SB-0795, As Passed Senate, December 18, 2014

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 795

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 41301, 41302, 41303, 41305, and 41306 (MCL

324.41301, 324.41302, 324.41303, 324.41305, and 324.41306), section

41301 as amended by 2014 PA 358 and section 41302 as added and

sections 41303, 41305, and 41306 as amended by 2009 PA 52, and by

adding sections 41302a and 41310.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 41301. (1) As used in this part:

(a) "Amphibian" means any frog, toad, or salamander of the

class Amphibia.

(b) "Aquatic", except as used in subdivision (p), describes an

amphibian, crustacean, fish, mollusk, reptile, wiggler, or aquatic

plant.

of the order Decapoda.

(d) ~~(a)~~ "Genetically engineered" refers to an organism whose

genome, chromosomal or extrachromosomal, is modified permanently

and heritably, using recombinant nucleic acid techniques, or the

progeny of such an organism.

(e) ~~(b)~~ "Introduce", with reference to an organism, means to

knowingly and willfully stock, place, plant, release, or allow the

release of the organism in this state at any specific location

where the organism is not already naturalized.

(f) "Mollusk" means any mollusk of the classes Bivalvia and

Gastropoda.

(g) "Native" means indigenous to any location in this state.

(h) "Nonaquatic" describes a bird, insect other than a

wiggler, or mammal.

(i) "Nonnative" means not native.

(j) "Permitted aquatic species" means a species listed as

provided in section 41302a.

(k) ~~(c)~~ "Prohibited species", subject to section 41302, means

any of the following:

(i) Any of the following prohibited aquatic plant species,

including a hybrid or genetically engineered variant of the species

or a fragment, including a seed or other propagule, of the species

or of a hybrid or genetically engineered variant:

(A) African oxygen weed (Lagarosiphon major).

(B) Brazilian elodea (Egeria densa).

(D) European frogbit (Hydrocharis morsus-ranae).

(E) Fanwort (Cabomba caroliniana).

(F) Giant salvinia (Salvinia molesta, auriculata, biloba, or

herzogii).

(G) Hydrilla (Hydrilla verticillata).

(H) Parrot's feather (Myriophyllum aquaticum).

(I) Starry stonewort (Nitellopsis obtusa).

(J) Water chestnut (Trapa natans).

(K) Yellow floating heart (Nymphoides peltata).

(ii) Any of the following prohibited terrestrial plant species,

including a hybrid or genetically engineered variant of the species

or a fragment, including a seed or other propagule, of the species

or of a hybrid or genetically engineered variant:

(A) Giant hogweed (Heracleum mantegazzianum).

(B) Japanese knotweed (Fallopia japonica).

(iii) The following prohibited bird species, including a hybrid

or genetically engineered variant of the species or an egg of the

species or of a hybrid or genetically engineered variant: Eurasian

collared dove (Streptopelia decaocto).

(iv) The following prohibited crustacean species, including a

hybrid or genetically engineered variant of the species or an egg

of the species or of a hybrid or genetically engineered variant:

rusty crayfish (Orconectes rusticus).

(v) Any of the following prohibited fish species, including a

hybrid or genetically engineered variant of the species or an egg

of the species or of a hybrid or genetically engineered variant:

(A) Bighead carp (Hypophthalmichthys nobilis).

(B) Bitterling (Rhodeus sericeus).

(D) Eurasian ruffe (Gymnocephalus cernuus).

(E) Grass carp (Ctenopharyngodon idellus).

(F) Ide (Leuciscus idus).

(G) Japanese weatherfish (Misgurnus anguillicaudatus).

(H) Round goby (Neogobius melanostomus).

(I) Rudd (Scardinius erythrophthalamus).

(J) Silver carp (Hypophthalmichthys molitrix).

(K) A fish of the snakehead family (family Channidae).

(L) Tench (Tinca tinca).

(M) Tubenose goby (Proterorhinus marmoratus).

(vi) Any of the following prohibited insect species, including

a hybrid or genetically engineered variant of the species or an egg

of the species or of a hybrid or genetically engineered variant:

(A) Asian longhorned beetle (Anoplophora glabripennis).

(B) Emerald ash borer (Agrilus planipennis).

(vii) The following prohibited mammal species, including a

hybrid or genetically engineered variant: nutria (Myocastor

coypus).

(viii) Any of the following prohibited mollusk species,

including a hybrid or genetically engineered variant of the species

or an egg of the species or of a hybrid or genetically engineered

variant:

(A) Brown garden snail (Helix aspersa).

(B) Carthusian snail (Monacha cartusiana).

(D) Girdled snail (Hygromia cinctella).

(E) Heath snail (Xerolenta obvia).

(F) Wrinkled dune snail (Candidula intersecta).

(l) ~~(d)~~ "Recombinant nucleic acid techniques" means laboratory

techniques through which genetic material is isolated and

manipulated in vitro and then inserted into an organism.

(m) "Relevant commission", "relevant department", or "relevant

director" means the following:

(i) With respect to a species other than a plant or an insect,

except a wiggler, the natural resources commission, department of

natural resources, or the director of the department of natural

resources, respectively.

(ii) With respect to a plant species or an insect species,

other than a wiggler, the commission of agriculture and rural

development, the department of agriculture and rural development,

or the director of the department of agriculture and rural

development, respectively.

(n) "Reptile" means any turtle, snake, or lizard of the class

Reptilia.

(o) ~~(e)~~ "Restricted species", subject to section 41302, means

any of the following:

(i) Any of the following restricted aquatic plant species,

including a hybrid or genetically engineered variant of the species

or a fragment, including a seed or other propagule, of the species

or of a hybrid or genetically engineered variant:

(A) Curly leaf pondweed (Potamogeton crispus).

(B) Eurasian watermilfoil (Myriophyllum spicatum).

(D) Phragmites or common reed (Phragmites australis).

(E) Purple loosestrife (Lythrum salicaria), except that

cultivars of purple loosestrife developed and recognized to be

sterile and approved by the director of the department of

agriculture and rural development under section 16a of the insect

pest and plant disease act, 1931 PA 189, MCL 286.216a, are not a

restricted species.

(ii) The following restricted terrestrial plant species,

including a hybrid or genetically engineered variant of the species

or a fragment, including a seed or other propagule, of the species

or of a hybrid or genetically engineered variant: autumn olive

(Elaeagnus umbellata).

(iii) Any of the following restricted mollusk species, including

a hybrid or genetically engineered variant of the species or an egg

of the species or of a hybrid or genetically engineered variant:

(A) Quagga mussel (Dreissena bugensis).

(B) Zebra mussel (Dreissena polymorpha).

(p) "Wiggler" means an aquatic egg, nymph, or larva of an

insect.

(2) For the purposes of this part:

(a) A person is not considered to possess a live organism

simply because the organism is present on land or in waters owned

by that person unless the person has knowingly introduced that live

organism on that land or in those waters.

(b) A person is not considered to possess a live organism if

the organism was obtained from the environment and the person only

possesses the organism at the specific location at which it was

obtained from the environment.

the possession is for the purpose of promptly destroying the

organism.

Sec. 41302. (1) The relevant commission ~~of natural resources~~

may by order add to or delete a species from the list of prohibited

species or restricted species under section 41301. ~~any species~~

~~other than an insect or plant species.~~ Before ~~issuing an order~~

~~under this subsection, the commission of~~ the natural resources

commission issues an order under this subsection, it shall consult

with the department of agriculture and rural development. Before

the commission of agriculture and rural development issues an order

under this subsection, it shall consult with the department of

natural resources. After the consultation, and at least 30 days

before the relevant commission ~~of natural resources~~ issues the

order, the relevant department ~~of natural resources~~ shall post a

copy of the proposed order on the ~~department of natural resources'~~

relevant department's website and shall submit a copy of the

proposed order to all of the following:

(a) The legislature.

(b) The standing committees of the senate and house of

representatives with primary responsibility for any of the

following:

(i) Agricultural issues.

(ii) Environmental issues.

(iii) Natural resources issues.

~~(2) The commission of agriculture may by order add to or~~

~~delete from the list of prohibited species or restricted species~~

~~under section 41301 any insect or plant species. Before issuing an~~

~~order under this subsection, the commission of agriculture shall~~

~~consult with the department of natural resources. After the~~

~~consultation, and at least 30 days before the commission of~~

~~agriculture issues the order, the department of agriculture shall~~

~~post a copy of the proposed order on the department of~~

~~agriculture's website and shall submit a copy of the proposed order~~

~~to all of the following:~~

~~(a) The legislature.~~

~~(b) The standing committees of the senate and house of~~

~~representatives with primary responsibility for any of the~~

~~following:~~

(i~~) Agricultural issues.~~

(ii~~) Environmental issues.~~

(~~iii~~~~) Natural resources issues.~~

(2) ~~(3)~~ The relevant commission ~~of natural resources or the~~

~~commission of agriculture, as applicable,~~ shall list a nonaquatic

species as a prohibited species or restricted species if the

relevant commission ~~of natural resources or commission of~~

~~agriculture, respectively,~~ determines the following:

(a) For a nonaquatic prohibited species, all of the following

requirements are met:

(i) The organism is not native. ~~to this state.~~

(ii) The organism is not naturalized in this state or, if

naturalized, is not widely distributed in this state.

(iii) One or more of the following apply:

(A) The organism has the potential to harm human health or to

severely harm natural, agricultural, or silvicultural resources.

(B) Effective management or control techniques for the

organism are not available.

(b) For a nonaquatic restricted species, all of the following

requirements are met:

(i) The organism is not native. ~~to this state.~~

(ii) The organism is naturalized and widely distributed in this

state.

(iii) One or more of the following apply:

(A) The organism has the potential to harm human health or to

harm natural, agricultural, or silvicultural resources.

(B) Effective management or control techniques for the

organism are available.

(3) The relevant commission shall list an aquatic species as a

prohibited species or restricted species if the relevant commission

determines the following based on a review by the relevant

department:

(a) For an aquatic prohibited species, all of the following

requirements are met:

(i) The organism is not native or is genetically engineered.

(ii) The organism is not naturalized in this state or, if

naturalized, is not widely distributed.

(iii) One or more of the following apply:

(A) The organism has the potential to harm human health or to

severely harm natural, agricultural, or silvicultural resources.

(B) Effective management or control techniques for the

organism are not available.

(b) For an aquatic restricted species, all of the following

requirements are met:

(i) The organism is not native.

(ii) The organism is naturalized in this state.

(iii) One or more of the following apply:

(A) The organism has the potential to harm human health or to

harm natural, agricultural, or silvicultural resources.

(B) Effective management or control techniques for the

organism are available.

(4) The following apply to a review by the relevant department

of an aquatic species for listing as a prohibited species or

restricted species under subsection (3):

(a) By 1 year after the effective date of the amendatory act

that added this subsection, the relevant department shall review

each aquatic species listed as a prohibited species or restricted

species on the effective date of the amendatory act that added this

subsection.

(b) By 1 year after the effective date of the amendatory act

that added this subsection, the relevant department shall review

each aquatic animal listed as injurious wildlife under the Lacey

act, 16 USC 3371 to 3378, and each aquatic plant designated as a

noxious weed under the plant protection act, 7 USC 7701 to 7786,

for listing as a prohibited species or restricted species.

delistings on the federal lists identified under subdivision (b)

within 180 days after the listing or delisting.

(d) The relevant department shall review each aquatic species

that has the potential to harm human health or natural,

agricultural, or silvicultural resources for listing as a

prohibited species or restricted species even if the species is not

currently on either federal list described in subdivision (b).

(e) The relevant department may review a previously unreviewed

aquatic species petitioned for listing as a permitted species under

section 41302a(5) for which the risk assessment process under

section 41302a(2) or (3) indicated a high invasive species risk.

(f) The relevant department may review other aquatic species

for listing as prohibited or restricted species.

(5) The relevant director may issue an emergency order

designating an organism as a prohibited species or restricted

species if the organism has the potential to harm human health or

to severely harm natural, agriculture, or silvicultural resources.

An emergency order is effective for not longer than 90 days. The

relevant department shall do all of the following:

(a) Post a proposed emergency order on its website and

otherwise publicize the proposed emergency order in a manner that

ensures that interested persons are provided notice of the proposed

emergency order, the reasons for the emergency order, and the

proposed effective date of the order.

(b) Provide a copy of the proposed emergency order to each

member of the standing committees of the senate and the house of

representatives that consider legislation pertaining to

conservation, the environment, recreation, tourism, or natural

resources.

(6) The relevant department may issue an order setting forth

the conditions under which naturalized organisms of an aquatic

restricted species may be harvested, possessed, and transported.

Sec. 41302a. (1) By 2 years after the effective date of this

section, the department of natural resources and the department of

agriculture and rural development, after consultation and notice in

the same manner as required of the respective commission under

section 41302(1), shall each create a permitted species list for

aquatic species for which it is the relevant department. Together,

these lists compose the permitted aquatic species list. The initial

permitted aquatic species list shall consist of all of the

following:

(a) All species on the list of approved species for

aquaculture under section 5 of the Michigan aquaculture development

act, 1996 PA 199, MCL 286.875, on the effective date of this

section or that are approved under a research permit under section

8 of the Michigan aquaculture development act, 1996 PA 199, MCL

286.878, on the effective date of this section.

(b) All native aquatic species, other than aquatic plants,

that by the effective date of this section were, as live organisms,

lawfully in commercial trade in this state. Within 1 year after the

effective date of this section, the department of natural

resources, in consultation with affected industries, shall

determine which aquatic species qualify under this subdivision.

that, by the effective date of this section, were, as live

organisms, lawfully in wide commercial trade in this state for at

least 5 years, if there is no evidence of the species causing harm

to human health or natural, agricultural, or silvicultural

resources in the Great Lakes region. For the purposes of this

subdivision and subdivision (d), within 1 year after the effective

date of this section, the department of natural resources, in

consultation with affected industries, shall determine which

aquatic species, other than aquatic plants, were, as live

organisms, in commercial trade in this state by the effective date

of this section and whether each of those species had, as live

organisms, been in wide commercial trade in this state for at least

5 years.

(d) All nonnative aquatic species, other than aquatic plants,

that, by the effective date of this section, were, as live

organisms, lawfully in commercial trade in this state, that do not

meet the requirements of subdivision (c), but that are approved by

the department of natural resources based on a risk assessment

under subsection (2). Within 2 years after the effective date of

this section, the department of natural resources shall perform the

risk assessment and approve or disapprove the assessed species for

listing as permitted aquatic species.

(e) All aquatic plants, native or nonnative, that, by the

effective date of this section, were, as live organisms, lawfully

in commercial trade in this state. Within 1 year after the

effective date of this section, the department of agriculture and

rural development, in consultation with affected industries

including the horticulture industry, shall determine which aquatic

plants qualify under this subdivision.

(2) To perform a risk assessment on an aquatic species other

than an aquatic plant, the department of natural resources shall

use the risk assessment aquatic protocol developed by the United

States fish and wildlife service, aquatic fisheries and resources

program. The natural resources commission shall periodically review

and may modify or replace the assessment protocol by order

consistent with the purposes of this part.

(3) To perform a risk assessment on an aquatic plant, the

department of agriculture and rural development shall use the plant

protection and quarantine (PPQ) weed risk assessment protocol

developed by the United States department of agriculture's plant

protection and quarantine, plant epidemiology, and risk analysis

laboratory, Raleigh, North Carolina. Each aquatic plant cultivar,

variety, or hybrid shall be assessed separately. The commission of

agriculture and rural development shall periodically review and may

modify or replace the assessment protocol by order consistent with

the purposes of this part.

(4) If an aquatic species that was not previously a prohibited

or restricted species under this part does not pass the risk

assessment for permitted species under this section and is reviewed

under section 41302(4)(e) and placed on the prohibited species list

or restricted species list, any person involved in the

commercialization or sale of an aquatic species that possesses live

organisms of that prohibited or restricted species shall be

compensated at fair market value by this state for the loss of that

species product in the person's possession in this state when the

species was placed on the prohibited species list or restricted

species list.

(5) Aquatic species that on the effective date of this section

are, as live organisms, not in commercial trade in this state or

are unknown to or unanticipated by the relevant department may be

added to the permitted species list upon evaluation using the risk

assessment procedure described under subsection (2) or (3), as

applicable. After the creation of the initial permitted species

list, any person involved in the commercialization or sale of

aquatic species may petition the relevant department to review and

add a new aquatic species to the permitted species list for future

commercialization and sale in this state. The petitioner has the

burden of demonstrating that the species passes the risk assessment

under subsection (2) or (3), as applicable. The petitioner shall

provide information that is requested by the relevant department to

perform the risk assessment. Any prior background materials

generated as a result of a federal agency review and identified by

the petitioner shall be considered by the department. The

petitioner shall pay a reasonable fee that does not exceed the

administrative costs for the relevant department to review the

petitioned species. The relevant department may, but is not

required to, review on its own initiative an aquatic species for

placement on the permitted species list.

Sec. 41303. (1) Subject to subsection (2), a person shall not

knowingly possess a live organism if the organism is a prohibited

species or restricted species, except under 1 or more of the

following circumstances:

(a) The person intends to present a specimen of the prohibited

species or restricted species, for identification or similar

purposes, to a person who is a certified applicator or registered

applicator under part 83, to a public or private institution of

higher education, or to the department of natural resources, the

department of agriculture and rural development, or any other

state, local, or federal agency with responsibility for the

environment, natural resources, or agriculture.

(b) The person has been presented with a specimen of a

prohibited species or restricted species for identification or

similar purposes under subdivision (a).

species in conjunction with otherwise lawful activity to eradicate

or control the prohibited species or restricted species.

(d) ~~If the prohibited species or restricted species is not an~~

~~insect or plant species, the~~ The possession is pursuant to a permit

issued for education or research purposes by the relevant

department ~~of natural resources~~ under section 41306 ~~. If~~ or, if the

prohibited species or restricted species is ~~an insect or~~ a plant

species or an insect other than a wiggler, ~~the possession is~~

~~pursuant to a permit issued for education or research purposes by~~

~~the department of agriculture under section 41306 or~~ by the United

States department of agriculture.

(e) The species is an aquatic restricted species and the

person possesses the species in compliance with an order under

section 41302(6).

(2) A person described in subsection (1)(b) or (c) shall

notify the department of natural resources, the department of

agriculture and rural development, or the department of

environmental quality if the prohibited species or restricted

species was found at a location where it was not previously known

to be present.

(3) Before initial establishment of the permitted aquatic

species list, a person shall not import, sell, or offer to sell any

live aquatic species unless the live aquatic species, by the

effective date of the 2014 amendatory act that added this

subsection, was lawfully in commercial trade in this state. After

the initial establishment of the permitted aquatic species list, a

person shall not import, sell, or offer to sell any live aquatic

species not listed on the permitted aquatic species list.

Sec. 41305. A person shall not introduce a prohibited species,

a restricted species, or a genetically engineered or nonnative

~~aquatic plant,~~ bird, crustacean, fish, insect, mammal, or mollusk,

or aquatic plant unless the introduction is authorized by 1 of the

following, as applicable:

(a) For a fish, by a permit issued by the department of

natural resources under section 48735.

(b) For ~~an insect or~~ a plant or an insect other than a

wiggler, by a permit issued by the department of agriculture and

rural development under section 41306.

department of natural resources under section 41306.

Sec. 41306. (1) A person shall apply to the relevant

department for a permit that section 41303 or 41305 describes as

being issued ~~by the department of natural resources or the~~

~~department of agriculture~~ under this section. The application shall

be submitted on a form developed by the relevant department. of

~~natural resources or the department of agriculture, respectively.~~

The application shall be accompanied by a fee based on the cost of

administering this part. The relevant department ~~of natural~~

~~resources or the department of agriculture, respectively,~~ shall

either grant an administratively complete application and issue a

permit or deny the application.

(2) In determining whether to grant or deny an application for

a permit for introduction of a genetically engineered organism

required by section 41305, the relevant department ~~of natural~~

~~resources or the department of agriculture, as applicable,~~ shall

consider whether any application for a federal permit or approval

for the genetically engineered organism has been granted or denied.

(3) The relevant department ~~of natural resources or the~~

~~department of agriculture~~ may revoke or modify a permit it has

issued ~~by the department of natural resources or the department of~~

~~agriculture, respectively,~~ under subsection (1) after providing an

opportunity for a hearing under the administrative procedures act

of 1969, 1969 PA 306, MCL 24.201 to 24.328.

(4) The relevant department ~~of natural resources~~ shall

administer and enforce this part. ~~, except with respect to insect~~

~~and plant species. The department of agriculture shall administer~~

~~and enforce this part with respect to insect or plant species.~~ In

addition, any peace officer may enforce the criminal provisions of

this part.

Sec. 41310. A vehicle, equipment, or other property used in a

criminal violation of this part or a permit issued under this part

involving a prohibited species that is an aquatic species is

subject to seizure and forfeiture as provided in chapter 47 of the

revised judicature act of 1961, 1961 PA 236, MCL 600.4701 to

600.4709.

Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.

Enacting section 2. This amendatory act does not take effect

unless all of the following bills of the 97th Legislature are

enacted into law:

(a) Senate Bill No. 796.

(b) Senate Bill No. 797.

(d) Senate Bill No. 800.