Summary of Federal Laws Relevant to Invasive Species
The USDA’s authority to regulate the importation and interstate movement of invasive animal species derives from several statutes collectively referred to as the animal quarantine laws. These laws authorize USDA to promulgate regulations and take measures to prevent the introduction and dissemination of communicable diseases and pests of livestock and poultry. The animal quarantine laws also authorize USDA to regulate the importation and interstate movement of all members of the animal kingdom, domestic and wild, except humans, for the purpose of regulating communicable diseases and pests of livestock and poultry. The fact that a disease or pest primarily affects animals other than livestock and poultry does not limit USDA’s authority to regulate a species, as long as it carries a communicable disease or pest of livestock or poultry.
Under these laws, USDA is authorized to seize, quarantine, and dispose of animals, animal products, or other material that can harbor disease or pests of livestock or poultry that are moving or are being handled, or have moved or have been handled, in interstate or foreign commerce if they are infected with or exposed to a communicable disease of livestock or poultry, or if the animals are moved contrary to any of the animal quarantine laws. In addition, when a state is unable or unwilling to take the necessary action to prevent the dissemination of a communicable disease of livestock or poultry, the USDA has the authority to declare an extraordinary emergency and take the actions described in this paragraph within a state (i.e., whenever interstate movement is not involved).
The animal quarantine laws authorize USDA to cooperate with states in the control and eradication of diseases and pests of livestock and poultry. There is some specific research authority in the animal quarantine laws, but that authority is focused on certain animal diseases and pests such as foot-and-mouth disease and cattle grubs.
The animal quarantine laws do not cover situations involving diseases and pests that are not communicable diseases and pests of livestock or poultry. For example, they do not cover genetic disorders, exposure to radiation in nuclear accidents, or chemical residues. Further, they do not cover situations in which the method of transmission is not clearly communicable. Also, they do not cover progeny of illegally imported animals unless they have or have been exposed to a communicable disease of livestock or poultry or they have been moved in violation of regulations. In the early stages of an outbreak, it may be difficult to make such a finding.
Thus, there is no authority for USDA to enter any premises to ascertain whether or not a communicable disease is present without probable cause to believe that it is present. Currently, USDA must rely on the voluntary permission of the owner or custodian of the animals to conduct tests or state authority to require that such tests be conducted to determine the presence or absence of infection or exposure.
This Act is the primary federal law that protects U.S. waters, including lakes, rivers, aquifers, and coastal areas (33 U.S.C. §1251(a)). It provides a comprehensive framework of standards, technical tools and financial assistance to address the many causes of pollution and poor water quality, including municipal and industrial wastewater discharges, polluted runoff from urban and rural areas, and habitat destruction. Among other things, the Act protects wetlands and other aquatic habitats through a permitting process that ensures development and other activities are conducted in an environmentally sound manner (33 U.S.C. §1322).
The Coastal Zone Management Act (CZMA) is another avenue by which invasive species can be controlled and managed. Under the CZMA, the federal and state governments work together to “preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations” (16 U.S.C. §1452(1)). Specifically, the federal government is to encourage and assist the states to achieve “wise use” of land and water resources in the coastal zone (id. §1454(2)). Invasive species issues can be incorporated into State Coastal Zone Management Plans through modification or amendment, subject to the approval of the Department of Commerce (DOC) (id. §1455(e)). Section 1555a(b) allows the DOC to make grants to eligible costal states to assist them in preserving or restoring specific areas, redevelopment of deteriorating and underused urban waterfronts and ports, access to public beaches or development of a permit process to regulate aquaculture facilities in the coastal zone. In addition, the Act establishes the National Estuarine Research Reserve System (id. §1461(c)). Under this program, monitoring and other invasive species research could be sponsored.
Under cooperative authorities, the Secretary of Agriculture may assist other federal, state, and private entities in controlling and managing invasive species on other federal lands and non-federal lands. The Secretary’s primary cooperative authority for invasive species is section 8 of the Cooperative Forestry Assistance Act of 1978 (16 U.S.C. §2104). Section 8(b) authorizes the Secretary of Agriculture to conduct activities and provide technical assistance relating to insect infestations and disease conditions affecting trees on National Forest System lands, on other federal lands (in cooperation with other federal departments) and on non-federal lands (in cooperation with state officials, other entities, or individuals). These activities include in part: conducting surveys to detect and appraise insect infestation and disease conditions, determining biological, chemical, and mechanical measures necessary to prevent, retard, control or suppress incipient, potential, threatening, or emergency insect infestations and disease conditions affecting trees and providing technical assistance to maintain healthy forests and manage the use of pesticides (id. §2104(b)). Section 8(g) of the Act also authorizes the Secretary to provide financial assistance through the Forest Service to state entities and private forestry or other organizations to monitor forest health and protect forest lands. The Act gives the USDA authority to provide support for good forest management practices, including financial assistance to maintain health timber ecosystem to prevent incursion of invasive species on privately owned non-industrial forest lands.
Section 8 of the Act applies only to insect infestations and disease conditions affecting trees. The Act does not contain similar authority for insect infestations and disease conditions not affecting trees or for invasive plants. Section 4 of the Act provides support for good forest management practices on privately owned non-industrial forestlands.
The Endangered Species Act (ESA) is jointly administered by the Secretaries of Interior and Commerce and contains provisions regulating import and export of listed species. However, other provisions of the ESA, relating as to how invasive species may negatively affect a listed species are probably more significant and can provide powerful management tools. Section 7 of the ESA requires any federal agency to ensure that any action authorized, funded, or carried out by the agency not jeopardize the continued existence of any endangered or threatened species or adversely modify any critical habitat of such species (16 U.S.C. §1536(a)(2). Thus, each federal agency must consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, depending on the species, for any action that may affect a listed species. If the action is not likely to adversely affect a listed species, the appropriate Service issues a Biological Opinion, which may authorize take that is incidental to the action or, if the federal action would otherwise jeopardize the continued existence of the species, offer alternatives to the federal action that will avoid such jeopardy (id. §1536(b)).
Any take of an endangered or threatened fish species unless otherwise authorized is unlawful under the statute (id. §1538). Thus, a federal agency will be held responsible for any unauthorized take directly or indirectly caused by the authorization, funding, or other federal action associated with invasive species.
The ESA treats threatened or endangered plants somewhat differently from federally listed animals. Section 9 prohibitions on take do not apply to plants, (id. §1538(a)(2)), but cautions can be provided in a Biological Opinion on prohibitions against removal or disturbance of plants. Thus, a federal agency will be held responsible for prohibited acts affecting both animal and plants that result from authorization, funding, or other federal action associated with invasive species. Section 7 consultation requirements apply, however, only to federal action.
The primary focus of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is to provide federal control of pesticide distribution, sale, and use. The EPA has authority under FIFRA not only to study the consequences of pesticide usage but also to require users (farmers, utility companies, and others) to register when purchasing pesticides. Through later amendments to the law, users also must take exams for certification as pesticide applicators. All pesticides used in the U.S. must be registered (licensed) by EPA. Registration assures that pesticides will be properly labeled and that if used in accordance with specifications will not cause unreasonable harm to the environment. FIFRA is critical whenever pesticides are used to control or reduce the impact of invasive species. Examples include the use of a pesticide to control lamprey populations in the Great Lakes and the use of herbicides to control noxious weeds. FIFRA also gives EPA review authority for biological control agents when they are used to control invasive pests.
The Federal Noxious Weed Act (FNWA) has been replaced by the Plant Protection Act, 7 U.S.C. §7701 et seq., except for Section 2814. This section requires each federal agency to manage plant species that are classified as “undesirable, noxious, harmful, exotic, injurious, or poisonous” (7 U.S.C. §2814(e)(7)) on federal lands. They are to develop and coordinate a management program to control such plants on federal land and to enter into cooperative agreements with state agencies to implement their management plants. However, a federal agency is not required to carry out a management plan on federal lands unless similar programs are being implemented on state or private lands in the same area.
The Federal Noxious Weed Act (FNWA) has been replaced by the Plant Protection Act, 7 U.S.C. §7701 et seq., except for Section 2814. This section requires each federal agency to manage plant species that are classified as “undesirable, noxious, harmful, exotic, injurious, or poisonous” (7 U.S.C. §2814(e)(7)) on federal lands. They are to develop and coordinate a management program to control such plants on federal land and to enter into cooperative agreements with state agencies to implement their management plants. However, a federal agency is not required to carry out a management plan on federal lands unless similar programs are being implemented on state or private lands in the same area.
The FSA allows interstate movement of agricultural seed containing noxious weed seeds if the shipment is accurately labeled as to the kinds of noxious weed seeds present and their rate of occurrence (7 U.S.C. §201). The rate of noxious weed seeds in an interstate shipment of agricultural seeds is not allowed to exceed the rate for shipment, movement, or sale in the state in which the seed is offered for transportation or transported, or in accordance with regulations issued by USDA. USDA has promulgated regulations setting tolerances for the nine noxious weeds specifically listed in the FSA in shipments of agricultural or vegetative seeds in interstate commerce.
The FSA also requires shipments of imported agricultural and vegetable seeds to be labeled correctly and to be tested for the presence of certain noxious weeds as a condition of entry into the U.S (id. §301). As is the case with the interstate movement of seeds, tolerances have been established for the seeds of nine specifically listed noxious weeds in imported seed.
One of the purposes of the Fish and Wildlife Coordination Act (FWCA) is to give wildlife conservation equal consideration and coordination with other features of water resource development programs “through the effectual and harmonious planning, development, maintenance, and coordination of wildlife conservation and rehabilitation. . . (16 U.S.C. §661). The FWCA requires the Department of Interior to provide assistance to, and cooperate with, federal, state, and public or private agencies and organizations to control, manage, and protect wildlife resources (id. §661(1)).
This Act authorizes the National Marine Fisheries Service to review development projects proposed or licensed by federal agencies and to make recommendations. It also makes funds available through grants and cooperative agreements that could encompass invasive species projects (id. §663).
Section 3 of the Hawaii Tropical Forest Recovery Act (16 U.S.C. §4502(a)) authorizes the USDA’s Forest Service to protect indigenous plants and animals from invasions, establish biological control agents for invasive species that threaten natural ecosystems, establish monitoring systems to identify baseline conditions and determine detrimental changes or improvements over time, and provide assistance to states with tropical forests (id. 4501a).
Under Section 602(b) of the International Forestry Cooperation Act (16 U.S.C. §4501(b)), the Secretary may, in support of forestry and related natural resource activities outside the United States and its territories and possessions, provide assistance for the prevention and control of insects, diseases, and other damaging agents.
Under these authorities, the USDA’s Forest Service delivers research and development products for vegetation management and protection; wildlife, fish, water and air sciences; resource valuation and use; and inventory and monitoring. The Forest Service Research & Development program addresses all aspects of that agency’s invasive species program activities. The Forest Service’s research authorities provide for the Service to conduct prevention, rapid response, control, and management activities related to invasive species and to restore areas affected by invasive species.
Lacey Act (18 U.S.C. §42 et seq.)
The Lacey Act, administered by the USFWS, prohibits importation into the U.S. or any U.S. territory or possession and shipment between the continental U.S., the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, and any possession of the U.S. of certain categories of animal species determined to be “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)). Wildlife and wildlife resources are defined broadly to include all wild animals and “all types of aquatic and land vegetation upon which such wildlife resources are dependent” (id.). The statute gives the USFWS the authority to export or destroy any injurious species at the expense of the importer, although permits may be issued to allow importation of otherwise injurious species for specific purposes (id §42(a)(3)). Regulations listing species found to be injurious under the Lacey Act are in 50 C.F.R. Part 16.
Several restrictions within the Lacey Act, however, limit its ability to comprehensively address invasive species introductions. First, the Act is limited to animals. In fact, the statute does not apply to all animals, but only those specifically listed along with mammals, birds, fish, amphibians, reptiles, mollusks, and crustaceans generally. In addition, the statute only applies to “wild” birds and mammals; presumably any species that has been domesticated could not be regulated. The statute also excludes restrictions on any species that is regulated under the Plant Pest Act, explicitly stating that Section 42 does not authorize “any action with respect to the importation of any plant pest as defined in the Federal Plant Pest Act, insofar as such importation is subject to regulation under that Act.” Thus any animal species whose importation is regulated under the Plant Pest Act cannot be regulated under the Lacey Act.
A separate provision known as the “other” Lacey Act also has implications for regulating introductions of invasive species. This law, administered by the Secretaries of the Interior, Commerce, and Agriculture, generally makes it unlawful for any person to import, export, transport, sell, receive, acquire, or purchase (or attempt to commit any such act) in interstate or foreign commerce any fish, wildlife, or plant taken, possessed, transported, or sold in violation of any federal, tribal, state, or foreign law (16 U.S.C. §3372(a)(1)(2)(4)). Thus, while the statute does not substantively grant authority to regulate the importation, transportation, exportation, or possession of any species, violation of another federal, state, tribal, or foreign law governing these activities would become a violation of federal law and subject to particular civil and criminal penalties. The Secretaries of the Interior and Commerce have the authority to enforce laws involving fish and wildlife, while the Secretary of Agriculture has the authority to enforce laws involving plants.
This statute also has restrictions, however, that limits its effectiveness to address invasive species introductions. As with 18 U.S.C. §42, the definition of fish or wildlife limits its application to “wild” animals. In addition, while the definition of fish or wildlife is broad (“any wild animal, whether alive or dead, including without limitation any wild mammal, bird, reptile, amphibian, fish, mollusk . . . or other invertebrate” (id. §3371(a)), the definition of plant is limited to “any wild member of the plant kingdom . . . which is indigenous to any state and which is either (A) listed on an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or (B) listed pursuant to any State law . . . .” (id. §3371(f)). Thus plants covered by the act are limited to those indigenous to the United States and listed under CITES or a state endangered species law; all other plants are not covered.
Essential fish habitat provisions of this Act (16 U.S.C. §1855) provide for review of federal and/or other actions that could affect essential fish habitat with authority to make recommendations necessary to conserve essential fish habitat. Specifically, the DOC, in consultation with participants in the fishery, must provide each Fishery Management Council with recommendations and information regarding each fishery under that council’s authority (id. §1855(b)(1)(B)). The purpose is to assist the Councils in identification of essential fish habitat (EFH), the adverse impacts on that habitat, and the actions that should be considered to ensure the conservation and enhancement of that habitat. Also, the DOC must review programs it administers and ensure that any relevant programs further the conservation and enhancement of EFH (id. §1855(b)(1)(C)). Finally, the DOC must coordinate with and provide information to other Federal agencies to further the conservation and enhancement of EFH (id. §1855(b)(1)(D)).
USDA manages National Forests for multiple uses under the Multiple-Use Sustained-Yield Act (MUSY). The policy behind the MUSY is that the “the national forests are established and shall be administered for outdoor recreations, range, timber, watershed, and wildlife and fish purposes” (16 U.S.C. §528). The MUSY authorizes the USDA to develop and administer renewable surface resources of the national forests and to cooperate with interested state and local government agencies and others in the development and management of national forests (id. §529). Therefore, the MUSY may be a possible source of authority if invasive species threaten the vitality of national forests and their ability to produce a sustained yield of products and services under the principles of multiple use.
Compliance with the National Environmental Policy Act (NEPA) can serve to identify actions that are likely to affect invasive species or be affected by them. The rationale behind the NEPA process – that agencies should be fully informed of the consequences of their actions before making a decision – is especially important when dealing with an issue like invasive species, where problems are often unanticipated side effects of otherwise desirable actions. Analysis and interagency, intergovernmental, and public review and comment that identify potential problems with invasive species for a particular proposed action may also yield ideas for alternative methods of approaching an issue or other forms of mitigation.
Agencies also need to comply with NEPA for actions that are proposed to respond quickly to invasive species management. In some cases, agencies may chose to prepare programmatic analyses on particular methodologies for addressing either the prevention or control of invasive species. In emergency situations that call for an immediate response by an agency that would normally require preparation of an environmental impact statement, the agency can work out alternative arrangements to their normal NEPA procedures with the Council of Environmental Quality.
Congress has required that the USDA develop and maintain forests plans for each administrative unit of the National Forest System (16 U.S.C. §1604(f)). However, site-specific management decisions must be consistent with the relevant forest plan for that site, or the plan itself must be amended to permit the activity (id. §1604(i)). Moreover, each plan must be consistent with the NEPA, the Multiple-Use and Sustained-Yield Act, and other federal environmental laws (id. §1604(e), (g)(1)). Since forest management is specific to each area, management may relate to invasive species as they become an issue in particular national forest areas.
The National Invasive Species Act (NISA) reauthorized and amended the Non-Indigenous Aquatic Nuisance Prevention and Control Act. The focus of NISA is on the spread of aquatic nuisance species through ballast water releases. NISA created a national Task Force co-chaired by the Director of the USFWS and the Undersecretary of Commerce for Oceans and Atmosphere (16 U.S.C. §4721(a)). This Task Force was charged with developing and implementing a program to prevent the unintentional introduction and dispersal of aquatic nuisance species through ballast water management (id. §4722(a)).
NISA requires the development of voluntary national guidelines to prevent the introduction and spread of nonindigenous species into U.S. waters via ballast water of commercial vessels (id. §4711). The guidelines apply to vessels equipped with ballast water tanks and direct vessels that enter U.S. waters after operating beyond the Exclusive Economic Zone (EEZ) to undertake ballast exchange in the seas. The Secretary is also required to establish record keeping and reporting procedures and sampling techniques, based on the best available science, to monitor compliance (id. §4711(2)(F)(i), (G), and (I)). However, a vessel is not required to conduct ballast water exchange if the exchange would threaten the safety or stability of the vessel, its crew, or its passengers (id. §4711(c)(2)).
Furthermore, the Secretary and Task Force are required to conduct ecological and ballast discharge studies and surveys in waters highly susceptible to invasion or requiring further study (id. §4712(a)). The purpose of conducting these surveys is to examine invasions and the effectiveness of ballast management and its guidelines.
States, through their respective Governors, may submit their own comprehensive management plans to the Task Force for approval (id. §4724). These management plans identify areas or activities within each state or the surrounding region, except for those related to public facilities, for technical, enforcement, or financial assistance (or any combination thereof) to reduce or eliminate the risks associated with aquatic nuisance species.
NISA promotes research on species that fall under the definition “aquatic nuisance species” through competitive research grants, educational programs, and technical assistance to state and local governments and persons (id. §4722(f)). Such research may include the environmental and economic risks associated with the introduction of such species, the pathways by which such species and introduced and dispersed, possible methods for prevention, monitoring, and control, and assessment of the effectiveness of such methods.
The National Marine Sanctuary Act (NMSA) established the National Marine Sanctuary System, the purpose of which is to “improve the conservation, understanding, management, and wise and sustainable use of marine resources, enhance public awareness, understanding, and appreciation of the marine environment, and maintain for future generations the habitat and ecological services of the natural assemblages of living resources that inhabit these areas” (16 U.S.C. §1431(a)(4)).
The Act requires the Department of Commerce to take actions to promote and coordinate the use of sanctuaries for research, monitoring, and education (id. §1440). In addition, the DOC may issue special use permits for specific activities, if necessary, to “establish conditions of access and use of any sanctuary resources or to promote public use and understanding of a sanctuary resource (id. §1441(a)). The DOC may enter into cooperative agreements, contracts, or other agreements with states, local governments, regional agencies, interstate agencies, or other persons in order to carry out the purposes and policies of the Act (id. §1442(a)).
Grant and contract funds are available for research, monitoring, and education for conservation and management activities (id. §1440(b)(1)). Such purposes could include control and management of any invasive species that is or may be in the future in a particular Sanctuary.
Under NMSA, it is unlawful for any person to “destroy, cause the loss, or injure any sanctuary resource managed under law or regulations for the sanctuary (id. §1436(I)). Therefore, regulations for particular Sanctuaries could prohibit the introduction of invasive species into the Sanctuaries. For example, the management plan for the Florida Keys National Marine Sanctuary prohibits introduction of exotic species into the Sanctuary.
The Plant Protection Act (PPA) authorizes the USDA to prohibit or restrict the importation or interstate movement of any plant, plant product, biological control organism, noxious weed, article, or means of conveyance if the Secretary of Agriculture determines that the prohibition or restriction is necessary to prevent the introduction into the U.S., or the dissemination within the U.S., of a plant pest or noxious weed (7 U.S.C. §411(a)).
The movement of plants, plant products, biological control organisms, noxious weeds, articles, and means of conveyance are also regulated (id. §412). The USDA may prohibit or restrict the importation, entry, exportation, or movement of the aforementioned in interstate commerce if it determines that prohibition or restriction is necessary to prevent the introduction into the U.S. or the dissemination of a plant pest or noxious weed within the U.S. (id.). The USDA may also publish, by regulation, a list of noxious weeds that are prohibited or restricted in interstate commerce (id. §12(f)(1)).
The PPA specifically authorizes USDA to hold, seize, quarantine, treat, apply other remedial measures to destroy or otherwise dispose of any plant, plant pest, noxious weed, biological control organism, plant product, article or means of conveyance that is moving (or has moved) into or through the U.S. or interstate, if USDA considers it necessary in order to prevent the dissemination of a plant pest or noxious weed that is new to or not known to be widely prevalent or distributed