Additionally, a person who sold or offered to sell a restricted species would be subject to a civil fine of not less than $1,000 or more than $10,000. A person who sold or offered to sell a prohibited species would be subject to a civil fine of at least $2,000 but not more than $20,000.
The bill would retain a provision specifying that, in addition to any other civil or criminal sanction, the person is liable for any damage to natural resources resulting from a violation of Part 413, including costs incurred to prevent or minimize the damage.
Senate Bill 215 (S-2)
The bill would create the Invasive Species Fund within the State Treasury. The DNR would have to forward to the State Treasurer the civil fines and permit fees collected under Part 413 for deposit into the Fund. The State Treasurer could receive money or other assets from any source for deposit into the Fund. The State Treasurer also would have to direct the investment of the Fund, and credit to it the interest and earnings. Money in the Fund at the close of the fiscal year would remain in the Fund and would not lapse to the General Fund.
The DNR could spend the Fund money, upon appropriation, only for the administration of Part 413 and public education about preventing the introduction of, controlling, or eradicating prohibited species, restricted species, and other nonnative species and genetically engineered fish, insects, and aquatic plants.
Additionally, the DNR would have to post on its website all of the following:
-- Information on the requirements of Part 413 applicable to the public.
-- A list of prohibited species and restricted species.
-- Each annual report of the Invasive Species Advisory Council (as Senate Bill 217 (S-4) would require) for at least three years after its issuance.
Senate Bill 216 (S-2)
The bill would create the Invasive Species Advisory Council within the DNR. The Council would have to consist of the Directors of the DNR, the MDA, and the DEQ, or their designees.
The DNR Director would have to call the first Council meeting, at which the Council would have to elect from among its members a chairperson and other officers as 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 a member.
A majority of the members would constitute a quorum for the transaction of business at a Council meeting. A majority of the members would be required for official Council action. The Council would be subject to the Freedom of Information Act and the Open Meetings 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. The DNR, the MDA, and the DEQ would have to provide staff and services to the Council.
The Council would have to consult with representatives of businesses affected by Part 413, academic experts, public interest group representatives, government officials, and others as necessary for the exercise of its powers and performance of its duties under Part 413.
The section creating the Council would be repealed five years after the bill's effective date.
Senate Bill 217 (S-4)
The bill would require the Invasive Species Advisory Council to submit to the Governor and the Legislature within six months after the bill's effective date a report making recommendations on additions to or deletions from the lists of prohibited and restricted species. Beginning in 2006, by March 1 of each year, the Council also would have to submit to the Governor and the Legislature a report that made recommendations on all of the following:
-- The adoption of lists for classes of prohibited and restricted organisms other than fish, insects, and aquatic plants.
-- The status of various prohibited species and other problematic nonnative organisms in this State, including a list of infested waterbodies by species.
-- Preventing the introduction of and controlling or eradicating nonnative or genetically engineered fish, insects, and aquatic plants.
-- Restoration or remediation of habitats or species damaged by nonnative species or genetically engineered organisms.
-- Prioritizing efforts to prevent violations of and otherwise further the purposes of Part 413.
-- The specific areas of responsibility for various State departments under Part 413 and the sharing of information on permits under Part 413 among responsible State departments.
-- Educating citizens about their responsibilities under Part 413 and their role in preventing the introduction of and controlling or eradicating prohibited and restricted species and nonnative or genetically engineered fish, insects, or aquatic plants.
-- Simplifying citizen access to State government for compliance with Part 413.
-- Legislation and funding to carry out the Council's recommendations and otherwise further the purposes of Part 413.
-- Other matters that the Council considered pertinent to the purposes of Part 413.
Additionally, the Council would have to establish criteria for identifying waterbodies infested by prohibited species, and monitor and promote efforts to rescind the exemption under 40 CFR 122.3(a) for ballast water discharges.
(Under 40 CFR 122.3(a), any discharge incidental to the normal operation of a vessel (e.g., ballast water) is exempt from the Federal Clean Water Act's requirement for a National Pollutant Discharge Elimination System permit. In March 2005, the United States District Court for the Northern District of California ordered the U.S. Environmental Protection Agency (EPA) to repeal this exemption. To date, the EPA has not done so.)
The Council would have to carry out its reporting and other duties in cooperation with the Aquatic Nuisance Species (ANS) Council created under Executive Order 2002-21.
(Executive Order 2002-21 created the ANS Council within the Office of the Great Lakes as an advisory body to the Office and the Departments of Environmental Quality, Natural Resources, Agriculture, and Transportation. The members include the Director of the Office of the Great Lakes, the Directors of the four State Departments, and four public members appointed by the Governor. The ANS Council must advise the Office and the Departments on the State's efforts to prevent and control ANS introduction and spread, informational and educational activities, the coordination of research and monitoring ANS activities, and revising and updating Michigan's ANS State Management Plan, as necessary.)
The section added by the bill would be repealed five years after the bill's effective date.
Senate Bill 507
Currently, the possession or release of a genetically engineered, nonnative, or prohibited fish is a class E property felony punishable by imprisonment for up to five years. The bill would refer to an organism instead of a fish.
MCL 324.41301 (S.B. 211)
324.41303 (S.B. 212)
324.41305 et al. (S.B. 213)
324.41309 (S.B. 214)
Proposed MCL 324.41311 & 324.41313 (S.B. 215)
Proposed MCL 324.41321 (S.B. 216)
Proposed MCL 324.41323 (S.B. 217)
MCL 777.13e (S.B. 507)
ARGUMENTS
(Please note: The arguments contained in this analysis originate from sources outside the Senate Fiscal Agency. The Senate Fiscal Agency neither supports nor opposes legislation.)
Supporting Argument
Due to its geography, there are numerous pathways by which invasive species can enter the State. Oceangoing vessels have released aquatic organisms into the Great Lakes with their ballast water discharges. The Canadian border crossing in Detroit accommodates the second highest volume in the nation, and between that crossing and the one in Port Huron, 1.3 million commercial vehicles travel back and forth every year. Additionally, nonnative species are transported into and around the State via rail, air traffic, the nursery trade, mail-order and internet sales, and smugglers. Occasionally, a species intentionally introduced in an area to help control another species becomes a nuisance itself.
Because Michigan's economy is heavily reliant on agriculture and tourism, it is particularly vulnerable to the destructive impacts of nuisance species, both foreign and native. For example, Ralstonia solanacearum, a bacterium, threatens the State's geranium industry (the largest in the country), as well as multimillion dollar crops of peppers, tomatoes, and potatoes.
Soybean rust, a spore that is transported on trade winds, has been established in the southeastern United States and, because it cannot be quarantined, is expected to appear in Michigan this summer. In addition to affecting soybean production (which contributes more than $800 million each year to the State's economy), soybean rust could be used as a terrorist agent, some people believe.
The emerald ash borer, a beetle native to Asia that arrived in the Detroit area 12 to 15 years ago, has killed 15.0 million ash trees in Michigan since 2002. Twenty counties in southeastern Michigan and 19 other infested areas are under quarantine, meaning that ash trees or wood must be chipped to one inch or smaller to be moved outside of the area in question. The State has set up checkpoints, and anyone found to be violating the quarantine is subject to a $100 fine (which could be increased under other proposed legislation). The dead trees lower the State's aesthetic value, and can contribute to reduced property values.
Another species with the potential for negative impacts on the environment, and thus, the State's economy, is Phragmites, an aggressive reed that grows around wetlands to form dense, fence-like mats. The reed, which can reach 10 feet in height, obscures views of the Saginaw Bay in some places and has rendered the beach at the Bay City State Recreation Area unusable.
Nuisance species constitute a significant threat to the environment, public health and safety, and the economy. According to the National Wildlife Foundation, invasive species cause at least $137 billion each year in economic losses. Clearly, it is vital that the State take action to eradicate or control the harmful species already present, and prevent the transport of new invasive species across its borders. The bills would provide a comprehensive strategy appropriately focused on enforcement, public education, control, and prevention.
Response: Several of the bills would refer to violating Part 413 "knowingly". Although "knowingly" is a generally accepted legal term defined in Black's Law Dictionary, under the bills, an otherwise law-abiding citizen potentially could be considered to have committed a violation. Reportedly, some people use some of the designated plant species in personal water gardens and landscaping, and do not intend to sell or introduce the plants in other locations. The bills also could present problems for nonprofit groups holding easements for conservation purposes. Many of these easements are monitored by local volunteers who might be unaware of some nuisance species. Especially with regard to species that already are well-established in Michigan, it is important to ensure that otherwise innocent landowners were not subject to jail time or burdensome fines.
Opposing Argument
Some concerns have been expressed about the lists of prohibited and restricted species under Senate Bill 211 (S-1). First, the lists should be based on scientific documentation that demonstrates that those species are problematic in Michigan, or would be problematic if introduced in the State. Second, with the exception of purple loosestrife, the bill would make no distinction between the designated restricted aquatic plant species and their cultivars, or genetic variants. The cultivars of some of the other listed species do not exhibit the same harmful characteristics as those species, and should be exempt from the bill.
Response: The prohibited and restricted species lists under Senate Bill 211 (S-1) include species that the DNR, DEQ, and MDA have agreed pose a threat to Michigan. Senate Bill 216 (S-2) would require the proposed Council to consult with business representatives, academic experts, public interest group representatives, and government officials, ensuring that future additions to the lists were supported by science.
Opposing Argument
Senate Bill 214 (S-2) would not prescribe a penalty for the owner of land on which a prohibited or restricted species was present who did not take measures to control or eliminate it. While not responsible for introducing the species on the land, the owner should bear some responsibility for removing or destroying a species he or she knows to be prohibited or restricted in order to prevent its spread to other locations.
Legislative Analyst: Julie Koval
FISCAL IMPACT
Senate Bills 211 (S-1)
through 214 (S-2)
The bills would have an indeterminate fiscal impact on State and local government.
The bills would create a new permit program regulating the possession or introduction of prohibited and restricted species. The new program would increase costs for the State; however, the DEQ could collect permit fees to cover the cost of administering the permit program. It is unknown how many permits would be issued.
There are no data to indicate how many additional offenders would be convicted for violating Sections 41303 and 41305 under the proposed changes. Local governments incur the cost misdemeanor probation and incarceration in local facilities, which vary by county. The State incurs the cost of felony probation at an average annual cost of $2,000 per offender, as well as the cost of incarceration in a State facility at an average annual cost of $28,000 per offender. Public libraries would benefit from any additional penal fine revenue collected. Civil fine revenue collected for violations of Part 413 would be deposited into the proposed Invasive Species Fund.
Senate Bills 215 (S-2), 216 (S-2),
and 217 (S-4)
The State would incur minimal costs related to posting information on the DNR website and reimbursing Council members for actual and necessary expenses for performance of official duties.
Fiscal Analyst: Jessica Runnels
Bethany WicksallAnalysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent. sb211-217/0506 |
