Nonnative Oysters in the Chesapeake Bay (2004) / Chapter Skim
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8. Regulatory Framework for Managing Proposed Introductions
8. Regulatory Framework for Managing Proposed Introductions
Pages 162-186
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From page 162... ...
. 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.
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From page 163... ...
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 Virginia has enacted a state statute that explicitly refers to the introduction of some nonnative aquatic and marine species.
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From page 164... ...
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.
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From page 165... ...
1 en tJ Virginia's Coastal Management Program (CMP) , adopted pursuant to the federal Coastal Zone Management Act (CZMA)
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From page 166... ...
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)
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From page 167... ...
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.
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From page 168... ...
National Invasive Species Act The act (16 U.S.C § 4701) is focused on unintentional introductions of nonindigenous species via ballast water introductions.
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From page 169... ...
3 is not available where nonnative species are involved. Corps permits issued under Section 404 can be vetoed by the U.S.
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From page 170... ...
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)
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From page 171... ...
~3~) authorize regional fishery management councils such as the MidAtlantic 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.
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From page 172... ...
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.
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From page 173... ...
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.
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From page 174... ...
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.
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From page 175... ...
· 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.
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From page 176... ...
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.
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From page 177... ...
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: 1.
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From page 178... ...
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~.
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From page 179... ...
INTERNATIONAL 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.
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From page 180... ...
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.
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From page 181... ...
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. Ramsar Convention The goal of the Ramsar Convention is the preservation of wetlands of international significance.
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From page 182... ...
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.
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From page 183... ...
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.
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From page 184... ...
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
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From page 185... ...
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.
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From page 186... ...
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.
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