July 15, 1999
§ 8. Great Lakes legal regimes for control of aquaculture, bait, and aquaria:
Holes in the dike
The Great Lakes make up one aquatic ecosystem, and cannot be protected from invasion by any exotic which any state or province along its shores allows into the basin. That would seem to make it obvious that there is a need for binational and regional coordination of policies for the regulation of aquaculture, baitfish, and aquaria.(352) There are, however, no legal mechanisms for insuring such coordination.
The Federal Aquatic Nuisance Species Task Force conducted a superficial survey of US state laws controlling exotic species throughout the United States in 1991.(353) While indicating that many states were beginning to strengthen their authority to control exotics at that time, the responses from the states presented a general picture of weakness and incoherence in regulatory policy. The definition of what types of organisms were covered varied widely and, although all states had some authority to prohibit or permit some categories of aquatic organisms, "Many states cited no particular criteria by which permit applications are judged."(354)
A survey of federal, state, and provincial laws in the Great Lakes region which I recently conducted on behalf of the State of Michigan indicated that only some improvements have been made to that general picture in the ten years since.(355) All of the states in the region have some provision restricting the introduction of exotic fish, more or less, usually subject to rather wide discretion on the part of the state conservation agency.(356) But the statutes are rather uneven in their focus and coverage. All of the eight US states and Ontario have what is theoretically a "green list," in the sense that statutes or regulations require positive permits or listing before fish are introduced, but which may or may not actually be promulgated in statute or regulation. Coverage is uneven. Michigan's separate green lists, for example, apply only to aquaculture(357) or game fish.(358) The Michigan regulations promulgated under the general conservation statute for other fish, which may be limited by the terms of that statute, have only a "red list" of prohibited species.(359) Most jurisdictions, while requiring positive permitting before any introductions, have few statutory or regulatory standards for fully evaluating such introductions. The prohibitions are typically limited, vague, and qualified. There are few statutory standards for implementation of the statutes by the relevant agencies, e.g., presumptions for or against introduction, provisions for scientific review or interagency and public consultation, or environmental impact studies. There are few provisions for record-keeping and inspection to insure compliance. The Minnesota Chapter 84D on Harmful Exotic Species(360) is the one great exception to this overall picture. I review it in further detail below.
More generally, there is little in the way of legislative strategies - or mandates for agencies to develop strategies - for dealing with different vectors. Nowhere is there any legislation establishing the principle that "the polluter pays," through either liability or tax schemes. (Many of the fees, for licenses to import exotics, and penalties for violations of rules against importation or introduction, are miniscule in terms of both the required regulatory programs and the potential harm of introductions.) Some significant vectors of concern, such as baitfish and aquaria, have not really been addressed. And there are few provisions for interstate and binational coordination of programs in order to establish consistent policies and legally effective rules for the Great Lakes ecosystem as a whole.
A general survey of Canadian provincial wildlife acts recently conducted for the Canadian Wildlife Service came to similar conclusions. That report observed that "considerable variation occurs in the approach used to permit/deny species entry, the words used to mean native or non-native, definition of exotic, the range of prohibited species listed, and the degree of control exercised over the issue of alien species management; thus the approach across Canada at the provincial level is very inconsistent."(361)
Responsibility for protection of the ecosystem against invasion of exotics in the United States is typically assigned to a conservation agency, generally responsible for fisheries and other natural resources, such as a department or ministry of natural resources. That is usually not the same agency with primary responsibility for prevention of water pollution, such as a department of environmental protection, and is sometimes not the same agency responsible for support of aquaculture, usually a department of agriculture. The conservation agency responsible for the fisheries is typically the agency with responsibility for policing watercraft as well. But none of these agencies, or any other agencies at the state and provincial level, have undertaken regulation of commercial shipping. That has generally been deferred to the federal government.(362)
Again, it is much the same pattern on the northern side of the Great Lakes. Provincial responsibility for response to water pollution is generally the responsibility of the Ontario Ministry of the Environment,(363) fisheries are the responsibility of the Ontario Ministry of Natural Resources,(364) which does have authority over licensing of aquaculture(365) (as do some US state conservation agencies), and commercial shipping is generally the responsibility of the federal Department of Transport.(366)
Although there is a good foundation for regional coordination of policy in the form of existing organizations such as the Great Lakes Commission(367) and the Great Lakes Fishery Commission,(368) there is no recognition of the need to establish legally effective regional policies in state and provincial statutes on exotics. None of the statutes giving the conservation departments authority to control exotics provide that disapproval of a species by other jurisdictions in the region or a regional body is a basis for prohibition or regulation. None of the various statutory regimes even contemplate the idea of a regional green list.
To be clear, all of the Great Lakes states and the Province of Ontario have statutory provisions of one type or another providing some agency of the state with authority to control the introduction of fish or some larger set of aquatic organisms. No state or provincial executive branch (nor the executives in either of the two federal governments) are completely powerless to act. In general, however, that authority is incoherent, in the sense that legislative enactments in most states are unfocused. They do not reflect a clear legislative policy or a strong mandate for action.
These observations are not meant to disparage the good work of conservation officials throughout the region. To the contrary, I have been consistently impressed by the degree to which dedicated officials in all eleven jurisdictions have done their utmost to fill the breach with intelligent regulatory schemes, local agency policies, management plans, voluntary industry guidelines, and public education programs. They also work well together at the regional level in such forums as the Great Lakes Commission on Aquatic Nuisance Species, which is a model for regional coordination now being imitated by state officials around the country.
But it would be a fallacy of composition to assume that a collection of intelligent and well-focused individuals must necessarily amount to an intelligent and well-focused policy regime at the collective level of their government jurisdictions or the region. And it would do those individuals no favor to ignore the fact that they are plugging holes in dikes. They are running out of fingers. They are forced to frequently devote scarce resources to chasing after species already established in the ecosystem, fighting a rearguard action with few resources and only tentative political support from their legislatures. There is, in fact, only one jurisdiction in the region, Minnesota, which has legislated a comprehensive scheme specifically focused on exotics, which gives their enforcement agency a strong mandate for action. The rest of the agencies, including the several agencies of the two federal governments, are working with a patchwork of various authorities and with much less than a clear mandate for strong preventative action.
Minnesota. As noted above, Minnesota has a comprehensive regulatory scheme which is far more comprehensive than any other state statute on the subject in the region. The statute, Chapter 84D on Harmful Exotic Species, has wide coverage over all animals and plants, classifies exotics into specific categories and, theoretically, controls all introductions.(369) It provides an array of authorities, and expresses a strong mandate for positive action on the part of the Minnesota Department of Natural Resources. Just as important, the statute is implemented by detailed regulations in which the DNR fleshes out specific procedures for examining new species and the purposes for which they are to be used. This includes, for example, a requirement that those wishing to handle a prohibited species for special purposes provide "a written contingency plan for eradication or recapture in the event of an unauthorized introduction of the prohibited exotic species."(370) The statute also mandates the establishment of a comprehensive administrative program, including strategic planning, educational programs, and regional coordination.
An important feature of the Minnesota statute, notably absent from all other state and provincial statutes in the region, is a definite process for bringing new species to the attention of the conservation agency for classification and regulation. A person "may not introduce" an "unlisted species" without first notifying the Department of Natural Resources (DNR) and submitting it for classification as "prohibited," "regulated," or "unregulated."(371) The DNR has promulgated detailed regulations on the information which the applicant must provide, including such requirements as "scientific-based information about the ability of the unlisted exotic species to naturalize, displace native species, and harm natural resources or their use in similar climates and latitudes."(372) In general, the Minnesota listing criteria are environmentally protective. The criteria strengthen the power of the DNR because they put the exclusive emphasis on protection of the state ecosystem. The potential economic value of the proposed introduction is not a statutory criterion, although it will no doubt have weight regardless. The most important flaw is the lack of reference to any regional standards. In order to protect the Great Lakes as a whole, any individual state agency responsible for classifying species needs to be able to use a regional prohibition as an absolute trump. It may not be fair, however, to expect the Minnesota legislature to have made provision for a regional process which has yet to be created.
United States. The primary US federal conservation statute applicable to exotics is the Lacey Act, originally enacted in 1909, and administered by the US Fish and Wildlife Service (USFWS) in the US Department of the Interior. This act and its administration by the USFWS follows the general pattern, evident in many states, of very general statutory authority, without clear standards or strong mandates, accompanied by tentative implementation by the responsible agency.
Its terms are broad in scope. Part of the act, a section in the US Criminal Code, provides that "importation into the United States ... of the zebra mussel ... and such other species of wild mammals, wild birds, fish (including mollusks and crustacea), amphibians, reptiles, brown tree snakes, or the offspring or eggs of any of the foregoing which the Secretary of the Interior may prescribe by regulation to be injurious to human beings, to the interests of agriculture, horticulture, forestry, or to the wildlife or the wildlife resources of the United States, is hereby prohibited."(373) Under this provision, the Department of the Interior has authority to prohibit a wide variety of aquatic organisms from being imported into the United States, although the terms of this statute do not extend to plants or microbes. (A long list of other provisions in the US Code gives the Animal and Plant Health Inspection Service (APHIS) in the US Department of Agriculture authority to control the importation of various plants, insects, parasites, and animal pathogens.(374)) Does this part of the Lacey Act authorize the USFWS to prohibit the importation of any exotic not otherwise authorized - thereby creating a regulatory "clean list" or "green list" of approved species? Given the documented damages done by exotics and the substantial nature of the threat of future invasions, it would seem that there is a reasonable basis for categorizing all new imports as presumed "injurious" until otherwise proven.
Other parts of the Lacey Act contained in Title 16 of the US Code on Conservation make it illegal "to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce .. any fish or wildlife taken, possessed, transported or sold in violation of any law or regulation of any State or in violation of any foreign law, or ... any plant ..."(375) This "piggyback provision," putting the weight of the US federal government behind the conservation statutes of the states, has been viewed by the Department of Interior and the Fish and Wildlife Service as the primary mandate of the Lacey Act.
Although there seems to be statutory authority to set nationwide regulatory standards for importation of exotic fish and wildlife under the provision in Title 18, DOI and USFWS have shied away from any such program by long-standing policy.(376) In the words of one USFWS official, "the federal government's responsibilities are to support state or foreign regulations when such regulations are violated. Regulations that control the introduction of fish into the open waters of the United States are each state's responsibility."(377) It is not clear how this is reconciled with the President's executive orders on exotics, issued in 1997 and 1999, which directed federal agencies to take action to restrict introduction within the limits of their authority.(378) The Secretary of the Interior recently commented on the obvious need for a national "green list," but asserted that the DOI maintained only a "red list" of species already proven to be harmful because that was the only thing authorized by the federal statutes.(379)
Canada. The primary conservation statute is the (Canadian) Fisheries Act.(380) The act is enforced at the federal level by both Environment Canada and the Department of Fisheries and Oceans (DFO), now including the Canadian Coast Guard (which does not, however, have general law enforcement authority), and also by the provincial ministries of natural resources. The Fisheries Act says very little about exotic species in so many terms, but gives the government broad authority to issue regulations "respecting the conservation and protection of fish" and the "transporting, possession and disposal of fish."(381) More specific provisions in the Ontario Fishery Regulations,(382) issued under the Fisheries Act, provide authority for controls on exotics at the provincial level.
As in the US, there is sharing of authority between the federal and provincial governments. Theoretically, the federal government has exclusive power to "regulate" fisheries,(383) but the provinces have a "proprietary" interest in the protection of the fisheries as a natural resource, and the federal government has deputized the provincial ministries to carry out much of the Fisheries Act, particularly with regard to the freshwater fisheries of the Great Lakes. (As a matter of practical policy, it is analogous to the deference of the US Fish and Wildlife Service to the US states.) The Canada-Ontario Agreement of 1994(384) provides for sharing of responsibilities for exotics within the context of Lakewide Management Plans under the Great Lakes Water Quality Agreement of 1978/1987. Both governments have committed to develop and implement "joint federal and provincial plans to control the introduction of undesirable species and mitigate the negative impacts of non-indigenous nuisance species, such as zebra mussels and ruffe. The federal government will continue the control program on sea lamprey."(385)