and commerce.


Legislative Findings


 The bill states the following legislative findings:

-- "The waters of the Great Lakes basin are precious public natural resources shared and held in trust by the Great Lakes states and provinces." -- "The waters of the Great Lakes basin are interconnected and part of a single hydrologic system." -- "The Great Lakes basin can concurrently serve multiple uses, such as municipal, public, industrial, commercial, agriculture, mining, navigation, energy development and production, recreation, fishing, tourism, the subsistence, economic and cultural activities of native peoples, water quality maintenance, and the maintenance of fish and wildlife habitat and a balanced ecosystem." -- "The Great Lakes states and Canadian provinces have a shared duty to protect, conserve, restore, improve, and manage the Great Lakes for the use, benefit, and enjoyment of all their citizens, including generations yet to come. The most effective means of protecting, conserving, restoring, improving, and managing the Great Lakes is through the joint pursuit of unified and cooperative principles, policies, and programs mutually agreed upon, enacted, and adhered to by the Great Lakes states and by the Great Lakes Canadian provinces." -- "AIS are a threat to public health and safety, the environment and natural resources, and the economy. AIS are a serious threat to the ecological integrity and uses of the Great Lakes." -- "Over 180 AIS have become established in the Great Lakes, not including microbes. Ballast water discharge is a major source of introduction of AIS." -- "Trade, including the aquarium, bait, pet, water garden, horticulture, aquaculture, shipping, and tourism trades, has been identified as a major potential vector of AIS introduction and spread, through purposeful or incidental buying, selling, and transport. The overall goal of this state's AIS prevention efforts is to close the open pathways for AIS." -- "This state's aquatic invasive species management plan provides a strategy to prevent and control AIS in waters of this state, including the Great Lakes. The plan, last updated in 2002, is being updated by the departments of environmental quality, natural resources, and agriculture and rural development to ensure that it provides a comprehensive approach to AIS including ballast water treatment standards and other AIS prevention, AIS monitoring, and AIS control and eradication, including rapid response to new AIS infestations." -- "This state can effectively address the threat posed by AIS by updating and implementing a comprehensive AIS management plan, developing and adopting model programs to address AIS, and working cooperatively with other Great Lakes states and provinces to ensure a coordinated and consistent response to AIS."

Senate Bill 510

Within 240 days after the bill took effect, the AIS Advisory Council would have to submit a report with recommendations for legislation or rules to prevent the introduction and spread of AIS through trade, including the aquarium, bait, pet, water garden, horticulture, aquaculture, and shipping trades. The Council would have to submit the report to the Governor, the Senate Majority Leader, the Speaker of the House, and the standing committees of the Senate and House with primary responsibility for natural resources, conservation, agriculture, and commerce. In preparing the report, the Council would have to review the AIS laws of Michigan and other jurisdictions, including the other Great Lakes states.


In the report, the Council would have to make recommendations on all of the following:

-- Harmonizing Federal and State law so that aquatic species on Federal lists of either prohibited or permitted species of plants and animals were placed on Michigan's lists.
-- Establishing a program for aquatic species in trade to certify that the organisms were free of disease, insect pests, and incidental contamination by other species.
-- An education program on safe use practices directed to both buyers and sellers of aquatic species in trade.
-- Connecting regulations and education on aquatic species in trade to the protection of Michigan's natural resources as a component of the Pure Michigan tourism advertising campaign.
-- Financial and other resources for implementing the recommendations.
-- Proposals for collaborating with other Great Lakes states and Canadian provinces to create or strengthen regional programs or coordinate state and provincial programs to achieve the goals set forth in the bill.
-- Risk assessment processes to screen aquatic species proposed for trade and to screen pathways of introduction and spread.


The risk assessment processes would have to consider potential net harm to public health and safety, the environment and natural resources, and the economy. The processes would have to place the burden to demonstrate the harmlessness of an aquatic species or pathway on the importer or other person responsible for introduction or distribution. The process for species would have to classify species into three lists: "prohibited", "permitted", and "restricted".


In preparing the report, the Council would have to consult with representatives of organizations and businesses that deal with organisms in trade, including the aquarium, bait, pet, water garden, horticulture, aquaculture, and shipping trades.


To facilitate coordination and minimize duplication in fulfilling its duties, the Council would have to do the following:

-- Consider relevant recommendations and reports by other state, regional, Federal, provincial, Canadian, and international bodies and collaborations.
-- Consult regularly with the Great Lakes Commission and the DEQ, including the Office of the Great Lakes.


The bill would repeal Part 414 four years after its effective date.
Senate Bill 508

The bill would require the Aquatic Invasive Species Advisory Council to develop recommendations regarding Michigan's comments on the draft next Vessel General Permit and certification response to the permit under Section 401 of Title IV of the Federal Water Pollution Control Act, 33 USC 1341, including a proposed ballast water treatment standard.

("Next vessel general permit" would mean the permit the EPA issued to supersede the VGP. "Vessel general permit" would mean the general permit entitled "Final National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Vessel" announced at 73 FR 79,473 (December 29, 2008).)


The Council would have to give its recommendations to the Governor upon request. The recommendations would be nonbinding and advisory, and could be used at the discretion of and in the manner determined by the Governor. The Council's recommendations would have to be suitable for use by the executive branch in collaborating with other Great Lakes states to achieve a consistent position on the draft next VGP. ("Great lakes states" would mean Michigan, Illinois, Indiana, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin.)


In developing its recommendations, the Council would have to consult regularly with the DEQ, including the Office of the Great Lakes, and the Great Lakes Commission.


Proposed MCL 324.41401 & 324.41411 (S.B. 508)
Proposed MCL 324.41403-324.41407 (S.B. 509)
Proposed MCL 324.41409 et al. (S.B. 510) BACKGROUND

Michigan AIS Management Plan


 The Nonindigenous Aquatic Nuisance Prevention and Control Act, authorized under the National Invasive Species Act, allows states to submit to the nationally appointed Aquatic Nuisance Species Task Force a comprehensive management plan for the prevention and control of AIS.
Michigan's plan was approved in 1996 and updated in 2002. (Another update of the plan is being considered currently.) The 2002 plan includes objectives and recommendations in three specific areas: legislation and policy, information and education, and research and monitoring.


Legislation & Policy. The 2002 updated plan emphasizes the need for coordination of the State's policies, as well as collaboration involving governmental agencies at all levels in the Great Lakes states and Canadian provinces. Among the plan's recommendations is the creation of a State council to assist in the coordination of activities necessary to reduce the economic and environmental impacts of AIS in Michigan. The plan also identifies the development of a risk assessment process for potential and existing AIS as an objective. In addition, the plan suggests the establishment of a rapid response team for areas with new infestations or at risk for AIS introduction.


Information & Education. The plan notes the need for coordinated information and education campaigns targeting recreational boaters as well as industries that can serve as vectors for the introduction of AIS, such as aquaculture and commercial fishing.


Research & Monitoring. The plan proposes increased coordination among various entities regarding data collection and calls for the evaluation of various funding options to build collaborative research networks and provide high-quality information for policy makers.


Vessel General Permit


 The U.S. Environmental Protection Agency (EPA) regulates incidental discharges from the normal operation of vessels (excluding military and recreational vessels) through the NPDES Vessel General Permit program. The discharges subject to regulation include ballast water, bilgewater, and graywater. According to the EPA's website, the VGP includes general effluent limits applicable to all discharges; general effluent limits applicable to 26 specific discharge streams; narrative water-quality based effluent limits; inspection, monitoring, recordkeeping, and reporting requirements; and additional requirements applicable to certain vessel types.
The current VGP requirement took effect on February 6, 2009, and will expire on December 19, 2013. The EPA is in the process of developing the next VGP, and plans to propose it by November 30, 2011, and take final action on it within one year. As part of a recent settlement with the State of Michigan and several environmental groups, the EPA has agreed to include in the next draft VGP numeric concentration-based effluent limits for discharges of ballast water expressed as organisms per unit of ballast water volume.


Legislative Analyst: Julie Cassidy

FISCAL IMPACT
The bills would likely introduce some new, relatively small, administrative costs to the Department of Environmental Quality in administering the Aquatic Invasive Species Advisory Council. Additionally, the bills specify that Council members would serve without compensation, but provide for reimbursement of Council members for their actual and necessary expenses incurred in the performance of their official duties.


Fiscal Analyst: Josh Sefton

Analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent. sb508-510/1112