Aquatic invasive species in the coastal west: an analysis of state regulation within a federal framework.

AuthorNadol, Viki
  1. INTRODUCTION

    An invasive species is a normative species(1) introduced, whether accidentally or intentionally, into a new ecosystem.(2) An aquatic invasive species (AIS), as defined by the Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA),(3) is a nonnative species that threatens the diversity or plenitude of native marine species, threatens the ecological stability of infested waters, or threatens the ability of infested waters to support agricultural, aquacultural, commercial, or recreational activities.(4) The West Coast of the United States is an area where AIS have taken hold and run roughshod over native plants and animals, invading habitat and aggressively competing for limited food supplies.(5) In fact, in some westcoast waters, AIS completely dominate existing ecosystems. For example, San Francisco Bay currently has over 234 AIS, constituting by weight up to 99% of its total marine life(6) and causing the extinction of many native species.(7) In addition to environmental losses, AIS cause significant economic losses throughout the United States and the coastal West. One conservative estimate places cumulative national economic losses due to AIS at over $1.2 billion,(8) while another places average annual losses alone at about $122 billion.(9)

    To combat mounting environmental and economic losses, Congress enacted several pieces of legislation to regulate invasive species generally and AIS specifically. These statutes include the Lacey Act(10) and NANPCA. Most recently and significantly, Congress enacted the National Invasive Species Act (NISA),(11) which amended NANPCA. For three significant reasons, none of these laws adequately regulate AIS.(12) First, the current legislation is a product of a limited legislative agenda in which Congress sought regulation of AIS to curb impacts only on agricultural interests, rather than on the environment as a whole.(13) Second, the federal scheme regulating AIS rests largely on voluntary compliance.(14) Finally, the federal scheme addresses only one AIS introduction vector,(15) that of ballast water discharge,(16) and ultimately falls to consider other known introduction vectors.

    Because current federal law does not comprehensively address AIS, state regulation must be considered as an alternative means of AIS management.(17) Arguably, states are better able to regulate AIS introduction and establishment than federal agencies for several reasons. To begin, the great diversity of AIS would be easier to monitor at the local level.(18) Also, the variety of introduction vectors would be simpler to manage at the state level.(19) Finally, states have firsthand knowledge of what is actually happening in their waters with respect to prevention of AIS introduction and eradication of already established AIS. On the other hand, there are obstacles to state regulation of AIS, such as Commerce Clause objections, federal preemption arguments, and implementation inconsistencies.(20) Consequently, state law regulation of AIS would be best accomplished with specific federal guidance and empowerment.

    The purpose of this Article is to explore state law as a means of regulating AIS within a larger federal law framework. Because western coastal states provide an interesting sampling of AIS problems and statutory responses to those problems, this Article uses the state laws of California, Oregon, Washington, and Alaska as a basis for studying the relationship between state and federal law. Part II examines the introduction, establishment, and impact of AIS in the marine environments of the coastal West. Part III presents a two-fold analysis: 1) It assesses the effectiveness of current federal law in regulating AIS and highlights deficiencies in the federal scheme, and 2) it discusses the constitutional limitations on state AIS regulation, specifically examining constraints imposed by the Commerce and Supremacy Clauses. Part IV analyzes the shortcomings of existing AIS laws in California, Oregon, Washington, and Alaska and discusses the general need for more uniform state AIS regulation. Part V suggests how Congress should amend the existing federal statutory framework to allow not only increased, but also cohesive state involvement in AIS regulation. Part VI concludes that any effective, comprehensive state A/S regulation must be shaped by federal guidance and federally imposed minimum thresholds for state programs.

  2. AN ANALYSIS OF AQUATIC INVASIVE SPECIES IN THE COASTAL WEST

    The threat of invasion by normative species has always existed. It is arguably a natural process that should be allowed to continue unheeded.(21) The problem with this theory is that it falls to take into account the rate at which humans are responsible for accelerating the pace of successful introductions, as compared to those that would occur naturally.(22) The last five hundred years or so demarcate an era of human expansion that has resulted in the increasingly rapid disruption and weakening of Earth's ecosystems.(23) The fragile condition of these systems renders them vulnerable to the establishment of invasive species.(24) In addition, rates of introduction have escalated with the advent of new modes of conveyance by trade and travel.(25) Airplanes, boats, and automobiles provide sufficiently quick and spacious travel, facilitating entry of a number of invasive species into habitat zones otherwise out of reach.(26)

    In the late 1950s, Charles Elton, a renowned British ecologist, warned that modern society was witnessing great historical dislocations of the world's fauna and flora.(27) Indeed, the scope of invasion is alarming, as are its effects.(28) Over 4500 invasive species are now established in the United States.(29) These species greatly threaten biological diversity(30) because they are often able to out-compete and displace native organisms,(31) As would be expected, they also add to the stress already suffered by endangered and threatened native species,(32) One study indicates that invasive species are second only to habitat destruction among the leading causes of species loss nationwide.(33) However, some experts fear that invasive species ultimately will contribute to the demise of the human population by destroying natural processes and ecosystems necessary to human survival.(34)

    Whether invasive species will eventually lead to human extinction or not, the current problems posed by the influx of invasive species are pressing. The United States, reflecting the global trend,(35) has witnessed an increase in the number of invasive species living within its borders during the last two hundred years.(36) This increase has been in both terrestrial and aquatic realms.(37) For example, the number of established invasive plant species, estimated at close to one hundred in 1790, grew to roughly two thousand by 1990.(38) Similarly, invasive mollusk(39) and fish species have increased dramatically in the last two hundred years.(40) In 1790, two invasive mollusk species were established in the United States, but by 1990 that number had risen to about ninety-one.(41) Likewise, established invasive fish species, numbered at about two in 1790, had increased to close to seventy by 1990.(42)

    One way of controlling AIS establishment is by regulating known introductory vectors of AIS. Indeed, prevention of new introductions is arguably the best line of defense against AIS.(43) Therefore, it is essential to identify methods of introduction. An understanding of how AIS have been introduced in the coastal West is necessary to the development of any comprehensive state regulatory scheme.

    1. AIS Introductions in the Coastal West

      California, Oregon, Washington, and Alaska host a variety of AIS.(44) AIS are introduced through various vectors.(45) Some are intentionally introduced, while others are accidentally introduced.

      1. Intentional Introductions of AIS in the Coastal West

        AIS are intentionally introduced in a number of ways in the coastal West. First, state agencies, such as fish and game departments, deliberately introduce AIS for recreational purposes.(46) For example, in Washington, state officials intentionally introduced a number of freshwater fish, including bluegill, yellow perch, largemouth bass, and green sunfish, to enhance recreational fishing opportunities.(47) In addition to intentional release for recreational purposes, state agencies introduce commercial AIS to create new aquaculture industries.(48) To illustrate, the Pacific oyster, a species that was imported from Japan, is now harvested in bays from Washington to California.(49) Finally, state agencies in the coastal West intentionally introduce some AIS in order to use them for biological pest control purposes.(50)

        Other parties are also responsible for the intentional introduction of AIS. The federal government has not only purposefully released AIS, it also funded the deliberate release of AIS throughout the country, including the coastal West.(51) The U.S. Fish and Wildlife Service (FWS) has varied, and often conflicting, duties.(52) On the one hand, it has a duty to prevent the introduction and spread of injurious AIS, in part to safeguard threatened and endangered species.(53) But it also has a responsibility to promote recreational hunting, fishing, and aquaculture involving the introduction and establishment of AIS.(54) In its administration of the Federal Aid Program, the FWS has been responsible for the introduction of numerous invasive species, something for which it has often been condemned.(55)

        Similarly, private individuals have been responsible for the deliberate introduction of AIS in the coastal West.(56) Some species are introduced for economic purposes to create new fisheries or trades.(57) For example, Alaska residents who visit the lower forty-eight states return to Alaska with various AIS, such as oysters, and release them off of their piers with the intent to grow and eventually harvest...

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