HomeMy WebLinkAboutBIL 113 Draft 02 2012-2014 .�V�YY Of N..%..
COUNTY OF HAWAII STATE OF HAWAII
BILL NO. 113
(DRAFT 2)
ORDINANCE NO.
AN ORDINANCE AMENDING CHAPTER 14 OF THE HAWAII COUNTY CODE 1983
(2005 EDITION, AS AMENDED), BY ADDING A NEW ARTICLE RELATING TO
GENETICALLY ENGINEERED CROPS AND PLANTS.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Findings. The public trust doctrine is memorialized in the Hawai`i State
Constitution, Article XI, Section 1 "Conservation and Development of Resources," and in the
Charter of the County of Hawai`i, Article XIII, Section 13-29 "Conservation of Natural and
Cultural Resources." Pursuant to the public trust doctrine, our natural resources, including land
and water, are entrusted to our care for the benefit of both current and future generations. The
Intermediate Court of Appeals in Kaua`i Springs Inc. vs. Planning Commission of the County of
Kaua`i, dated April 20, 2013, underscored the importance of the public trust doctrine and the
associated precautionary principle. In Kaua`i Springs, the Intermediate Court of Appeals
reaffirmed that the county government in its trustee capacity is subject to the precautionary
principle and therefore must exercise a higher level of scrutiny in establishing reasonable
measures and making appropriate assessments in order to avoid harmful impacts to our public
trust resources. The Council therefore recognizes the right of the people and their government to
guard against the intrusion of potential contaminants and prevent the contamination of non-
genetically engineered crops, plants and lands by genetically engineered crops and plants without
having to first wait for definitive science. As the United States Supreme Court made clear in
Maine vs. Taylor (1986), the government is not required"to sit idly by and wait until potentially
irreversible environmental damage has occurred or until the scientific community agrees on what
disease organisms are or are not dangerous before it acts to avoid such consequences."
The Council finds that its authority to impose restrictions on the cultivation, propagation,
development, and testing of genetically engineered crops and plants to protect public and private
property as well as surface waters, vulnerable watersheds, and our Island's coastal waters, is
granted to it by:
(1) The Hawai`i Revised Statutes, Section 46-1.5(13), which states: "Each county shall have
the power to enact ordinances deemed necessary to protect health, life, and property, and to
preserve the order and security of the county and its inhabitants on any subject or matter
not inconsistent with, or tending to defeat, the intent of any state statute where the statute
does not disclose an express or implied intent that the statute shall be exclusive or uniform
throughout the State.";
(2) The Hawai`i State Constitution, Article XI, Section 9 "Environmental Rights," which
states: "Each person has the right to a clean and healthful environment, as defined by laws
relating to environmental quality, including control of pollution and conservation,
protection and enhancement of natural resources. Any person may enforce this right against
any party, public or private, through appropriate legal proceedings, subject to reasonable
limitations and regulation as provided by law."
This ordinance specifically exempts the cultivation, propagation, and development of
genetically engineered papaya from prohibition because the genetic modification of papaya over
the past decade has become so pervasive across this island that restricting cultivation of
genetically engineered papaya would be near impossible at this time, the likelihood of
genetically engineered cross pollination of papaya is reduced given the customary controlled
manner of propagation, and in light of the substantial investment in controlled testing of this one
crop over the past decade as the means of choice to address certain papaya diseases.
SECTION 2. Chapter 14 of the Hawai`i County Code 1983 (2005 Edition, as amended)
is amended by adding a new article to be appropriately designated and to read as follows:
"Article_. Protecting Hawaii Island's Agricultural Heritage and Its
Ecosystems from Genetically Engineered Organisms.
Section 14-_ Purpose.
The purpose of this article is to protect Hawai`i Island's non-genetically modified
agricultural crops and plants from genetically modified organism cross pollination and to
preserve Hawai`i Island's unique and vulnerable ecosystem while promoting the cultural
heritage of indigenous agricultural practices. The prohibition of open air cultivation,
propagation, development, or testing of genetically engineered crops and plants is
intended to prevent the transfer and uncontrolled spread of genetically engineered
organisms on to private property, public lands, and waterways.
Section 14-_ Definitions.
As used in this article, unless otherwise specified:
"Genetically engineered" means an organism that has been modified at the
molecular or cellular level by means that are not possible under natural conditions or
processes. Such means include recombinant DNA and RNA techniques, cell fusion,
microencapsulation, macroencapsulation gene deletion and doubling, introducing a
foreign gene, and changing the position of genes. Such organisms are sometimes referred
to as "genetically modified organisms" or "transgenic organisms." Genetically
engineered or genetically modified crops and plants include crops and plants for human
consumption or for any other purpose. Genetic engineering does not include modification
that consists exclusively of breeding, conjugation, fermentation, hybridization, in vitro
fertilization, or tissue culture.
"Open air" means a location or facility that is not enclosed in a greenhouse or in
another completely enclosed structure so as to prevent the uncontrolled spread of
genetically engineered organisms.
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"Person" includes natural persons, partnerships, joint ventures, societies,
associations, clubs, trustees, trusts, or corporations or any officer, agent, employee, or
any other personal representative thereof, in any capacity, acting either for himself, his
heirs, or for any other person under personal appointment pursuant to law.
"Register" or "Registration" means registration by persons engaged in the
cultivation, propagation, development, or indoor testing of genetically engineered crops
or plants. Registration shall include: the tax map key of the property or properties; a
detailed description of the location on the property where genetically engineered crops or
plants are being cultivated, propagated, developed, or tested, which description shall
include the size of the location and scope of usage; the name of the owner of the property
or properties; the lessee or any other party in control of the genetically engineered plant
or crop operation or usage; the type of genetically modified organism or transgenic
manipulation used; the produce or products involved; the type, frequency, and customary
amount of herbicides and pesticides used; a description of any containment procedures
employed; and relevant contact information.
Section 14-_ Prohibition.
No person shall knowingly engage in the open air cultivation, propagation,
development, or testing of genetically engineered crops or plants.
Section 14-_ Exemptions.
The following persons shall be exempt from the provisions of this article:
(1) Persons engaged in the open air cultivation, propagation, or development of
genetically engineered crops or plants, other than genetically engineered
papaya, but only in those specific locations where genetically engineered
crops or plants have been customarily open air cultivated, propagated, or
developed by that person prior to the effective date of this article, provided
that those specific locations or facilities are registered within ninety days of
the effective date of this article; and
(2) Any person engaged in the open air cultivation, propagation, or development
of genetically engineered papaya, whether prior or subsequent to the effective
date of this article, provided that each location or facility wherein open air
cultivation, propagation, or development of genetically engineered p apaya
occurs or will occur is registered as provided in this article.
Notwithstanding any other provision of law, these exemptions shall not allow for
open air testing of genetically engineered organisms of any kind.
Section 14- . Registration.
(a) All persons engaged in any form of cultivation, propagation, development, or
indoor testing of genetically engineered crops or plants of any kind shall register
annually beginning within ninety days of the effective date of this article, and shall
pay an annual registration fee of $100 per location, payable to the director of
finance. All contiguous land shall be treated as a single location. The director of the
department of research and development, or the director's authorized
representative(s), shall administer the registration provision of this section.
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(b) All persons engaged in non-commercial cultivation or propagation of genetically
engineered papaya, in any stage or form, shall be exempt from this section. This
registration exemption does not exempt persons engaged in research, development,
or testing of genetically engineered papaya.
Section 14- Penalties.
Any person who knowingly violates this article shall be fined $1,000 per day as a
separate violation for each location in violation and shall be responsible for all costs of
investigation, as well as for court and legal costs, including attorneys and witness fees
and expenses, and for resulting damages to other non-genetically engineered crops,
plants, neighboring properties, or water sources.
Section 14_ Remedy.
The County or any person adversely affected by a violation of this article may
enforce this article by filing a civil action in the Third Circuit Court of the County of
Hawai`i. The provisions of this article are cumulative, and nothing in this article affects
any other remedies, including for public nuisance or injunctive relief, any individual or
government entity may have against any person resulting from a violation of this article."
SECTION 3. If any provision of this ordinance, or the application thereof to any person
or circumstance is held invalid, such invalidity shall not affect other provisions or applications of
the ordinance which can be given effect without the invalid provision or application, and to this
end, the provisions of this ordinance are declared to be severable.
SECTION 4. This ordinance shall take effect upon approval.
INTRODUCED BY:
COUNCIL ER, COUNTY HAWAII
, Hawai`i
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Effective Date:
REFERENCE Comm. 393.62
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