SB-0280, As Passed Senate, March 25, 2009

SUBSTITUTE FOR

SENATE BILL NO. 280

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 41301, 41305, 41306, 41309, 41311, 41313, and

41323 (MCL 324.41301, 324.41305, 324.41306, 324.41309, 324.41311,

324.41313, and 324.41323), section 41301 as amended by 2005 PA 77,

section 41305 as amended and section 41306 as added by 2005 PA 79,

section 41309 as amended by 2005 PA 76, sections 41311 and 41313 as

added by 2005 PA 80, and section 41323 as added by 2005 PA 75; and

to repeal acts and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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

     (a) "Council" means the invasive species advisory council

created in section 41321.

Senate Bill No. 280 as amended March 24, 2009

(a) (b) "Department" means the department of natural

resources.

(b) (c) "Genetically engineered" refers to an organism whose

genome, chromosomal or extrachromosomal, is modified permanently

and heritably, using recombinant nucleic acid techniques, or the

progeny thereof of such an organism.

(c) (d) "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.

(d) (e) "Prohibited aquatic plant species" means any of the

following or fragments or seeds thereof species" 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) (i) African oxygen weed (Lagarosiphon major). or a hybrid

or genetically engineered variant thereof.

(B) (ii) Brazilian elodea (Egeria densa). or a hybrid or

genetically engineered variant thereof.

<<(c) Cylindro (Cylindrospermopsis raciborskii).

(D)>> (iii) European frogbit (Hydrocharis morsus-ranae). or a

hybrid or genetically engineered variant thereof.

<<(E) Fanwort (cabomba caroliniana).

(F)>> (iv) Giant hogweed (Heracleum mantegazzianum). or a hybrid

or genetically engineered variant thereof.

<<(G)>> (v) Giant salvinia (Salvinia molesta, auriculata, biloba,

or herzogii). or a hybrid or genetically engineered variant

Senate Bill No. 280 as amended March 24, 2009

thereof.

<<(H)>> (vi) Hydrilla (Hydrilla verticillata). or a hybrid or

genetically engineered variant thereof.

<<(I)>> (vii) Japanese knotweed (Fallopia japonica). or a hybrid or

genetically engineered variant thereof.

<<(J)>> (viii) Parrot's feather (Myriophyllum aquaticum). or a

hybrid or genetically engineered variant thereof.

<<(K) Starry stonewort (nitellopsis obtusa).

(L)>> (ix) Water chestnut (Trapa natans). or a hybrid or

genetically engineered variant thereof.

     (x) Yellow flag iris (Iris pseudacorus) or a hybrid or

genetically engineered variant thereof.

<<(M)>> (xi) Yellow floating heart (Nymphoides peltata). or a

hybrid or genetically engineered variant thereof.

     (f) "Prohibited fish species" means any of the following or

the eggs thereof:

     (ii) 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).

     (iii) 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).

     (iv) 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) (i) Bighead carp (Hypophthalmichthys nobilis). or a hybrid

or genetically engineered variant thereof.

(B) (ii) Bitterling (Rhodeus sericeus). or a hybrid or

genetically engineered variant thereof.

(C) (iii) Black carp (Mylopharyngodon piceus). or a hybrid or

genetically engineered variant thereof.

     (D) Eurasian ruffe (Gymnocephalus cernuus).

(E) (iv) Grass carp (Ctenopharyngodon idellus). or a hybrid or

genetically engineered variant thereof.

(F) (v) Ide (Leuciscus idus). or a hybrid or genetically

engineered variant thereof.

(G) (vi) Japanese weatherfish (Misgurnus anguillicaudatus). or

a hybrid or genetically engineered variant thereof.

     (H) Round goby (Neogobius melanostomus).

(I) (vii) Rudd (Scardinius erythrophthalamus). or a hybrid or

genetically engineered variant thereof.

(J) (viii) Silver carp (Hypophthalmichthys molitrix). or a

hybrid or genetically engineered variant thereof.

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

a genetically engineered variant thereof.

(L) (x) Tench (Tinca tinca). or a hybrid or genetically

engineered variant thereof.

     (g) "Prohibited insect species" means any of the following or

the eggs thereof:

     (M) Tubenose goby (Proterorhinus marmoratus).

     (v) 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) (i) Asian longhorned beetle (Anoplophora glabripennis). or

a hybrid or genetically engineered variant thereof.

(B) (ii) Emerald ash borer (Agrilus planipennis). or a hybrid

or genetically engineered variant thereof.

     (h) "Prohibited species" means any of the following:

     (i) A prohibited aquatic plant species.

     (ii) A prohibited fish species.

     (iii) A prohibited insect species.

     (vi) The following prohibited mammal species, including a

hybrid or genetically engineered variant: nutria (Myocastor

coypus).

     (vii) 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) Xerolenta obvia.

     (B) Brown garden snail (Helix aspersa).

     (C) Carthusian snail (Monacha cartusiana).

     (D) Giant African snail (Achatina fulica).

     (E) Girdled snail (Hygromia cinctella).

     (F) Wrinkled dune snail (Candidula intersecta).

(e) (i) "Recombinant nucleic acid techniques" means laboratory

techniques through which genetic material is isolated and

manipulated in vitro and then inserted into an organism.

(f) (j) "Restricted aquatic plant species" means any of the

following or fragments or seeds thereof species" means any of the

following:

Senate Bill No. 280 as amended March 24, 2009

     (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) (i) Curly leaf pondweed (Potamogeton crispus). or a hybrid

or genetically engineered variant thereof.

(B) (ii) Eurasian watermilfoil (Myriophyllum spicatum). or a

hybrid or genetically engineered variant thereof.

(C) (iii) Flowering rush (Butomus umbellatus). or a hybrid or

genetically engineered variant thereof.

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

hybrid or genetically engineered variant thereof.

(E) (v) Purple loosestrife (Lythrum salicaria), or a hybrid or

genetically engineered variant thereof, except for that cultivars

of purple loosestrife developed and recognized to be sterile and

approved by the director of the department of agriculture under

section 16a of the insect pest and plant disease act, 1931 PA 189,

MCL 286.216a, are not a restricted species.

     (k) "Restricted species" means a restricted aquatic plant

species.

     (ii) 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).

     (2) It is the intention of the legislature to list an organism

as a prohibited species if the organism meets 1 or more of the

following criteria:

     (a) The organism is not found in this state or is found in

this state in only limited locations.

     (b) The organism has the potential for causing any of the

following:

     (i) Severe harm to the economy of this state.

     (ii) Harm to animals.

     (iii) Harm to human health or safety.

     (c) Effective management or control techniques for the

organism are not available.

     (3) It is the intention of the legislature to list an organism

as a restricted species if the organism meets 1 or more of the

following criteria:

     (a) The organism is commonly found in this state.

     (b) The organism has the potential for causing any of the

following:

     (i) Harm to the economy of this state.

     (ii) Harm to animals.

     (iii) Harm to human health or safety.

     (c) Effective management or control techniques for the

organism are available.

(4) (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.

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

the possession is for the purpose of promptly destroying the

organism.

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

a restricted species, or a genetically engineered or nonnative fish

or aquatic plant, bird, crustacean, fish, mammal, or mollusk unless

the introduction is authorized by 1 of the following, as

applicable:

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

section 48735.

     (b) For a prohibited species or restricted species that is an

insect, by a permit issued by the department of agriculture under

section 41306.

     (c) For an aquatic plant, bird, crustacean, fish, mammal, or

mollusk, by a permit issued by the department under section 41306.

     Sec. 41306. (1) A person shall apply for a permit that section

41303 or 41305 describes as being issued by the department or the

department of agriculture under this section on a form developed by

the department or the department of agriculture, respectively. The

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

administering this part. The department or the department of

agriculture, respectively, shall either grant an administratively

complete application and issue a permit or deny the application.

     (2) The department or the department of agriculture may revoke

or modify a permit issued by the department 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.

     (3) The department shall enforce this part, except with

respect to insect species. The department of agriculture shall

enforce this part with respect to insect species.

     Sec. 41309. (1) A person who violates section 41303(2) is

subject to a civil fine of not more than $100.00.

     (2) A person who violates section 41303(1), or a condition of

a permit issued under this part, with respect to a restricted

species is subject to a civil fine of not more than $5,000.00. A

person who violates section 41303(1), or a condition of a permit

issued under this part, with respect to a prohibited species is

subject to a civil fine of not more than $10,000.00.

     (3) A person who violates section 41303(1) knowing the

possession is unlawful or who willfully or in a grossly negligent

manner violates a condition of a permit issued under this part is

guilty as follows:

     (a) For a violation involving a restricted species, the person

is guilty of a misdemeanor and may be imprisoned for not more than

1 year and shall be fined not less than $1,000.00 or more than

$10,000.00.

     (b) For a violation involving a prohibited species, the person

is guilty of a felony and may be imprisoned for not more than 2

years and shall be fined not less than $2,000.00 or more than

$20,000.00.

     (4) A person who, with intent to damage natural, agricultural,

or silvicultural resources:

     (a) Violates section 41303(1) with respect to a restricted

species or possesses a nonnative fish or aquatic plant, bird,

crustacean, fish, mammal, or mollusk is guilty of a felony and may

be imprisoned for not more than 2 years and shall be fined not less

than $1,000.00 or more than $250,000.00.

     (b) Violates section 41303(1) with respect to a prohibited

species or possesses a genetically engineered fish or aquatic

plant, bird, crustacean, fish, mammal, or mollusk is guilty of a

felony and may be imprisoned for not more than 4 years and shall be

fined not less than $2,000.00 or more than $500,000.00.

     (5) A person who sells or offers to sell a restricted species

is subject to a civil fine of not less than $1,000.00 or more than

$10,000.00. A person who sells or offers to sell a prohibited

species is subject to a civil fine of not less than $2,000.00 or

more than $20,000.00.

     (6) A person who violates section 41305 is guilty as follows:

     (a) For a violation involving a restricted species or a

nonnative fish or aquatic plant, bird, crustacean, fish, mammal, or

mollusk, the person is guilty of a misdemeanor and may be

imprisoned for not more than 6 months and shall be fined not less

than $500.00 or more than $5,000.00.

     (b) For a violation involving a prohibited species or a

genetically engineered fish or aquatic plant, bird, crustacean,

fish, mammal, or mollusk, the person is guilty of a misdemeanor and

may be imprisoned for not more than 1 year and shall be fined not

less than $1,000.00 or more than $10,000.00.

     (7) A person who violates section 41305 with respect to a

restricted species or nonnative fish or aquatic plant, bird,

crustacean, fish, mammal, or mollusk and who knows or should know

the identity of the restricted species or that the organism,

whether a restricted species or other fish or aquatic plant, bird,

crustacean, fish, mammal, or mollusk, is nonnative is guilty of a

misdemeanor and may be imprisoned for not more than 1 year and

shall be fined not less than $1,000.00 or more than $10,000.00.

     (8) A person who violates section 41305 with respect to a

prohibited species or a genetically engineered fish or aquatic

plant, bird, crustacean, fish, mammal, or mollusk and who knows or

should know the identity of the prohibited species or that the fish

or aquatic plant, bird, crustacean, fish, mammal, or mollusk is

genetically engineered, respectively, is guilty of a felony and may

be imprisoned for not more than 2 years and shall be fined not less

than $2,000.00 or more than $20,000.00.

     (9) A person who violates section 41305 knowing the

introduction is unlawful, is guilty as follows:

     (a) For a violation involving a restricted species or

nonnative fish or aquatic plant, bird, crustacean, fish, mammal, or

mollusk, the person is guilty of a felony and may be imprisoned for

not more than 2 years and shall be fined not less than $1,000.00 or

more than $250,000.00.

     (b) For a violation involving a prohibited species or a

genetically engineered fish or aquatic plant, bird, crustacean,

fish, mammal, or mollusk, the person is guilty of a felony and may

be imprisoned for not more than 4 years and shall be fined not less

than $2,000.00 or more than $500,000.00.

     (10) A person who, with intent to damage natural,

agricultural, or silvicultural resources, violates section 41305 is

guilty as follows:

     (a) For a violation involving a restricted species or

nonnative fish or aquatic plant, bird, crustacean, fish, mammal, or

mollusk, the person is guilty of a felony and may be imprisoned for

not more than 3 years and shall be fined not less than $1,000.00 or

more than $500,000.00.

     (b) For a violation involving a prohibited species or a

genetically engineered fish or aquatic plant, bird, crustacean,

fish, mammal, or mollusk, the person is guilty of a felony and may

be imprisoned for not more than 5 years and shall be fined not less

than $2,000.00 or more than $1,000,000.00.

     (11) Subsections (3), (4), and (9) do not apply before

November 1, 2005 to violations involving species other than fish.

Subsections (6), (7), (8), and (10) do not apply before November 1,

2005.

(11) (12) In addition to any other civil or criminal sanction

imposed under this section, a person who violates this part is

liable for any damages to natural resources resulting from the

violation, including, but not limited to, costs incurred to prevent

or minimize such damages.

(12) (13) This part does not apply to activities authorized

under the Michigan aquaculture development act, 1996 PA 199, MCL

286.871 to 286.884.

     Sec. 41311. (1) The invasive species fund is created within

the state treasury.

     (2) The department shall forward to the state treasurer and

the state treasurer shall deposit into the fund civil fines and

permit fees collected under this part. The state treasurer may

receive money or other assets from any source for deposit into the

fund. The state treasurer shall direct the investment of the fund.

The state treasurer shall credit to the fund interest and earnings

from fund investments.

     (3) Money in the fund at the close of the fiscal year shall

remain in the fund and shall not lapse to the general fund.

     (4) The department shall expend money from the fund, upon

appropriation, only for 1 or more of the following purposes:

     (a) The administration of this part.

     (b) 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, birds, crustaceans, fish, insects,

mammals, and mollusks.

     Sec. 41313. The department shall post on its website all of

the following:

     (a) Information on the requirements of this part applicable to

the public.

     (b) The penalties for violating the requirements of this part.

     (c) A list of prohibited species and restricted species along

with a description and a photograph or drawing of each of those

species.

     (d) Each annual report of the council department under section

41323, for not less than 3 years after its issuance.

     Sec. 41323. (1) The council department shall do all of the

following:

     (a) Within 6 months after the effective date of the amendatory

act that added this section By March 1 of each year, submit to the

governor and the legislature a report that makes recommendations on

additions all of the following:

     (i) Additions to or deletions from the list of prohibited

species and restricted species and the classes of organisms covered

by this part based on criteria set forth in section 41301(2) and

(3).

     (b) By March 1 of each year, beginning in 2006, submit to the

governor and the legislature a report that makes recommendations on

all of the following:

     (i) The adoption of lists for classes of prohibited and

restricted organisms other than fish, insects, and aquatic plants.

     (ii) The status of various prohibited species and other

problematic invasive organisms in this state, including, but not

limited to, a list of infested waterbodies by species.

     (iii) Preventing the introduction of and controlling or

eradicating invasive or genetically engineered fish, insects, and

aquatic plants, birds, crustaceans, fish, insects, mammals, or

mollusks.

     (iv) Restoration or remediation of habitats or species damaged

by invasive species or genetically engineered organisms.

     (v) Prioritizing efforts to prevent violations of and

otherwise further the purposes of this part.

     (vi) The specific areas of responsibility for various state

departments under this part and the sharing of information on

permits under this part among responsible state departments.

     (vii) Educating citizens about their responsibilities under

this part and their role in preventing the introduction of and

controlling or eradicating prohibited species, restricted species,

and invasive or genetically engineered fish, insects, or aquatic

plants, birds, crustaceans, fish, insects, mammals, or mollusks.

     (viii) Simplifying citizen access to state government for

compliance with this part.

     (ix) Legislation and funding to carry out the council's

department's recommendations and otherwise further the purposes of

this part.

     (x) Other matters that the council department considers

pertinent to the purposes of this part.

     (c) Establish criteria for identifying waterbodies infested by

prohibited species.

     (d) Monitor and promote efforts to rescind the exemption under

40 CFR 122.3(a) for ballast water discharges.

     (2) The council department shall carry out its reporting and

other duties in cooperation with the aquatic nuisance species

council created under Executive Order No. 2002-21.

     (3) This section is repealed effective 5 years after the

effective date of the amendatory act that added this section.

     Enacting section 1. Section 41321 of the natural resources and

environmental protection act, 1994 PA 451, MCL 324.41321, is

repealed.

     Enacting section 2. This amendatory act takes effect 90 days

after the date it is enacted into law.