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

Follow Karl Haro von Mogel:

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 recently moved back to his home state of California. His favorite produce might just be squash.