Regulatory Framework for Managing Proposed Introductions
This chapter summarizes and analyzes the regulatory framework applicable to intentional introductions to U.S. waters of nonnative marine species such as an introduction to Chesapeake Bay of Crassostrea ariakensis. The analysis focuses especially on the regulatory framework applicable to the Virginia Seafood Council (VSC) proposal to introduce C. ariakensis to Virginia’s waters as described in a public notice of the Norfolk District of the U.S. Army Corps of Engineers (see Appendix E). The VSC proposal raised concerns that existing federal regulations were inadequate for addressing a nonnative introduction that potentially could affect marine resources in many coastal states. The committee was asked to investigate the adequacy of this framework “to monitor and oversee” the introduction of C. ariakensis to Chesapeake Bay. There are four primary levels of regulation relevant to such introductions: state, federal, interjurisdictional (consisting of multistate and state-federal regulatory institutions), and international agreements applicable to introductions in U.S. waters that are described in the following sections.
Through the public trust doctrine, coastal states have a proprietary as well as a regulatory role with respect to oyster cultivation and harvesting. Tidal and submerged lands that were not conveyed prior to statehood are
owned in trust by the states. This trust means that navigable waters, lands beneath those waters, and living resources within those waters are owned by the state for the benefit of its residents (Macinko, 1993; McCay, 1998). Recognition of the public trust doctrine can be traced to Martin v. Waddell’s Lessee, 41 U.S. 367 (1842), a case involving oysters in New Jersey. In Illinois Central R.R. Co. v. Illinois, 146 U.S. (1892), the U.S. Supreme Court found that:
The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and the soils under them, so as to leave them entirely under the use and control of private parties than it can abdicate its police powers in the administration of government and the preservation of the peace.
Although this and related decisions have limited the conveyance of submerged lands, state courts differ in their application of the public trust doctrine and thus in the conditions under which submerged lands can be conveyed or leased and introduction, cultivation, and harvest of living resources allowed (Ajuzie and Altobello, 1997; Power, 1970).
Virginia has enacted a state statute that explicitly refers to the introduction of some nonnative aquatic and marine species. Virginia Code Section 28.2-825 provides:
A. It shall be unlawful for any person to import any fish, shellfish or crustacea into the Commonwealth with the intent of placing such fish, shellfish or crustacea into the waters of the Commonwealth unless one of the following conditions exists:
1. The fish, shellfish or crustacea are coming from within the continental United States from a state or waters which are on the Marine Resources Commission’s list of approved states and waters, and are species which are on the Marine Resources Commission’s list of approved species; or
2. The person has notified the Commissioner of Marine Resources of such intent and has received written permission from the Commissioner of Marine Resources.
Virginia’s administrative regulations also address the introduction of species into the state’s waters. Along with incorporating the provisions of Section 29.3-825 of the Virginia Code, state regulations provide that certain listed species can lawfully be placed into waters of the Commonwealth. See Chapter 754, Section 10, of the Virginia administrative regula-
tions. The Suminoe oyster, C. ariakensis, is not included in the approved list. A nonbinding 2002 resolution (Virginia House Joint Resolution No. 164, see Box 8.1 and Appendix D) of the Virginia legislature supports introduction of C. ariakensis.
On February 25, 2003, under these laws, the Virginia Marine Resources Commission (VMRC) approved a VSC proposal that 1 million triploid C. ariakensis be deployed at 10 locations in Virginia’s coastal waters, as discussed more fully below in this chapter’s federal section.
Virginia’s regulatory scheme contains elements of the “clean list” approach supported in a 2001 report to the Pew Oceans Commission (Goldburg et al., 2001), as compared with the federal Lacey Act’s “dirty list” approach discussed below. A clean list bans the introduction of species other than those listed. Furthermore, those seeking to list a species must show that the introduction will not cause unacceptable negative impacts. Any permits issued can impose bonding and insurance requirements in case unforeseen consequences occur. A clean list approach is a cautious approach to nonnative introductions. By contrast, a dirty list bans only species that have been deemed injurious (see discussion of the Lacey Act under the federal heading).
Since most of Virginia’s oyster production historically has come from beds leased from the state by oyster growers, any lease provisions regarding the use of nonnative oysters are also a significant form of state regulatory control. Furthermore, such leasing must be carried out in accordance
with Virginia’s public trust doctrine whose rules are determined primarily by Virginia’s courts. Finally, some lessee operations may also be regulated by Virginia local governments.
Virginia’s Coastal Management Program (CMP), adopted pursuant to the federal Coastal Zone Management Act (CZMA) discussed below in this chapter’s interjurisdictional section, focuses on “protect[ing] and restor[ing] coastal resources, habitats, and species of the Commonwealth.” The Virginia CMP does not mention nonnative species in any way. The CMP is a program designed pursuant to the CZMA to help facilitate Virginia’s duties as a coastal state to manage its coastal region (Virginia Department of Environmental Quality, 2001). Virginia originally developed the CMP in the mid-1980s, and the latest version was printed in 1994. As a federally approved CMP, the CZMA obligates federal agencies such as the Corps of Engineers to act consistently with its “enforceable policies.”
Different from Virginia, most of Maryland’s oyster production has come from licensed fishermen harvesting public oyster beds rather than from leased beds. In Maryland, Department of Natural Resources (DNR) regulations control the introduction of nonnative aquatic species, utilizing the equivalent of a “clean list” approach. No one may import or possess shellfish, including oysters taken from waters outside Maryland without a DNR permit. Such a permit can only be issued if proof is presented that the nonnative shellfish will not be harmful to native shellfish. A recently enacted Maryland law (2002 House Bill 353) calls for study of the nonnative C. ariakensis oyster as well as the native C. virginica. The law authorizes in-water experiments with nonnatives so long as biosecurity measures, including the International Council for the Exploration of the Sea (ICES) protocols discussed below, and this committee’s recommendations are followed.
DNR permits also are required to engage in aquaculture in Maryland. A permit will not be issued if the activity will adversely affect wild stocks of fish or result in the release of nonnative or genetically altered species or contamination. Thus, for oyster aquaculture production from beds leased in accordance with Maryland’s public trust doctrine, these rules are an important additional state regulatory control. Maryland Code § 4-11A-12 limits lessees to the use of C. virginica in their oyster aquaculture operations. Some lessee operations may also be regulated by Maryland local governments. Under Maryland Code § 4-11A-05, the leases do not include the water column above the leased bed. Maryland, like Virginia, has a federally approved CMP that does not mention nonnative species.
In North Carolina, nonnative introductions in state waters are prohibited without a permit from the director of the North Carolina Division of Marine Fisheries. Under these laws, sterile C. gigas and C. ariakensis oysters were deployed in double-hulled cages in three locations in North Carolina coastal waters for 18 months during 1999 and 2000 in growth, taste, and mortality experiments (Peterson et al., 1999). Proposed followup experiments funded by North Carolina’s tobacco-settlement-based Golden Leaf Foundation involve deploying sterile C. gigas and C. ariakensis in bags and on racks at 12 coastal locations. Like Virginia’s and Maryland’s CMPs, North Carolina’s federally approved CMP does not mention nonnative species. Unlike Virginia and Maryland, due to its location, North Carolina does not participate in the Chesapeake Bay Program, and its procedures for nonnative introductions are discussed below. However, all three states are members of the Atlantic States Marine Fisheries Commission (ASMFC) discussed below, and North Carolina has applied ASMFC’s 1989 policy on nonnative introductions (Peterson et al., 1999).
Other States and Countries
In addition to Virginia, Maryland, and North Carolina, New Zealand and Hawaii and several other states use a “clean list” approach to regulate fish and wildlife introductions. Information on New Zealand’s approach is available in Bean (1996), Clout (1999), and Clout and Lowe (2000). Detailed information on Hawaii’s as well as Florida’s approaches is provided by the U.S. Congress, Office of Technology Assessment (1993). That report cites Florida’s laws and their implementation as models and also includes proposed model state laws. A Florida shellfish aquaculture submerged-lands lease, which prohibits the use of nonnative species, and includes 6 inches of water column, is included in McCoy (2000) as Appendix I.
Relevant laws and regulations as of 1993 of Chesapeake Bay Program states and those nearby are summarized in the program’s 1993 nonindigenous species policy document (see Appendix E and Chesapeake Bay Program, 1993). When contacted by the ASMFC, some Atlantic coastal state officials opposed and some supported the VSC’s first introduction proposal. All wanted an opportunity to comment on future introduction proposals.
Washington state’s “dirty list” law is described in Dentler (1993). West Coast state laws are discussed in Nadol (1999). State approaches also can be gleaned from the plans they have prepared under the federal Aquatic Invasive Species Act (e.g., the Massachusetts Aquatic Invasive Species Management Plan of July 2002).
Executive Order 13112
This presidential executive order, entitled “Invasive Species” (see Box 8.2 and Appendix E for federal law documents), is aimed at preventing the introduction of invasive species into the United States as well as providing for control and minimization of the impacts caused by the introduction of such species. The order establishes an Invasive Species Council, which is intended to provide national leadership regarding invasive species. As required by the order, the Council has issued a National Invasive Species Management Plan to address goals and objectives and provide specific measures for federal agencies, including the Corps, to carry out under the plan.
Section 2(a)(2)(vii) of the executive order instructs federal agencies such as the Corps of Engineers to “not authorize, fund, or carry out actions that they believe are likely to cause or promote the introduction or spread of invasive species in the U.S. or elsewhere unless . . . the agency has determined and made public its determination that the benefits of such actions clearly outweigh the potential harm caused by invasive species, and that all feasible and prudent measures to minimize risk of harm will be taken in conjunction with the actions.” Under the order, “invasive species” means “an alien species whose introduction does or is likely to cause economic or environmental harm or harm to human health.”
The Lacey Act is administered by the U.S. Fish and Wildlife Service (USFWS). Utilizing a “black list” approach, the act prohibits importation into the country of certain “wild animal” species that are listed as “injurious to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States” (18 U.S.C. § 42(a)(1)). The act also sanctions interstate movements of state-listed species within the United States (16 U.S.C. § 3372). In addition, a regulation (50 C.F.R. § 16.13 (a)(1)) issued under the act bans the release “into the wild” of live or dead “fish, mollusks, crustacean, or any progeny or eggs thereof” except “by the State wildlife conservation agency having jurisdiction over the area or by persons having prior written permission from such agency.” Thus, for introductions of those species, including oysters, a “clean list” approach applies across the United States, administered initially at the state level and enforced at the federal level under the Lacey Act. The list of species considered to be “injurious” found at 50 Code of Federal Regulations, Part 16, is included in Appendix E together with the fall 2002 USFWS listing of the snakehead fish as “injurious.” C. ariakensis is not currently listed as an “injurious species.” Thus, VMRC approval of an introduction could meet the state approval requirement of 50 C.F.R. § 16.13 (a) (1) quoted above.
National Invasive Species Act
The act (16 U.S.C § 4701) is focused on unintentional introductions of nonindigenous species via ballast water introductions. Section 4701 outlines the following five objectives:
to prevent further unintentional introductions of nonindigenous aquatic species;
to coordinate federally funded research, control efforts, and information dissemination;
to develop and carry out environmentally sound control methods to prevent, monitor, and control unintentional introductions;
to understand and minimize ecological damage; and
to establish a program of research and technology development to assist state governments.
Section 4725 provides that federal agency aquatic nuisance programs under the act shall be carried out consistently with other applicable federal, state, and local environmental laws and that nothing in the act is intended to supercede state and local aquatic nuisance species controls.
A September 2002 bill that the 107th Congress did not enact would have supported federal and state regulation of imports of live aquatic organisms with screening guidelines developed by the federal Invasive Species Council and grants to the states. The act’s reauthorization is pending before the 108th Congress.
Federal Animal Protection Laws
The Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture has authority under the Farm Securities and Rural Investment Act and the Animal Health Protection Act of 2002 to promulgate regulations to prevent the introduction of exotic diseases. APHIS has not yet released import regulations to prevent introduction of exotic diseases of farm-raised aquatic species. In the future, as funds become available, APHIS is planning to develop and implement a policy consistent with international agreements and domestic programs that would include epidemiology, surveillance, and disease-free certification components.
Rivers and Harbors Act § 10 and Clean Water Act § 404 and Related Statutes
As the Corps of Engineers public notice (May 2, 2002, see Appendix E) illustrates, activities involving C. ariakensis using in-water structures or fill can require Corps permit approval under Section 10 (33 U.S.C. § 403) and Section 404 (§ 1344). Once the Corps has permit jurisdiction due to such in-water activities, it reviews the entire project of which the in-water activities are a component and issues a permit if it finds the entire project to be in the “public interest.” See, for example, North Carolina v. Hudson, 731 F. Supp. 1261 (E.D.N.C. 1990).
The advance approval for noncommercial riparian shellfish growing in Virginia provided by the Corps nationwide and regional aquaculture permits and VMRC General Permit No. 3 is not available where nonnative species are involved. Corps permits issued under Section 404 can be vetoed by the U.S. Environmental Protection Agency (EPA) under Section 404(c) if EPA finds that “unacceptable” adverse environmental effects would result from the permitted introduction activities. Corps permit issuance could be challenged in federal court as arbitrary and capricious based on the evidentiary record by interested individuals or private, nonprofit, or public-sector entities opposed to the introduction. See, for example, North Carolina v. Hudson, 731 F. Supp. 1261 (E.D.N.C. 1990). Corps permit denials, stringent conditions imposed on issued permits, and EPA vetoes of Corps permits similarly can be challenged by disappointed per-
mit applicants. See, for example, James City County v. Environmental Protection Agency, 12 F. 3d 1330 (4th Cir. 1993).
Corps permit issuance is statutorily conditioned on the proposed activities’ consistency with relevant state CMPs under CZMA Section 307 discussed below, compliance with state water quality standards under Clean Water Act Section 401, and Corps compliance with the Endangered Species Act (ESA), the Sustainable Fisheries Act’s essential fish habitat (EFH) provisions, the National Environmental Policy Act’s (NEPA) environmental impact statement (EIS) procedures, and the Regulatory Flexibility Act’s regulatory impact review and initial regulatory flexibility analysis requirements. See for example, Environmental Defense Fund v. Corps of Engineers, 348 F. Supp. 916 (N.D. Miss. 1972; EIS for waterway project not defective based on invasive species analysis). NEPA regulations include a methodology for dealing with scientific uncertainty in the EIS process. The information and methodologies utilized in the preparation of this report could prove useful in future federal and state EIS processes involving nonnative introductions.
Under Section 7 of the ESA, the Corps would review the proposed introduction for possible jeopardy to ESA-listed species and their designated critical habitat. Depending on the species, consultations with USFWS or the National Marine Fisheries Service and a biological opinion could follow. If the biological opinion found jeopardy, it would also identify reasonable and prudent alternatives to the introduction as proposed for the Corps and the applicant to consider. In its May 2, 2002, public notice included in Appendix E, the Corps concluded that the VSC’s proposed introductions of C. ariakensis would not jeopardize endangered or threatened species or adversely modify their critical habitat in Chesapeake Bay.
The Corps’ May 2, 2002, public notice succinctly describes the applicability of the Sustainable Fisheries Act’s EFH provisions:
The Magnuson-Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act of 1996 (Public Law 104-267), requires all Federal agencies to consult with the National Marine Fisheries Service on all actions, or proposed actions, permitted, funded, or undertaken by the agency, that may adversely affect Essential Fish Habitat (EFH). The Chesapeake Bay, its tributaries, and the Atlantic Ocean all contain Essential Fish Habitat (EFH) for species managed under a Federal Fishery Management Plan. The following is a list of species that may be affected: scalloped hammerhead, sandbar, dusky, and sand tiger shark, red drum, cobia, Spanish and king mackerel, black sea bass, scup, summer, winter, and windowpane flounder, butterfish, bluefish, Atlantic sea herring, and red hake. The habitat which the structures may affect consists of shallow waters and mudflats.
However, because C. virginica is restricted to state waters not covered by a federal fisheries management plan, the EFH review process does not include the potential effects of C. ariakensis introductions on essential habitat for C. virginica. More generally, the EFH regulations (50 C.F.R. § 600.815 (a)(3)) authorize regional fishery management councils such as the Mid-Atlantic States Fisheries Management Council to list in their fishery management plans introduction of “exotic species” as an activity that “may adversely affect EFH.” Furthermore, the councils and the Secretary of Commerce make recommendations to state agencies such as the VMRC and Maryland DNR as well as federal agencies such as the Corps about the adverse habitat impacts of proposed introductions (16 U.S.C. § 1855(b)). Under the Sustainable Fisheries Act Section 306(b) and associated laws for the ASMFC, the councils can even take over management of ocean fisheries in state waters if state management is conflicting with council or commission management.
Under this regulatory framework and utilizing its May 2002 public notice, in April 2003 the Corps indicated it would approve with conditions the VSC’s proposal to deploy 1 million triploid C. ariakensis. The 15 conditions described in the Corps’ April 14, 2003, Statement of Findings and Final Environmental Assessment were derived from recommendations provided in a February 2003 letter from this committee to the VMRC and a February 2003 Chesapeake Bay Program ad hoc panel report (see Appendix G) discussed below in this chapter’s interjurisdictional section. A key difference between the Corps and VMRC approvals was that, unless subsequently extended through a new public notice issued by the Corps, all C. ariakensis deployed would have to be removed by June 30, 2004. A permit reflecting these conditions became effective upon signature by VSC, the Corps, and the Virginia Institute of Marine Science (regarding its monitoring roles under permit conditions 8, 10, and 11). Also, under an informal March 2003 federal-state interagency agreement, prior to any subsequent commercial use of nonnative oysters, triploid or diploid, a full EIS, including risk assessments and alternatives analyses, would be prepared, a process estimated to take at least 2 years.
Other Issues Related to the Clean Water Act
While the Corps of Engineers regulates discharges of dredge and fill material into U.S. waters under Clean Water Act Section 404, other point source discharges of pollution are regulated by EPA and the states pursuant to the act’s National Pollution Discharge Elimination System (NPDES) permits. EPA’s position as stated to the committee at its first meeting has been that it does not consider a nonnative organism a pollutant for NPDES permitting purposes. With respect to nonnative species introduced
through ballast water, that position has been successfully challenged in a federal district court, and an appeal before the Ninth Circuit Court of Appeals is pending. That court recently ruled that particulate matter such as feces and other emissions from cultured nonnative mussels were not a point source discharge of pollutants requiring an NPDES permit. See Association to Protect Hammersley v. Taylor Resources, 299 F. 3d 1007 (9th Cir. 2002). However, for pen-reared salmon operations in Maine, a federal magistrate judge has recommended that the federal district court rule that escaping non-North American origin salmon, excess fish feed, antibiotics, and uneaten chemicals are pollutants requiring an NPDES permit. See United States Public Interest Research Group v. Heritage Salmon, Inc., Civil No. 00-150-B-C, Recommended Decision of Magistrate Judge Margaret Kravchuk (D. Maine, Feb. 19, 2002).
If introduction of a nonnative oyster or emissions from oysters were held to be a point source polluting discharge, for a Chesapeake Bay introduction, an NPDES permit would be required from the Maryland or Virginia water quality agency that administers the NPDES permit system for the state’s Chesapeake Bay waters where the introduction would take place (Craig, 2002). If such a permit were issued, it might be challenged by a disappointed sister Chesapeake Bay or Atlantic coast state under the law of interstate water pollution, or by disappointed individual or private, nonprofit, or public-sector entities under the common law of public and private nuisances.
To date, no state has invoked the law of interstate water pollution against another state for authorizing the introduction of a nonnative species to waters they share. The legal issues such a claim would present are summarized here. The law of interstate water pollution is found in several recent U.S. Supreme Court opinions integrating recent federal water pollution legislation such as the Clean Water Act (CWA) with older common law principles.
Prior to enactment of the CWA, the Supreme Court had held that a sister state could sue under a federal common law of nuisance to abate pollution resulting from operations in another state (Illinois v. Milwaukee, 406 U.S. 91 (1972)). However, the court has since held that the CWA’s passage has eliminated most legal bases for a federal court to impose more stringent pollution limitations than those imposed under the CWA regulatory regime (City of Milwaukee v. Illinois, 451 U.S. 304 (1981)). Only causes of action based on maritime tort may have survived. See Middlesex County Sewerage Authority v. National Sea Clammers Association, 616 F. 2d 1222 (3rd Cir. 1980), revised on other grounds, 453 U.S. 1 (1981).
CWA Sections 401 and 402 provide sister states with notice and an opportunity to be heard before NPDES permits are issued for discharges
into an interstate waterway from a neighboring state. However, the sister state does not have the authority to block issuance of the permit (Arkansas v. Oklahoma, 503 U.S. 91 (1992)). The sister state’s only recourse is to apply to the EPA administrator, who has the discretion under CWA Section 402(d)(2) to disapprove the permit upon concluding that the discharges will have an undue impact on interstate waters (International Paper Co. v. Ouellette, 479 U.S. 481 (1987)). While sister states have only these limited CWA procedural rights, the court held that residents of a sister state can still challenge the discharge under the source state’s law of nuisance. Residents of the source state also may challenge the discharge as a nuisance even though it has been approved through the issuance of CWA and other regulatory permits. See, for example, Boomer v. Atlantic Cement Co., 257 N.E. 2d 870 (New York Court of Appeals, 1970).
A private nuisance is defined by the courts as an unreasonable interference with a neighboring private property owner’s use and enjoyment of their property. Thus, a nonnative introduction challenged as a private nuisance would have to be shown to be causing unreasonable harm to the plaintiff’s private property (e.g., Chesapeake Bay bottom leased from the state, due to the introduction’s negative impact on the plaintiff’s use and enjoyment of that property). A public nuisance is defined more broadly by the courts as any act that unreasonably causes damage to the public in the exercise of rights common to all. Any affected member of the public has standing to sue the alleged unreasonable activity without necessarily showing any injury to a private property interest of theirs. See for example, Town of Preble v. Song Mountain, Inc., 308 N.Y.S. 2d 1001 (Supreme Court of New York, 1970). Within the law of private nuisance, an aquaculture operation using nonnative species might be treated as an “abnormally dangerous activity” for which the operator is strictly liable for any injuries caused to persons or their property without any showing of negligence on the part of the operator. See for example, Wood v. Picillo, 443 A.2d 1244 (R.I. 1982; chemical company strictly liable for percolation of hazardous waste on nearby residents’ property). No court has yet applied these doctrines to alleged public and private injuries from a nonnative introduction. However, the potential for litigation challenging a nonnative introduction under those theories has been discussed in the literature (Biber, 1999; McCoy, 2000; Terpstra, 1998).
Finally, a resident of the source state might claim in state courts that the state’s approval of a nonnative introduction violated the state’s public trust doctrine responsibilities discussed in the state section of this chapter and Chapter 10. One theory would be that the state has violated its trust responsibilities for living resources in tide and submerged lands by approving introduction of a nonnative that may contribute to the decline of native species (Johnson, 1989).
Under the CWA, EPA-approved state water quality standards must protect existing uses such as shellfish beds, including oyster beds (40 C.F.R. §. 131.12). Under CWA Sections 303 and 401, these water quality standards are to be achieved and maintained through state and federal permit processes. Reductions in the size of Chesapeake Bay oyster beds can reduce the area protected by these water quality mandates.
Code of Conduct for Responsible Aquaculture Development in the U.S. Exclusive Economic Zone
Prepared under the National Aquaculture Act of 1980 by the National Marine Fisheries Service (NMFS), the code utilizes a precautionary approach combined with adaptive management to promote sustainable aquaculture development in U.S. waters between 3 and 200 nautical miles offshore. According to the code, participants should conserve biodiversity and carefully regulate nonindigenous and genetically altered species (NMFS, 2002). Also, a system of monitoring should be enforced not only by federal and state authorities but also voluntarily through self-regulation.
A precautionary approach to nonnative introductions also is suggested by several of the international agreements discussed below to which the United States is a party or signatory.
Coastal Zone Management Act
As previously discussed, the purpose of the Coastal Zone Management Act (CZMA; 16 U.S.C. § 1451 et seq.) is to encourage the states to protect, preserve, develop, and restore natural coastal resources. Although the CZMA is a federal law, participation by the states is voluntary. All U.S. coastal states have implemented the CZMA by adopting CMPs for federal approval under the statute. The CZMA was designed:
to encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone, giving full consideration to ecological, cultural, historic, and esthetic values as well as the needs for compatible economic development. (16 U.S.C. § 1452(2))
The act does not address nonnative species (nor do any of the state CMPs discussed above). But the act does not prohibit states from incorporating invasive species issues and information into their CMPs with federal approval.
Interstate Consistency: Two Examples
“Federal consistency” is defined by the U.S. Department of Commerce as “the term used to describe the mechanism by which a state can review federal activities, including federally licensed or permitted activities, to determine whether they are consistent with the state’s coastal management program.”
In the Consistency Appeal of Vieques Marine Laboratories from an Objection by the Puerto Rico Planning Board, U.S. Department of Commerce, Office of the Secretary, 1996
In this case a nonprofit corporation chartered by the common-wealth of Puerto Rico wanted to operate a nonnative shrimp farm off the coast of Puerto Rico. The shrimp farm would involve the use of floating cages anchored on the bottom of a pristine bay, covering an area of no more than 5 acres (or 2% of the bay’s total area). This required the use of mooring buoys and floating docks.
Puerto Rico’s Planning Board (PRPB) objected to the application for a permit submitted by the nonprofit group to the Corps. The PRPB based its objection on the grounds that the project was not consistent with Puerto Rico’s CMP provisions protecting coastal water quality.
Since the PRPB entered a consistency objection, that objection precluded the Corps from issuing any federal permit unless the Secretary found either “that the activity is consistent with the purposes and objectives of the [federal] CZMA (Ground I) or is [a] necessary [project] in the interest of national security (Ground II).”
There are three elements involved in Ground I (see 15 C.F.R. § 930.121). Those three elements are:
the activity furthers the national interest as articulated in Section 302 or Section 303 of the act, in a significant or substantial manner;
the national interest furthered by the activity outweighs the activity’s adverse coastal effects, when those effects are considered separately or cumulatively.
there is no reasonable alternative available that would permit the activity to be conducted in a manner consistent with the enforceable policies of the management program. When determining whether a reasonable alternative is available, the Secretary may consider but is not limited to considering previous appeal decisions, alternatives described in objection letters, and alternatives and other new information described during the appeal.
The proposed shrimp farming project failed the second element and thus was not consistent with the objectives or purposes of the CZMA and thus could not be approved by the Corps.
In the Consistency Appeal of the Virginia Electric and Power Company from an Objection by the North Carolina Department of Environment, Health, and Natural Resources, U.S. Department of Commerce, Office of the Secretary, 1994
The city of Virginia Beach is the largest city in Virginia, with over 400,000 residents, and must purchase its water from sources outside the city limits.
The Virginia Electric and Power Company (VEPCO) on behalf of the city of Virginia Beach, appealed a decision by the Secretary of Commerce regarding the state of North Carolina’s objection to VEPCO withdrawing water from Lake Gaston for the city’s water supply needs. The Secretary, in this consistency appeal, overruled North Carolina’s objections and allowed the city of Virginia Beach to acquire the requisite federal permits to construct a pipeline for the removal and use of water from Lake Gaston.
The CZMA requires that an applicant for a federal license of an activity that will affect a water use or natural resource of the coastal zone must certify to the permitting agency (here it is the Federal Energy Regulatory Commission) that the proposed activity (building of the pipeline to withdraw water from Lake Gaston) complies with the Virginia CMP.
A relevant issue on appeal in this case is whether the CZMA authorizes a state to review for consistency with its CMP an activity that is occurring in another state. The Secretary of Commerce held that the CZMA does authorize such interstate consistency review. Although the Secretary noted that the CZMA does not give a state the authority to control activities that occur in another state, it does allow states that have federally approved CMPs “the right to seek conditions on or prohibit the issuance of federal permits and licenses that would ‘affect’ their state.”
The Secretary held that North Carolina, under the CZMA, has a right to review for consistency with its own federally approved CMP, the proposed activity of Virginia in the withdrawal and use of water from Lake Gaston if that withdrawal and use could affect “any land or water use or natural resource in North Carolina’s coastal zone.”
The Department of Commerce subsequently adopted interstate consistency regulations (U.S. Department of Commerce, 1994). Thus, even if a C.
ariakensis introduction in one state’s waters received all other necessary state, federal, interjurisdictional, and international approvals, a neighboring coastal state could raise CZMA interstate consistency objections to the federally issued permits based on alleged impacts to its coastal resources contrary to enforceable policies in its CMP. The state’s objections would in turn be subject to override by the Secretary of Commerce as described above.
Chesapeake Bay Program
Clean Water Act § 117 provides for the establishment of a Chesapeake Bay Program (CBP) Office within the EPA (see Appendix E). It also discusses management strategies for the CBP as well as funding and grants to support the program. Parties to the original 1987 Chesapeake Bay Agreement are the United States EPA, representing the federal government; the District of Columbia; Maryland; Pennsylvania; Virginia; and the Chesapeake Bay Commission. The commission is a 21-member tristate commission created in 1980 to advise the members of the Maryland, Virginia, and Pennsylvania legislatures on bay issues. The members, mostly legislators from the three states, are responsible for coordinating bay policy issues across state lines and developing shared solutions. The commission supported this National Research Council study by letter dated January 16, 2002, enclosing a supporting resolution.
The program’s Chesapeake 2000 Agreement specifically addresses goals for oysters in the bay. The text states that “[b]y 2010, achieve, at a minimum, a ten-fold increase in native oysters in the Chesapeake Bay, based upon a 1994 baseline.”
The 1993 Chesapeake Bay Policy for the Introduction of Non-Indigenous Aquatic Species is a basinwide regional policy that considers only first-time introductions of nonindigenous, nonnaturalized aquatic species (see Appendix G). Under the policy, an introduction is considered “first time if 1) the species is not indigenous or naturalized, or 2) the jurisdiction has not previously promulgated rules, regulations or otherwise issued a permit allowing the introduction of that aquatic species into an unconfined system, excluding permits issued for research.”
The 1993 policy has four specific goals:
to provide technical reviews of proposed nonindigenous species introductions to identify potential nuisance species;
to provide the permitting decisionmakers with the best-available information and assessment regarding a nonindigenous species’ potential for becoming a nuisance in the ecosystem or to human activities;
to create a mechanism for sharing information among all bay jurisdictions, including Delaware, the District of Columbia, Maryland, New
York, Pennsylvania, Virginia, and West Virginia, regarding species being considered by other bay jurisdictions; and
to not unduly lengthen or burden the existing permitting process within the signatory jurisdiction.
Pursuant to the 1993 policy, some experiments with C. ariakensis had been approved, but a May 31, 2002, ad hoc panel report (included in Appendix G) recommended against the proposed introductions of triploid C. ariakensis described in the Corps of Engineers, May 2, 2002, public notice. The VSC subsequently withdrew this permit request. No federal or state law requires such private- or public-sector compliance with recommendations generated by CBP processes. A CBP ad hoc panel also recommended against the VSC’s subsequent proposal to the VMRC as submitted (the CBP panel’s February 20, 2003, report is included in Appendix G).
Atlantic States Marine Fisheries Commission
The Atlantic States Marine Fisheries Commission (ASMFC) is a coalition of the 15 Atlantic states joined together under an interstate compact approved by Congress (P.L. 77-539 and 81-721) to manage their shared coastal fishery resources. The governing legislation is the Atlantic Striped Bass Conservation Act, Atlantic Coastal Fisheries Cooperative Management Act (16 U.S.C. § 1501 et seq.), and the Interjurisdictional Fisheries Act (P.L. 99-659). Under 16 U.S. Code Section 5101, “fish” are defined broadly to include all forms of marine animal life other than marine mammals and birds; a “coastal fishery resource” subject to management by ASMFC includes any fish that “is broadly distributed across waters under the jurisdiction of two or more states.” A 1989 ASMFC report contains a plan to control interjurisdictional transfers and introductions of shellfish (U.S. Atlantic States Marine Fisheries Commission, 1989). The U.S. Atlantic States Marine Fisheries Commission (2002) lists potential risks and benefits of a C. ariakensis introduction and includes position papers from states, federal agencies, and CBP committees. The ASMFC is developing aquaculture guidelines.
Potomac River Fisheries Commission
The Potomac River Fisheries Commission operates under the Potomac River Compact of 1958, authorized by Congress and ratified by Virginia and Maryland. The commission is a semiautonomous agency, but its work and policies are coordinated closely with the Fisheries Service of the Maryland DNR and the Marine Resources Commission of Virginia. Fishery
agencies of both states provide law enforcement on the Potomac River for the commission. The Potomac River Fisheries Commission works to conserve and improve seafood resources of the Potomac River. The commission also regulates and licenses fisheries and the dredging of soft-shell clams in the River. From the sale of crab, oyster, fish, and clam licenses and an oyster inspection tax, the commission receives proceeds. Annually, each state appropriates $150,000 to the commission’s work. Eight members constitute the commission. Four are from Maryland, four from Virginia. A 1992 Virginia law (Virginia Code § 28.2-1004) authorizes the commission to engage in a “pilot program for experimental oyster hatchery seed planting” with private- and public-sector agencies. The law’s effectiveness is conditioned on the enactment of a similar law by Maryland, which does not appear to have happened yet. The commission’s role if any in discussions of C. ariakensis to date is unclear.
Five international agreements to which the United States is a party or signatory establish a risk-adverse general framework for nonnative introductions (see Box 8.3). Some of these agreements adopt the international environmental protection concept known as the “precautionary approach.”
International Council for the Exploration of the Sea Convention
This convention is in force, and the United States is a party. The 1994 International Council for the Exploration of the Sea (ICES) Code of Prac-
tice on Introductions is included in Appendix F. The code includes widely utilized risk assessment protocols for both “transfers” of native species in their current range and “introductions” of nonnative species.
With respect to introductions as summarized in Peterson et al., (1999), the ICES code consists of guidelines to follow prior to the introduction as well as steps to follow after deciding to proceed with an introduction. Under the guidelines, the initial step is to describe the purpose of the introduction. Next a thorough review of the biology and life history of the organism proposed for introduction must be provided to the ICES. If a decision is made to proceed with an introduction, the guidelines suggest use of quarantined brood stock that has been approved by the receiving country and is raised under quarantine long enough to establish its health. Then, if no diseases or parasites are recognized, only the F1 or subsequent generation of the brood stock can be transplanted to the natural environment. The code then calls for complete destruction of the initial parental brood stock and sterilization of all hatchery effluents. The quarantined F1 generation may then be placed into open water on a limited scale for assessment of interactions with native species. For large-scale introductions, a continuing study of the introduced species in its new environment should be made and impacts reported.
Convention on Biological Diversity
This convention is in force, and the United States is a signatory but has not yet ratified the convention or its biosafety protocol and thus is not a party to either. Under the convention, draft guiding principles regarding “alien” species introductions have been developed. Guiding principle 10 regarding intentional introductions provides:
No intentional introduction should take place without proper authorization from the relevant national authority or agency. A risk assessment, including environmental impact assessment, should be carried out as part of the evaluation process before coming to a decision on whether or not to authorize a proposed introduction. States should authorize the introduction of only those alien species that, based on this prior assessment, are unlikely to cause unacceptable harm to ecosystems, habitats or species, both within that State and in neighboring States. The burden of proof that a proposed introduction is unlikely to cause such harm should be with the proposer of the introduction. Further, the anticipated benefits of such an introduction should strongly outweigh any actual and potential adverse effects and related costs. Authorization of an introduction may, where appropriate, be accompanied by conditions (e.g., preparation of a mitigation plan, monitoring procedures, or containment requirements). The precautionary ap-
proach should be applied throughout all the above-mentioned measures.
Guiding principle 1 defines the precautionary approach:
Given the unpredictability of the impacts on biological diversity of alien species, efforts to identify and prevent unintentional introductions as well as decisions concerning intentional introductions should be based on the precautionary approach. Lack of scientific certainty about the environmental, social and economic risk posed by a potentially invasive alien species or by a potential pathway should not be used as a reason for not taking preventative action against the introduction of potentially invasive alien species. Likewise, lack of certainty about the long-term implication of an invasion should not be used as a reason for postponing eradication, containment or control measures.
1995 Food and Agriculture Organization Code of Conduct for Responsible Fisheries
Article 9 of the Food and Agriculture Organization of the United Nations (FAO) Fisheries Code regarding aquaculture is included in Appendix F. Article 7.5 of the code urges nations to “apply the precautionary approach widely to conservation, management, and exploitation of living aquatic resources in order to protect them and preserve the aquatic environment.” Application of the precautionary approach to nonnative species introductions is elaborated in FAO 1996.
The goal of the Ramsar Convention is the preservation of wetlands of international significance. The Ramsar Web site contains the full text of the convention and amendments (http://www.ramsar.org/index_very_key_docs.htm). As of November 12, 2002, there were 133 parties to the convention. The United States joined the convention as a party in 1987. Under the convention, the Chesapeake Bay is designated as a wetland of international significance, which under Article 3 should be used wisely. In 1987 a conference of the convention parties defined “wise use” as “sustainable use…compatible with the maintenance of the natural properties of the ecosystem.”
United Nations Convention on the Law of the Sea
The United States is a signatory to the United Nations Convention on the Law of the Sea (UNCLOS) but the Senate has not yet voted to accede to the convention and thus the United States is not a party. The Bush
administration and the Pew Oceans Commission support U.S. accession, and the U.S. Commission on Ocean Policy will also recommend that the United States become a party.
UNCLOS Article 196 regarding introductions is included in Appendix F. It obligates nations “to prevent…the intentional or accidental introduction of species…which may cause significant and harmful changes” to the marine environment.
In addition, the United States is a party to two international agreements that are particularly relevant to imports of C. ariakensis into the United States: the World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) and the Office International des Epizooties (OIE) agreement. Those two agreements are summarized in Biosecurity Australia (2002) as follows:
World Trade Organization SPS Agreement
The SPS agreement applies to measures designed to protect human, animal, and plant life and health from pests and diseases, or a country from pests, and which may directly or indirectly affect international trade. It also recognizes the right of WTO member countries such as the United States to determine the level of protection they deem appropriate and to take the necessary measures to achieve that protection. Sanitary (human and animal health) and phytosanitary (plant health) measures apply to trade in or movement of animal- and plant-based products within or between countries.
In the SPS agreement, sanitary and phytosanitary measures are defined as any measures applied:
to protect animal or plant life or health within the territory of the member from risks arising from the entry, establishment, or spread of pests, diseases, disease-carrying organisms, or disease-causing organisms;
to protect human or animal life or health within the territory of the member from risks arising from additives, contaminants, toxins, or disease-causing organisms in foods, beverages, or feedstuffs;
to protect human life or health within the territory of the member from risks arising from diseases carried by animals, plants, or products thereof, or from the entry, establishment, or spread of pests; and
to prevent or limit other damage within the territory of the member from the entry, establishment, or spread of pests.
Key provisions of the SPS agreement include:
an importing country has the sovereign right to adopt measures to achieve the level of protection it deems appropriate (its appropri-
ate level of protection, or ALOP) to protect human or animal life or health within its territory, but such a level of protection must be consistently applied in different situations and
an SPS measure must be based on scientific principles and not be maintained without sufficient evidence.
Office International des Epizooties Agreement
The OIE, the world organization for animal health, is an intergovernmental organization created by a 1924 international agreement. The objectives of the OIE are:
to keep member countries informed of the occurrence and course of significant animal diseases throughout the world and of means of controlling these diseases;
to coordinate, at the international level, studies devoted to the surveillance and control of significant animal diseases; and
to harmonize health standards covering trade in animals and animal products.
The OIE currently comprises more than 160 member countries, including the United States, and operates under the authority of an international committee formed by permanent delegates designated by the governments of all member countries.
The standards referenced in the SPS agreement include the following OIE codes and manuals:
the OIE International Animal Health Code, prepared by the International Animal Health Code Commission, contains standards, guidelines, and recommendations designed to prevent the introduction of pests and diseases into the importing country during trade in animals, animal genetic material, and animal products;
the Manual of Standards for Diagnostic Tests and Vaccines, prepared by the Standards Commission, lists laboratory diagnostic techniques and requirements for production and control of biological products (mainly vaccines); and
an Aquatic Animal Health Code and a Diagnostic Manual for Aquatic Animal Diseases, prepared by the Fish Diseases Commission. These are sister publications to the OIE code and manual above.
The OIE has developed guidelines for risk analysis which recognize that the importation of animals and animal products may involve a degree of risk to the importing country. The OIE supports risk analysis
because it provides importing countries with an objective method of assessing risks associated with importation and of determining how those risks may be managed. It notes that analysis should be transparent so that the exporting country is provided with a clear and documented decision on the measures imposed on imports or the reasons for refusing to allow importation.
The four-level regulatory framework reviewed in this section can be characterized as a patchwork with significant gaps, especially in regions outside the Chesapeake Bay. The patchwork characterization refers to four significant gaps: the absence of federal regulatory approval for species not listed as injurious, lack of federal jurisdiction in circumstances where the Corps does not have permitting authority, the absence of regional-level review processes (i.e., multistate and federal) outside of the Chesapeake Bay region, and the limit of CBP review to “first time” introductions.
Within the Chesapeake Bay, the Chesapeake Bay Program’s 1993 Policy for the Introduction of Non-Indigenous Aquatic Species presents a working prototype for regional decision making. The policy would be strengthened if it included review of proposed uses of nonnative species beyond “firsttime” introductions, since the first introduction may be shortlived and subsequent introductions could be more significant in terms of magnitude and geographic extent. Outside the Chesapeake Bay, equivalent review processes for proposed nonnative introductions could be established using the CPB policy as a model. Existing multistate entities that could implement such review processes include the ASMFC and its sister interstate-compactbased regional fisheries commissions, which together cover U.S. coastal waters outside Alaska and Hawaii, and the Magnuson Fisheries Conservation and Management Act’s regional federal fisheries management councils, which together cover the entire U.S. Exclusive Economic Zone extending from 3 to 200 nautical miles offshore (Hildreth, 1991). As described above, ASMFC has played a constructive role in regional deliberations about C. ariakensis. Additional regional coordination on nonnative introductions could be provided through the coastal zone management interstate consistency process described in this chapter’s interjurisdictional section. This would necessitate amending current federally approved state coastal zone management programs to include compatible enforceable policies regarding nonnative introductions.
While the 1993 policy and recommendations made pursuant to it are not legally binding, the general respect for CBP decisions, including those made under the 1993 policy, is impressive and demonstrates an alterna-
tive approach to command and control regulation of nonnative introductions. Other features of the CBP approach worth incorporating into any adjustments made to the current framework include the CBP policy’s use of best-available scientific information, timely responses to requests for decisions pursuant to the policy, and minimization of regulatory overlaps. While CBP decisions pursuant to the 1993 policy generally include specific recommendations regarding monitoring and biosecurity, the nonbinding nature of those recommendations indicate that even in the Chesapeake Bay the current regulatory framework does not provide adequate monitoring and oversight. Furthermore, it appears that the CBP does not itself have either the budget, personnel, or mandate to engage in the necessary monitoring and oversight.
The 1993 policy is consistent with a precautionary approach to nonnative introductions (e.g., in its requirement that environmental and economic evaluations be conducted in order to ensure that risks associated with first-time introductions are acceptably low). Also, the 1993 policy illustrates a “clean list” approach to introductions, an approach that the committee generally recommends for all levels of decision making about nonnative introductions as contrasted with the “dirty list” approach. Under the 1993 policy and many state laws, introductions of nonnative species are prohibited unless specifically approved. Utilizing a “clean list” is a key step in implementing a precautionary approach. In contrast, under a “dirty list” approach, only introductions of species that have been specifically blacklisted by legislation or regulation are prohibited. However, merely requiring approval before any nonnative species is introduced is insufficient unless the person or entity proposing the introduction is also required to provide environmental, economic, and social evaluations of the risks and tradeoffs involved. Furthermore, important uncertainties in information should be weighed against approval of a proposed introduction. Interested parties throughout the potentially affected region should be provided meaningful opportunities to participate in the decision-making process. Relevant legislation and regulations governing the decision-making process should be amended accordingly.
These steps toward implementing a risk-adverse approach to introductions are reflected in several of the international documents reviewed by the committee to which the United States is a signatory or a full party. These steps are particularly important given the relatively weak capabilities of the current framework for sufficient monitoring, evaluation, and adaptive management. Finally, if a proposed nonnative species is approved for introduction, control measures will be required to reduce remaining risks and, where feasible, compliance could be guaranteed by bonding or insurance requirements.
Many interested parties find it surprising that under the current framework, depending on the methods used for intentionally introducing a nonnative species, including C. ariakensis, no federal regulatory approval is required. Corps approval is required only if the introduction involves in-water structures or fill; even in the latter situation, Corps general and regional permits may eliminate the need for a complete regulatory review of the proposed introduction. Further study is required to determine whether nonnative introductions should be comprehensively regulated at the federal level through, for example, statutory amendments instituting a “clean list” approach under the Lacey Act. The pending reauthorization by the 108th Congress of the federal Invasive Species Act could provide a forum for discussion of this and related changes in federal law to provide a better-coordinated and better-focused approach to intentional introductions at the federal level.
These discussions appropriately could be extended to U.S. implementation of the various international agreements regarding intentional introductions policy and procedures, including the Convention on Biological Diversity, its Cartegena Protocol on Biosafety, and draft Guiding Principles on Intentional Introductions; the ICES Convention and its code of practice regarding the transfers of natives and introductions of nonnatives; NMFS, FAO, and other aquaculture codes; UNCLOS Article 196, that requires nations that are party to the convention to control intentional introductions of nonnative species that may cause significant and harmful changes to the marine environment; and relevant WTO and OIE agreements regarding imports of nonnative species to the United States.