THIRTIETH LEGISLATURE, 2020
STATE OF HAWAII
A BILL FOR AN ACT
relating to aquatic biosecurity.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the introduction and spread of alien aquatic organisms poses an unprecedented threat to Hawaii's marine, estuarine, and freshwater ecosystems, maritime and recreational activities, and economy. Alien aquatic organisms can outcompete native species, leading to the collapse of native ecosystems and negatively impact the resilience of coral reefs to climate change. In order to combat the introduction and spread of alien aquatic organisms it is imperative that the State assess and manage the pathways of introduction and spread.
The introduction of alien aquatic organisms may occur through different pathways such as the release of unmanaged or improperly managed ballast water, the spawning or budding of species carried to state waters as vessel biofouling, or the cleaning of fouling organisms from vessel hulls where they may then become established, the arrival of species carried on marine debris that washes ashore, and the escape or release of species from aquaculture, scientific research, and the aquarium trade or hobbyists. The legislature further finds that of these pathways, there is worldwide concern and ongoing efforts to address the primary pathways of vessel ballast water, hull biofouling, and the in-water cleaning of biofouling without the capture and mitigation of effluent. Ballast water is the seawater pumped into and out of ballast tanks to stabilize vessels and biofouling is the growth of marine species on the hulls and in the difficult to access niche areas of vessels.
The legislature further finds that the Hawaii interagency biosecurity plan 2017-2027 recognizes the independent research finding that up to seventy-eight per cent of the non-native marine algae and invertebrate species in Hawaii's waters likely arrived through biofouling or a combination of biofouling and ballast water, and that the presence of alien species in unmanaged or undermanaged ballast water and on vessel hulls remains a high risk factor for the arrival and spread of invasive marine species. The Hawaii interagency biosecurity plan 2017-2027 also recognizes that regulating these vectors is exponentially more cost effective than post-introduction control and eradication programs.
The legislature further finds that preliminary reports from scientists regarding the rapid spread of stony coral tissue loss disease through Florida and the Caribbean have found a strong correlation with shipping patterns and may be related to unmanaged or undermanaged ballast water or biofouling. This destructive spread has led to a loss of between sixty-six and one hundred per cent of stony corals coming into contact with the disease in nearshore waters, with most corals dying within one week to two months after contact. Preventing the arrival and spread of stony coral tissue loss disease to Hawaii waters through unmanaged ballast water and biofouling is critical to protect our coral reefs and the economic benefits and ecosystem services they provide.
The legislature further finds that recent developments in technology used in other states and countries provide opportunities to assess and mitigate the risk of introduction of alien aquatic organisms. In order for emerging technologies and systems to properly provide protections for the waters of Hawaii, it is critical that the State embark on a program aimed at testing these technologies and demonstrating proof of concept, that may be followed by regulation and oversight of their use.
The legislature further finds the Vessel Incidental Discharge Act of 2018 (title IX of P.L. 115-282; 132 Stat. 4322) was enacted into law on December 4, 2018. The Vessel Incidental Discharge Act of 2018 has far-reaching implications for how states may regulate certain discharges that are considered incidental to the normal operations of a vessel. Once the federal law comes into full force and effect in December 2022, states will be preempted from setting or enforcing rules and regulations that are more stringent than federal regulations related to discharges considered incidental to the normal operation of a vessel, including the management and release of ballast water, the effluent resulting from the cleaning of vessel hulls in state waters, and other incidental discharge streams. The Vessel Incidental Discharge Act of 2018 is intended to set national regulations for certain types of commercial vessels and for fishing vessel ballast water, while leaving states the authority to set and enforce regulations for a variety of other vessel types that also pose a risk for vessel biofouling and other incidental discharges.
The legislature further finds that the United States Coast Guard does not have the capacity, equipment, or technical expertise to test vessel ballast water to assess treatment efficacy or residual risk. In addition, the United States Coast Guard does not currently conduct routine biofouling risk inspections for vessels intending to clean in state waters. Further, the Vessel Incidental Discharge Act of 2018 does not provide for additional funding to expand United States Coast Guard capacity and resources to cover its increased mandate under the Act. Instead, the legislature finds that the Vessel Incidental Discharge Act of 2018 allows for states to co-enforce the federal standards and regulations with the United States Coast Guard once they come into force.
Section 187A-32, Hawaii Revised Statutes, designates the department of land and natural resources as the lead agency for preventing the introduction of alien aquatic organisms. To successfully carry out this co-enforcement and to address the aquatic invasive species risk of those vessel types that will remain under state regulatory authority, the legislature finds that the department requires additional capacity to develop and maintain a program to assess, monitor, and co-regulate, or regulate, these top pathways of alien aquatic organisms.
The purposes of this Act are to:
(1) Authorize the department of land and natural resources management to co-enforce, with the United States Coast Guard, rules, standards, and requirements related to ballast-water, vessel biofouling, vessel hull in-water cleaning, and any other incidental discharges that may pose a risk for the introduction and spread of non-native aquatic organisms, adopted by the United States Coast Guard and the Environmental Protection Agency pursuant to the Vessel Incidental Discharge Act of 2018 and the amendments made by that Act, and to set and enforce state standards and regulations for incidental discharges for vessel types where not preempted by the Vessel Incidental Discharge Act of 2018; and
(2) Appropriate funds to support staff and operational costs associated with aquatic biosecurity inspection, investigation, monitoring, management, compliance, and enforcement.
SECTION 2. Section 187A-32, Hawaii Revised Statutes, is amended to read as follows:
Alien aquatic organisms; lead agency; rules. (a)
The department is designated as the lead state agency for preventing the
introduction and carrying out the destruction of alien aquatic organisms
through the regulation of ballast water discharges and hull fouling
organisms. The department may establish
an interagency team to address the concerns relating to alien aquatic organisms[ .],
including the development of preventative measures and best management practices
that will reduce risks of alien species being introduced.
(b) The department may adopt rules in accordance with chapter 91, including penalties, to carry out the purposes of this part. The rules may include standards for the department and the United States Coast Guard to use as part of their respective inspection protocols. The rules may also include implementation of a course of action in relation to the arrival or pending arrival of a high risk vessel.
The governor may enter into an agreement with the [
Secretary of Transportation to carry out the purposes of this part, including
but not limited to the enforcement of state law.] secretary of the department
in which the United States Coast Guard is operating to enforce section 312(k) of
the Federal Water Pollution Act (33 U.S.C. 1322), or to otherwise carry out this
(d) Notwithstanding any requirement of chapter 91 and subject to paragraph (1), during any period when any regulation, including a regulation authorizing a penalty, standard, or requirements for ballast-water, vessel biofouling, or vessel hull in-water cleaning established by the United States Coast Guard or the Environmental Protection Agency pursuant to the Vessel Incidental Discharge Act of 2018 (title IX of P.L. 115-282; 132 State. 4322) or the amendments made by that Act is in effect, that regulation, standard, or requirement shall be deemed to be a rule, standard, or requirement adopted by the departments; provided that:
(1) The department may adopt a rule, including a rule authorizing a penalty, that complies with section 312 of the Federal Water Pollution Control Act (33 U.S.C. 1322 or that otherwise complies with applicable federal law to modify, replace, or restate a rule, standard, or requirement deemed adopted under this section;
(2) The department may adopt a rule to impose a civil or criminal penalty for a violation of a rule deemed adopted under this section; and
(3) Rules adopted pursuant to this section shall be exempt from the public notice and public hearing requirements of chapter 91."
SECTION 3. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2020-2021 for the funding of the following positions to support the prevention, detection, and management of aquatic alien and invasive species associated with ballast water and vessel biofouling pathways:
(1) Full year funding ($ for fiscal year 2020‑2021) for one biologist V position to oversee the aquatic biosecurity team and operations;
(2) Full year funding ($ for fiscal year 2020‑2021) for one program specialist IV position to analyze and develop regulations and policy related to aquatic biosecurity;
(3) Full year funding ($ for fiscal year 2020‑2021) for one general professional IV position to develop, manage, and maintain reporting for any database and technology used during aquatic biosecurity risk inspections;
(4) Full year funding ($ for fiscal year 2020‑2021) for two biologist IV positions to oversee biosecurity risk inspections and compliance testing;
(5) Full year funding ($ for fiscal year 2020‑2021) for the funding of 1.0 FTE conservation and resources enforcement officer IV to support safety, compliance, and enforcement of aquatic biosecurity laws in conservation and resources enforcement;
(6) Full year funding ($ for fiscal year 2020‑2021) for four biologist III positions to conduct biosecurity risk inspections, monitoring, and related outreach and education; and
(7) Full year funding ($ for fiscal year 2020‑2021) for benefits for the positions funded in paragraphs (1) through (6).
The sum appropriated shall be expended by the department of land and natural resources for the purposes of this Act.
SECTION 4. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2020-2021 for operating expenditures in the ecosystem protection and restoration program for aquatic biosecurity including contracts for specialized laboratory work, purchase and maintenance of field and laboratory equipment and supplies, and travel costs.
The sum appropriated shall be expended by the department of land and natural resources for the purposes of this Act.
SECTION 5. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect on July 1, 2020.
Aquatic Biosecurity; Appropriations
Authorizes the department of land and natural resources management to co-enforce, with the United States Coast Guard, rules, standards, and requirements related to ballast-water, vessel biofouling, vessel hull in-water cleaning, and any other incidental discharges that may pose a risk for the introduction and spread of non-native aquatic organisms. Appropriates funds for staffing and operating expenditures for aquatic biosecurity.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.