Kaua’i County Bill 2491 passes 6-1, Vetoed by Mayor

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Kauai Sunset, credit: KJHvM

On Wednesday, October 16, the Kaua’i County Council approved Bill 2491, after much public discussion and council hearings. The final council hearing lasted 14 hours, and ended at 3:30 am local time. The bill, introduced by councilmembers Gary Hooser and Tim Bynum, establishes additional rules and regulations for the use of pesticides and genetically engineered crops on the Garden Island.

Initiallly, bill 2491 contained provisions that would set up a county-level approval and registration process for genetically engineered crops, and a moratorium on their expansion pending the completion of a mandated Environmental Impact Statement (EIS). The pesticide provisions would limit the use of “restricted use” pesticides, a carefully regulated class of pesticides that require trained applicators to use, and “experimental use” pesticides, which are inputs that are approved for use on certain crops but are being tested on others (and are not themselves experimental).

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Frank N. Foode visits coffee trees at Kauai Coffee, credit: KJHvM

Many of these provisions were criticized for their potential consequences for the seed companies that develop new maize, sunflower, and rice varieties on the Southern shores of the island, as well as other farms such as Kaua’i Coffee. The bill, as originally written, mandated buffer zones around all waterways, which included irrigation ditches, making much of these farms unusable for research, or unable to spray pesticides to protect their crops on much of their farms.

The second draft of the bill, which passed by a 6-1 vote, refined the definition of waterways to include only perennial waterways that directly connect to the ocean, and placed the buffer at 100 feet. Buffer zones are set at 500 feet for schools, hospitals, and other such educational and care facilities, 250 feet for public parks, 500 feet for homes, and 100 feet for public roads. Some of these distances would be reduced depending on the ownership of the home, the type of use, and whether the company could substantiate “no drift” into those areas.

This section retained some odd wording, as it mandated that the crop itself could not be grown within those pesticide buffer zones (rather than just the spraying of the restricted use pesticides) – and that only groundcover could be grown there. The buffer zones also apply for all pesticides, not just restricted use pesticides, but only for those agricultural entities which purchased or used in excess of 5 pounds or 15 gallons of any restricted use pesticide. So the bill could apply differently to different agricultural producers depending on how much of any restricted use pesticide was purchased or used anywhere else in their operation, irrespective of what pesticide would be used in that area.

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Frank N. Foode on a tour of the DuPont Pioneer breeding station on Kauai during the fallow period. Credit: KJHvM

The bill also provided more information about the levels of restricted pesticide use on the island. The County of Kaua’i purchased and used the largest portion (49%) in this category, followed by commercial exterminators (38%), and commercial agricultural operations, at 13%.

The final bill included several provisions regarding notification, such as a weekly pesticide spray notice to neighbors within 1,500 feet of the field, and signs on public roadways. Each week, pesticide usage would be reported to the county, and posted publicly. The bill mandates worker notifications for pesticide sprays as well, to follow already-established EPA and state standards.

The use of genetically modified organisms of all types by commercial agricultural entities (anyone who grows or develops agricultural products) would be reported the following year to the State of Hawai’i, with the location and crop generalized. Specific traits would not be disclosed. This disclosure would apply to any commercial growers of genetically engineered papaya on the island. Kaua’i is known for its frequent farmer’s markets that run every day.

Finally, rather than the moratorium on the expansion of genetically engineered crops until the completion of an EIS, the final bill provides the go-ahead for an Environmental and Public Health Impacts Study (EPHIS) to determine if any policy actions should be taken. In this case, the study would precede the policy action, in contrast to the first draft of the bill.

Bill 2491 reached the desk of Mayor Bernard Carvalho Jr., who has until October 31, Halloween, to either sign the bill or veto it to send it back to the council. Mayor Carvalho had testified against the bill, citing the costs associated with its implementation and enforcement. However, he also expressed anti-veto sentiments as well.

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Frank saw some plots of transgenic rice, separated by windbreaks to keep them from pollinating each other. Credit: KJHvM

“Veto is not a consideration. I would like to look at the bill and see how we can really work it out, but my final decision will only be after I look at the final draft and I get the county attorney’s opinion,” Mayor Carvalho said. (see update below)

The passage of the bill comes shortly after Governor Neil Abercrombie stepped into the debate by suggesting voluntary aggregate disclosures for pesticide use while the State drafts additional requirements. Mayor Carvalho had asked for a two month deferral to allow these talks to continue. Now that the bill has passed it is unclear how the State will be involved in this issue, or how the County of Kaua’i will pay for the implementation of the new guidelines. The County council is considering a $555,000 appropriations bill for the 2014 budget. The bill will go into effect 9 months after it becomes law.

In sum, the version of Bill 2491 that passed differs substantially from its original draft. Proponents of the bill described it as watered-down, however, the focus of the bill is more in line with historical concerns about pesticide use and disclosure on Kaua’i, and eliminates many provisions that would have had more far-reaching negative impacts both on Kaua’i and on the many farms that depend on seeds of science developed in the Winter nurseries of the Garden Island.

What impacts of this bill do you see, both positive and negative?

For more information, see:

Bill 2491 Draft 1 Full Text

PDF of BFI Testimony on Bill 2491 Draft 1 (Blog post)

Bill 2491 Draft 2 Full Text

Update 10-31-2013: Kaua’i Mayor vetoes Bill 2491, citing legal reasons

Kaua’i Mayor Carvalho has announced that he has vetoed bill 2491. Following consultation with county attorneys, he stated that the bill would not be legally defensible, however he supports the spirit of disclosure and buffer zones as expressed in the bill.

“I have always said I agree with the intent of this bill to provide for pesticide use disclosure, create meaningful buffer zones and conduct a study on the health and environmental issues relating to pesticide use on Kaua‘i,” stated the Mayor. “However, I believe strongly that this bill is legally flawed. That being the case, I had no choice but to veto.”

The Mayor took issue with some of the language of the bill, as reported above, that focused on growing crops themselves and not on pesticide use. In his statement, he said, “However, one of the issues with Bill 2491 as it stands today is that it does not directly address pesticide buffer zones. Instead criminalizes the growing of any kinds of crops on agricultural land regardless of whether or not pesticides are used on said crops.”

Mayor Carvalho also pointed out other flaws, and included the opinion of the county to argue “it is evident that Kaua’i does not currently have the legal authority to enact most of what is contained in 2491.” Among these issues

In order for the bill to become law the County Council would have to override the veto, which would require five out of seven votes to do so. Although the bill passed 6-1, that does not necessarily mean that overriding the veto is certain to happen. As it stands politically, the future of bill 2491 remains uncertain. However, Mayor Carvalho said that he wants the County Council to move forward with funding an impact study – one of the requirements outlined in the bill.

“In the interest of finding that common ground, I would like the council to know that it is my intention to support the resolution calling for an environmental public health impact study (EPHIS),” said the Mayor in his statement. He also emphasized that the State of Hawai’i is willing to help increase Kaua’i County’s ability to regulate pesticide use.

Further Reading:

Kaua’i County: Mayor vetoes Bill 2491 (PDF includes press release and county attorney opinion)

The Garden Island: Mayor vetoes Bill 2491

Honolulu Star Advertiser: Kauai mayor vetoes measure to limit pesticides, GMOs

Civil Beat: Kauai Mayor Vetoes Pesticide, GMO Bill

Karl earned his Ph.D. in Plant Breeding and Plant Genetics at UW-Madison, with a minor in Life Science Communication. His dissertation was on both the genetics of sweet corn and plant genetics outreach. He currently works as a public research geneticist in Madison, WI. His favorite produce might just be squash.


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22 comments to Kaua’i County Bill 2491 passes 6-1, Vetoed by Mayor

  • Mlema

    “seeds of science”? Is that what we’re calling transgenic seeds now?

    I was a little curious about the apparent concern over pesticides, which seems disproportionate compared to the concern on the mainland. Then i realized: endless growing season = endless spraying.

  • J Kamiya

    It is really sad that there is such a huge anti-science movement here in Hawaii thanks to tons of mainland monies. The activists run the show because they are the loudest and most frequently heard. I can’t understand when that ever became okay. They’ve taken over all the conversations here and used so much coercive intimidation for anyone who has spoken out about it. What is Hawaii coming to?

    • Mlema

      anti-science movements are always sad! Seems like a lot of people might just be worried about losing the lucrative overseas markets – where people don’t want gm foods. Looks like some of them are trying to restrict the toxic spraying as well. Can’t really blame them for that. But don’t let their coercive intimidation get you down!

  • Karl — you report “The use of genetically modified organisms of all types by commercial agricultural entities (anyone who grows or develops agricultural products) would be reported the following year to the County of Kaua’i, with the location and crop generalized. Specific traits would not be disclosed. This disclosure would apply to any commercial growers of genetically engineered papaya on the island. Kaua’i is known for its frequent farmer’s markets that run every day”

    Four questions. In the first sentence quoted above, I assume you mean that reporting of crops with ge traits would start the following year, or do you mean that at the end of each growing seasons, the grower would retroactively report that they grew a crop with a ge trait the previous growing season.

    Second question, are the locations of ge crops reported public information. In other words, will there be some government entity that would publish the list or could any organization demand the information and publish a list and map of locations themselves.

    Third, I am assuming you mean the reporting requirement applies only to crops grown for commercial purposes. Am I correct that a private homeowner who might grow a ge papaya or two in their backyard for their own household use are not subject to the reporting requirements?

    I am also curious why you included the last sentence inre farmers markets. Is there an underlying suggestion that one of the goals is an indirect disclosure at farmers markets. I presume vendors are free to market non ge papayas as ge free if they choose, but there is not any requirement that any vender disclose their papayas are ge at a market unless there are any market rules that require such. Would the reporting be a backdoor way of consumers and competitors identifying those venders that might be offering the ge variety?

    • Hi Rick,
      I’d be happy to clarify for you. Here is the full section on GMO disclosure:

      (b) It shall be mandatory for all commercial agricultural entities that
      intentionally or knowingly possess any genetically modified organism to disclose the
      growing of said genetically modified organism.
      (1) Annual public reports shall be provided to the Office of
      Economic Development and the State of Hawai‘i Department of Agriculture
      (DOA), and shall be posted online on the County website. Direct notification
      to OED and DOA documenting such disclosure shall occur no later than sixty
      (60) days following the end of each calendar year, except that the first reports
      shall be due on the date this ordinance shall take effect.
      (2) Annual public reports shall include a general description of each
      genetically modified organism (e.g., “GMO Corn” or “GMO Soy”), a general
      description of the geographic location including at minimum the Tax Map
      Key and ahupua‘a where each genetically modified organism is being grown
      or developed, and dates that each genetically modified organism was initially
      introduced to the land in question.

      The way it is worded, first you have to be a commercial agricultural entity for the rule to apply, which is defined in the beginning of the bill as “a firm, corporation, association, partnership, or any organized group of persons, whether incorporated or not, that is engaged in growing, developing, cultivating, or producing agricultural products.” So therefore this would at least include any farmer on the island, and may also include beekeepers. I’m not sure if it would include anyone who grows things in their back yard if they don’t sell it, but the “agriculture” definition says that it includes any raising of plants or animals for food or non-food purposes, including growing cut flowers and breeding or raising pets. It is also not clear to me whether a single person can constitute a commercial agricultural entity as it specifies groups of persons. My guess is that the word “product” is key and implies that it is sold. But if you sold those papayas from your back yard…
      The reporting of the use of GMOs would happen in the following calendar year from each use. Note that it says the use of any GMOs by commercial agricultural entities, so if you are a company with a lab on the island, and you are a commercial agricultural entity, you would need to report any GMO organisms you use in the lab, such as genetically engineered agrobacterium or E. coli. If you are not a commercial agricultural entity, you would not need to report it. Strange, huh?
      For your second question, the locations would be reported to the State, and the County will put it on a website, but the law leaves it loose and the general location can be identified. I presume that this was an effort to quell worries about vandalism, but this information could be used to facilitate that. If you know the general area and are looking for an offending plant that you can identify, it would be easier to find it.
      Since the law would apply to any farmer, including those who sell at farmer’s markets, it could be used as a backdoor way to identify farmers that grow GE crops and sell them. It wouldn’t require disclose at the market itself, but I presume that the name of the farmer or their company would be identified on the County website. I hope these clarifications help!

  • Wait, so…

    The County of Kaua’i purchased and used the largest portion (49%) in this category, followed by commercial exterminators (38%), and commercial agricultural operations, at 13%.

    The largest users of pesticides are the county itself and folks who fumigate homes, offices, restaurants, etc? Am I reading that right?

    Wow, yeah–way to stick it to Monsanto. Or something.

  • Thanks. I am going to see if I can find any stores in the mainland U.S. selling Hawaiian papayas or products containing Hawaiian papaya as an ingredient. I live in Nebraska so papayas are not commonly found here, but perhaps in my own small way I can start a reverse boycott, support the papaya growers who cared enough to preserve their livelihood and industry to have the courage to deploy an ecofriendly, biotech solution to a problem that appears to have evaded conventional answers. The reporting and publication of locations is chilling, as I fear it will be used as a tool for constant harrassment, (demands that ge farms or labs at strategic locations in terms of protest group objectives be closed or relocated, serve as rallying points for demonstrations, constant accusations of failure to report or inaccurate reporting, perhaps physical intimidation, etc.) and for a government to insitutionalize and legitimize, and participate in, that type of intimidation is creepy. But, hopefully I am wrong and the transparency will have the opposite effect of slowly building trust and familiarity.

  • rickinreallife

    The more i think about it, the less well it sits with me. Can you imagine how frightened many of the family papaya growers must be. To have to essentially register like a sex offender just because you found hope in a variety of papaya with resistance to a devastating crop disease that happened to be a biotech solution. This seems more like a very appropriate use of technology rather than some crime. I contacted the Hawaii papaya growers association to find out if any grocery chains in the mainland carry the Sunshine papaya but i wish i could do more. I’d like to meet some of these farmers face to face and let them know not everyone thinks they arehorrible people.

  • I have the sinking feeling that the barbarians are at the gate. rickinreallife, anti-gmo organizations, such as BAB, have even blatently insinuated that Dr. Gonsalves had engineered the arrival of the ringspot virus. They have made political run-em out and ban them from office lists of all who don’t tow their anti-gmo line. Their websites and facebook pages are increasingly sprinkled with anti-vaccine and anti-fluoridation posts. If they gain substantial political power, i don’t think it would be too much a stretch that they’ll keep blackball lists of even ordinary employess of biotech and pharmaceutical companies. Madame Defarge does come to mind.

  • First Officer — I would want to make it clear I am not insinuating anyone or everyone who supported the Kauai Legislation is bent on a campaign of intimidation. I suspect that most supporters of the legislation would not participate nor condone direct personal intimidation. But I’ve no doubt that for some supporters of the Kaua’i County action, that it is not the endgame, and that the legislation will be a new platform for surveillance and official harrassment of some growers — increased government oversight, new avenues to pressure by accusing non compliance with technical requirements, to just encouraging a general attitude that growers of sunshine papaya are a nuisance. Even if physical initimidation is not goal, I am sure that growers are perceiving a more hostile community and regulatory environment and it will be unsettling to have your farm and home on the list.

    I would hope that responsible leaders in the government and the community pushing this will counsel against extremism, and not encourage conspiratoral theories, like that Dr. Gonsalves engineered the virus. I can’t understand what possible motivation he would concievably have to do that, nor what self interests gmo opponents and non-gmo growers to perpetuate misinformation about the source of the virus when they still have to deal with the virus.

  • Nicolai Barca

    This situation here on Kauai continues to escalate. I would advise anybody not to aggravate the anti-gmo folk on Kauai. If these guys want pesticide disclosure, give them it. They can only cry wolf for so long. And sometimes the wolf will be there. If you see parts of the bill which you feel can be improved (not just opposed, but improved) please send concise and intelligent letters to the council members.

    I appreciate these blogs because of the community of scientists who can have rational discussions about these topics. But I just want everybody to understand where the other side is coming from. If you haven’t watched the anti-gmo documentaries, I highly suggest you do (watch the rebuttals too), if for nothing else, to know your enemy. But they aren’t my enemies. They are my constituency and friends.

    I find that it helps to plant seeds in these guys heads. If you talk about the potential for nitrogen fixing corn, which would eliminate the need for chemical N fertilizer, and help solve the problem of the ocean dead spots, and even the anti-gmo guys start to see the potential. If you talk about how molecular breeding is improving the efficiency of breeding non-GE crops, as it’s being done with rice in the southern US, then they start to see the benefit of technology.

    The flaw of the anti-gmo movement is that they use too much fear mongering, mis-information, and sensationalism. It attracts a lot of people, sure; but unfortunately not the type of people one would want to attract- irrational people. Which is unfortunate because it’s people who really mean well.

  • Mr. Barca:

    Thank you for your insights and wisdom. I hope that my comments above are not taken to mean I believe the citizens of Kauai, and the council, who support Bill 2491 are acting irrationally. The citizens of Kauai County, or people anywhere for that matter, are rational to hope and expect that agricultural success can be achieved without compromising the quality of life in their communities.

    I am a product of a farming community in the midwest, and I can observe first hand the benefits of technological innovation in agriculture. Nonetheless, it would be dishonest of me not to acknowledge that the remarkable achievements in agricultural productivity, and the environmental and social benefits that accompany advances in that productivy, have not come with costs. Perhaps the most dire cost is the alienation and disconnection of the broader public with agriculture.

    Any system of agriculture, from small scale organic to technological and input intesive farming will eventually stagnate and fail long term without the ability to innovate. I readily admit modern agriculture is in dire need innovation. We somehow need to preserve green revolution productivy gains, but we have to somehow evolve intensive systems to reduce reliance on nonrenweable and polluting inputs and to build soil health as an element of productivity. What excites me about biotech is that it greatly increases our capacity for innovation toward that end. But like any technology, its applications can be very wise and beneficial or of dubious value. The technology of the internal combustion engine can make it easier to rob a bank, but it can also speed an injury victim to lifesaving care. Your words are very constructive that the biotech field cannot, and should not, develop and promote biotech as a replacement for sensible and sound agronomic practices, but rather develop applications and communicate those applications in context of their compliment and reinforcement of sensible and sound agronomic practices.

    It is not my place to question the council and the citizens of Kauai for their action. My primary concern was whether the reporting and publication would prove to be percieved as intimidating by growers of ge papayas. Because of my distance from the situation, I am in danger of misjduging the purpose and use of that portion of the bill, and the motivations of those who supported that provision. I stand by my hope that it will not be misused, but retract any inference that the council and citizens of Kauai were motivated by less than noble purposes.

  • This is sad:

    Police investigate threats to Kauai Mayor over GMO veto

    LIHUE, KAUAI (HawaiiNewsNow) -

    Kauai police are investigating threatening phone calls, emails, and social media posts targeting Mayor Bernard Carvalho, Jr. after his veto of a controversial bill on pesticide use and genetically modified crops….

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