Bill Text: NJ A3677 | 2022-2023 | Regular Session | Comm Sub
Bill Title: Prohibits sale, distribution, import, export or propagation of certain invasive species without permit from Department of Agriculture; establishes NJ Invasive Species Council.
Spectrum: Strong Partisan Bill (Democrat 10-1)
Status: (Vetoed) 2024-01-08 - Absolute Veto, Received in the Assembly [A3677 Detail]
Download: New_Jersey-2022-A3677-Comm_Sub.html
ASSEMBLY COMMITTEE SUBSTITUTE FOR
ASSEMBLY, Nos. 3677 and 2807
STATE OF NEW JERSEY
220th LEGISLATURE
ADOPTED MAY 18, 2023
Sponsored by:
Assemblyman STERLEY S. STANLEY
District 18 (Middlesex)
Assemblyman ANTHONY S. VERRELLI
District 15 (Hunterdon and Mercer)
Assemblywoman SADAF F. JAFFER
District 16 (Hunterdon, Mercer, Middlesex and Somerset)
Assemblyman CLINTON CALABRESE
District 36 (Bergen and Passaic)
Co-Sponsored by:
Assemblywomen Reynolds-Jackson and Dunn
SYNOPSIS
Prohibits purchase, sale, distribution, import, export, or propagation of certain invasive species without permit from Department of Agriculture or Department of Environmental Protection; establishes NJ Invasive Species Council.
CURRENT VERSION OF TEXT
Substitute as adopted by the Assembly Agriculture and Food Security Committee.
An Act concerning invasive species and supplementing Title 4 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in this act:
"Cultivar" means a variety of plant that has been specifically cultivated by humans, through artificial selection, in order to produce particular traits.
"Invasive animal species" means a living, multi-cellular, vertebrate or invertebrate invasive species that is a member of the biological kingdom Animalia.
"Invasive microorganism species" means a living part of any microscopic or submicroscopic invasive species that is too small to be seen by the unaided human eye, including, but not limited to, bacteria, fungi, archaea, or protists.
"Invasive plant or fungi species" means any living part of an invasive species that has photosynthetic or spore-producing capabilities and is a member of the biological kingdom Plantae or Fungi, and any cultivar, variety, subspecies, seeds, or spores of such species. "Invasive plant or fungi species" includes the following specific species: Norway maple (Acer platanoides); tree of heaven (Ailanthus altissima); mimosa or silk tree (Albizia julibrissin); porcelain berry (Ampelopsis glandulosa var. brevipedunculata); Japanese angelica tree (Aralia elata); Japanese barberry (Berberis thunbergii); Japanese clematis (Clematis terniflora); autumn olive (Elaeagnus umbellata); weeping lovegrass (Eragrostis curvula); winged burning bush (Euonymus alatus); English ivy (Hedera helix); Japanese hop (Humulus japonicas); sericea lespedeza (Lespedeza cuneate); European privet (Ligustrum vulgare); Amur honeysuckle (Lonicera maackii); Morrow's honeysuckle (Lonicera morrowii); purple loosestrife (Lythrum salicaria); Japanese crabapple (Malus toringo); Chinese silvergrass (Miscanthus sinensis); Eurasian water-milfoil (Myriophyllum spicatum); Oriental photinia (Photinia villosa); Callery or Bradford pear (Pyrus calleryana); common buckthorn (Rhamnus cathartica); jetbead (Rhodotypos scandens); multiflora rose (Rosa multiflora); European water chestnut (Trapa natans); Siebold's arrowwood (Viburnum sieboldii); Japanese wisteria (Wisteria floribunda); Chinese wisteria (Wisteria sinensis); and any other species designated pursuant to section 4 of this act.
"Invasive species" means a species of living organism categorized in any taxon, including any plant, fungus, vertebrate or invertebrate animal, or microorganism, that is determined to be non-native or alien to the terrestrial, freshwater aquatic, or marine ecosystem under consideration, and the introduction of which into such terrestrial, freshwater aquatic, or marine ecosystem may, or is likely to, cause economic or environmental harm or harm to human health.
"Invasive Species Council" or "council" means the council established pursuant to section 7 of this act.
"Permit" means a permit that is issued by the Department of Agriculture or the Department of Environmental Protection, as applicable, pursuant to section 3 of this act.
"Regulated invasive species" means an invasive animal species, an invasive microorganism species, or an invasive plant or fungi species, and all sub-species, hybrids, varieties, cultivars, and other subcategories thereof, which may not be introduced into a terrestrial, freshwater aquatic, or marine ecosystem without a permit, and which are not specifically exempted from the permitting requirements established pursuant to this act.
2. a. No person may purchase, sell, offer for sale, distribute, import, export, or otherwise propagate for sale or distribution, a regulated invasive species in the State without a permit issued, by the Department of Agriculture or the Department of Environmental Protection, pursuant to this act.
b. The following cultivars and varieties of invasive plant species shall be exempt from the prohibitions and permitting requirements of subsection a. of this section, but, when purchased, sold, offered for sale, distributed, imported, exported, or otherwise propagated for sale or distribution in this State, shall still be labeled in accordance with any applicable labeling requirements that are established, by the Department of Agriculture, pursuant to section 3 of this act, and accompanied, at the point of sale, by appropriate educational materials that have been developed or provided by the Department of Agriculture, pursuant to section 5 of this act:
(1) the following cultivars or varieties of Japanese Barberry (Berberis thunbergii): (a) Aurea; (b) UCONNBTCP4N; (c) UCONNBTB133; (d) UCONNBTB048; and (e) UCONNBTB039; and
(2) the following cultivars or varieties of Chinese Silvergrass (Miscanthus sinesnsis): (a) NCMS1; and (b) Tift M77.
3. a. The Department of Agriculture and the Department of Environmental Protection shall jointly adopt rules and regulations, in cooperation and consultation with each other and pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), to establish and implement a permitting program for the purpose of facilitating the safe purchase, sale, import, export, introduction, distribution, and propagation of regulated invasive species in the State.
b. The rules and regulations adopted pursuant to this section shall include, at a minimum:
(1) the list of regulated invasive species that has been developed, by each department, pursuant to section 4 of this act, as well as a description of the regulatory processes that will be used by each department, pursuant to section 4 of this act, to annually identify new invasive species to be added to each department's list;
(2) criteria for the issuance of permits authorizing the limited propagation of a regulated invasive species in the State for purposes of sale or distribution;
(3) criteria for the issuance of permits authorizing the propagation or distribution of an invasive species for educational or research purposes;
(4) criteria for the issuance of general permits, as may be necessary to effectuate the purposes of this act;
(5) criteria for the exemption, from applicable invasive species permitting requirements, of cultivars, subspecies, or other varieties of ordinarily invasive plant species, other than those already expressly exempted from such permitting requirements pursuant to subsection b. of section 2 of this act, which cultivars, subspecies, or other varieties have been proven to be non-invasive in nature, by virtue of sterility factors or other stable genetic traits unique thereto;
(6) requirements providing for consumer warning labels to be attached, at the point of sale, to each invasive species that is sold, offered for sale, or distributed at retail in the State, and providing for such warning labels to describe the best practices to be used, in association with the consumer's possession or cultivation of the invasive species, in order to prevent the escape or unintended wild propagation of the invasive species;
(7) procedures for the submission and departmental review of permit applications;
(8) a schedule of fees that will be imposed, by each department, to finance the costs associated with implementation of the permitting program; and
(9) any other requirements or provisions that are necessary for the implementation of this act.
c. Any permitting criteria established pursuant to this section shall be designed to prevent or to minimize, to the greatest extent practicable, the potential for a regulated invasive species to escape into, or to unintentionally propagate in, the wild.
4. a. (1) The Departments of Agriculture and Environmental Protection, acting in accordance with recommendations from the New Jersey Invasive Species Council established pursuant to section 7 of this act, and in consultation with one another and any other relevant State entity, shall, not more than one year after the effective date of this act, develop a list of the regulated invasive species that are subject to each department's respective jurisdiction and the permitting requirements of this act. Each year thereafter, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the departments shall respectively adopt rules and regulations revising the departmental lists developed pursuant to this section, as may be necessary to designate new species as regulated invasive species for the purposes of this act.
(2) Notwithstanding any other provision of this act, or any rule or regulation, to the contrary, each invasive plant species that is specifically identified in section 1 of this act shall become subject to the prohibitions and permitting requirements of subsection a. of section 2 of this act immediately upon the plant's inclusion in a departmental list developed pursuant to this subsection. Any other commercially available invasive plant species that is not listed in section 1 of this act, but which is later added to a departmental list of regulated invasive species, pursuant to this act, shall become subject to the prohibitions and permitting requirements of subsection a. of section 2 of this act, as applicable to the propagation and import of the plant, on the first day of the thirteenth month after the plant is first identified on a departmental list of regulated invasive species, pursuant to this section, and shall become subject to the remaining prohibitions and permitting requirements of subsection a. of section 2 of this act, as applicable, on the first day of the 49th month after the plant is first identified on a departmental list of regulated invasive species, pursuant to this section.
b. When determining whether to add a species to the list of regulated invasive species developed pursuant to subsection a. of this section, the Department of Agriculture or the Department of Environmental Protection, as applicable, shall consider:
(1) the threat that the species poses to native species in the State;
(2) the threat that the species poses to any sensitive habitats or endangered or threatened species in the State;
(3) the threat that the species poses to any historical, cultural, or infrastructure resources in the State; and
(4) the likelihood that the species will escape and propagate uncontrolled in the State.
c. In order to designate a species as a regulated invasive species, pursuant to this section, the Department of Agriculture or the Department of Environmental Protection, as applicable, shall make a finding that the species threatens, or has the potential to threaten, the ecological, cultural, historical, or infrastructure resources of, or human health in, the State. A species shall not be designated as a regulated invasive species, pursuant to this section, solely on the basis that it is not native to New Jersey.
5. a. The Department of Agriculture and the Department of Environmental Protection, in consultation with the New Jersey Invasive Species Council, the New Jersey Agricultural Experiment Station at Rutgers, the State University, the Highlands Water Protection and Planning Council established pursuant to P.L.2004, c.120 (C.13:20-1 et seq.), the Pinelands Commission established pursuant to P.L.1979, c.111 (C.13:18A-1 et seq.), and any other relevant State entity or out-of-State entity, shall develop or provide, in a manner deemed by the Department of Agriculture or the Department of Environmental Protection to be most effective, physical and digital educational materials identifying:
(1) New Jersey's regulated invasive species;
(2) best propagation, cultivation, and management practices to be used in order to prevent the spread of a regulated invasive species; and
(3) where applicable, alternative species that can be more safely propagated in the State.
b. The educational materials developed or provided by the departments, pursuant to this section, shall be distributed to consumers, either by the departments or by collaborating entities, at the point of sale of a regulated invasive species and at any other locations deemed by the departments or the collaborating entities to be appropriate.
6. a. (1) Any person who violates this act, or any rule or regulation adopted pursuant thereto, shall be subject to a warning for a first offense and a civil penalty of up to $1,000 for a second offense, up to $2,000 for a third offense, and up to $5,000 for a fourth or subsequent offense. Such person shall be provided with a three-month period in which to remediate any such violation before being subjected to an enhanced penalty for a subsequent offense pursuant to this paragraph.
(2) A civil penalty imposed pursuant to this subsection may be collected, with costs, in a summary proceeding commenced pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with this act.
b. The Department of Agriculture or the Department of Environmental Protection may institute a civil action in a court of competent jurisdiction for injunctive relief to prohibit or prevent a violation of this act, or any rule or regulation adopted pursuant thereto, and the court may proceed in the action in a summary manner.
c. The Department of Agriculture shall conduct inspections of commercial facilities, contemporaneously with, and in a manner and form similar to, inspections conducted pursuant to R.S.4:7-21, for the purposes of determining compliance with this act. The department shall not charge a separate inspection fee for an inspection that is conducted pursuant to this subsection.
d. The Department of Agriculture or the Department of Environmental Protection, acting within their respective jurisdictions, may seize and destroy any invasive species that forms a basis of a violation of this act or any rule or regulation adopted pursuant thereto.
e. The Department of Agriculture or the Department of Environmental Protection may jointly compromise and settle any claim for a penalty under this act in such amount which appears, in the discretion of the departments, to be appropriate and equitable under all of the circumstances.
f. Nothing in this act shall be construed to impose liability on any news media that accepts or publishes advertising for any product that may fall within the scope of this act.
7. a. There is established a New Jersey Invasive Species Council. The council shall consist of 13 members to be appointed as follows:
(1) the Commissioner of Environmental Protection or the commissioner's designee, who shall serve ex-officio;
(2) the Secretary of Agriculture or the secretary's designee, who shall serve ex-officio;
(3) the Commissioner of Transportation or the commissioner's designee, who shall serve ex-officio;
(4) the Commissioner of Health, or the commissioner's designee, who shall serve ex-officio; and
(5) nine additional members appointed by the Governor, no later than 60 days after the effective date of this section, as follows:
(a) three representatives from conservation organizations;
(b) one representative from the agricultural sector;
(c) two representatives of the nursery and landscape sector;
(d) one representative from academia; and
(e) two representatives from the general public having knowledge and experience concerning invasive species, with special consideration being given to the members of the public who are representatives of indigenous and under-represented communities.
b. Each public member appointed to the council shall serve for a term of three years, except that, of the public members first appointed pursuant to this section: three members, including one appointed under subparagraph (a) of paragraph (5) of subsection a. of this section, one appointed under subparagraph (b) or (c) of paragraph (5) of subsection a. of this section, and one appointed under subparagraph (d) or (e) of paragraph (5) of subsection a. of this section, shall serve for initial terms of two years; three members, including one appointed under subparagraph (a) of paragraph (5) of subsection a. of this section, one appointed under subparagraph (b) or (c) of paragraph (5) of subsection a. of this section, and one appointed under subparagraph (d) or (e) of paragraph (5) of subsection a. of this section, shall serve for initial terms of three years; and three members, including one appointed under subparagraph (a) of paragraph (5) of subsection a. of this section, one appointed under subparagraph (b) or (c) of paragraph (5) of subsection a. of this section, and one appointed under subparagraph (d) or (e) of paragraph (5) of subsection a. of this section, shall serve for initial terms of four years.
c. A public member in good standing may be reappointed to the council following the expiration of the member's term. A public member who is not in good standing may be removed from the council, for cause, on that basis. The council shall develop its own rules of order, shall define the level of participation required to maintain a member's status in good standing for the purposes of reappointment and removal pursuant to this subsection, and may submit a written request or referral, to the Governor, seeking the removal or reappointment of a member on the basis of their determined good standing or lack thereof.
d. Any vacancy in the public membership of the council shall be filled, within six months after the date on which the vacancy occurs, in the same manner provided for the initial appointments.
e. Members of the council shall not be entitled to compensation, but may be reimbursed for necessary expenses incurred thereby in the performance of their duties, within the limits of funds made available for the council's purposes.
f. The co-chairs of the council shall be the Commissioner of Environmental Protection and the Secretary of Agriculture, or their designees. A majority of the membership of the council shall constitute a quorum for the transaction of council business, and action may be taken at any council meeting by the affirmative vote of a majority of the council's membership.
g. The council shall meet on at least a quarterly basis, at the call of one or both of the co-chairs.
h. (1) The council shall work in cooperation with the Department of Agriculture and the Department of Environmental Protection to assist the departments in developing and adopting a program for the transparent regulation and management of invasive species in the State, consistent with proven best practices. To that end, within one year after the effective date of this act, and annually thereafter, the council shall evaluate, and develop its own comprehensive lists of, species that are already deemed to be, or may ultimately become, invasive and, based on those evaluations and lists, submit written recommendations to the Department of Agriculture and the Department of Environmental Protection regarding the inclusion of new invasive species on, or the removal or exemption of specific non-invasive species, cultivars, varieties, or subspecies from, each department's regulated invasive species list, established pursuant to section 4 of this act. The council's species lists, established and regularly updated pursuant to this subsection, shall identify all invasive species in New Jersey, including all species that are already included on the list of invasive species maintained by the New Jersey Invasive Species Strike Force, as well as all other species that are identified on the regulated invasive species lists newly developed pursuant to this act, and all invasive species that are currently subject to regulation in the nearby states of New York, Pennsylvania, Connecticut, Maryland, Delaware, and Virginia. The council shall also develop procedures and make recommendations to the Department of Agriculture and the Department of Environmental Protection, as necessary to simplify and expedite the process for adding species to, and removing or exempting species from, the council and departmental lists that are developed pursuant to this act.
(2) Whenever the council recommends that a new species be added to a departmental list of regulated invasive species, pursuant to this subsection, the council shall also recommend an appropriate date on which the newly added species should become subject to the sales and propagation prohibition and permitting requirements established pursuant to section 2 of this act. When making such a recommendation regarding the date on which the permitting requirements of this act are to become effective with respect to any newly added species, the council shall consider, at a minimum, the economic impact of regulating the newly added species, pursuant to this act, on the nursery industry, and the ecological urgency of regulation.
i. The council shall examine and revise the 2009 New Jersey Strategic Management Plan for Invasive Species, prepared by the New Jersey Invasive Species Council pursuant to Executive Order No. 97 of 2004, and the revised plan shall be submitted to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature, no later than one year after the first meeting of the council held pursuant to this act. The revised management plan shall include, but not be limited to:
(1) a policy and mission statement;
(2) relevant definitions;
(3) findings concerning the current status of non-indigenous species in New Jersey and their impact on habitat, biota, and natural ecosystems;
(4) a description of the measures, methods, and procedures that are available to prevent and control the release and wild propagation of regulated invasive species, and to facilitate early detection of, and rapid response to, such unintended releases and propagation in the wild;
(5) a description of existing restoration and research needs and available pilot projects;
(6) provisions establishing information management, education, and interpretation measures; and
(7) provisions requiring coordination among State agencies, adjacent states, and other applicable entities.
j. The council shall undertake the following tasks and any other reasonable measures necessary to prevent the introduction of regulated invasive species into the State and to eliminate or minimize the presence and detrimental impacts of regulated invasive species already established in the State. These tasks, as appropriate, may be integrated as components of the New Jersey Invasive Species Management Plan:
(1) recommend measures necessary for State departments and agencies, and for non-governmental organizations, to cooperate with federal agencies and other states in complying with federal Executive Order No. 13112 and the National Invasive Species Management Plan;
(2) identify research needs to better assess the sources, degree, distribution, and threat posed by invasive species, and methods for preventing the introduction and control of invasive species;
(3) review ongoing invasive species control efforts being carried out by State departments and agencies, and recommend new or revised measures to limit the introduction and effectuate the control of invasive species;
(4) produce or identify educational programs and materials, for public distribution, identifying the threats posed by invasive species, outlining measures to prevent the introduction of invasive species and to control invasive species in the State, and encouraging the use of local native genotypes, including drought-tolerant native plants, preferably propagated in New Jersey, in landscaping and planting activities;
(5) develop partnerships with federal, State, and local government agencies, institutions of primary, secondary, and higher education, and non-profit and other private organizations, including the horticultural organizations, as necessary to implement the policies and recommendations of the council;
(6) identify and use sources of funding that are available to support the council's research, monitoring, and control activities, relevant youth and community outreach programs, and other council operations and activities; and
(7) identify legislative or regulatory actions necessary to implement or further the policies and recommendations of the council.
k. In performing its duties pursuant to this act, the council shall consult with the New Jersey Agricultural Experiment Station at Rutgers, the State University, as well as with the Highlands Water Protection and Planning Council established pursuant to P.L.2004, c.120 (C.13:20-1 et seq.) and the Pinelands Commission established pursuant to P.L.1979, c.111 (C.13:18A-1 et seq.); shall request the participation of the United States Department of Agriculture, the United States Environmental Protection Agency, and the United States Department of the Interior; and may consult with, or request the participation of, any other agencies or organizations the council deems appropriate.
l. The Department of Agriculture and the Department of Environmental Protection shall provide staff support to the council, and the council shall also be entitled to call to its assistance and avail itself of the services of the employees of any State department, board, bureau, commission, or agency, as it may require and as may be available for its purposes.
8. a. The Department of Agriculture and the Department of Environmental Protection shall each be authorized to obtain assistance from, and make use of the services provided by, any State department, board, commission, or agency, as may be required to effectuate the purposes of this act.
b. The Department of Agriculture, the Department of Environmental Protection, and the Invasive Species Council shall cooperate and consult with one another when developing budgets for the purposes of this act.
9. The provisions of this act and the rules and regulations adopted pursuant thereto shall supersede any contradictory ordinances, resolutions, rules, or regulations which are, or have been, adopted at the municipal, county, or regional levels in association with the regulation of invasive species or the permitting of activities involving the introduction, sale, import, export, distribution, propagation, or purchase of a regulated invasive species.
10. Sections 1 through 6, and sections 8 and 9, of this act shall take effect on the first day of the 24th month next following enactment, except that the Department of Agriculture and the Department of Environmental Protection may take any anticipatory administrative action, in advance of the effective date, as may be necessary for the implementation of this act. The remaining provisions of this act shall take effect immediately.
