VOTING MEMBERSJOSH GREEN
GOVERNOR OF HAWAIIDAWN CHANG
DEPARTMENT OF LAND & NATURALRESOURCESSYLVIA LUKE
LIEUTENANT GOVERNORSHARON HURDHAWAII DEPARTMENT OF AGRICULTURE
KATHLEEN HO, D.Env
DEPARTMENT OF HEALTHPARWINDER GREWAL, Ph.D.
UNIVERSITY OF HAWAI‘IHAWAII INVASIVE SPECIES COUNCIL
1151 PUNCHBOWL ST, #325
HONOLULU, HAWAII 96813

MARY ALICE EVANS
BUSINESS, ECONOMIC DEVELOPMENT &TOURISMEDWIN SNIFFENDEPARTMENT OF TRANSPORTATION

May 29, 2024
SUBMITTALTO:

Co-chairs and Members
Hawaii Invasive Species Council
State of Hawaii

FROM:

Chelsea Arnott
Program Supervisor
Hawaii Invasive Species Council

SUBJECT:

Request for Approval to:
Hold public hearing(s) on proposed adoption of a new subtitle andnew chapters under Hawaii Administrative Rules as Title 13, Subtitle
14, Chapters 325 “General Provisions” and 326 “Control and
Eradication of Invasive Species,” to effectuate chapter 194, Hawaii
Revised Statutes, including a list of invasive species that may becontrolled on private and public property by the State, a county, or
agent thereof;andDelegate authority to the Chairperson of the Department of Land andNatural Resources to set the dates and times for the aforementioned
public hearing(s) and appoint a hearing officer for the public
hearing(s)The Hawaii Invasive Species Council (HISC) staff is proposing to adopt a new subtitle as Hawaii
Administrative Rules Title 13, Subtitle 14, to effectuate chapter 194, Hawaii Revised Statutes (HRS).
This submittal summarizes the new subtitle 14 proposed to be added to title 13, HAR; discusses the
background of HISC administrative rules; the reasons for the proposed new subtitle 14; describes
the process for adopting the new subtitle 14; requests approval from HISC to hold public hearings
pursuant to chapter 91, HRS; and requests that HISC delegate authority to the Chairperson of the
Department of Land and Natural Resources (DLNR) to appoint a hearing master and designate dates
and times for the public hearing(s).

BackgroundIn 2003, HISC was established in statute by the enactment of Act 85. That law, as amended, is set
out in chapter 194, HRS. The law sets out the duties and membership of the HISC. It also requires
HISC to create a list to “[i]dentify and record all invasive species present in the State” and a list of“invasive species identified by the council for control or eradication.” HRS §§ 194-2(a)(6)(emphasis added), 194-4, 194-5. Once those lists are produced, it authorizes the departments ofthe HISC, the counties, and their agents to control or eradicate invasive species identified by the
HISC on private property and the departments of the HISC and their agents to control any invasive
species on public property. HRS §§194-5, 194-6.
At HISC’s first meeting on October 29, 2003, HISC voted to adopt three existing lists of invasive
species, as codified in HAR, as an “initial list of invasive species” with the stated intent of
producing a more comprehensive list at a later date. The three existing lists voted to be considered
as “invasive” were:• The List of Prohibited Animals, dated October 25, 2001 (HAR § 4-71 Attachment 1);• The List of Plant Species Designated as Noxious Weeds for Eradication or Control
Purposes, dated June 18, 1992 (attached at end of HAR § 4-68); and• The List of Species of Injurious Wildlife in Hawaii, dated February 1, 1997 (HAR § 13124 Exhibit 5).
At the 2003 meeting, HISC assigned the Working Group on Established Pests to take the lead
responsibility in developing a method for updating the list, but no such method was produced.
Since that time, HISC has not adopted any administrative rules to carry out chapter 194 HRS.
There has been interest and efforts to do so over the years, but none were ultimately successful.
At its June 2011 meeting, HISC approved Resolution 11-1, which directed HISC staff to draft
administrative rules for the implementation of chapter 194 HRS.1 As HISC is administratively
attached to an executive agency (DLNR), HISC must follow the rule making procedures outlined
in HRS chapter 91. Between 2011 and 2015, HISC staff worked with DLNR and other agency
staff, the Department of the Attorney General, and other partners to explore options foradministrative rule processes that would allow HISC to maintain invasive species lists. HISC staff
find that developing a list of all invasive species present in the State is an enormous task that would
require a huge expenditure of money and staff resources, which are currently and historicallyunavailable. Such a list would need to be a dynamic list - it would need to be amended regularly
as new invasive species were detected, species taxonomy changed, and, hopefully, species were
eradicated.
HISC staff find that developing a list of invasive species “identified by the council for control or
eradication” is a much more manageable task and sufficiently carries out the legislative intent in
HRS chapter 194. As rules have not been adopted, HISC currently lacks those authorities tocontrol or eradicate high-impact invasive species, as identified by HISC.
In June 2015, HISC considered a HISC staff submittal requesting direction on the promulgation1

https://dlnr.hawaii.gov/hisc/files/2013/02/HISC-Reso-11-1-Admin-Rules.pdf

2

of administrative rules, including the species lists required by chapter 194.2 The submittal
described a model of list maintenance set out in HRS § 150A-6.6, which allows the Hawaii
Department of Agriculture (HDOA) to update its lists of prohibited and restricted species under HRS§§ 150A-6.1 through 150A-6.3. The model allows for public input and notification without going
through the chapter 91 HRS rulemaking process. This statutory process would greatly reduce thetime and cost associated with list making. However, to utilize that model, chapter 194 would need
to be amended to provide authorities similar to those found in HRS § 150A-6.6. HISC approved
a motion for HISC staff to draft amendments to chapter 194 for the consideration by the Legislaturethat would provide HISC a process similar to the that available to HDOA to update its invasive
species lists.3 Since that time, HISC has worked to obtain the statutory amendments to carry out
the 2015 motion. Unfortunately, that effort has not been successful.
High-impact invasive species continue to be detected and spread across the State. After ten yearsof containment to Oʻahu, the coconut rhinoceros beetle was detected on Kauaʻi in the summer of2023. Soon after, new detections were found on Maui and Hawaiʻi Island of the same year. The
little fire ant continues to spread throughout the counties with particular concern for Oʻahu where
infestations, particularly on the windward side have drastically increased with over 30 active sites
as of May 2024. The Island Invasive Species Committees (ISCs) on Oʻahu and Kauaʻi have
prevented invasive plants like Miconia from taking over forested watersheds with ongoing,
dedicated control efforts.
In 2022, HISC staff restarted the rulemaking process by drafting administrative rules to carry out
chapter 194, HRS. In September 2022, the Department of the Attorney General advised HISC
staff that the list of invasive species identified by HISC for control or eradication must be adopted
under chapter 91, HRS, as an administrative rule. HISC staff developed the attached draft proposed
administrative rules (proposed rules) for consideration and promulgation by HISC. These rules
focus on a list of invasive species identified by HISC for control or eradication; procedures for
HISC departments, the counties, or their agents to carry out control or eradicate actions for thosespecies on private property; and for HISC departments and their agents to carry out control or
eradication actions on State or county property.
Discussion and Analysis
Process. HRS § 194-7 provides HISC authority to adopt administrative rules pursuant to chapter
91, HRS. Chapter 91, HRS, sets out the State’s rulemaking process, including a requirement for
public hearing(s). Any proposed administrative rule is required to be reviewed by the Small
Business Regulatory Review Board both before and after the public hearing. HRS §§ 201M-3,
201M-5. If the rules are ultimately adopted, any future amendment to the rules, including to thelist of invasive species identified by HISC for control or eradication, must be made using thechapter 91, HRS, rulemaking process. While this process has many steps and takes time, it allows
for full public participation in the rulemaking process. It is also the only process available to adopt
or amend the HISC rules without a statutory change.
This submittal, and requested approvals from HISC, are the first formal step in rulemaking
23

https://dlnr.hawaii.gov/hisc/files/2015/04/2015-6-10-HISC-Submittal-1-Admin-Rules.pdf
https://dlnr.hawaii.gov/hisc/files/2015/04/2015-6-10-Minutes-HISC.pdf

3

pursuant to chapter 91, HRS.
Placement of Rules. The draft rules are proposed to be placed in HAR title 13, a new subtitle 14,
and new chapters 325 and 326.4 Title 13 houses the administrative rules of DLNR. Subtitle 14
will be reserved for HISC-related rules.
Need for rules. HISC has not adopted any administrative rules to carry out chapter 194, HRS. The
authorities contained in chapter 194 are intended for the HISC departments, the counties, and theiragents to carry out control or eradication actions on private property if an invasive species
identified by HISC is: (1) found on private property; or (2) reasonably suspected to be on private
property, based on the results of systematic surveys or reports or proximity to known populations.
HRS § 194-5. Chapter 194 HRS further authorizes HISC departments and their agents to orderthe control or eradication of invasive species on public property. HRS § 194-6. Until
administrative rules with procedures are properly adopted, these statutory authorities cannot beeffectuated.
The species listed as invasive species identified by HISC for control or eradication are the highest
impact invasive species that are continuing to spread within the State or that would require an
immediate response if found in the State. A description of each species selected is as follows:
Plants:Scientific name

Cenchrus setaceus(formerly
Pennisetum
setaceum)

Chromolaena odorata

Common namefountain grass

devil weed, Siam
weed

Summary of Impacts
Fountain grass is a perennial, clumping grassthat can grow in a variety of habitats, frombare lava, to rangeland, to urban roadsides indrier areas of the Hawaiian Islands. Fountaingrass is an aggressive habitat-invader. It
degrades the quality of pasture lands,
particularly in drier areas. It is fire-adapted andcan sustain fires that spread quickly into
adjacent areas. Its dried biomass can increase
the intensity of wildfires. It is listed as a State
Noxious Weed under chapter 68 HAR.
Fountain grass is a target pest of all the ISCs
except for Molokai.
Devil weed, siam weed, or bitter bush, is oneof the most notorious tropical weeds in theworld. Emerging as a shrub that quickly forms
dense thickets, it can thrive in all environments
except deep shade, flourishing in newly
disturbed areas. It is listed as a State Noxious
Weed under chapter 68 HAR and is a target

4

This placement is modeled after the placement of the administrative rules for the Kaho‘olawe Island Reserve
Commission, which are set out in subtitle 12 of title 13 HAR. Both HISC and the Kaho‘olawe Island Reserve
Commission are placed within DLNR “for administrative purposes.” HRS §§ 194-2(b), 6K-5(a).

4Cortaderia jubata

pampas grass

Cortaderia selloana

pampas grass

Miconia – all species
in the genus

miconia

Pennisetum villosumfeather-topped
fountain grass;longstyle feather
grass

Seneciomadagascariensis

fireweedpest of the Oahu Invasive Species Committee
and Big Island Invasive Species Committee.
Pampas grass grows rapidly, produces
thousands of seeds per flower plume, and canaccumulate large amounts of fire prone
biomass. Seeds are viable for 4-6 months, but
field evidence from Hawaii suggests viability
could be greater. It can crowd out native
species, impede access, degrade grazing lands,
and create fire hazards. It is listed as a State
Noxious Weed under chapter 68 HAR. Pampas
grass is a target pest of all the ISCs except for
Molokai.
Pampas grass grows rapidly and canaccumulate large amounts of fire prone
biomass. It can crowd out native species,
impede access, degrade grazing lands, andcreate fire hazards. It is difficult to distinguishfrom other Cortaderia species and may
hybridize with them.
Miconia is one of the top threats to Hawaii’s
watersheds and forest ecosystems. The fastgrowing tree in the melastome family invades
areas from agricultural landscapes to forests byforming dense stands and shading out othernative forest trees with its large leaves. Its
uncontrolled growth can overwhelm highly
diverse native wet forest ecosystems that arehome to critically endangered species andessential as sources of fresh water. Each plant
can produce approximately ten million seeds
per year, which may remain viable for morethan 20 years. It is listed as a State Noxious
Weed under chapter 68 HAR. It is a target of
the ISCs except Molokai.
Feathertop is another perennial, clumping
grass that is grown in gardens with a similar
growth structure and leaves to fountaingrass. It is an early detection target pest of the
Kauai Invasive Species Committee.
Fireweed invades pastures, disturbed areas,
and roadsides. It is very toxic to cattle, horses
and other livestock. When ingested it causes
illness, slow overall growth, liver-malfunctionand even death in severe cases. In Australia,
fireweed costs over $2 million per year in5

Tibouchina – allspecies in the genus

Tibouchina, glory
bush

losses and control. It is listed as a State
Noxious Weed under chapter 68 HAR. It is atarget of the Kauai Invasive Species
Committee, Oahu Invasive Species
Committee, and Molokai Invasive Species
Committee.
Tibouchina threatens native areas by forming
monotypic thickets that outcompete anddisplace native plants. All 350 plants in thegenus Tibouchina are designated as State
Noxious Weeds under chapter 68 HAR.
Tibouchina is a target pest of the Oahu
Invasive Species Committee.

Invertebrates:
Scientific nameCommon name

Aedes aegypti

mosquito

Aedes scutellaris

mosquito

Aphis mellifera
scutellata

Africanizedhoneybee

Summary of Impacts
Aedes aegypti is a serious human health risk. It
is the known vector of several viruses
including yellow fever virus, dengue virus
chikungunya virus and Zika virus. It has
limited distribution in the State andpopulations are monitored by the Hawaii
Department of Health Vector Control Branch
and the Interagency Port of Entry Monitoring
Program coordinated under the HISC.
Aedes scutellaris is a mosquito that cantransmit dengue viruses. It is a semidomesticated container breeding mosquito thatis also considered a bush mosquito. Monitoring
for this species is conducted by the Hawaii
Department of Health Vector Control Branch
and the Interagency Port of Entry Monitoring
Program coordinated under the HISC.
Africanized Honeybees (AHB) are a “wild”
bee that is not comfortable around people oranimals and will readily defend its hive atgreater distances from the disturbance, become
more upset with less reason, and sting in muchgreater numbers. If it were to become
established in Hawaii, it would be difficult tocontrol, it could seriously impact Hawaii’s
communities, businesses, and tourism. AHB
could also impact commercial beekeepers,
resulting in reduced yields to crops that rely on
pollination. It could also impact honey and6Anopheles - all species
in genus

western malaria
mosquito

Oryctes rhinoceros

coconut rhinoceros
beetle, CRB

Popillia japonica

Prosapia bicincta

queen bee production in the State by
infiltrating domestic honey bee colonies.
Africanized honeybees are considered injurious
wildlife under chapter 124 HAR.
Anopheles mosquitos can transmit
malaria. They are not known to be present in
Hawaii. Monitoring for this species isconducted by the Hawaii Department of Health
Vector Control Branch and the Interagency
Port of Entry Monitoring Program coordinatedunder the HISC.
CRB a pest of palms across the Pacificincluding Hawaii and have a wider host rangethat includes Pandanus and banana. Adults biteand bore into emerging palm fronds creating
holes in the top of the tree that can eventually
kill it. CRB is a target pest of the Kauai
Invasive Species Committee, Maui Invasive
Species Committee, Big Island Invasive
Species Committee, and is designated by
HDOA as a Pest Designated for Control or
Eradication under chapter 4-69A HAR and by
DLNR as Hawaii Injurious Wildlife Species(Exhibit 5, Chapter 13-124 HAR).
Japanese beetle feeds on a wide range ofplants. The adult beetles skeletonize leaves by
eating around the larger veins and chew on
flowers. Hosts include small fruits, tree fruits,
truck and garden crops, ornamental shrubs,
vines, and trees. Feeding studies show a hostrange more than 300 plants in 79 plantfamilies. It is monitored for by the Interagency
Port of Entry Monitoring Program coordinatedunder the HISC.
The two-lined spittlebug (TLSB) feeds on
grasses that are important to ranching andresults in the loss of thousands of acres ofkikuyu and pangola grass pastures. Pastures
do not recover after infestation but instead
are replaced by invasive plants that arechallenging to control. The TLSB is aserious threat to the ranching industry in
Hawaii, where most of our livestock
depend on the grasses attacked by theinsect. TLSB is a target pest of the Big
Island Invasive Species Committee.

Japanese beetle

two-lined spittlebug

7Solenopsis invicta

red imported fireant, RIFA

Wasmannia
auropunctata

little fire ant, LFA

RIFA pose a serious threat to human health.
Large numbers of ants will rapidly swarm on
and relentlessly sting anything unfortunate
enough to disturb them. In the U.S., millions ofpeople are stung each year. RIFA stings cause
blisters filled with white pus which lasts forseveral days. In infested areas, they may cause
injury or death to livestock, pets, and wildlife;
damage crops, ornamental plants, electricalequipment, and irrigation systems; and cause
serious declines in biodiversity. RIFA isdesignated by HDOA as a Pest Designated forControl or Eradication under chapter 4-69A
HAR and by DLNR as an Hawaii Injurious
Wildlife Species (Exhibit 5, Chapter 13-124
HAR). It is also monitored for through theInteragency Port of Entry Monitoring Program
coordinated under the HISC.
LFA delivers a painful sting when disturbed.
Welts can last for weeks. Infests agricultural
fields and farms, where they damage crops andsting workers. Promotes plant pests such asaphids, white flies and scale insects, which
secrete plant sap that the ants eat. They may
sting, and even blind, pets such as cats anddogs. In the Galapagos, they eat tortoise
hatchlings and attacks the eyes of adulttortoises. LFA is a target pest of the Kauai
Invasive Species Committee, Oahu Invasive
Species Committee, Hawaii Ant Lab, Maui
Invasive Species Committee, and is designatedby HDOA as a Pest Designated for Control or
Eradication under chapter 4-69A HAR and by
DLNR as an Hawaii Injurious Wildlife Species(Exhibit 5, Chapter 13-124 HAR).

Vertebrates:
Scientific nameCommon nameSummary of Impacts

8Eleutherodactylus
coqui

The coqui frog has no natural predators orcompetitors in Hawaii to keep populations incheck. Populations have reached 55,000 frogs
per hectare in some Hawaii populations(compared to 24,000 frogs per hectare in theirnative habitat, Puerto Rico). They eat hugequantities of insects, removing insects fromforest floor to treetops. This results in the lossof insect services, such as pollination. The
male calls are loud and incessant that canbother residents and visitors alike. Coqui are
currently a rapid response species for HDOA
and the Island Invasive Species Committees(ISCs) except for Hawaii Island. Coqui isdesignated by HDOA as a Pest Designated forControl or Eradication under chapter 4-69A
HAR and by DLNR as an Hawaii Injurious
Wildlife Species (Exhibit 5, Chapter 13-124
HAR).

coqui frog

Pathogens/Diseases:
Scientific name
Ceratocystis lukuohia

Common namerapid ohia death

Ceratocystis huliohia

rapid ohia death

Summary of Impacts
The two fungal pathogens attack and canquickly kill ohia trees (Metrosideros
polymorpha). Ohia is endemic to Hawaii andcomprises approximately 80% of Hawaii’s
native forests. *Note: the speciesof Ceratocystis fungi that cause Rapid Ohia
Death has since been recognized as two
distinct species; Ceratocystis huliohia (ROD
canker disease) and C. lukuohia (ROD wilt
disease), with significantly different
pathologies – although both ultimately lead totree mortality. There is a State quarantine
preventing the movement of Ohia products
from Hawaii Island and Kauai. The US
Department of Agriculture implemented the
Myrtaceae Rule that restricts the movement of
myrtle plants from entering Hawaii throughforiegn ports.

The adoption of administrative rules to effectuate the authorities for HISC departments, andcounties and agents where applicable, to control and eradicate species identified by HISC or ordertheir control or eradication will provide the opportunity to effectively manage these invasive9

species on a local, island, or State-wide basis.
Summary of Proposed Rules
The text of the proposed rules, to be found in chapters 325 and 326 of subtitle 14 to title 13, HAR,
is provided as Exhibit 1 of this submittal. Exhibit 2 provides the text of HRS §§ 194-5 and 1946 for reference. A summary of the proposed rules is as follows:
Chapter 325 contains 3 sections that set out the general provisions as follows:•

Section 325-1 “Purpose” sets out that the purpose of the rules is to implement HISC
authorities under chapter 194 HRS.

•

Section 325-2 “Definitions” sets out the definitions for the subtitle for the terms “agent,”“control,” “Council” or “Hawaii Invasive Species Council,” “county,” “department,”“eradicate,” “eradication,” “invasive species,” “non-native species,” “person,” and “public
property.”•

Section 325-3 “Relationship to other laws” clarifies that the HISC administrative rules
may not be construed to limit existing authorities provided to a HISC department or acounty under any law or any other rule.

Chapter 326 contains 6 sections that are related to the authority of HISC departments, thecounties, and their agents to carry out actions to control or eradicate invasive species identified
by the HISC, as follows:•

Section 326-1 “Invasive species identified by the council for control or eradication”
sets out the list of invasive species identified by HISC for control or eradication (identified
species).
- The list contains 20 invasive species taxa that are either: (1) currently causing
substantial negative impacts in the State and that could still be controlled or eradicatedover a large geographic area; or (2) not currently present in the State and would causesuch impacts if not controlled or eradicated if detected in Hawaii.
- A detailed description of each species is provided under heading “Discussion andAnalysis” above.
- This section carries out the statutory requirement that control or eradication actions on
private property may only be carried out for “invasive species identified by the [HISC]
for control or eradication.” HRS § 194-5.

•

Section 326-2 “Requirements for control or eradication on private property” sets out
the requirements for a HISC department or country or an agent to control or eradicate an
identified species on private property. This section provides guidance to HISC departments
and counties for carrying out HRS § 194-5, as follows:- The department or county must submit a detailed control or eradication program to
HISC. The program must be narrowly tailored to control or eradicate the target
invasive species, identify the specific geographic area where the control or eradication

10

-

-

actions will be carried out, include a proposed schedule of the actions, describe themethods proposed to be used, and include an assessment of the reasonableness of thosemethods.
The section requires the HISC department or county to provide updates to HISC on thecontrol or eradication actions at least annually.
Subsection (b) requires that if two departments or counties intend to carry out control
or eradication actions for the same identified species, those departments and counties
shall ensure the actions are carried out efficiently and in a manner that does not resultin unnecessary impacts to land owners, tenants, or occupants.
Subsection (c) authorizes a HISC department or a county to enter into a memorandumof understanding (MOU) with an agent that has appropriate expertise and experienceto carry out actions under this section or sections 326-3 or 326-4 (see below).

•

Section 326-3 “Notice” sets out the requirements for notice to a private property owner,
or tenant or occupant if applicable, before control or eradication actions may be carried out
on the private property. This section provides guidance on what is “reasonable notice” asrequired by HRS § 194-5.
- If the owner, and tenant or occupant if applicable, consent to the control or eradications
actions, the actions may be carried out immediately.
- If the owner, and tenant or occupant if applicable, does not consent, the action may be
carried out 30 days after notice is given if a court issues a warrant authorizing theactions under section 326-6 (see below).
- Subsection (c) authorizes a HISC department or county or their agent to waive the 30
day notice requirements if the department or county determines that control or
eradication of the identified species requires an urgent response on private property andthe consent of the owner, or tenant or occupant if applicable, cannot be obtained
immediately and the department or county obtains a warrant under section 326-6 (seebelow) that authorizes the entry onto the private property for emergency control or
eradication actions.

•

Section 326-4 “Requirement for control or eradication by private property owner”
authorizes a HISC department or county or their agent to order a private property owner tocontrol or eradicate an identified species if the department or county or their agent
determines the identified species was “intentionally and knowingly” established on private
property by the property owner. This section provides guidance to HISC departments andcounties to effectuate HRS § 194-5(c).
- The property owner must be given 30 days notice and a reasonable amount of time toobtain needed equipment, supplies, and personnel to comply with the order.
- Subsection (c) provides that if the owner fails to comply with the order, the HISC
department or county or agent may, after notice, carry out the actions at the property
owner’s if the owner consents or pursuant to a warrant sought under section 326-6 (seebelow).
- Subsection (d) provides that the HISC department, county, or agent may seek to recoverits expenses for carrying out the actions under subsection (c) at an appropriate
proceeding.

11•Section 326-5 “Requirements for control or eradication on public property” sets out
the requirements for a HISC department or its agent to order an entity in charge of State or
county property to control or eradicate an identified species on the public property. Thissection provides limitations on the authority provided in HRS § 194-6.
- HRS § 194-6 authorizes a HISC department or its agent to order the entity in charge of
any State or country property to control or eradicate any invasive species.
- The proposed rules limit this authority by authorizing a HISC department (or agent
operating under an MOU) to order the entity in charge of the public property to control
or eradicate: (1) only an invasive species identified by HISC for control or eradication;and (2) only if the public property is located within a geographic area in which the
HISC department or its agent is monitoring or carrying out control or eradication
actions for that identified species.
- Subsection (b) requires that the entity in charge of the public property be given 30 days
notice and a reasonable amount of time to obtain needed equipment, supplies, andpersonnel to comply with the order.
- Subsection (c) provides that if the entity in charge of the public property fails to comply
with the order, the HISC department or its agent may, after notice, carry out the actions
if the owner consents or pursuant to a warrant sought under section 326-6 (see below).
- Subsection (d) provides that the HISC department or its agent may seek to recover its
expenses for carrying out the actions under subsection (c) at an appropriate proceeding.
- Subsection (e) authorizes a HISC department or its agent to waive the 30 day noticerequirement if: (1) the HISC department or agent determines that control or eradicationof the identified species requires an urgent response on the public property; (2) consent
of the entity in charge cannot be obtained immediately; and (3) the HISC department
obtains a warrant under section 326-6 (see below) that authorizes the entry onto the
public property for emergency control or eradication actions.
- Subsection (f) authorizes a HISC department to enter into a MOU with an agent thathas appropriate expertise and experience to carry out actions under this section.

•

Section 326-6 “Warrants” sets out the requirements for a HISC department or county toseek a warrant to carry out a control or eradication action on private or public property
without the consent of the property owner, tenant, occupier, or entity in charge, as
appropriate. The section requires an affidavit be submitted to the district court of the circuit
in which the private or public property is situated.

Legal Authority
HRS § 194-7 HRS authorizes HISC to adopt rules pursuant to chapter 91, HRS.
HRS § 91-3(a) authorizes an agency seeking to adopt administrative rules to hold public hearings
and afford all interested persons opportunity to submit data, views, or arguments for the agency toconsider when contemplating adoption of proposed rules.

12

Recommendations:That the Hawaii Invasive Species Council (HISC):
1. Approve the proposed adoption of HAR Chapters 13-325, “General Provisions”
and 13-326, “Control and Eradication of Invasive Species,” for statewide public
hearing(s), attached hereto as Exhibit 1;
and
2. Delegate authority to the Chairperson of the Department of Land and Natural
Resources to set dates and times for the aforementioned public hearing(s) andappoint a hearing officer for the public hearing(s).

13EXHIBIT 1

DEPARTMENT OF LAND AND NATURAL RESOURCES
Adoption of Subtitle 14 of Title 13,
Containing Chapters 13-325 and 13-326
Hawaii Administrative Rules[DATE]SUMMARY

1.

Chapter 13-325, Hawaii Administrative Rules, isadopted.

2.

Chapter 13-326, Hawaii Administrative Rules, isadopted.

3.

Subtitle 14 of Title 13, Hawaii Administrative Rules
is adopted.

EXHIBIT 1§13-325-1
HAWAII ADMINISTRATIVE RULES
TITLE 13
DEPARTMENT OF LAND AND NATURAL RESOURCESSUBTITLE 14
HAWAII INVASIVE SPECIES COUNCIL
CHAPTER 325
GENERAL PROVISIONS§13-325-1§13-325-2§13-325-3

PurposeDefinitions
Relationship to other laws

§13-325-1 Purpose. This chapter implements the
Hawaii invasive species council authorities in chapter 194,
Hawaii Revised Statutes, for the purpose of preventing,controlling, and eradicating harmful invasive species
infestations throughout the State.
[Eff] (Auth: HRS §194-7) (Imp: HRS§§194-2, 194-4)§13-325-2 Definitions. As used in this chapter:“Agent” means a person authorized by law to carry out
a provision of this chapter.
“Control” means, with respect to an invasive species,
containing, suppressing, or reducing the invasive species.
“Council” or “Hawaii invasive species council” means
the invasive species council established under section 1942, Hawaii Revised Statutes.
“County” means the city and county of Honolulu, andthe county of Hawaii, the county of Kauai, and the countyof Maui; provided that the county of Maui shall include thecounty of Kalawao for the purposes of this chapter.
“Department” means each of the following:(1) The department of agriculture;

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EXHIBIT 1§13-325-2(2)

The department of business, economic
development, and tourism;(3) The department of health;(4) The department of land and natural resources;(5) The department of transportation; and(6) The University of Hawaii.
“Eradicate” means, with respect to an invasive
species, to remove or destroy an entire population of theinvasive species.
“Eradication” means, with respect to an invasive
species, actions to eradicate the invasive species.
“Invasive species” means, with regard to a particular
ecosystem, a non-native species, genera, or other taxon
that causes or is likely to cause economic or environmental
harm, or harm to human, animal, or plant health.
“Non-native species” means, with respect to aparticular ecosystem, an organism, including its seeds,
eggs, spores, or other biological material capable ofpropagating that species, that occurs outside of its
natural range.
“Person” means an individual, corporation, firm,
association, partnership, or other public, private, or notfor-profit entity, or any governmental unit.
“Public property” means any property owned orcontrolled by the State or a county.
[Eff] (Auth: HRS §194-7) (Imp: HRS§§194-1, 194-2)§13-325-3 Relationship to other laws. Nothing inthis chapter may be construed to limit an authority
provided to a department or a county under any provision oflaw or any other rule to regulate, control, or eradicate
any invasive species.” [Eff] (Auth: HRS§194-7) (Imp: HRS §194-4)

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EXHIBIT 1§13-326-1
HAWAII ADMINISTRATIVE RULES
TITLE 13
DEPARTMENT OF LAND AND NATURAL RESOURCESSUBTITLE 14
HAWAII INVASIVE SPECIES COUNCIL
CHAPTER 326

CONTROL AND ERADICATION OF INVASIVE SPECIES§13-326-1§13-326-2§13-326-3§13-326-4§13-326-5§13-326-6

Invasive species identified by the council for control
or eradication
Requirements for control or eradication on private
property
NoticeRequirement for control or eradication by private
property owner
Requirements for control or eradication on public
property
Warrants§13-326-1 Invasive species identified by the council for control
or eradication. (a) The invasive species identified by the council
for control or eradication for purposes of sections 194-4 and 194-5,
Hawaii Revised Statutes, are those invasive species that have a recordof causing economic or environmental harm, or harm to human, animal,
or plant health in the scientific literature or in environmental
conditions found in Hawaii.
(b) The invasive species identified by the council for control
or eradication for purposes of sections 194-4 and 194-5, Hawaii
Revised Statutes, are the following:
Scientific name(1)

Plants:(A)(B)

Cenchrus setaceus(formerly Pennisetum
setaceum)
Chromolaena odorata

(C)
(D)

Cortaderia jubata
Cortaderia selloana

Common namefountain grass
devil weed, Siam
weed
pampas grass
pampas grass
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EXHIBIT 1(E)(F)§13-326-2

Miconia – all species in
the genus
Pennisetum villosum

(G)
(H)

Senecio madagascariensis
Tibouchina – all species
in the genus(2)

Invertebrates:

(A)
(B)
(C)
(D)
(E)

Aedes aegypti
Aedes scutellaris
Aphis mellifera scutellata
Anopheles - all species ingenus
Oryctes rhinoceros(F)

Popillia japonica(G)

Prosapia bicincta(H)

Solenopsis invicta(I)

Wasmannia auropunctata(3)

Vertebrates:(A)

Eleutherodactylus coqui(4)Pathogens:

(A)
(B)

Ceratocystis lukuohia
Ceratocystis huliohia

miconiafeather-topped
fountain grass,longstyle feather
grass
fireweed
Tibouchina, glorybush

mosquito
mosquito
Africanized honeybee
western malaria
mosquito
coconut rhinoceros
beetle, CRB
Japanese beetle

two-lined
spittlebug

red imported fireant, RIFA
little fire ant, LFA

coqui frog

rapid ohia death
rapid ohia death(c) If the scientific name or common name of a taxon referred toin this section is changed to a new scientific name or common nameaccepted by the International Code of Zoological Nomenclature (ICZN),
the International Plant Names Index (IPNI), or other appropriate
authority the reference in this section shall be construed to refer tothe new scientific name or common name, as appropriate.
[Eff] (Auth: HRS §194-7) (Imp: HRS §194-4)§13-326-2 Requirements for control or eradication on private
property. (a) A department or county seeking to conduct control or
eradication actions on private property pursuant to this chapter for
an invasive species listed in section 13-326-1(b) shall:(1) Prior to conducting any such action, develop and submit to326-2

EXHIBIT 1§13-326-3

the council a detailed control or eradication program that:(A) Is narrowly tailored to include only the needed
control or eradication of the target invasive species,
recognizing that general vegetation removal, otherremoval or modification of non-target species, andother habitat modification may be needed for access toor control or eradication of the target invasive
species;(B) Identifies the specific geographic areas where control
or eradication actions will be carried out and thereasons each area is selected, including that thetarget invasive species is known or reasonably
suspected to be in each area, based on the results ofsystematic surveys or reports or proximity to known
infestations of the invasive species;(C) Includes a proposed schedule for the actions;(D) Describes the control or eradication methods proposed
to be used; and(E) Includes an assessment of the reasonableness of themethods proposed; and(2) Provide regular updates, not less than annually, to thecouncil on the control or eradication actions carried out
by the department or county.
(b) If two or more departments or counties intend to carry out
control or eradication actions pursuant to this chapter for the sameinvasive species, those departments and counties shall ensure that allcontrol or eradication actions are carried out efficiently and in amanner that does not result in unnecessary impacts to land owners, or
tenants or occupants, if applicable.
(c) A department or county may enter into a memorandum of
understanding with an agent of the department or county that has
appropriate expertise and experience to carry out actions under thissection or section 13-326-3 or 13-326-4. [Eff](Auth: HRS §194-7) (Imp: HRS §§194-4, 194-5)§13-326-3 Notice. (a) The time period for reasonable notice tothe owner, and tenant or occupant if applicable, of private property
that a department or county intends to enter to control or eradicate
an invasive species pursuant to section 194-5, Hawaii Revised
Statutes, is the earlier of(1) Thirty days after notice is given to the owner, and thetenant or occupant if applicable; or(2) The date that the owner, and the tenant or occupant if
applicable, consents to the entry.
(b) If the owner, or the tenant or occupant if applicable, ofthe private property does not consent to the entry by a department ora county within thirty days after notice is given under subsection(a), the department or county may seek a warrant under section 13-3266 that authorizes the entry for control or eradication actions.
(c) Notwithstanding subsections (a) and (b), if a department or
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EXHIBIT 1§13-326-4

county determines that control or eradication of an invasive species
listed in section 13-326-1(b) requires an urgent response on private
property and the consent of the owner, or tenant or occupant if
applicable, cannot be obtained immediately, the department or county
may seek a warrant under section 13-326-6 that authorizes the entry
onto the private property for emergency control or eradication
actions. [Eff] (Auth: HRS §194-7) (Imp: HRS§194-5)§13-326-4 Requirement for control or eradication by private
property owner. (a) If a department or county determines that aninvasive species listed in section 13-326-1(b) was intentionally andknowingly established on private property by the property owner, thedepartment or county may order the property owner to control or
eradicate the invasive species to the satisfaction of the department
or county.
(b) The time limit set by a department or county to require an ownerof private property to control or eradicate an invasive species
pursuant to section 194-5(c), Hawaii Revised Statutes, shall be notless than thirty days and shall provide a reasonable amount of time
for the owner to obtain the necessary equipment, supplies, andpersonnel to control or eradicate the invasive species.
(c) If the owner fails to comply with an order issued undersubsection (a), the applicable department or county may after noticerequired by section 13-326-3 carry out the actions required by theorder:(1) If the owner consents to the department or county carryingout the actions; or(2) Pursuant to a warrant sought under section 13-326-6.
(d) A department or county that carries out control or
eradication actions under subsection (c) may recover the expenses
incurred to carry out those actions by appropriate proceeding.
[Eff] (Auth: HRS §194-7) (Imp: HRS §194-5)§13-326-5 Requirements for control or eradication on public
property. (a) If a department determines that an invasive species
listed in section 13-326-1(b) is found on public property that iswithin a geographic area in which the department or its agent iscarrying out monitoring or control or eradication actions for theinvasive species, the department may, after notice required bysubsection (b), order the government entity in charge of the public
property to control or eradicate the invasive species to thesatisfaction of the department.
(b) The notice required by this subsection shall be not lessthan thirty days and shall provide a reasonable amount of time for thegovernment entity in charge of the public property to obtain thenecessary equipment, supplies, and personnel to control or eradicate
the invasive species.
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EXHIBIT 1§13-326-5(c) If the government entity in charge of the public property
fails to comply with an order issued under subsection (a), theapplicable department may carry out the control or eradication actions
required by the order:(1) If the government entity in charge of the public property
consents to the department carrying out the actions; or(2) Pursuant to a warrant sought under section 13-326-6.
(d) A department that carries out control or eradication actions
under subsection (c) may recover the expenses incurred to carry out
those actions by appropriate proceeding.
(e) Notwithstanding subsections (a) and (b), if a department
determines that control or eradication of an invasive species listed
in section 13-326-1(b) requires an urgent response on public property
and the consent of the government entity in charge of the public
property cannot be obtained immediately, the department may seek awarrant under section 13-326-6 that authorizes the entry onto the
public property for emergency control or eradication actions.
(f) A department may enter into a memorandum of understanding
with an agent of the department that has appropriate expertise andexperience to carry out actions under this section.
[Eff] (Auth: HRS §194-7) (Imp: HRS §194-6)§13-326-6 Warrants. A department or county seeking a warrant tocontrol or eradicate an invasive species pursuant to this chapter on
private or public property shall submit to the district court of thecircuit in which the property is situated an affidavit that:(1) Is made by an individual having knowledge of the facts
alleged; and(2) Establishes grounds for issuing the warrant.”[Eff] (Auth: HRS §194-7) (Imp: HRS §§194-5, 194-6)

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EXHIBIT 1
DEPARTMENT OF LAND AND NATURAL RESOURCES
The adoption of subtitle 14 of title 13, containing chapters 13325 and 13-326, Hawaii Administrative Rules, on the Summary Page dated[DATE], was adopted on [DATE], following a public hearing on [DATE],
after public notice was given in the Honolulu Star-Advertiser on[DATE].
The adoption of subtitle 14 of title 13, containing chapters 13325 ad 13-326, shall take effect ten days after filing with the Officeof the Lieutenant Governor.
______________________________
Dawn S. Chang
Co-Chairperson
Hawaii Invasive Species Council______________________________
Sharon Hurd
Co-Chairperson
Hawaii Invasive Species Council
APPROVED:______________________________
Josh Green, M.D.
Governor
State of Hawaii
Dated: ____________________APPROVED AS TO FORM:_________________________
Deputy Attorney General______________________________
Filed

EXHIBIT 2§194-5 HRS Entry; Private Property(a) Whenever any invasive species identified by the council for control or eradication is:(1) Found on private property; or(2) Reasonably suspected to be on private property, based on the results of systematicsurveys or reports or proximity to known populations,regardless of whether the presence of the invasive species is due to natural dispersal from neighboring or
nearby properties or to intentional establishment by the owner, tenant, or occupant of the property, adepartment or applicable county, or its employees or authorized agents may enter the premises to control
or eradicate the invasive species after reasonable notice is given to the owner of the property and, if entry
is refused, pursuant to the court order in subsection (d).
(b) If applicable, a duplicate of the notice so given shall be left with one or more of the tenants or
occupants of the premises. If the premises are unoccupied, notice shall be mailed to the last known
place of residence of the owner, if residing in the State. If the owner resides out of the State orcannot be expeditiously provided with notice, notice left at the house or posted on the premises
shall be sufficient.
(c) The department or applicable county, or its employees or authorized agents may instead cause
notice to be given, and order the owner to control or eradicate the invasive species, if the species
was intentionally and knowingly established by the owner on the owner's property and not naturally
dispersed from neighboring properties, at the owner's expense within a reasonable time as thedepartment or county may deem proper, pursuant to the notice requirements of this section.
(d) If the owner thus notified fails to comply with the order of the department, the applicable county,
or its employee or authorized agent, within the time specified by the department or county, or if
entry is refused after notice is given pursuant to subsection (a) and, if applicable subsection (b), thedepartment, the applicable county, or its employee or authorized agent may apply to the district
court of the circuit in which the property is situated for a warrant, directed to any police officer ofthe circuit, commanding the police officer to take sufficient aid and to assist the department
member, county employee, or agent in gaining entry onto the premises, and executing measures tocontrol or eradicate the invasive species.
(e) The department or applicable county may recover by appropriate proceedings the expenses incurredby its order from any owner who, after proper notice, has failed to comply with the department's orcounty's order.
(f) In no case shall the department, the county, or any officer, employee, or authorized agent thereof
be liable for costs in any action or proceeding that may be commenced pursuant to this chapter.
§194-6 HRS Entry; Public Property(a) Whenever any invasive species is found on state or county property or on a public highway,
street, lane, alley, or other public place controlled by the State or county, notice shall be given by
the department or its agent, as the case may be, to the person officially in charge thereof, and theperson shall be reasonably notified and ordered by the department to control or eradicate theinvasive species.
(b) In case of a failure to comply with the order, the mode of procedure shall be the same as provided
in case of private persons in section 194-5.