§ 1. Introduction

§ 1.1. The exotics problem and political responses. In the ten years since Canada and the United States first initiated policies designed to slow down the continuing invasion of the Great Lakes by exotic organisms in the ballast of transoceanic shipping, the problem of exotic invasions and their impact on biodiversity has become a matter of global concern. Canada and the United States, which were first prompted to act because of their joint responsibility for the unique ecosystem of the Great Lakes, are continuing their leading role. The United States has recently enacted legislation and promulgated an executive order designed to address various vectors of concern at a national level, and Canada has recently enacted national legislation providing extensive authority for federal regulations controlling exotics in ballast water at national level. Other proposals for dealing with the vector of ballast water are under consideration at the International Maritime Organization and the Senate ofthe State of California. Canada and the United States have both recently signed a multilateral treaty on Biodiversity, which includes a general commitment to address the problem of exotics, identified as one of the primary threats to native organisms and ecosystems.

Thus, exotics have become a salient environmental issue, at all levels of government. Public concern and formal legal documents do not, however, necessarily translate into effective regulatory policies. Although the various governmental actions taken since this issue drew attention in the Great Lakes are encouraging, representatives of the two governments have taken pains to point out substantive gaps in current programs in their reports to the International Joint Commission under the Great Lakes Water Quality Agreement. There is widespread agreement that there are significant limitations on the current regime, dependent on high seas ballast exchange, for the control of exotics in ballast water. There is an obvious need for better coordination of rules on the use of exotics for commercial purposes in aquaculture, baitfish, and aquaria administered by eleven different governments and a multitude of agencies at the federal, state, and provincial level in the Great Lakes.

§ 1.2. The exotic policy workshop. Given the number of initiatives now under consideration, and the number of questions about the actual effectiveness of current approaches, we thought this might be a good time to conduct a comprehensive review of policies on exotics. This serves as a ten-year update on Canadian and US progress since the first voluntary guidelines for exchange of ballast water were promulgated by the Canadian Coast Guard in 1989, in response to a call to action issued by the International Joint Commission and the Great Lakes Fishery Commission in 1988. The International Joint Commission, in partnership with the Great Lakes Fishery Commission and the Michigan Department of Environmental Quality Office of the Great Lakes, sponsored a one-day workshop on "Exotics Policy" at the Biennial Great Lakes Water Quality Forum in Milwaukee, Wisconsin, on 23 September 1999. This was followed up by a report to the public, with additional discussion, on 26 September 1999. (A copy of the agenda is attached.)

This after-action report presents the highlights of those discussions at the workshop and pubic session. An extensive white paper was prepared for the workshop, beforehand, which provides a great deal of technical background and a wide-ranging discussion of policy issues. (The white paper provides detailed references to all the legal and political structures mentioned in this report, and is supported, in turn, by a comprehensive analysis of laws and policies for the control of exotics among the eleven jurisdictions in the Great Lakes in a report funded by the Michigan DEQ Office of the Great Lakes. Also, the white paper includes an appendix with a glossary of terms and acronyms used in the various fields of aquatic biology, marine engineering, and law related to exotics. Given those background documents as references, this report here is deliberately written without footnotes, references, and detailed background in order to allow a clear focus on the central issues.) The agenda of the workshop included threat evaluation, technology, economics, policies, legal regimes in the United States and Canada - and, most especially, future initiatives for improvement of those legal regimes. The workshop participants included representatives of US, Canadian, provincial, and state governments, environmental groups, biological and social scientists, and representatives of the affected industries, both shipping and aquacultural. (A list of participants, with contact information, is attached.) With such a wide range of issues to discuss, and such a wide variety of stakeholders represented, it was impossible to go into all issues, or even discuss even the major issues in the detail that they deserved, during a one-day workshop. Participants were invited to submit any follow-up comments they wished to make in writing. And we hope that this workshop will be looked upon as a beginning, not an end, of the discussion of the issues laid on the table.

§ 1.3. The specific issues: A long list. Some of the many specific issues put on the agenda included the following:

1. What is the overall seriousness of the invasion of the Great Lakes by exotics, and the appropriate level of response to it? Should exotic be a primary focus of the Great Lakes Water Quality Agreement?
2. What is the continuing threat from ballast water? How serious is the threat of pathogens in ballast water? Does there need to be more focus on other shipping vectors, such as hull fouling or marine sanitation devices.
3. What is the threat from other vectors, including the "commercial uses" of aquatic organisms in aquaculture, the bait fish trade, and the aquarium trade? What are the advantages and disadvantages of the current regulation at the state and provincial level? Is local regulation by agencies with a cooperative relationship with the concerned businesses most appropriate, or is there a need for more federal or regional policymaking to insure effective controls on exotics?
4. What is the threat from private activities, such as recreational boating and fishing?
5. What is the comparison between the likely cost to the public of exotic invasions and the likely cost to the responsible industries for preventative measures? Should contamination of waterways by exotics be considered a form of "biological pollution," subject to the same principles of liability and regulation as other forms of water pollution?
6. Should exotics be dealt with under the framework of the GLWQA, or it is better to deal with them separately under the Great Lakes Fisheries Convention, the Great Lakes Basin Compact, the Biodiversity Convention, or some new national, binational, or multinational framework?
7. Should state or provincial regulation of ballast water be preempted by federal regulation under the US National Invasive Species Act or the Canada Shipping Act? Should all regulation of ballast be consistent with international regulation under the International Convention for the Prevention of Pollution from Sea. Should Canada impose higher standards, under the Shipping Act, than currently authorized by the US NISA, on US and third-party vessels entering the St. Lawrence Seaway?
8. Should owners of existing vessels which cannot conduct and efficient or safe exchange be required to retrofit their vessels or pay for shore side treatment of their ballast water? If not now, when? Should builders of new vessels be required to build systems for effective exchange or treatment of ballast into their vessels? If not now, when?
9. Should there be national and binational "green lists" under the US Lacey Act, the Canada Fisheries Act, the GLWQA, or the CGLF? Or is it better to leave the regulation of importation of exotics for aquaculture, bait, and aquaria entirely under the local control of the states and provinces?

§ 1.4. The specific issues: A short list. Out of that wide range of issues, we attempted to focus in on three primary policy questions:

1. Where do exotics fit into the Great Lakes political and legal structure, and, particularly, should they be a priority issue under the Great Lakes Water Quality Agreement?
2. How can we improve controls on ballast water in the near future?
3. What should be our approach to regulation of "commercial uses" of exotics in such areas as aquaculture, baitfish, and aquaria and ornamental ponds?

§ 1.5. Quick summary. Each of those three major policy questions had a different sort of reception, and the outcome of the discussions varied enormously among the three. To summarize very roughly, (1) we had an excellent exchange of views but no agreement on the question of whether or not exotics should be subject to some formal amendment to the Great Lakes Water Quality Agreement, (2) we had unanimous and emphatic agreement on some important elements of policy regarding the vector of ballast water, and (3) we failed to frame a common basis for discussion, to even "come to terms," with the problem of "commercial uses." Each of these issues are discussed below.