A Short Synopsis of New York’s Invasive Species Prevention Act

In July 2012 Governor Andrew Cuomo signed the Invasive Species Prevention Act, which creates a statewide regulatory system that will prohibit or limit the transport and sale of known invasive plants and animals.[1]

The Act requires the New York State Department of Environmental Conservation and New York State Department of Agriculture and Markets to develop regulations for the sale, purchase, possession, introduction, importation and transport of invasive species. Additionally these agencies will develop a list, with consultation from stakeholders, of prohibited species unlawful to possess with the intent to sell or introduce, as well as three lower tiers of regulated species that would be legal to possess, sell, buy, propagate and transport with restrictions.[2]

Governor Cuomo stated that this law will provide the Department of Environmental Conservation (“DEC”) and the Department of Agriculture and Markets (“DAM”) the tools that they need to protect New York’s ecology from the harm that invasive species can cause. [3] He also stated that “This legislation ensures that the regulations governing invasive species are appropriate for New York’s farming community and plant nurseries, while also protecting the environment. I commend the bill sponsors for their work on this legislation.”[4]

ISPA amends the Environmental Conservation Law (“ECL”) at § 9-1709 general powers and duties of the department[5] and  at § 71-0703[6] and the Agriculture and Markets Law (“AML”) at § 167[7], in relation to nonnative animal and plant species. The act was signed into law on July 24, 2012 and became effective on January 20, 2013.[8]

One major difference between the now effective legislation and the previously existing material in ECL § 9-1709 is that the new material requires the promulgation of regulations by the DEC the DAM in consultation with the ISC.[9]  The previous statute gave DEC and DAM the authority to “establish, operate and maintain statewide databases and clearinghouses for all taxa of invasive species that incorporate existing data from agencies and organizations in the state, as well as from nearby states, provinces, Canada, and the federal government” for the purpose of carrying out the provisions of Title 17.[10] Although this language appears in the latter part of this section now that the new legislation has become effective, the new language in the section is much more forceful and places a larger burden and responsibility on both DEC and DAM, as well as the ISC.  The new language states that the DEC and the DEM in consultation with the ISC shall, after public hearing, jointly promulgate regulations to develop the following four things:

(a) a permit for prohibited species disposal, control, research and education;

(b) a list of prohibited species, which shall be unlawful to knowingly possess with the intent to sell, import, purchase, transport or introduce;

(c) a list of prohibited species which shall be unlawful to import, sell, purchase, propagate, transport, or introduce except under a permit for disposal, control, research, or education; and

(d) a list of regulated species which shall be legal to possess, sell, buy, propagate and transport but may not be knowingly introduced into a free-living state or introduced by a means that one knew or should have known would lead to the introduction into a free-living state.[11]

Additionally, the statute also provides that the departments and the council shall “consider establishing grace periods for prohibited and regulated species so businesses can plan the management of existing stock”.[12]  The deadline for these regulations to be completed is September 1, 2013. [13]

The regulations, pursuant to the statute, will enact a new permitting system for invasive species.[14] According to the language of the statute, there will be a list of species that will be illegal to import, sell, purchase, propagate, transport, or introduce without a permit under §9-1709 (1)(a).[15]  There will also be a list of species that will be illegal to knowingly possess with the intent to sell, import, purchase, transport, or introduce for which a permit to do so will be unavailable.[16]

The ISPA amends AML § 167 to provide that DAM will work with DEC pursuant to ECL § 9-1709. [17]  In addition to the amendments to  ECL § 9-1709 and AML § 167, the ISPA also amends ECL §71-0703 to provide for penalties for violations of the regulations promulgated under § 9-1709 as follows:

 9. a. Any person who transports, sells, imports or introduces invasive species, in violation of the regulations promulgated pursuant to section 9-1709 of this chapter shall be subject to the following:

For any first violation in lieu of a penalty there may be issued a written warning by the department and there may also be issued education materials at the discretion of the department regarding requirements related to invasive species. Such person shall, however, for any subsequent violation thereafter be subject to a fine of no less than two hundred fifty dollars.

b.  Any nursery grower licensed pursuant to article fourteen of the agriculture and markets law, any person who owns or operates a public vessel as such term is defined in paragraph (a) of subdivision six of section two of the navigation law, or any person who owns or operates a commercial fishing vessel who transports, sells, imports or introduces invasive species in violation of the regulations promulgated pursuant to section 9-1709 of this chapter, shall be subject to a fine of not less than six hundred dollars upon the first penalty. Upon the second penalty such person shall be subject to a fine of not less than two thousand dollars. Upon a subsequent penalty and after a hearing or opportunity to be heard upon due notice the following penalties may apply: (i) such nursery grower may be subject to the revocation procedures of section one hundred sixty-three-c of the agriculture and markets law (ii) such person’s vessel registration may be suspended or (iii) such person’s fishing permit may be revoked by the department.[18]

In regards to penalties, there is a distinction between individuals who transport, sell, import or introduce invasive species in violation of ECL § 9-1709 and licensed nursery growers, public vessel owners[19], and owners or operators of commercial vessels who commit the same violation.[20]  The act provides for stronger, more severe penalties for the latter.[21]

It will be interesting to see what this Act means for New York invasive species prevention. Once the regulations are completed, we will be able to develop a better sense of how this Act is going to address the New York invasive species threats.


 

[1] Governor Signs Invasive Species Prevention Act, The Nature Conservancy, http://www.nature.org/ourinitiatives/regions/northamerica/unitedstates/newyork/newsroom/governor-signs-invasive-species-prevention-act.xml (last visited December 1, 2012).

[2] Governor Signs Invasive Species Prevention Act, The Nature Conservancy, http://www.nature.org/ourinitiatives/regions/northamerica/unitedstates/newyork/newsroom/governor-signs-invasive-species-prevention-act.xml (last visited December 1, 2012).

[3] Governor Cuomo Signs Legislation to Protect New York’s Waterways and Natural Habitat From Invasive Species, Governor’s Press Office, http://www.governor.ny.gov/press/07242012-protection-from-invasive-species (last visited December 1, 2012).

[4] Legislation to Protect New York’s Waterways and Natural Habitat From Invasive Species, Governor’s Press Office, http://www.governor.ny.gov/press/07242012-protection-from-invasive-species (last visited December 1, 2012).

 

[5]  N.Y. Envtl. Conserv. Law § 9-1709 (Consol. 2012). (The new legislation reorganizes the section to place the new law first, and then re-orders the previous contents of the section and places them after the new material).

[6] N.Y. Envtl. Conserv. Law § 71-0703 (Consol. 2012).

[7] N.Y. Agric. § Mkts. Law § 167. (Consol. 2012)

[8] Bill No. S06826A Summary, New York State Assembly, http://assembly.state.ny.us/leg/?default_fld=&bn=S06826&term=2011&Summary=Y&Actions=Y&Text=Y&Votes=Y#jump_to_Votes (last visited January 25, 2013).

[9] N.Y. Envtl. Conserv. Law § 9-1709(1) (Consol. 2012). (citations to the ECL and to the AML reflect the law as it stands since the ISPA became effective on Jan. 20, 2013, not the prior numberings of the law before that date).

[10] N.Y. Envtl. Conserv. Law § 9-1709(2)(a) (Consol. 2012) (This language was previously § 9-1709(1) before the ISPA became effective on Jan. 20, 2013).

 

[11] N.Y. Envtl. Conserv. Law § 9-1709(1)(a)-(d) (Consol. 2012).

[12] N.Y. Envtl. Conserv. Law § 9-1709(1) (Consol. 2012).

[13] N.Y. Laws 2012, Ch. 267, § 4 (providing that “this act shall take effect on the one hundred eightieth day after it shall have become a law. Effective immediately, the department of environmental conservation and the department of agriculture and markets shall promulgate regulations to implement the provisions of this act. Such regulations shall be completed on or before September 1, 2013).

[14] N.Y. Envtl. Conserv. Law § 9-1709(1)(a (Consol. 2012).

[15] N.Y. Envtl. Conserv. Law § 9-1709(1)(c) (Consol. 2012).

[16] N.Y. Envtl. Conserv. Law § 9-1709(1)(c) (Consol. 2012).

[17]  N.Y. Agric. § Mkts. Law § 167(3-a). (Consol. 2012) (stating that “The department [of agriculture], in cooperation with the department of environmental conservation shall restrict the sale, purchase, possession, propagation, introduction, importation, transport and disposal of invasive species pursuant to section 9-1709 of the environmental conservation law”).

[18] N.Y. Envtl. Conserv. Law § 71-0703(9)(a),(b) (Consol. 2012).

[19] As the term is defined in paragraph (a) of subdivision six of section two of the navigation law.

[20] N.Y. Envtl. Conserv. Law § 71-0703 (Consol. 2012).

[21] N.Y. Envtl. Conserv. Law § 71-0703 (Consol. 2012).

 

1 comment

  1. Great article! Although just a short synopsis, I believe this piece of rhetoric points out major points of NY ESPA that a local citizen would be able to understand and hopefully help with advocacy.

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