[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THE DEPARTMENT OF THE INTERIOR'S PROPOSAL TO USE A CATEGORICAL
EXCLUSION UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) FOR
ADDING SPECIES TO THE LACEY ACT'S LIST OF INJURIOUS WILDLIFE
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OVERSIGHT HEARING
before the
SUBCOMMITTEE ON FISHERIES, WILDLIFE,
OCEANS AND INSULAR AFFAIRS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
Friday, September 20, 2013
__________
Serial No. 113-44
__________
Printed for the use of the Committee on Natural Resources
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Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
__________
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Raul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Cardenas, CA
Paul A. Gosar, AZ Steven A. Horsford, NV
Raul R. Labrador, ID Jared Huffman, CA
Steve Southerland, II, FL Raul Ruiz, CA
Bill Flores, TX Carol Shea-Porter, NH
Jon Runyan, NJ Alan S. Lowenthal, CA
Mark E. Amodei, NV Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Chris Stewart, UT Vacancy
Steve Daines, MT
Kevin Cramer, ND
Doug LaMalfa, CA
Jason T. Smith, MO
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Penny Dodge, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
SUBCOMMITTEE ON FISHERIES, WILDLIFE, OCEANS
AND INSULAR AFFAIRS
JOHN FLEMING, LA, Chairman
GREGORIO KILILI CAMACHO SABLAN, CNMI, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Robert J. Wittman, VA Frank Pallone, Jr., NJ
Glenn Thompson, PA Madeleine Z. Bordallo, GU
Jeff Duncan, SC Pedro R. Pierluisi, PR
Steve Southerland, II, FL Carol Shea-Porter, NH
Bill Flores, TX Alan S. Lowenthal, CA
Jon Runyan, NJ Joe Garcia, FL
Jason T. Smith, MO Vacancy
Doc Hastings, WA, ex officio Peter A. DeFazio, OR, ex officio
------
CONTENTS
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Page
Hearing held on Friday, September 20, 2013....................... 1
Statement of Members:
DeFazio, Hon. Peter A., a Representative in Congress from the
State of Oregon............................................ 10
Fleming, Hon. John, a Representative in Congress from the
State of Louisiana......................................... 1
Questions submitted to U.S. Fish and Wildlife Service for
the record............................................. 49
Sablan, Hon. Gregorio Kilili Camacho, a Delegate in Congress
from the Territory of the Northern Mariana Islands......... 2
Statement of Witnesses:
Gehan, Shaun M., Attorney, Kelley Drye & Warren, Representing
U.S. Association of Reptile Keepers........................ 25
Prepared statement of.................................... 27
Hoskins, David, Assistant Director, Fish and Aquatic
Conservation, U.S. Fish and Wildlife Service............... 12
Prepared statement of.................................... 13
Jenkins, Peter, Executive Director, Center for Invasive
Species Prevention......................................... 17
Prepared statement of.................................... 19
Maddy, Jim, President and CEO, Association of Zoos and
Aquariums.................................................. 21
Prepared statement of.................................... 23
Meyers, Marshall, Senior Advisor, Pet Industry Joint Advisory
Council.................................................... 32
Prepared statement of.................................... 33
Additional Materials Submitted for the Record:
Fleming, John and members of the Committee on Natural
Resources, Letter to Fish and Wildlife Service submitted
for the record............................................. 47
Gould, Rowan W., U.S. Department of the Interior, Fish and
Wildlife Service, Response letter submitted for the record. 47
Imperial Irrigation District, Imperial, CA, Letter submitted
for the record............................................. 53
Journal of Biological Invasions, November 29, 2012, ``Genetic
Analysis of a Novel Invasion of Puerto Rico by an Exotic
Constricting Snake'', Article submitted by Delegate Sablan. 4
List of material retained in Committee's official files...... 63
North Texas Municipal Water District, Wylie, TX, Prepared
statement of............................................... 54
U.S. Fish and Wildlife Service, Memorandum of Understanding.. 56
Western Coalition of Arid States (WESTCAS), Washington, DC,
Prepared statement of...................................... 61
OVERSIGHT HEARING ON THE DEPARTMENT OF THE INTERIOR'S PROPOSAL TO USE A
CATEGORICAL EXCLUSION UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT
(NEPA) FOR ADDING SPECIES TO THE LACEY ACT'S LIST OF INJURIOUS WILDLIFE
----------
Friday, September 20, 2013
U.S. House of Representatives
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to notice, at 10:07 a.m., in
room 1324, Longworth House Office Building, Hon. John Fleming
[Chairman of the Subcommittee] presiding.
Present: Representatives Fleming, Sablan, Shea-Porter,
Garcia, and DeFazio.
Dr. Fleming. The subcommittee will come to order. The
Chairman notes the presence of a quorum.
Good morning.
STATEMENT OF THE HON. JOHN FLEMING, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF LOUISIANA
Dr. Fleming. On July 1, 2013 the Department of the Interior
proposed a categorical exclusion for the listing of injurious
wildlife by the U.S. Fish and Wildlife Service. Three weeks
later, I, along with my distinguished committee colleagues Rob
Bishop, Don Young, and Steve Southerland, asked the Director of
the Service to withdraw the proposed rule.
On September 10 we received a response to that letter,
indicating that the public comment period would be extended
until October 15, and that the proposed exemption would affect
only one small part of a complex regulatory procedure.
This begs the question as to why, 43 years after the
enactment of the National Environmental Policy Act, NEPA, this
change is suddenly necessary. Before examining the new
categorical exclusion, it may be useful to review the history
of the injurious wildlife program. To date, the Service has
added 236 species of birds, crustaceans, fish, mammal, and
reptiles to the list that prohibits their importation and
interstate trade.
Since 1970, more than 40 species have been reviewed under
NEPA. And on two occasions the Service did utilize a Department
of the Interior categorical exclusion, which meant that there
was no scoping process, discussion of environmental
alternatives, public hearings, economic analysis, or a record
decision on those two petitions.
In the Federal Register notice, the summary section states
that the goal of the new categorical exclusion is ``making the
NEPA process for listing injurious species more efficient.''
My question is, more efficient for whom? Because it will
certainly not be more efficient for aquariums, individual
Americans, research institutions, small businesses, and zoos
who will be forced to seek redress in our Federal courts.
While not contemplating an environmental impact statement
or environmental assessment may save the Fish and Wildlife
Service money, I suggest a better alternative to short-
circuiting the NEPA process would be to dedicate more than two
Federal employees to the listing process each year.
By contrast, the Service has 1,139 employees working on the
Endangered Species Act program, 246 working on migratory bird
management, 105 on the Federal aid programs, and 89 employees
in the Land Acquisition Office. By making this program a
priority, this service can utilize its resources to stop
invasive species before, and not after, they become established
in the United States.
We must strive to ensure that never again will species like
non-native carp be allowed to devastate our fisheries. There is
no reason, other than the lack of attention, that it should
have taken the Service 7 years to list black, silver, and
large-scale carp.
Today, the Fish and Wildlife Service will have the
opportunity to justify the request for a new categorical
exclusion, why the Service has not previously sought such an
exclusion, and how it will benefit the regulated community. We
will also hear from the Association of Zoos and Aquariums, the
Pet Industry Joint Advisory Council, the U.S. Association of
Reptile Keepers, and the Center for Invasive Species
Prevention, who will give us their perspective on the proposed
categorical exclusion.
At this time, I am pleased to recognize the distinguished
Ranking Member, the gentleman from the Commonwealth of the
Northern Marianas, Congressman Sablan, for an opening statement
that he would like to make.
STATEMENT OF THE HON. GREGORIO KILILI CAMACHO SABLAN, A
DELEGATE IN CONGRESS FROM THE TERRITORY OF THE NORTHERN MARIANA
ISLANDS
Mr. Sablan. Well, thank you very much, Mr. Chairman. And
welcome to all of our witnesses this morning. Today we will
hear testimony on the Fish and Wildlife Service's proposal to
establish a categorical exclusion under NEPA, the National
Environmental Policy Act, for adding species to the Lacey Act's
list of injurious wildlife. The Service's welcome foresight in
this instance is based on sound science, not politics, and it
is a logical step to protect our environment, while also making
government more efficient.
The value of this measured proposal should be clear to
those on both sides of the aisle, especially considering the
Majority's repeated attempts to waive NEPA entirely whenever it
suits them. Ironically, though, it seems that in this case the
Majority's witnesses are arguing to slow down the NEPA process.
The purpose of a NEPA review is to determine whether a
proposed Federal action will impact the environment. As the
Fish and Wildlife Service will testify, adding a potentially
harmful species to the injuries wildlife list does not have a
negative impact on the environment. It is beneficial to the
environment.
In fact, reviews of previous injurious wildlife listing
proposals have resulted in findings of no significant impact
under NEPA. I find opposition to this proposed rule
particularly puzzling, because H.R. 1823, a bill to add the
Quagga mussels to the list of injurious wildlife, with no
consideration of NEPA, or the evaluation process established
under the Lacey Act, has no fewer than three Republican
cosponsors of this committee.
We should be moving more swiftly to prevent the spread of
invasive species. Economic damage from biological invasions in
the United States is estimated at $137 billion per year. That
is a huge sum of money, as much as the total cost of all cyber
crime in the United States, or the same amount that Fannie Mae
and Freddie Mac owe the American taxpayers after the collapse
of the housing market, or the GDP of my district for 250 years.
Yet, instead of addressing the threat invasive species pose
to our environment and economy, some of this committee would
prevent the Federal Government from acting swiftly against the
threat and protecting taxpayers while conserving valuable
resources.
In my home, the Commonwealth of the Northern Mariana
Islands, we face severe ecological and economic threats from
invasive species. The brown tree snake, for example, is
considered the number one threat to native wildlife. This snake
has already caused major economic and ecological damage on the
Island of Guam, where it has hunted more than 75 percent of
native birds and lizard species into extinction, and causes
frequent and costly power outages.
Our Division of Fish and Wildlife has had to create an
entire program dedicated to preventing the introduction of this
snake to our islands. We worry that other reptiles,
particularly giant constrictor snakes, could cause similar
damage to our islands. Sadly, this is already unfolding in
Puerto Rico, where invasive boa constrictors have established
breeding populations and are displacing native wildlife.
We face invasive species problems across the Nation.
Infestations of invasive plants and animals can negatively
affect property values, agriculture, productivity, public
utility operations, native fisheries, tourism, outdoor
recreation, and the overall health of an ecosystem.
In the Florida Everglades, the injurious Burmese python is
associated with startling declines in native mammal
populations. In the Great Lakes, the Federal Government has
committed millions of dollars to stop the Asian carp from doing
further harm to the region's fisheries and remaining
populations of endangered or threatened aquatic species. In
Louisiana and other States, the invasive nutria, a large, semi-
aquatic rodent, has caused extensive damage to coastal
wetlands. U.S. agriculture loss is $13 billion annually in
crops from invasive insects.
The list goes on, and the threat is only increasing, as
continued global warming creates new suitable habitats for non-
native species. With that, I look forward to hearing from our
witnesses and discussing how we can work together to address
our Nation's invasive species.
And, Mr. Chairman, I ask unanimous consent to enter into
the record a recent report published in the peer review
journal, ``Biological Invasions.'' The report shows that non-
native boa constrictor populations have become established in
Puerto Rico. The report is titled, ``Genetic Analysis of
Invasion of Puerto Rico by an Exotic Constricting Snake.''
Thank you, and I yield back my time.
Dr. Fleming. Without objection, so ordered.
[The report from the journal ``Biological Invasions''
submitted by Mr. Sablan for the record follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Dr. Fleming. The Chairman now recognizes the Ranking Member
of the full committee, Mr. DeFazio, for an opening statement.
STATEMENT OF THE HON. PETER DEFAZIO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Mr. DeFazio. Thank you, Mr. Chairman. I appreciate the
opportunity. I brought a photo. I will explain it and then I
will incorporate it in my speech. This would be a python. This
would be the tail of an alligator, where it burst through the
python which attempted to devour it. This was, of course, in
the Florida Everglades. So thanks, that is good.
The--you know, invasive species pose enormous threats to
our economy and native wildlife. Some have been inadvertently
introduced through ballast water or cargo, and we need to take
steps to deal with that. Some have been smuggled in. We need to
have strong sanctions on those folks. But some have actually
been deliberately imported for commercial purposes.
Now, this python, which is descended from a python that was
introduced for the pet trade was only 13 feet long. Only. They
actually grow to 20 feet and weigh over 200 pounds. And perhaps
one that was that large would have been able to digest the
alligator. You know, the alligator was an endangered species,
we have brought it back from endangered status. And now it is
threatened by a non-native invasive species that was
deliberately imported into the United States. The snakes also
eat wood storks, Key Largo wood rats, and many other species.
If it could get a hold of the last Florida panther, it might
eat that, too.
So we are now spending millions of dollars a year in the
Everglades to try and eradicate this non-native predator. Last
year, Fish and Wildlife took action to add Burmese pythons and
three similar species, large constrictor snakes, to the Lacey
Act of injurious wildlife. But unfortunately, the Burmese
pythons are already--have established a large breeding
population in the Everglades. If they could have acted more
quickly or sooner, perhaps we could have prevented this
problem.
The proposed rule is the agency's attempt to take a
proactive approach, a more prompt approach, to deal with
potentially injurious species under the Lacey Act.
Environmental concerns aside, you don't need to look much
further than our neighbor to the north, in Canada, where last
summer an African python, one of four species listed by the
Services last year, escaped from its cage and killed two young
boys in their sleep. These are pets?
You know, when public safety and massive damage to the
environment are at stake for all, the benefits of taking a
precautionary approach greatly outweigh the costs incurred by a
few. In the case of the four constrictor snakes, the loss of
estimated sales was between $3 and $7.6 million. But the costs
that are going to be borne by the taxpayers of the United
States will probably ultimately total tens or hundreds of
millions of dollars to try and eradicate this python.
In the Northwest we have a particular concern about the
spread of Quagga mussels, and we see this proposed rule as a
potential tool for taking action to prevent the spread of that
by imposing more stringent measures and quarantines from areas
that are infected. You know, and I look forward to hearing more
today about how the Service intends to use the categorical
exclusion to stop biological invasions.
You know, I am not totally hostile to the concerns raised
by the industry folks, and I will propose later, I think,
perhaps a way that we might deal with some of their concerns
but still give this tool for potentially injurious wildlife to
the agency.
Dr. Fleming. The gentleman yields back. And before we
begin, just to make an announcement, we expect votes probably
in about 15 minutes. So it is our goal to get through our panel
of witnesses' testimony. Assuming that we have not had enough
time to ask questions, we will recess until after the votes,
which could take 60 to 90 minutes, give you plenty of time to
load up on coffee and all the other goodies here at the
Capitol, and then we will return, of course, to finish out our
panel today.
We will now hear from our panel of witnesses, which
includes Mr. David Hoskins, Assistant Director of Fish and
Aquatic Conservation, U.S. Fish and Wildlife Service; Mr. Peter
Jenkins, Executive Director, Center for Invasive Species
Prevention; Mr. Jim Maddy, President and CEO, Association of
Zoos and Aquariums; Mr. Shaun Gehan--sir?
Mr. Gehan. Gehan.
Dr. Fleming. Gehan. Sorry. In Louisiana we always add an
extra syllable. So I apologize.
[Laughter.]
Dr. Fleming. Gehan, Attorney, Kelly Drye & Warren,
representing the U.S. Association of Reptile Keepers; and Mr.
Marshall Meyers, Senior Advisor, Pet Industry Joint Advisory
Council.
Your full written testimony will appear in the hearing
record, so I ask that you keep your oral statements to 5
minutes, as outlined in our invitation letter to you, and under
Committee Rule 4(a).
Our microphones are not automatic. Be sure to turn them on,
and make sure the tip is close to you. Shift it over, they are
moveable.
To explain our timing lights, they are very simple. You
will be under a green light for the first 4 of your 5-minute
testimony, then yellow for the last minute, leading up to red.
And we want you to conclude your remarks by the time red comes
on.
And remember that your written testimony will be entered
into the record, even if you don't complete it today, verbally.
Mr. Hoskins, you are now recognized for 5 minutes to
present testimony on behalf of the U.S. Fish and Wildlife
Service.
STATEMENT OF DAVID HOSKINS, ASSISTANT DIRECTOR, FISH AND
AQUATIC CONSERVATION, U.S. FISH AND WILDLIFE SERVICE
Mr. Hoskins. Good morning, Chairman Fleming, Ranking Member
Sablan, Ranking Member DeFazio, and members of the
subcommittee. I am David Hoskins, Assistant Director for Fish
and Aquatic Conservation for the U.S. Fish and Wildlife
Service. Thank you for this opportunity to talk to you about
the Service's proposal for a categorical exclusion under the
National Environmental Policy Act for listing of injurious
wildlife under the Lacey Act.
First crafted in 1900, the injurious provisions of the
Lacey Act are the Nation's only legal tool for prohibiting the
importation of such species. We don't have to look far to see
the adverse impacts of injurious wildlife species. For example,
the zebra mussel spread rapidly from its initial introduction
into the United States, clogging municipal water supplies and
even causing a Great Lakes power plant to close after the
mussels interfered with its operation and damaged its
infrastructure.
Another well-known example are Asian carp. Imported into
the United States 30 to 40 years ago to keep waste water and
agriculture retention ponds clean, silver and bighead carp have
overwhelmed the Mississippi River Basin, threatening commercial
valuable fisheries in the Mississippi and Ohio Rivers.
In addition to the harm these and other species can cause
to our native biodiversity, the cost of addressing the threats
from and damages caused by invasive species nationwide is now
billions of dollars each year. Although preventing the
introduction and establishment of these species in the wild is
clearly the most cost-effective approach, the protracted
listing process under the Lacey Act can jeopardize our ability
to achieve this important goal.
With the increasing globalization of trade and potential
for invasions of harmful species, we believe that we need to
begin to take modest steps to streamline the listing process to
strengthen our ability to avoid the environmental and economic
harm caused by invasive species.
As part of the listing process under our current procedures
for complying with the National Environmental Policy Act, the
Service prepares an environmental assessment to determine
whether the proposed action would result in a significant
effect on the human environment requiring the preparation of an
environmental impact statement. All of the EAs done for
injurious wildlife listings under the Lacey Act, subsequent to
the enactment of NEPA, have found no significant impact.
The Council on Environmental Quality Regulations allow
Federal agencies to establish categorical exclusions for
actions that, under normal circumstances, do not have a
significant environmental effect, individually or
accumulatively. When appropriately established and applied,
categorical exclusions serve a beneficial purpose. They allow
Federal agencies to expedite the environmental review process
for proposals that typically do not require more resource-
intensive EAs or EISs.
In July of this year, the Service published a proposal in
the Federal Register to establish a categorical exclusion for
listings of injurious wildlife under the Lacey Act to
streamline the listing process. For the reasons set forth in
our proposal, we believe that this step would not only greatly
strengthen the Service's ability to act more quickly to protect
the Nation from invasive species, but is readily justified,
based on CEQ's own guidance.
In particular, listings of injurious wildlife maintain the
environmental status quo and have a long track record of EAs
that have consistently resulted in a finding of no significant
impact.
I would like to take this opportunity to also briefly
address some of the concerns that have been raised about this
proposal.
First, it is important to note that a categorical exclusion
does not waive the National Environmental Policy Act. Instead,
consistent with CEQ's guidance, it simply would give us the
flexibility, under normal circumstances, to forego preparing an
EA.
In addition, all analyses and assessments required under
other applicable statutes would continue to be carried out in
conformance with these laws and regulations. Under the Lacey
Act and the Administrative Procedure Act, we are required to
explain in our rules the basis for our determination that a
species qualifies as injurious, and the effect that the action
is expected to have on the public. In addition, the public has
the opportunity to comment on a regulatory action.
In addition, we would continue to comply with the
Regulatory Flexibility Act and Executive Order 12866. As you
know, the Regulatory Flexibility Act requires Federal agencies
to analyze the effect of their regulatory actions on small
entities. And, where the regulatory effect is likely to be
``significant,'' affecting a ``substantial'' number of these
entities, to consider less burdensome alternatives.
Executive Order 12866 looks at the effect the rule will
have on the economy, other Federal agencies' actions,
entitlements, grants, user fees and loan programs, or if it
raises novel, legal, or policy issues. We have conducted and
will continue to conduct economic analyses where appropriate
under this executive order.
In conclusion, I very much value and welcome this
opportunity to share our views on this important issue, and to
hear your concerns on the proposed categorical exclusion. I
would be happy to answer any questions you may have.
[The prepared statement of Mr. Hoskins follows:]
Prepared Statement of David Hoskins, Assistant Director for Fish and
Aquatic Conservation, U.S. Fish and Wildlife Service, Department of the
Interior
Good morning Chairman Fleming, Ranking Member Sablan, and Members
of the Subcommittee. I am David Hoskins, Assistant Director for Fish
and Aquatic Conservation for the U.S. Fish and Wildlife Service
(Service), and I welcome this opportunity to testify before you today.
As you are aware, the Secretary of the Interior has the authority
to take regulatory action to list species of wild animals as
``injurious wildlife'' under 18 U.S.C. 42, a portion of the Federal
statute sometimes called the Lacey Act. The public may also petition
the Secretary for such a listing. Once listed under this statute, the
species may not be transported over state lines or imported into the
country without a permit. Permits may be granted only for zoological,
educational, medical, and scientific purposes, if the Secretary deems
that the permit ensures the continued protection of the public interest
and health. A violation is a Class B misdemeanor, punishable by no more
than 6 months in jail and/or up to a $5,000 fine for an individual, or
$10,000 for an organization.
Before I explain our rationale for seeking a categorical exclusion
under the National Environmental Policy Act (NEPA) for adding species
as injurious under 18 U.S.C. 42, I would like to explain the purposes
and obligations carried out by the Service in the implementation of
this statute. The statute was first created by Congress in 1900 to
protect United States' interests from the harmful effects of species
that are determined to be injurious, including some specific species
added by Congress (such as mongooses and bats known as ``flying
foxes'') and ``such other birds and animals as the Secretary of the
Interior may declare to be injurious to the interests of agriculture or
horticulture.'' In 1960, this was amended (74 Stat. 753) to apply the
statute's prohibitions to any species that is ``injurious to human
beings, to the interests of agriculture, horticulture, forestry, or to
wildlife or the wildlife resources of the United States.'' More
recently, the zebra mussel (Dreissena polymorpha) was added by Congress
to the list of injurious wildlife species during passage of the Non-
Indigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA)
because of its rapid spread from initial introduction to the United
States and the economic harm it was causing, including causing a Great
Lakes power plant to close after the mussels interfered with its
operation and damaged its infrastructure. The Service, therefore,
implements 18 U.S.C. 42 in light of the purpose expressed in the
original Lacey Act and subsequent amendments and the context of the
Congressional zebra mussel listing to protect United States interests
from the harm such species can cause to the nation's economic,
environmental, and human interests. However, the administrative process
for listing injurious wildlife can be protracted and complex, reducing
its effectiveness in preventing initial importation and introduction of
new invasive species into the country.
threats from injurious wildlife species
Invasive species are among the primary factors that have led to the
decline of native fish and wildlife populations in the United States
and are among the most significant natural resource management
challenges facing the Service.
Next to loss of habitat, invasive species are considered the
greatest threat to native biodiversity. They play a significant role in
driving populations of native species toward extinction. In fact,
invasive species significantly harm the populations of about four in
ten species listed under the Endangered Species Act (ESA). They are
also among the most significant of threats to the National Wildlife
Refuge System (NWRS), where they can destroy habitat, displace
wildlife, and significantly alter ecosystems. While much of the
invasive species burden on the NWRS is created by invasive plants that
cover approximately 2.4 million acres of NWRS lands, there are also at
least 4,423 invasive animal populations recorded on NWRS lands.
Although the NWRS is committed to controlling and eradicating these
invasive animals and plants, the task is challenging and expensive.
Between 2004 and 2012, base funding spent on managing invasive species
increased from $6 million to $17.2 million.
Among the best known of invasive species are the zebra mussel,
noted above as listed as injurious wildlife by congressional action,
and the related quagga mussel (Dreissena rostriformis bugensis). Both
are nonnative, invasive freshwater mollusks that negatively affect both
the natural environment and human infrastructure. They spread rapidly,
covering all available surfaces and removing large amounts of organic
material from the water column, thus outcompeting and smothering native
mussel species, including species federally listed as threatened or
endangered. The mussels also clog municipal and industrial
infrastructure that process water, such as power generating plants or
fresh water supply transport and delivery; they cause an estimated $30
million in damage each year to water delivery systems in the Great
Lakes.\1\ These species attach quickly to recreational boating and
other equipment used in fresh water, and they are then carried from one
hydrologic system to another. In early 2007, quagga mussels were
discovered in the Lake Mead National Recreation Area. They have since
been found in Arizona, California, other parts of Nevada, and all 242
miles of the Colorado River Aqueduct. In January 2008, the first
populations of zebra mussels were found in the San Justo Reservoir in
California and Lake Pueblo in Colorado.
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Another well-known example is the brown tree snake (Boiga
irregularis), which is a major threat to the biodiversity of the
Pacific region. A native of Indonesia, New Guinea, the Solomon Islands,
and Australia, brown tree snakes arrived on Guam sometime during the
1940s or 1950s as stowaways on boats. The snakes have since spread
across the entire island and have caused or contributed to the
extirpation of 17 of Guam's native terrestrial vertebrates, including
fruit bats, lizards, and 9 of 13 native forest bird species. Insect
species that are no longer naturally controlled by native birds and
lizards on Guam reduce fruit and vegetable production and their
uncontrolled numbers require greater reliance on pesticides. Brown tree
snakes also cause millions of dollars in damage to Guam's
infrastructure and economy by climbing power poles and causing power
outages. Of major concern is that the brown tree snake could be carried
to other Pacific Islands (including Hawaii) and subtropical regions of
the continental United States in cargo. The brown tree snake was listed
as injurious in the early 1990s.
While the above examples were accidentally introduced into the
United States and were not intentionally imported, deliberate
importations have played a significant role as the origin of invasive
species in the United States. Brought into the country to meet or
create consumer demand, individuals of nonnative species have escaped--
or been released--into the wild and have established reproducing
populations in the wild. The United States is a leading import market
for live non-native animals. Regardless of whether an invasive species
was accidentally brought into the United States or intentionally
imported, these species are costing the Nation billions of dollars each
year in local, State, and Federal tax dollars, loss of private incomes,
and loss of economic potential.
One of the most widely known--and among the most dramatic--of
nonnative species imported into the United States are the group of fish
known collectively as Asian carp. These include the silver carp
(Hypophthalmichthys molitrix) and bighead carp (Hypophthalmichthys
nobilis). Silver and bighead carp were imported into the United States
30 to 40 years ago to keep wastewater and aquaculture retention ponds
clean. Competing with native fish for the same food sources, both carp
species can quickly overtake native fish in biomass, and they can live
for 20 years. They now occur in 23 states. The silver carp tends to
jump en masse into the air when startled, and because they can grow to
be 100 pounds, this can present a significant physical hazard for
recreational boaters and fishermen. These two species have overwhelmed
the Mississippi River Basin; commercial harvest of bighead carp in the
Mississippi River Basin, for instance, increased from 5.5 tons to 55
tons between 1994 and 1997.\2\ Within the Basin, Asian carps now
compose up to a staggering 63 percent of the fish biomass.\3\ The
commercial value of Asian carp is extremely low and much less valuable
than the native fish they replaced, and the loss of more commercially
valuable fish is threatening an industry worth billions of dollars to
the economies of the States in the region. The geographic range of
Asian carp species is expanding in the Mississippi River Basin and
threatening invasion of the Great Lakes.
---------------------------------------------------------------------------
\2\ Chick, J. H., and M. A. Pegg. 2001. Invasive carp in the
Mississippi River basin. Science 292(5525):2250-2251.
\3\ Draft Asian Carp Surveillance Plan for areas outside of the
Great Lakes. 2013.
---------------------------------------------------------------------------
As another example, a small number of nutrias (Myocastor coypus)
were brought to the United States in the 1930s to the Chesapeake Bay
and to Louisiana to bolster the fur trade. The nutria is a large,
aquatic rodent from South America. Animals escaped or were released
into the wild, and by the early 1990s, the Delmarva Peninsula (Eastern
Maryland and Virginia and Delaware) population was estimated to exceed
150,000 animals. Although highly vulnerable to very cold winter
temperatures, the rodent's capacity to reproduce allows its populations
to quickly rebound and grow in milder spring, summer, and fall weather.
Nutria eat aquatic plants, particularly brackish wetland species that
are crucially important for holding wetland soils together to prevent
wetland loss to erosion and for providing food for native species in
and around the Blackwater National Wildlife Refuge. In 2004, the
Maryland Department of Natural Resources estimated that economic losses
from related wetland damage were $4 million per year. This report also
predicted that social losses and the losses associated with the
environmental services of these wetlands could reach up to nearly $40
million a year by 2050 if the nutria population was not controlled.\4\
Nutria has since been extirpated on the Refuge, but work to eradicate
them from the Delmarva Peninsula continues.
---------------------------------------------------------------------------
\4\ Southwick Associates. 2004. Potential economic losses
associated with uncontrolled nutria populations in Maryland's portion
of the Chesapeake Bay, 17 pp.
---------------------------------------------------------------------------
Another example of a commercially imported species that has become
established in the wild is the Burmese python, which was brought into
the country for the pet trade. Many pythons have escaped or been
released into the Everglades and other areas. A population of these
snakes is established and breeding now, and the National Park Service
reports that over 1,900 have been removed from Everglades National Park
and surrounding areas. A study published in 2011 by the National
Academy of Sciences links the growth of the Burmese python population
in the Park with a severe decline in mammals in the Park, including a
98 percent decline in raccoons.\5\
---------------------------------------------------------------------------
\5\ Dorcas, Michael E., et al. 2011. Severe Mammal declines
coincide with proliferation of invasive Burmese pythons in Everglades
National Park, Proceedings of the National Academy of Sciences
(December 2011).
---------------------------------------------------------------------------
The ongoing efforts to control established populations of invasive
species clearly cost much more than would prevention of their
introduction. The Lacey Act injurious wildlife provisions provide the
only legal instrument the United States can use to prohibit importation
of such species, but the listing process can be protracted to
effectively accomplish this. For example, a petition to list certain
invasive carp species was received by the Service in October of 2002,
but the final listing decision did not occur for 5 years.
the listing process
Under the injurious wildlife provisions of the Lacey Act, the
Secretary of the Interior is authorized to prescribe by regulation
those wild mammals, wild birds, fish, mollusks, crustaceans,
amphibians, and reptiles, and the offspring or eggs of any of the
aforementioned, that are injurious to human beings, or to the interests
of agriculture, horticulture, or forestry, or to the wildlife or
wildlife resources of the United States. An injurious listing
subsequently prohibits importation and interstate transportation of
that species. The provisions of the Act regarding injurious species are
intended to protect human health and welfare and the human and natural
environments of the United States by identifying and reducing the
threat posed by certain nonnative wildlife species.
I would like to explain briefly how the Service currently lists
species as injurious and what would change if we obtain the categorical
exclusion. The Service currently complies with the legal requirements
of the Lacey Act, the Administrative Procedure Act, the Regulatory
Flexibility Act, and other required determinations for all injurious
rulemakings and will continue to do so. This includes NEPA.
The Lacey Act and the Administrative Procedure Act (APA) require
that the agency explain in our rules the basis for our determination
that a species qualifies as injurious and the effect that the action is
expected to have on the public. The public has the opportunity to
comment on the regulatory action. We will continue to present our
biological assessments and evaluation of each species for injuriousness
in our rules as part of analyses under the Lacey Act and the APA.
The Regulatory Flexibility Act is the governing statute that
requires Federal agencies to analyze the effect of their regulatory
actions on small entities (small businesses, small non-profit
organizations, and small jurisdictions of government) and, where the
regulatory effect is likely to be ``significant,'' affecting a
``substantial number'' of these small entities, consider less
burdensome alternatives for them. The Service will continue to provide
the required information under the Regulatory Flexibility Act.
Executive Order 12866 for Regulatory Planning and Review looks at
whether the rule will have an annual effect of $100 million or more on
the economy or adversely affect an economic sector, productivity, jobs,
the environment, or other units of the government; whether the rule
will create inconsistencies with other Federal agencies' actions;
whether the rule will materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients;
or whether the rule raises novel legal or policy issues. We have
conducted and will continue to conduct economic analyses, where
appropriate, under this Executive Order.
Under our current procedure for complying with NEPA, the Service
prepares an environmental assessment (EA) for listing species as
injurious. The purpose of an EA is to determine whether the proposed
Federal action would result in a significant effect on the human
environment requiring the preparation of an environmental impact
statement (EIS). If, after investigating and preparing the EA, the
agency finds no significant effects on the environment, the agency
produces a Finding of No Significant Impact (FONSI). All injurious
wildlife listing EAs subsequent to the enactment of NEPA have resulted
in FONSIs, including the most recent--the 2012 listing of the four
species of large, constrictor snakes as injurious wildlife.
the proposed categorical exclusion
The Service is concerned with the length of time our previous
listings have taken, because that protracted process has often defeated
the purpose of the listing. Part of that process has been the
preparation of EAs. However, the Council on Environmental Quality (CEQ)
regulations allow the agency to establish a categorical exclusion and
to bypass the completion of an EA or an EIS when undertaking actions
that a Federal agency identifies that, under normal circumstances, do
not have a potentially significant environmental impact, either
individually or cumulatively (40 CFR 1507.3(b); 40 CFR 1508.4). When
appropriately established and applied, categorical exclusions serve a
beneficial purpose. They allow Federal agencies to expedite the
environmental review process for proposals that typically do not
require more resource-intensive EAs or EISs (CEQ 2010). Thus, we are
pursuing the categorical exclusion.
To ensure that a categorical exclusion was appropriate for
injurious wildlife listings, the Service first consulted with the
Department of the Interior's Office of Environmental Policy and
Compliance, and with CEQ, which administers NEPA implementation. CEQ
approved the proposal for publication with notice and comment. Thus,
the Service published the proposal in the Federal Register on July 1,
2013. The action is based on three justifications consistent with CEQ's
guidance for categorical exclusions: (1) maintaining the environmental
status quo, meaning the listing action does not cause the condition of
the environment to change; (2) history of findings of ``no significant
impact'' for injurious listings; and (3) the proposed categorical
exclusion would be consistent with existing Service categorical
exclusions. The Service must obtain CEQ's final approval after we
address the public comments. To address concerns about the public
comment period for the proposed categorical exclusion, the Service
reopened it for 60 days on August 16, 2013, and comments are now due by
October 15.
The categorical exclusion proposed would apply only to the listing
of injurious wildlife species, not to any further Federal action taken
to prevent introduction or control established populations of injurious
wildlife species in the United States. This proposal is consistent with
our ongoing efforts to increase the effectiveness of the Lacey Act
injurious wildlife provisions to prevent the introduction and
establishment of invasive species into new habitats in the United
States and to maximize efficiency wherever possible in Service
procedures. A categorical exclusion would give the agency the
flexibility to forgo the preparation of an EA when, absent any
``extraordinary circumstances,'' listing a species as injurious. The
protections of NEPA would still apply. The review for using a
categorical exclusion for a proposed listing would consider whether
``extraordinary circumstances'' particular to the proposed listing,
would merit additional environmental review. In the Department of the
Interior's Manual (Environmental Quality Program Series, Part 516,
Chapter 8-Managing the NEPA Process, U.S. Fish and Wildlife Service) is
a section including the categorical exclusions that are currently in
place and that may be used under appropriate circumstances.
conclusion
In conclusion, the proposed categorical exclusion is consistent
with NEPA and CEQ's regulations and guidance for complying with NEPA.
With the categorical exclusion, the agency would have the flexibility
to forgo preparing an EA. All analyses and assessments required under
the Lacey Act and other applicable statutes would continue to be
carried out for each proposed injurious wildlife listing.
With the increasing globalization of trade and potential for
invasions of harmful species, the Federal Government needs to create
more efficient procedures, to strengthen the Service's ability to
protect the nation's interests from harm caused by invasive species.
This one step of obtaining a categorical exclusion would greatly
strengthen the Service's ability to act quickly yet intelligently to
protect the Nation from invasive species.
______
Dr. Fleming. Thank you, Mr. Hoskins.
Mr. Jenkins, you are recognized for 5 minutes.
STATEMENT OF PETER JENKINS, EXECUTIVE DIRECTOR, CENTER FOR
INVASIVE SPECIES PREVENTION
Mr. Jenkins. Thank you, Mr. Chairman. Chairman Fleming,
Ranking Member Sablan, members of the subcommittee, thank you
for the opportunity to speak today.
Speaking as a consultant working through my firm, The
Center for Invasive Species Prevention, I advise the National
Environmental Coalition on invasive species, or NECIS. NECIS
works to improve Federal policy on invasive species. It
includes the National Wildlife Federation, the Nature
Conservancy, the Wildlife Society, and many other groups. With
the short notice for the hearing, my testimony is not official
NECIS testimony, but the positions I am going to talk about are
directly from the NECIS comment we submitted on the categorical
exclusion proposal, which I wrote.
I have 23 years of experience on invasive species issues as
a policy analyst, attorney, advocate, consultant, author, and
speaker. On NEPA itself, the bedrock of our environmental laws,
I worked for the Fish and Wildlife Service Region 2 for 5 years
as a NEPA compliance consultant. I have trained law students as
adjunct law professor and Federal officials in NEPA compliance.
Before getting into the categorical exclusion, though, let
me talk about one question in your hearing invitation that goes
beyond NEPA. In the hearing invitation it asks, ``Do I expect
the agency to use the categorical exclusion for the hundreds of
amphibian species proposed for listing in 2009?''
First, that question is just wrong on its facts. I wrote
that 2009 Defenders of Wildlife petition on amphibians, and it
does not propose to list hundreds of species as injurious. The
background of that petition is that a deadly disease carried in
trade, the chytrid fungus, is wiping out amphibians worldwide,
including in the United States. In 2008, the World Organization
for Animal Health, or OIE, recommended measures to reduce the
risk of chytrid in the trade.
That OIE standard was written with input by USDA Veterinary
Services experts, and then it was adopted in 2008 by unanimous
vote of the OIE parties. The Defenders of Wildlife petition to
Service was simply that the agency adopt that OIE standard into
an enforceable trade regulation. The proposal and the petition
was not to list all amphibians as injurious. It would only
regulate particular amphibian shipments as injurious if they do
not comply with that OIE standard. Shipments that do comply and
don't pose a risk of carrying chytrid into the country would
not be regulated as injurious.
The Service took a very similar disease prevention listing
approach for all salmonid imports under the Lacey Act, and it
has worked, largely to protect our native salmon and trout from
imported diseases.
Now, on to the categorical exclusion, or what practitioners
call a CATEX. It will save wasted time and resources preparing
unnecessary environmental assessments which, in the past, have
never found a significant harmful impact from any injurious
species listing--going back to 1982.
While my client environmental groups, the ones I mentioned,
generally don't like CATEXs, they disfavor CATEXs generally in
many contexts, here it makes sense and our group strongly
supports it. Prohibiting an injurious species is a positive
environmental benefit, by definition. Thus, preparing a NEPA EA
is redundant and unneeded. Foregoing that step will help speed
up listings of harmful, non-native animals.
The United States currently has one of the developed
world's slowest and most expensive systems for regulating
imports of injurious animals. It is widely recognized as
inadequate to address the risks of the trade. We need to speed
it up. It is taking 4 years, on average, for one regulatory
listing. Proposed CATEX is a very small step to help remedy
this.
Now, some of the business interests here today are going to
allege that CATEX might weaken the economic analysis the
Service conducts. But we have just heard that that is not the
case. NEPA EAs do not address pure economic impacts; they only
address economic effects that flow from a tangible
environmental impact. And, as we have heard, there are no
tangible environmental impacts from doing these regulatory
actions in the United States.
Further, the CATEX in no way reduces the Service's
obligation to assess economic effects of the proposals under
other laws, primarily the Regulatory Flexibility Act. Any
business here that is concerned about economic effects can rely
on those other acts and executive orders, and make sure that
their economic concerns are addressed.
The bottom line is that our Nation, as a whole, is losing--
we are losing--economic benefits by allowing thousands of non-
native species--harmful non-native species, in some cases, to
be imported that haven't gone through any risk assessment at
all, which is generally the case. Speeding the process up and
letting the Service do more risk assessment for imports will
provide our Nation more, not fewer, economic benefits. That is
what this is about.
Chairman Fleming, I recall the field hearing that you had 2
years ago in your Louisiana district on the invasive species.
There your focus was Caddo Lake and its severe infestation by
imported giant salvinia--that is a plant. If the United States
had a more efficient and effective risk assessment process in
place for plant imports, that invasion might have been
prevented.
We need a better, faster system on the animal side, too, to
protect your district and the rest of the Nation from further
invasions. We don't need an agency that is further bogged down
in red tape, which is what we have now. Thanks very much.
[The prepared statement of Mr. Jenkins follows:]
Prepared Statement of Peter Jenkins, Executive Director, Center for
Invasive Species Prevention
Chairman Fleming, Ranking Member Sablan, members of the
Subcommittee, thank you for the opportunity to testify on The
Department of the Interior's proposal to use a Categorical Exclusion
under the National Environmental Policy Act (NEPA) for adding species
to the Lacey Act's list of injurious wildlife.
I am testifying as an independent consultant. My work in this area
is through my firm the Center for Invasive Species Prevention, and I
advise the National Environmental Coalition on Invasive Species
(NECIS). NECIS is a coalition of groups concerned about invasive
species and Federal policy. It includes the National Wildlife
Federation (NWF), The Nature Conservancy, The Wildlife Society and many
other groups. Given the short notice for me being a witness, my full
testimony has not been approved as NECIS testimony, but the positions I
will advocate are directly from the NECIS comment on the Categorical
Exclusion Proposal, which I drafted.
A bit on my background: I have 23 years of experience, both
national and international, in invasive species as a policy analyst,
attorney, advocate, lobbyist, consultant, manager, author and speaker.
I have been invited to speak at conferences around the world on
invasive species policy and management and testified three times before
to this Sub or Full Committee on the topic--once back in 1993 and again
in 2008 and 2012. I have approximately 15 publications addressing
multiple aspects of invasive species, including having written the
chapter on the ``Pet Trade'' in the comprehensive Encyclopedia of
Biological Invasions, published in 2011 by the University of California
Press. My most recent paper is in Biological Invasions, entitled
``Invasive animals and wildlife pathogens in the United States: the
economic case for more risk assessments and regulation.''
On NEPA, I worked for the U.S. Fish and Wildlife Service, Region 2,
in Albuquerque for 5 years as a NEPA compliance consultant. I have
trained both law students (as an Adjunct Professor) and Federal
officials in NEPA compliance. I am very familiar with this law as a
practicing environmental lawyer.
Before getting into the Categorical Exclusion issue, let me talk
about two subjects the Hearing Notice focuses on that go beyond NEPA.
(1) Why the completion of Economic assessments has become such a
burden to the U.S. Fish and Wildlife Service? They are a burden but the
Categorical Exclusion has very little to do with Economic assessments
and will not change the Service's obligation to do them. They are a
burden as they require detailed economic analysis in some cases and the
Service lacks the staff and funding to pay for them so they can take
many years.
(2) Do I expect the agency to use a Categorical Exclusion for the
hundreds of amphibian species that were proposed for listing in 2009?
First, that question is wrong in its facts. I wrote the 2009 Defenders
of Wildlife petition on amphibians and it simply does not propose to
list hundreds of species of amphibians. That must be from some ill-
informed blog or other source that has not read the Petition.
The background to that listing Petition is that a deadly disease
carried in trade, the Chytrid fungus, is wiping out amphibians
worldwide, including in the United States. In about 2006-2008, the
World Organization for Animal Health (OIE) developed recommended
measures to reduce the risk of chytrid in trade. That OIE standard was
developed with extensive input by USDA Veterinary Services experts. It
was adopted in 2008 unanimously by an OIE vote--consisting of delegates
from virtually the entire world. The Defenders of Wildlife Petition to
the Fish and Wildlife Service was very simply that the agency adopt
that OIE standard into an enforceable trade regulation--as it is not an
enforceable standard unless countries adopt it into law. Unfortunately,
U.S. law on wildlife diseases is very sparse--the Lacey Act is it. In
any event, the proposal in the Petition is not to list all amphibians
as injurious. It would only list particular amphibian shipments as
injurious if they do not comply with the unanimously supported OIE
standard. Shipments that comply and do not pose significant risk of
carrying dangerous chytrid pathogens into the country would not be
injurious, regardless of the species. The Service took exactly the same
listing approach for all salmonid imports under the Lacey Act and it
has worked--and people don't go around nonsensically saying that
hundreds of salmon and trout species are listed as ``injurious''
because of that Lacey disease standard.
I would urge this subcommittee to look at this issue more closely
and consider adopting a better law aimed specifically at preventing
wildlife disease, as the Lacey Act is not the ideal law for that, but
right now it is what we have. A great start is in Section 10 of H.R.
996, the Invasive Fish and Wildlife Prevention Act, that is right now
in this subcommittee's jurisdiction. It was introduced by Mrs.
Slaughter of New York and has 30 co-sponsors. The NECIS groups strongly
support it and urge a hearing on it as soon as possible.
Now, on the Categorical Exclusion, or what NEPA practitioners call a
``CatEx''; it will save wasted time and resources preparing unnecessary
environmental assessments (EAs), which in the past have never found a
significant impact from any non-native injurious species listing
regulation, going back to 1982 when NEPA implementation began for this
program. While my client environmental groups general disfavor CatEx's,
in this case it makes sense. Prohibiting an injurious species is a
positive environmental benefit, virtually by definition. Thus,
preparing a NEPA EA is redundant. Avoiding that administrative step
will help speed up listings.
This is consistent with NECIS policy positions urging the Service
to do swifter injurious species listings. We do note that the Service's
proposal correctly points out that the CatEx for listing a species does
not apply to a possible later Federal management or control action for
the listed species. In short, a Lacey Act injurious species listing
does not compel or mandate any later Federal management or on-the-
ground control actions for the species.
The United States currently has one of the developed world's
slowest and costliest known systems for regulating imports of non-
native injurious animals.\1\ It has been criticized as too reactive and
inadequate to address the ongoing invasion and disease risks of the
globalized live wild animal trade, taking an average of 4 years to
achieve one regulatory listing over recent decades.\2\ The proposed
CatEx is a small, needed step to partially remedy this.
---------------------------------------------------------------------------
\1\ Jenkins PT (2012) Invasive animals and wildlife pathogens in
the United States: the economic case for more risk assessments and
regulation. Biol. Invasions DOI: 10.1007/s10530-012-0296-8.
\2\ Fowler AJ, Lodge DM, Hsia J (2007) Failure of the Lacey Act to
protect U.S. ecosystems against animal invasions. Front. Ecol. Environ.
5:353-359.
---------------------------------------------------------------------------
Some comments from business interests allege that adoption of the
CatEx might weaken the economic analysis that the Service conducts for
proposed listings. That will not be the case. EAs under NEPA do not
analyze purely economic effects, only economic effects that flow from
environmental impacts. As it is very unlikely that there will be any
environmental impacts from the listing of injurious non-native species,
there will be no need to analyze resulting economic effects in a NEPA
EA. Further, the CatEx does not in any way reduce the Service's
obligation to assess economic effects of its listing proposals under
other laws, primarily the Regulatory Flexibility Act.\3\ Any business
concerned about economic effects can rely on that Act and need not rely
on future NEPA EAs.
---------------------------------------------------------------------------
\3\ Chapter 6, and section 804, of Title 5, United States Code.
---------------------------------------------------------------------------
In fact, the economic arguments cut strongly in favor of speeding
up the listing process, rather than keeping it in its slow status quo.
A recent study reported in Ecological Economics, using years of United
States data on amphibian and reptile imports, demonstrated how doing
pre-import risk assessments for that segment of the trade can ``pay
off'' in reduced costs for the nation.\4\ The study estimated the long-
term expected net benefits from using a risk screening system range
from roughly $54,000 to $141,000 for each species assessed, including
both those species found to be harmful and non-harmful, assuming
typical import and impact scenarios. While based on amphibian and
reptile imports, the authors indicated that similar benefits likely
apply to risk screening for birds, mammals and other groups. Their
findings are consistent with findings from Australia documenting that
pre-import risk assessments for the plant trade are cost-beneficial for
that nation.\5\
---------------------------------------------------------------------------
\4\ Springborn M, Romagosa CM, Keller RP (2011) The value of
nonindigenous species risk assessment in international trade. Ecol.
Econ. 70:2145-2153.
\5\ Keller RP, Lodge DM, Finnoff DC (2007) Risk assessment for
invasive species produces net bioeconomic benefits. Proc. Nat. Acad.
Sci. 104:203-207.
---------------------------------------------------------------------------
The bottom line is our nation is losing potential economic benefits
by allowing novel non-native animal species to be imported that have
not gone through any risk assessment, as is overwhelmingly the case
now. Speeding up the process and doing more risk assessments for such
imports will provide more, not fewer, economic benefits for our
country.
While the Service has properly observed in its proposal that it has
never found a ``significant'' impact in three decades of doing NEPA EAs
for listing proposals, nevertheless I concur with the Service that it
is appropriate to allow for EAs to be prepared in ``extraordinary
circumstances'' under long-standing Department of the Interior NEPA
policies (50 CFR 46.215). Such extraordinary circumstances that would
justify overriding the CatEx and conducting an EA or full EIS are
hypothetical at this point, but it is not inconceivable that such
circumstances could arise.
In sum, I applaud the care and foresight the Service has applied in
this proposal and urge its swift adoption as an Interior NEPA policy.
______
Dr. Fleming. I thank you, Mr. Jenkins.
Mr. Maddy, you are now recognized for 5 minutes to present
your testimony on behalf of the 222 accredited members of the
Association of Zoos and Aquariums who contribute $160 million a
year to wildlife conservation.
STATEMENT OF JIM MADDY, PRESIDENT AND CEO, ASSOCIATION OF ZOOS
AND AQUARIUMS
Mr. Maddy. Thank you, Chairman Fleming and Ranking Member
Sablan, for the opportunity to testify before the subcommittee
regarding the Department of the Interior's proposal to allow a
categorical exclusion under NEPA for adding species to the
Lacey Act's list of injurious wildlife. My name is Jim Maddy, I
am the President and CEO of the Association of Zoos and
Aquariums.
As you just mentioned in part, our 222 accredited zoos and
aquariums annually see more than 182 million visitors. They
collectively generate more than 20 billion in economic
activity, and support more than 200,000 jobs. AZA-accredited
institutions support more than 1,000 field conservation and
research projects at the level of approximately $160 million
annually, as the Chairman just mentioned.
In the last 10 years, accredited zoos and aquariums
formally trained more than 400,000 teachers. School field trips
and programs connect more than 15 million students with the
natural world every year, just in our institutions.
AZA and its member institutions work in concert with
Congress, the Federal agencies, conservation organizations, the
private sector, and the public, to conserve our wildlife
heritage. In particular, we have the longstanding partnership
with the U.S. Fish and Wildlife Service.
Our collaborative efforts have focused on engaging in
endangered species recovery and reintroduction--for example,
black-footed ferrets, the California condor, the Mexican and
red wolves and whooping cranes, and many other species. Our
collaborative efforts with the Fish and Wildlife Service are
also dedicated to serving multi-national species conservation
funds and State wildlife grants. And we collaborate with the
agency on partnership involving wildlife refuges, migratory
birds, freshwater fisheries, illegal wildlife trade,
amphibians, and invasive species.
The issue of injurious wildlife listing under the Lacey Act
is of concern to many of our member institutions, especially
those who regularly transport certain wildlife species for
education and conservation purposes. Our accredited zoos and
aquariums cannot fulfill their important mission of
conservation, education, outreach, public display, and science
without living animals. Responsible management of living animal
populations necessitates that some individuals be acquired and
others be removed from collection at certain times for the
purposes of genetic and geographic diversity. The ability to
effectively and efficiently transport animals is critical to
the success of national and international efforts to conserve
and maintain animal species and to educate the public on the
plight of threatened and endangered species.
In the case of AZA-accredited zoos and aquariums, the
movement of animals between these member institutions, between
these institutions and other international zoological parks and
aquariums worldwide, and from countries around the world into
our institutions, would be negatively impacted without the
timely transport of live animals. Any additional permit
restrictions or regulations which could arise from a
significant increase in injurious wildlife listings would
greatly hamper our members' ability to engage in these critical
animal movements.
So, we believe that when adding species to the list of
injurious wildlife, all avenues for public comment must be made
available. This is especially true in this case, since
objective injurious wildlife listing criteria are not readily
available.
AZA and its member institutions take the issue of invasive
species very seriously. And 10 years ago, our board of
directors adopted a policy on non-native invasive species,
which encourages our members to partner with Federal, State,
and local agencies to establish policies that regulate the
acquisition, ownership, and disposition of non-native,
potentially invasive organisms.
As part of our rigorous accreditation standards, we require
that animal transportation must include plans for any
emergencies and contingencies that may occur. This requirement
includes ensuring an adequate number of appropriately trained
personnel to handle the transport, and the standards also
require that all animal exhibits and holding areas must be
secure to prevent the unintended animal egress, and they
require the implementation of risk management plans.
The strict standards required by AZA accreditation and the
strong commitment by zoo and aquarium professionals to the
safety of animals and the public means that accredited zoos and
aquariums have not been responsible for the introduction and
spread of injurious wildlife into the United States.
Unfortunately, some injurious wildlife listings, without the
proper vetting and opportunity for public notice and comment,
could have a deleterious effect on our ability to build and
sustain zoological collections. A categorical exclusion for
adding species to the Lacey Act's list of injurious wildlife
would potentially eliminate valuable NEPA procedures that help
to ensure that Federal rules do not result in undue and
unreasonable financial or permitting burdens on these
accredited zoos and aquariums.
With that, I conclude my remarks. Happy to take questions.
And, again, I thank you for the invitation to appear.
[The prepared statement of Mr. Maddy follows:]
Prepared Statement of Jim Maddy, President & CEO, Association of Zoos
and Aquariums
Thank you Chairman Fleming and Ranking Member Sablan for the
opportunity to testify before the Subcommittee regarding the Department
of the Interior's proposal to allow a Categorical Exclusion under the
National Environmental Policy Act (NEPA) for adding species to the
Lacey Act's list of injurious wildlife.
My name is Jim Maddy and I am the President and CEO of the
Association of Zoos and Aquariums (AZA). AZA's 222 accredited zoos and
aquariums annually see more than 182 million visitors, collectively
generate more than $21 billion in annual economic activity, and support
more than 204,000 jobs across the country. Over the last 5 years, AZA-
accredited institutions supported more than 1,000 field conservation
and research projects with $160,000,000 annually in more than 100
countries. In the last 10 years, accredited zoos and aquariums formally
trained more than 400,000 teachers, supporting science curricula with
effective teaching materials and hands-on opportunities. School field
trips and programs annually connect more than 15,000,000 students with
the natural world. This is very important as a recent National Research
Council study found that people learn as much as 90 percent of their
science in informal settings such as AZA-accredited zoos and aquariums.
AZA and its member institutions work in concert with Congress, the
Federal agencies, conservation organizations, the private sector and
the general public to conserve our wildlife heritage. In particular,
AZA and its member institutions have a long-standing partnership with
the U.S. Fish and Wildlife Service. Our collaborative efforts have
focused on:
Engaging in endangered species recovery and reintroduction
(For example: black-footed ferrets, California condor,
Mexican and red wolves, whooping cranes);
Supporting multinational species conservation funds and
state wildlife grants; and
Collaborating on partnership opportunities involving
wildlife refuges, migratory birds, freshwater fisheries,
illegal wildlife trade, amphibians and invasive species.
The issue of injurious wildlife listings under the Lacey Act is of
concern to many of our member institutions, especially those which
regularly transport certain wildlife species for educational and
conservation purposes. AZA accredited zoological parks and aquariums
cannot fulfill their important missions of conservation, education,
outreach, public display and science without living animals.
Responsible management of living animal populations necessitates that
some individuals be acquired and that others be removed from the
collection at certain times for the purposes of genetic and geographic
diversity. The ability to effectively and efficiently transport animals
is critical to the success of national and international efforts to
conserve and maintain animal species and to educate the general public
on the plight of threatened and endangered species. In the case of AZA
accredited zoos and aquariums, the movement of animals between these
member institutions, between these institutions and other international
zoological parks and aquariums worldwide, and from native habitats and
countries around the world into our institutions would be negatively
impacted without the timely transport of live animals. Any additional
permit restrictions or regulations which could arise from a significant
increase in injurious wildlife listings could greatly hamper our
members' ability to engage in these critical animal movements. Thus,
AZA believes that when adding species to the list of injurious
wildlife, all avenues for public comments must be made available. This
is especially true in this case since objective injurious wildlife
listing criteria are not readily available.
AZA and its member institutions take the issue of invasive species
very seriously. In 2003 the AZA Board of Directors adopted a policy on
non-native invasive species which:
Encourages AZA members to make every effort to ensure that
their animal and plant collections and management practices
do not become the source of non-native species
introductions;
Urges zoo and aquarium horticulturalists to be cognizant
of invasive species concerns when working with non-native
ornamental or browse plants;
Encourages AZA members to partner with Federal, state, and
local agencies to establish policies that regulate the
acquisition, ownership, and disposition of non-native,
potentially invasive organisms;
Encourages AZA members who travel overseas to follow all
relevant government regulations regarding the
transportation of biological materials;
Encourages AZA members to educate the public and key
decisionmakers about the deleterious impacts associated
with species introductions; and
Reminds AZA members to consult the IUCN Guidelines for the
Prevention of Biodiversity Loss Caused by Alien Invasive
Species.
As part of our rigorous accreditation standards, the AZA requires
that animal transportation must include plans for any emergencies and
contingencies that may occur. This requirement includes ensuring an
adequate number of appropriately trained personnel to handle the
transport. The standards also require that all animal exhibits and
holding areas must be secured to prevent unintentional animal egress,
and they require the implementation of risk management plans.
The strict standards required by AZA accreditation and the strong
commitment by zoo and aquarium professionals to the safety of animals
and the public means that accredited zoos and aquariums have not been
responsible for the introduction and spread of injurious wildlife into
the United States. Unfortunately, some injurious wildlife listings,
without the proper vetting and opportunity for public notice and
comment, could have a deleterious effect on our ability to build and
sustain zoological collections.
A categorical exclusion for adding species to the Lacey Act's list
of injurious wildlife would potentially eliminate valuable NEPA
procedures that help to ensure that Federal rules do not result in
undue and unreasonable financial or permitting burdens on AZA-
accredited institutions. Without critical reviews, assessments, and
opportunities for public comment under the current Federal framework,
we are concerned that the Department would be free to declare certain
species as injurious without factoring in the significant impact such a
listing would place on institutions like AZA-accredited zoos and
aquariums.
For example, in our comments on the previous USFWS proposed rule to
list nine species of constrictor snakes as injurious under the Lacey
Act, AZA provided an example of how such a listing could impact our
members. Clyde Peeling's Reptiland, an AZA-accredited zoological park
in Pennsylvania, operates a permanent zoological facility and designs,
builds, and manages a fleet of educational exhibitions that are hosted
by zoos, natural history museums, and science centers throughout North
America. These exhibitions include pythons, boas, and other live
animals under the care of the zoo's professional staff. Reptiland also
conducts wildlife lecture programs (all of which include large boas and
pythons) for organizations nationwide. If all of the proposed nine
species of constrictor snakes were listed as injurious under the Lacey
Act, it would dramatically affect Reptiland's ability to conduct
offsite exhibitions and lectures, which account for fully two-thirds of
its revenue and one-third of its staff.
And while it may be possible for institutions to get injurious
wildlife permits under the Lacey Act for zoological purposes,
theoretically a separate permit would be required for each interstate
or international move (and Reptiland makes 50 or more interstate moves
each year). Federal wildlife permits are often slow in being issued due
to budget and staffing constraints at the USFWS's Division of
Management Authority and the Division of Scientific Authority--AZA
institutions have waited as much as nine months--and the process is
cumbersome. Even if permits took as little as 3 months to issue,
contracting with schools or natural history museums to provide date-
certain exhibitions or lectures would be a practical impossibility.
Very often exhibition and lecture contracts are made with little lead
time.
I commend the USFWS for working collaboratively with AZA staff and
AZA members to develop and implement a blanket permit protocol to allow
AZA institutions to make multiple interstate movements of listed snakes
in a timely manner. AZA appreciates the willingness of the Service to
work with us on this common-sense solution.
In closing, we view ourselves as critical partners with the
Department and the Service for playing a vital role in delivering their
key messages and educational programs to more than 182,000,000 zoo and
aquarium visitors. Any long-term solution to invasive species depends
on responsible, educated citizens. Connecting people with wildlife and
environmental issues is what zoos and aquariums do best. We do not
believe that a categorical exclusion under NEPA for the future listing
of injurious wildlife will help to accomplish this objective. Rather,
we believe that we should work with USFWS to make the injurious
wildlife listing process more efficient, more effective and more
reflective of the current budget, staffing, economic and environmental
realities both for invasive species that are already in this country
and those that have not been introduced.
Thank you for the opportunity to testify on this important matter,
and I would be happy to answer any questions that you may have.
______
Dr. Fleming. Thank you, Mr. Maddy.
Mr. Gehan, you are now recognized for 5 minutes to present
testimony on behalf of the United States Association of Reptile
Keepers.
STATEMENT OF SHAUN M. GEHAN, ATTORNEY, KELLEY DRYE & WARREN,
REPRESENTING U.S. ASSOCIATION OF REPTILE KEEPERS
Mr. Gehan. Mr. Chairman, Ranking Member, members of the
committee, thank you very much for this opportunity to appear.
My name is Shaun Gehan, testifying on behalf of the United
States Association of Reptile Keepers, a trade association
representing breeders, conservationists, researchers,
hobbyists, academics, and pet owners, as well as the reptile
industry's many business sectors.
The hearing addresses the Fish and Wildlife Service's
proposal to exclude itself from NEPA's most minimal obligations
when listing animals that it, in its sole and unchallengeable
discretion, decides are injurious. Due to the specter of
expedited future listings, the proposal alone has stalled
growth in this interstate commerce-dependent industry.
The proposed exclusion guts the Lacey Act of the only
meaningful tool the public has for holding FWS accountable for
its listing decisions. It seems hardly a coincidence that the
Service made this proposal only 3 months after USARK informed
Director Ashe of several NEPA violations committed in listing
four species of constricting snakes as injurious. After all, as
the Chairman mentioned, NEPA has been on the books for over 40
years, and the agency already has available a categorical
exclusion which it can and has used.
The Lacey Act has none of the requirements or protections
more modern laws provide. For example, the Endangered Species
and Magnuson-Stevens Acts each provide multiple opportunities
for public input, and require rigorous analysis using the best
science to justify decisions made. Each requires at least some
consideration of economic impacts on all affected parties.
Lacey merely requires that an injurious finding be
implemented by regulation. All this means is that a notice of
the proposed listing containing virtually any justification,
from the Secretary's not-unreasonable belief to un-verified
statements in a listing petition be published, and that the
public be given an opportunity to comment. The Regulatory
Flexibility Act applies, but only requires analysis of impacts
on small entities.
As in the case of the constricting snake rule, so long as
the Service recognizes some reasonably likely impacts, it
prepares a final regulatory flexibility analysis, the RFA
imposes no other duties.
There are also many excellent executive orders, but they
are policed only by the administration in power. They create no
rights the public can enforce. NEPA is the only law that
provides additional opportunities for public input, and forces
the Service to explain its decision in terms of relevant
science, to lay out a case for why listing will have
environmental benefits, and explain the harms it may avert.
Above all, NEPA allows the public to hold the Service
accountable in court if it ignores science, relevant
information, or public comment. In short, NEPA is the only law
that even partially fills Lacey Act's gaps.
And just because the Service may find that a listing has no
significant impact on the human environment does not mean the
process has no value. As USARK's experience with the snake rule
shows, it does. This was the first-ever listing of a species
long-present in the United States, held as pet, and part of a
small, vibrant, national industry.
The proposal was based on a single report that generated
years of controversy and peer reviewed in literature. Empirical
studies cast doubt on the rule's central premise, that these
snakes could invade and colonize up to a third of the
Continental United States, a discredited finding that applied
to only one of the nine species, the Burmese python, proposed
to be listed.
NEPA requires, where Lacey does not, that these issues be
addressed. The environmental assessment must discuss
controversies, contrary science, and all relevant information
brought to the agency's attention. Courts call this the ``hard
look.'' In the snake world, as USARK amply demonstrated in its
letter to Director Ashe, submitted for the record, the Service
looked the other way, failing to address the public's and even
other public officials at the State and Federal level
environmental concerns, a shocking ambition, given NEPA's
purpose.
With a categorical exclusion, none of these issues would
even be relevant. However, because one was prepared for the
proposed snake listing, it has become obvious that the Service
should, in fact, have found the listing would cause significant
impacts on the human environment, and thus prepared an EIS.
Moreover, as the Fish and Wildlife Service prepared a
wholly inadequate EA, USARK and others had the opportunity to
seek redress for its failure to fully engage relevant issues
and respond to legitimate concerns. Lacey gives a handful of
public officials an awesome amount of power.
In our case, a long-established industry has been
jeopardized on a theory proven false by the facts. More
American jobs, more liberties, will be lost as the Service
increasingly uses Lacey to list other animals that are widely
held and in commerce. Such power should be accompanied by some
minimal level of accountability.
Lacey is a blunt instrument, offering only one solution.
Until replaced by a more refined system, the Service proposal
moves the law in exactly the wrong direction.
[The prepared statement of Mr. Gehan follows:]
Prepared Statement of Shaun M. Gehan, Attorney, Kelley Drye & Warren,
Representing U.S. Association of Reptile Keepers
Chairman Fleming, Ranking Member Sablan, Members of the
Subcommittee, thank you very much for this opportunity to testify on
the U.S. Fish and Wildlife Service's (``FWS'' or ``Service'') proposed
``categorical exclusion'' under the National Environmental Policy Act
(``NEPA'') for the Service's decisions to designate nonnative species
as ``injurious'' under the Lacey Act, 18 U.S.C. Sec. 42.
My testimony is presented on behalf of the United States
Association of Reptile Keepers (``USARK''), a trade association
representing all segments of this industry, including its reptile
breeding, retail, transportation, equipment manufacture, trade show
promotion, medical supply, herpetological veterinary, hobbyists, and
wholesale sectors, as well as pet owners, conservationists,
researchers, and academics.
I am an attorney with the Washington, DC office of Kelley Drye &
Warren LLP and have served as legal counsel and advisor to USARK for
over 5 years. My expertise is in natural resources, environmental, and
administrative law, with particular focus on issues relevant to this
Subcommittee, including, among others, the Lacey Act, Magnuson-Stevens
Fishery Conservation and Management Act, the Endangered Species Act
(``ESA''), NEPA.
i. summary of comments
USARK believes the Service's proposal for a categorical exclusion
for its Lacey Act listings is unjustifiable and wholly unnecessary.
There may be instances when employment of a categorical exclusion is
warranted, particularly for species not in trade or not currently
present in the United States. In such circumstances, however, the
Department of Interior already has an appropriate categorical exclusion
of which the Service has availed itself in past listing decisions. For
most listings, however, NEPA provides for both public participation and
rigorous scientific assessment, elements that are currently otherwise
lacking in the law.
The Lacey Act invests the Secretary of Interior with discretion,
delegated to FWS, to declare species of wildlife ``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. Sec. 46(a)(1). The law is unique among this Nation's
conservation laws in that it provides neither standards, such as a
``best science'' requirement, nor procedural requirements to which the
Service must adhere in making such decisions. The only prerequisite is
that the listing be done ``by regulation,'' which assures only the
provision of notice-and-comment rulemaking and a minimally sufficient
explanation of the basis of the decision.
It is important to understand why Administrative Procedure Act
(``APA'') processes alone are not adequate to protect the public
interest. A determination that a species is ``injurious'' under the
Lacey Act involves judgment by agency experts involving determinations
both technical and scientific. Congress has vested the authority to
make such determinations in the Secretary, while providing no criteria
to guide her decisionmaking. Under such circumstances, the agency is
given the utmost deference by courts. In fact, so long as some
rationale is presented, it is unlikely a listing decision could ever be
successfully challenged.
This makes FWS' continued adherence to NEPA essential. Years of
judicial interpretation have established a clear framework for agencies
to follow in making regulatory decisions. For example, it must evaluate
the opinions of the public and outside experts, respond to all
legitimate concerns brought forth relating to the environmental impacts
of their actions, and consider significant proposed alternatives. If an
agency fails to take the required ``hard look'' or adhere to processes
the law requires, it can be held accountable. By contrast, utilization
of a categorical exclusion shortcuts these procedures and places the
burden of assuring FWS' NEPA compliance in the hands of the public.
In fact, as described in more detail below, the Service has a
checkered past with respect to NEPA compliance in conjunction with
Lacey Act listings. When it listed four species of constricting snakes
as injurious in 2012, the Environmental Assessment (``EA'') prepared
was legally inadequate and FWS' accompanying ``finding of no
significant impact'' (``FONSI''), wholly unjustified. This listing,
done in partial completion of a 2010 proposal to list nine species of
constricting snakes (five others, including the economically important
boa constrictor, remain outstanding).
This was the first Lacey Act listing of species that are widely
held in pet ownership and the foundation of a domestic industry. The
proposal was highly controversial--one of the key NEPA criteria for
producing a full environmental impact statement (``EIS'')--for social
and economic as well as scientific reasons. However, when USARK pointed
out legal deficiencies with the EA, FWS' NEPA compliance generally, and
other legal shortcomings in a detailed letter to FWS Director Dan Ashe
in April of this year (a copy of which is attached to this testimony),
the agency responded with the proposed categorical exclusion that is
the subject of this hearing.
This response is inadequate, and the proposed exclusion, more
generally, is unjustified and should be rejected.
ii. background: why usark opposes fws' proposed lacey listing of
constricting snakes
USARK has, on several grounds, strongly opposed FWS' effort to list
nine species of constricting snakes as ``injurious'' under the Lacey
Act since it was first proposed in 2010.\1\ While only a handful of the
proposed and listed species are in active trade (most especially the
boa constrictor, reticulated python, and the Burmese python), those
that are support a thriving and dynamic domestic industry. Comprised of
thousands of small, ``mom and pop'' breeders and hobbyists, this
segment of the $1.4 billion reptile pet industry supports specialized
equipment manufacturers, veterinarians, feed producers, and an active
trade show industry, of which scores are held each year across the
country. At every level, this industry is comprised of small
businesses.
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\1\ See 75 Fed. Reg. 11808 (March 12, 2010) (proposed rule); 77
Fed. Reg. 3330 (Jan. 23, 2012) (final rule listing four of the nine
species as injurious).
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The proposed and partially finalized listing process has caused
economic harm industry-wide, as almost 90 percent of all sales involve
interstate commerce. As a result, the market diminished considerably
due to fears that FWS will prohibit owners from moving across state
lines with their pets. Breeders have had to cut back and even destroy
valuable brood stock due to low demand and the high costs of
maintenance these animals require. Economic harm at both the macro and
micro level has occurred as a result of FWS' actions.
For example, Jeremy Stone, a reptile breeder for over 25 years,
built a full-time business 10 years ago. A graduate of Brigham Young
University, Stone supports his wife and four children through his
reptile business. Stone's business is captive bred, high-end boa
constrictors with rare colors and patterns. Advanced hobbyists may
spend $10,000 or more on these snakes. Just the proposal to list boa
constrictors has decreased his business by over 60 percent. Before the
proposed listing, Stone had eight employees. He has reluctantly been
forced to lay off five of these individuals. The listing also would
have trickle-down effects on other businesses, such as his feeder
rodent supplier, which he pays $60,000 annually. This Subcommittee
heard a similar story last year from Colette Sutherland of TSK, Inc.,
who testified on H.R. 511.
However, because FWS failed to do an adequate economic analysis,
required by the Regulatory Flexibility Act (``RFA''), USARK
commissioned an economic study by a respected Washington economics
firm. Even under the most conservative economic assumptions, lost
revenue impacts from a finalized listing of all nine snakes range from
$42.8 million to $58.7 million annually. However, given the fact that
such interstate sales comprise a large portion of total revenue, more
realistic annual revenue losses range from $75.6 million to $103.6
million. Many of these impacts have already been experienced, causing
harm to USARK's members.
Substantively, FWS' proposed listing is predicated on a highly
controversial and imprecise study declaring that Burmese pythons
``could find suitable climatic conditions in roughly a third of the
United States.'' \2\ The report, prepared by researchers with the U.S.
Geological Survey (``USGS''), utilized a climate-matching methodology,
the value of which has been debated in peer-reviewed literature.
Detailed critiques over the data and assumptions employed in the USGS
study have also been published. Among the principle scientific
objections was the climate-matching methodology which relied on mean
monthly temperatures rather than temperature extremes and the
assumption that Burmese python hibernate, although they have never been
observed engaging in this behavior. It has been noted also that a
significant percentage of weather stations ostensibly within the
species' native range and used to generate mean temperatures were at
altitudes or in regions where these snakes have never been observed nor
at which they could survive.
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\2\ 77 Fed. Reg. at 3332; see also id. at 3331 (``The purpose of
listing the Burmese python and its conspecifics . . . as injurious
wildlife is to prevent the accidental or intentional introduction of
and the possible subsequent establishment of populations of these
snakes in the wild in the United States.'').
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Empirical studies demonstrate that the initial projections of
suitable habitat have been grossly overestimated. Nonetheless, FWS
continued to rely on these findings when it listed four of the nine
species under the Lacey Act in 2012. Further, the Burmese python,
inappropriately defined as including the Indian python (Python molurus
molurus)--a distinct subspecies which is listed as ``endangered'' under
the ESA, can be found in a broader range of climates than any of the
other eight species. Each is found in tropical regions and are unlikely
to survive anywhere in the continental United States outside of the
subtropical regions of extreme southern Florida.
In fact, the boa constrictor, which accounts for the largest
percentage of revenues for the industry by far, has had a small remnant
population in a small area of south Florida known as the Deering Estate
since the 1950s. Believed to have been left behind after a film shoot
or television production, this population has remained small and well
contained. This empirical evidence belies FWS' claims that such snakes
will spread and engulf the continental United States, from Washington
State to Washington, DC and beyond.
In short, the proposal is unjustified. As shown below, the process
by which the four species of snakes was listed violated applicable law,
including not only the RFA and APA, but NEPA as well.
iii. usark informs fws of nepa and other violations
The Federal Register notice proposing a categorical exclusion for
Lacey Act listings followed by only 3 months submission of a letter by
USARK to FWS Director Ashe that highlighted, among other things, stark
inadequacies in the EA accompanying the final rule listing four species
of constricting snakes as injurious. USARK's letter identified
deficiencies with the rigor and thoroughness of scientific analysis the
Service undertook in support of the listing, some of which are
described above. In fact, important scientific studies submitted by the
public were never considered. More importantly, the EA failed to
address significant environmental concerns raised by the public during
the rulemaking process.
In addition to USARK, organizations including environmental groups,
state wildlife officials, the zoo and aquarium community, academic and
private conservation researchers, and personnel with other Federal
conservation agencies raised concerns with the environmental impacts
stemming from the proposed listing, including:
Concerns that the proposal would engender the asserted
harm; that is, create a perverse incentive for
irresponsible or aggrieved owners of snakes to release them
into the wild if they cannot be transported across state
lines or lose value due to a market collapse;
Academic and private researchers whose work is partially
funded through breeding and sales operations noted that
important conservation research and programs to develop
captive breeding techniques to replenish threatened and
endangered snake populations in the wild would be
terminated;
State fish and wildlife agencies discussed adverse impacts
on limited state conservation and enforcement resources;
The zoo and aquarium community raised concerns about
adverse impacts on interstate and international transfers
necessary for species survival programs and, along with
USARK, negative effects on environmental education
programs.
Matters such as these lie at the heart of NEPA. As USARK noted in
its letter, however, none of these matters were addressed at all in the
EA. Further, the EA entirely failed to mention that the listing itself
was controversial and that there was considerable disagreement within
the scientific community--including among Federal scientists--over the
proposed listings' scientific basis.
Some recommended FWS consider an import ban for these species as an
alternative that would minimize much of the adverse economic impacts.
Instead, the Service merely considered different combinations of the
nine snakes to list as ``alternatives.'' Despite NEPA's requirements,
no serious consideration to meaningful alternatives occurred.
The letter, a copy of which is appended for the record, amply
supported USARK's claim that these deficiencies in the Service's NEPA
documentation was contrary to the law, NEPA's implementing regulations,
and decades of well-established case law. In fact, far from making the
unsupported finding that the listing would not have a significant
effect on the human environment, the record demonstrated that a full
environmental impact statement was required. Given that, it is
difficult for USARK to see FWS' proposal for a categorical exclusion as
anything other than a wholly inadequate response to the legal
shortcomings it identified.
iv. problems with the categorical exclusion and the importance of nepa
in lacey act processes
A. Brief Background on NEPA
NEPA applies to ``major Federal actions significantly affecting the
quality of the human environment.'' Contrary to FWS' assertion in the
proposed Categorical exclusion, there is no exemption for actions that
ostensibly benefit the environment.\3\ NEPA applies to the actions
under the Endangered Species Act,\4\ and certainly to injurious
listings under the Lacey Act.
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\3\ See 40 CFR Sec. 1508.27(b) (``A significant effect may exist
even if the Federal agency believes that on balance the effect will be
beneficial'').
\4\ See, e.g., Cape Hatteras Access Pres. Alliance v. U.S. Dep't of
Interior, 344 F. Supp. 2d 108, 134-36 (D.D.C. 2004).
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NEPA is an ``action forcing'' statute with two major objectives:
(1) it ``ensures that the agency, in reaching its decision, will have
available, and will carefully consider, detailed information concerning
significant environmental impacts''; and (2) ``guarantees that the
relevant information will be made available to the larger audience that
may also play a role in both the decisionmaking process and the
implementation of that decision.'' \5\ ``An agency's primary duty under
NEPA is to take a `hard look' at environmental consequences.'' \6\
``[A]n agency takes a sufficient `hard look' when it obtains opinions
from its own experts, obtains opinions from experts outside the agency,
gives careful scientific scrutiny and responds to all legitimate
concerns that are raised.'' \7\ Further, an agency must consider ``all
alternatives that appear reasonable and appropriate for study at the
time of drafting the EIS, as well as significant alternatives suggested
by other agencies or the public during the comment period.'' \8\
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\5\ Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349
(1989).
\6\ Pub. Utils. Comm'n v. FERC, 900 F.2d 269, 282 (D.C. Cir. 1990)
(quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976))
(internal quotes omitted).
\7\ Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283,
288 (4th Cir. 1999) (citing Marsh v. Oregon Natural Res. Council, 490
U.S. 360, 378-85 (1989)); see also 40 CFR Sec. 1500.2 (``Accurate
scientific analysis, expert agency comments, and public scrutiny are
essential to implementing NEPA.'').
\8\ Roosevelt Campobello Int'l Park Comm'n v. United States E.P.A.,
684 F.2d 1041, 1047 (1st Cir. 1982) (internal quotations omitted).
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NEPA regulations provide that if the agency is uncertain whether
the impacts rise to the level of a major Federal action requiring an
EIS, the agency must prepare an environmental assessment. An EA is ``a
concise document that briefly discusses the relevant issues and either
reaches a conclusion that preparation of [an] EIS is necessary or
concludes with a finding of no significant impact, in which case
preparation of an EIS is unnecessary.'' \9\ For its part, an EIS is
required when, among other things, an action's ``effects on the quality
of the human environment are likely to be highly controversial; . . .
possible effects on the human environment are highly uncertain or
involve unique or unknown risks; [and when an] action may establish a
precedent for future actions with significant effects or represents a
decision in principle about a future consideration.' '' 40 CFR
Sec. 1508.27(b).
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\9\ Sierra Club v. Espy, 38 F.3d 792, 796 (5th Cir. 1994).
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An agency's NEPA analysis insufficient where it lacks a ``reasoned
discussion of major scientific objections.'' \10\ When ``highly
qualified experts'' raise criticisms regarding important scientific
findings, an ``agency cannot merely say that the [information] and the
criticisms arising from it make no difference; to comply with NEPA, it
must give a reasoned analysis and response.'' Id. at 1482-83. The need
to consider important scientific issues also applies when an agency
develops an EA.\11\
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\10\ Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, 1482
(W.D. Wash. 1992).
\11\ Found. for N. Am. Wild Sheep v. U.S. Dept. of Agr., 681 F.2d
1172, 1178 (9th Cir. 1982).
---------------------------------------------------------------------------
A categorical exclusion is a form of NEPA compliance, albeit one
that applies to ``a category of actions which do not individually or
cumulatively have a significant effect on the human environment and
which have been found to have no such effect in procedures adopted by a
Federal agency in implementation of these regulations.'' \12\ However,
even for such categories of actions, an agency must analyze an action
for ``extraordinary circumstances in which a normally excluded action
may have a significant environmental effect.'' 40 CFR Sec. 1508.4.
---------------------------------------------------------------------------
\12\ 40 CFR Sec. 1508.4; see also id. Sec. 1507.3(b)(2)(ii)
(requiring agencies to adopt NEPA procedures including categorical
exclusions).
---------------------------------------------------------------------------
B. USARK's Concerns With the Proposed Categorical Exclusion
The Lacey Act is a statute with a conservation purpose that is
unusual both in the fact it is set forth in Title 18 of the U.S. Code,
which deals with criminal laws, and in the utter absence of any
standards or process to guide the listing process. Unlike the ESA or
the Magnuson-Stevens Fishery Conservation and Management Act, the law
contains no requirement that the agency utilize the best scientific
information or assess economic impacts of the action. A determination
that a species is injurious is almost entirely committed to the
Secretary's discretion.
NEPA fills a gap that no other provision of law provides. For
example, while the APA sets forth procedural requirements for notice-
and-comment rulemaking, that law does not require any substantive
analysis of a proposal. Its requirement for reasoned decisionmaking
merely provides that an agency explain its authority and rationale for
promulgating a rule. Agency determinations, especially those involving
scientific determinations, are given high deference by courts. The
Lacey Act's lack of standards or criteria ensures that every listing
would pass judicial review, unless the Service itself declared that it
had ``arbitrarily and capriciously'' decided to list a species.
The RFA, for its part, requires economic impacts analysis, but only
as to small entities. While in the case of constricting snakes, such
analysis captures the overwhelming majority of the sector's economic
activity, here and elsewhere the law does not require FWS to capture or
describe the full range of economic impacts. Similarly, executive
orders, like E.O. 12866, require agencies to compare benefits and costs
and utilize sound scientific information. However, executive orders are
not judicially enforceable. Only the Office of Management and Budget's
Office of Information and Regulatory Affairs (``OIRA'') controls their
implementation. And as OIRA is charged with implementing an
administration's regulatory philosophy, it can be a weak guardian of
these procedural safeguards.
Among all of these, NEPA is the only law that provides assurances
that listing decisions will be based on sound science; that the public
will have input on the quality of the analyses and underpinning of a
rule; and, most importantly, to hold FWS accountable for political
decisionmaking. USARK's letter to Director Ashe makes this case
convincingly. Without the ability to challenge the agency's compliance
with NEPA, the public would be entirely subject to the whims of the
FWS. If the categorical exclusion had been applied in this instance,
what was already weak and perfunctory analysis would be even more
shrouded from public view.
Even though application of NEPA provides an important tool, it is
also far from perfect. USARK agrees with FWS that the law may be too
blunt an instrument to effectively address invasive species concerns.
However, in addition to providing additional tools to address specific
issues--for example, in the case of the constricting snakes, a ban on
imports only would effectively meet the concerns while minimizing
impacts--the law must include substantive standards and procedures.
USARK would ask the Subcommittee to consider adding the types of
protections found in other conservation laws. For example, the MSA
requires economic impact analysis, use of the best scientific
information available, provides for ample public input, and includes a
host of other required analyses including for an impact statement on
affected parties. Similar provisions should be considered for the Lacey
Act.
Recognizing that a revisiting of the law is unlikely in the near
term, full application of NEPA is the next best alternative. For all
these reasons, USARK strongly opposes the Service's proposed exclusion.
I thank you very much for this opportunity to testify on this very
important matter. If there is any further information that would assist
the Committee in its work, I will do my very best to provide it.
______
Dr. Fleming. Thank you, Mr. Gehan.
Next is Mr. Meyers, Mr. Marshall Meyers, who will present
testimony on behalf of the Pet Industry Joint Advisory Council.
Mr. Meyers, you are now recognized for 5 minutes.
STATEMENT OF MARSHALL MEYERS, SENIOR ADVISOR, PET INDUSTRY
JOINT ADVISORY COUNCIL
Mr. Meyers. Mr. Chairman and members of the committee, I am
Marshall Meyers, Senior Advisor and former CEO of the Pet
Industry Joint Advisory Council. Thank you for inviting me to
appear today to address the Service's proposal to establish a
categorical exclusion under Lacey.
PIJAC is a national trade association representing all
segments of the pet industry. Our members serve 63 percent of
the U.S. households that care for and maintain pets of all
types, sizes, and descriptions, the majority of which fall
under the purview of Lacey. The empirical evidence demonstrates
that the vast majority of these pet species pose little risk of
release and establishment as injurious species.
However, inasmuch as we are engaged in trading more live
specimens of more species than any other industry, we recognize
our responsibility for environmental stewardship. This includes
collaboration with the Fish and Wildlife Service pursuant to
two memorandums of understanding, one involving public
education outreach on non-release, and one signed only this
June with the Service and the Association of Fish and Wildlife
Agencies to develop voluntary, non-regulatory approaches to
reduce the risk of importing potentially invasive species not
currently found in the United States.
Our historic and primary concern with respect to
implementation of Lacey is its total lack of statutory listing
criteria, as well as statutory processes, other than complying
with the Administrative Procedures Act.
The Service's justification is somewhat baffling. In one
breath the Service argues it would only conduct an EA when, as,
and if it determines that there is ``significant effect on the
human environment.'' However, in another breath it argues that
it will not have to comply with NEPA, because the species
should not be here in the first place, and therefore, cannot
have a significant effect on the human environment. Such
circular reasoning.
For species already present in the United States,
prohibiting such species could well have an impact on the human
environment, and that impact must be evaluated, pursuant to
NEPA standards.
We are also mystified by the justification for a
categorical exclusion on the basis that injurious wildlife
listings to date have shown that the listings would have no
significant effect on the human and natural environment.
Assuming, arguendo, that that is accurate for past listings--
other than the constrictor listing--how can the Service predict
a similar conclusion for all future listings, especially for
species in trade or already present in the United States?
NEPA safeguards are far too important to be circumvented by
adopting a blanket exclusion in this instance. What is being
proposed goes far beyond the use contemplated by NEPA. NEPA
calls for evaluating impacts of agency action on a wide variety
of areas involving both negative and beneficial impacts on the
human and natural environment, including social impacts,
environmental justice issues, and impacts on disadvantaged
communities.
We are somewhat sympathetic to the Service's desire to
avoid or minimize duplication. There may be grounds for
justifying a CATEX when dealing with species not currently
present in the United States.
It is our position the Department should step back,
withdraw this proposal, consider convening stakeholder meetings
to explore how the listing process can be improved, consistent
with law and resources, improve transparency, and seek public
input at every stage of the process. We recognize and support
the need to improve the injurious wildlife listing process, but
we don't believe this is the best way forward.
CEs are traditionally reserved for those situations where
agency actions are effectively administrative or administerial
in nature. At best, we have three proposals. Adoption of and
clear enunciation of the listing criteria and processes that
the Service is encompassing, the NEPA elements that they claim
that are duplicative under NEPA as an integral part of their
procedures and protocols. Create a tiered process for
evaluating species not present in the United States that would
be different than those that are present here, either in trade
or otherwise present. And for species in trade or otherwise
present, ensure that they incorporate NEPA style processes.
PIJAC is willing to work collaboratively with the Service
and other stakeholders to explore the feasibility of such
programmatic reviews, and believes such reviews could well meet
a range of interests.
Now, in conclusion, Mr. Chairman, I guess I am about to
reveal my age. My involvement with injurious wildlife dates
back to circa 1973, when the Service sought to list all non-
natives injurious until proven innocent. We successfully
challenged that approach on the grounds that it lacked, among
other things, scientific integrity, and raised a number of
substantial due process issues.
Proving a negative has always been problematic for
scientists, and even for lawyers like myself. Now, 40-plus
years later, they want to sidestep NEPA. Considered by many as
one of the most important environmental safeguards for
scientific integrity, full disclosure, and reasoned
decisionmaking. Loosely paraphrasing H.L. Mencken, for every
complex problem there is a categorical exclusion that is
simple, neat, and wrong.
Thank you, Mr. Chairman. We look forward to working with
the subcommittee and the Service in addressing this very
important environmental issue.
[The prepared statement of Mr. Meyers follows:]
Prepared Statement of Marshall Meyers, Pet Industry Joint Advisory
Council
Mr. Chairman and Members of the Subcommittee, I am Marshall Meyers,
Senior Advisor and former CEO of the Pet Industry Joint Advisory
Council (PIJAC). Thank you for inviting me to appear before the
Subcommittee today to address the Department of Interior's proposal to
establish a Categorical Exclusion under the National Environmental
Policy Act (NEPA) for listing non-native species as ``injurious
wildlife'' under the Lacey Act (18 U.S.C. 42, as amended).
PIJAC is a nonprofit, service-oriented national trade association
representing all segments of the pet industry. These include importers
and exporters of live organisms, retail pet stores, product
manufacturers, other industry trade associations in the United States
and abroad, as well as hobby clubs and aquarium societies. Our members
serve 63 percent of the U.S. households that care for and maintain pets
of all types, sizes and descriptions: the majority of which fall within
provisions of the Lacey Act.
Pet owners across this Nation possess thousands of non-native
(nonindigenous) species in significant numbers. This is not a new
phenomenon. For generations, people have maintained a diverse array of
non-native mammals, birds, reptiles, amphibians, and fish as companion
animals. It is not the intent of the pet industry to intentionally
release these animals into the natural environment. Nor would the vast
majority of pet owners have any such intent. In fact, the majority of
pet owners consider their pets family members. The empirical evidence
demonstrates that the vast majority of these pet species pose little
risk of release and establishment as injurious species.
The bond between pets and their owners is well documented--as are
the benefits of this bond . . . greater mental and physical health
among adults and greater socialization and learning skills among
children. Furthermore, it is clear that children who grow up with pets
develop empathy for animals and the environment in general. I have no
doubt that the vast majority of individuals who are members of
environmental organizations are also pet owners and developed their
love for animals by the pets they grew up with.
Inasmuch as the pet industry is engaged in trading more live
specimens of more species than any other industry, we recognize that
part of our mission requires fostering environmental stewardship.
Indeed, this is expressly encompassed by PIJAC's mission statement.
That includes collaboration pursuant to a Memorandum of Understanding
(MOU) with the Fish and Wildlife Service in educating not only our
industry, but also our customers on the importance of not releasing
animals into the environment.
In June of this year, PIJAC, the Association of Fish and Wildlife
Agencies (AFWA), and the Fish and Wildlife Service (Service) executed
an MOU to collaborate on the development of non-regulatory approaches
to reduce the risk of introducing/importing potentially invasive
species not currently found in the United States. The MOU also provides
that the parties will collaborate on voluntary biosecurity and
mitigation practices designed to minimize the likelihood of release and
establishment if such species enter the United States. The Steering
Committee, Co-Chaired by AFWA and PIJAC, is currently preparing a 2013-
2014 Action Plan.
It is important to note that the pet industry is not the only
commercial or recreational group having a long-standing relationship
with nonnative species. Other significant stakeholders dependent upon
nonnative species include: sports fishing, Federal/state hatcheries,
agriculture, biological and biomedical research, entertainment,
hunting, food aquaculture, zoos and aquariums, and classroom educators.
While most of these organisms are never intended for release into
natural environments, some of these species (e.g. oysters, trout, bass,
deer, game birds) are intentionally placed into natural environments by
government and private entities throughout the United States.
Representatives of those communities are invited to support the MOU and
become a signatory.
My involvement with the Service's implementation of its ``injurious
wildlife'' authority under the provisions of the Lacey Act dates back
to the early 1970s when the Service sought to list all non-native
species as `injurious'' until proven innocent on a species-by-species
basis. We successfully challenged that approach on grounds that it
lacked, among other things, a science-based justification and raised a
number of substantial due process issues. Proving the negative has
always been problematic! It would have placed an untenable burden on
the government and/or the trade to ``scientifically prove'' a
negative--i.e. the absence of current or any potential harm ``to human
beings, to the interests of agriculture, horticulture, forestry, or to
wildlife or wildlife resources of the United States.'' (18 U.S.C.
42(a)(1))
Prior to seeking a Categorical Exclusion, PIJAC believes it would
have been far more prudent, let alone informative, had the Service
published in some form (preferably annotated) its listing criteria,
including the process or processes utilized in determining
environmental harm and concluding that a particular species is in fact
``injurious'' and warrants listing. Simply directing one to read the
recent ``Constrictor Rule'' and accompanying documents is grossly
insufficient.
Our historic and primary concern with respect to the Service's
implementation of the Lacey injurious wildlife listing provisions is
the total lack of statutory listing criteria as well as statutory
processes (other than complying with the provisions of the
Administrative Procedure Act) for assessing the species'
characteristics, receiving public input and comments, documenting the
evidence, disclosure of the rationale for listing, etc.
As noted in the Service's ``Frequently Asked Questions'' explaining
why it is seeking a ``Categorical Exclusion for Listing Species as
Injurious Wildlife,'' an Environmental Assessment (EA) or Environmental
Impact Statement (EIS) would only be needed ``if the action could have
a significant effect on the human environment.'' While one would assume
that completing an EA would be at a minimum fundamental to determining
whether the listing of a proposed species has or could have a
``significant effect on the human environment,'' simple logic dictates
that finding a nonnative species ``injurious'' would by its very nature
require a thorough and complete assessment of its impact on the
environment as a condition precedent to any proposed listing. Thus, the
Service's justification is somewhat baffling. In one breath, the
Service argues it would only conduct an EA when, as, and if it
determines (we assume without public notice and comment) that there is
a ``significant effect on the human environment,'' however, in another
breath it argues it will not have to comply with NEPA because the
species should not be here in the first place and ``prohibiting a
nonindigenous injurious species from being introduced into an area in
which it does not naturally occur cannot have a significant effect on
the human environment.'' The argument is specious. For species already
present in the United States, irrespective of whether they were
unintentionally introduced or intentionally imported for commercial or
other purposes, prohibiting such species indubitably does have an
impact on the human environment, and that impact should be evaluated.
So attempts to circumvent such assessments by adopting Categorical
Exclusions for all nonnative species, absent some process for assuring
NEPA-styled safeguards, defeats the underlying purpose of NEPA. Nor has
the Service provided a compelling justification for abandoning its
prior reliance on utilizing Categorical Exclusions on a case-by-case
basis when the action did not warrant conducting a full blown NEPA
analysis.
To add to the confusion of the Service's position is its
recognition that ``it has generally prepared EAs for listing rules . .
.'' and therefore ``a categorical exclusion would allow the Service to
exercise its authority . . . more effectively and efficiently by
precluding the need to conduct redundant environmental analyses.'' This
position could have merit depending on the criteria utilized and the
scope of the initial Service assessment. If the Service does in fact
conduct an EA or other NEPA-styled assessments, PIJAC acknowledges
there may be benefits by minimizing redundancy by not having to simply
replicate them under NEPA. However, the failure to conduct a NEPA-
styled EA or EIS would allow the Service to bypass consideration of
social, economic or other beneficial impacts taken into consideration
within a NEPA process. The Service's concerns about redundant processes
are belied by its FAQ statement, in which it indicates that it would
not have to produce an EA to determine whether or not ``a significant
effect on the human environment'' exists or could exist! What type of
an assessment would the Service rely on other than an EA or an EIS to
reach such a conclusion? The Service appears to be discounting the need
for NEPA based on an alternative process that it then goes on to
suggest would, itself, be unnecessary. Such disingenuousness confirms
the worst fears of those concerned about the broad Categorical
Exclusion being proposed by the Service: that the ultimate result will
be no evaluation process at all or at best an extremely limited
assessment!
Thus, we remain somewhat mystified by the Service's justification
for seeking a Categorical Exclusion so it could avoid conducting an
Environmental Assessment (EA) on the basis that injurious wildlife
listings to date have shown that the listings would have no significant
effect on the human and natural environment. Assuming arguendo that
this is accurate for past listings, other than the recent Constrictor
listing decision, how can the Service predict a similar conclusion for
all future listings, especially for species already in trade and/or in
the United States? The apparent justification is based on the premise
that ``a listing action helps keep species out of the United States
that are not naturally found here or helps prevent the spread of
injurious wildlife into new areas within the country where they are not
normally found . . .'' therefore, ipso facto, they have ``no effect on
the environment.\1\ '' Such a conclusion, if it has any validity at
all, could only apply to species not yet found in the United States.
For species already present, whether unintentionally introduced or the
result of importation years or even decades ago for commercial
purposes, the rationale offered by the Service is wholly inapplicable.
---------------------------------------------------------------------------
\1\ U.S. Fish & Wildlife Service Bulletin, dated July 1, 2013.
---------------------------------------------------------------------------
The Service's argument is overly simplistic in justifying its
desire to indulge in an ``abbreviated review'' of a proposed species
listing and severely limits if not essentially precludes public input
prior to the Service's publishing its conclusions in a proposed rule.
While this would certainly streamline the process intended to keep out
injurious wildlife or to prevent their spread across state lines, it
would not make the process more effective but would, rather, undermine
the fundamental tenants of NEPA, an Act that is relied upon to ensure a
systematic interdisciplinary approach to decisionmaking involving the
environment. Indeed, eliminating due process will always ``streamline''
any legal procedure, but far from enhancing effectiveness it defeats
the purpose of the process itself. NEPA's safeguards are far too
important to be sidestepped by adopting a blanket Categorical Exclusion
in this instance. What is being proposed goes far beyond the use
contemplated by NEPA.
We are somewhat sympathetic to the Service's desire to avoid or
minimize the degree of duplication that may result by complying with
NEPA under all circumstances. There may be grounds for justifying a
Categorical Exclusion when dealing with a species which is not present
in the United States and for which the Service has demonstrated
potential invasiveness if introduced into the environment of the United
States. For species in trade or otherwise already present in the United
States, utilizing Categorical Exclusions does not provide adequate
safeguards to prevent the Service from systematically indulging in
species' listings without full and complete NEPA-styled Environmental
Assessments or Environmental Impact Statements when a significant
impact on the human and natural environment has been documented or
there is substantial controversy surrounding the science, its impact on
the human environment, and the overall proposed listing.
PIJAC assumes that the Service relies upon different criteria for
listing an unintentionally introduced species versus a species
intentionally imported into the United States. Additionally, PIJAC
assumes that the criteria for listing species not yet in the United
States would differ substantially from species already in-trade and/or
are possessed as pets or are maintained in some form of commercial or
recreational activity, such as food aquaculture, sports fishing, bio-
control agents, zoological exhibition, biomedical research, etc. Such
listings are clearly not analogous and certainly deserve separate
treatment. But nothing in the proposal demonstrates the manner in which
these two completely different circumstances will be addressed. Absent
such well-defined criteria as an integral component of an EA and/or an
EIS, seeking a Categorical Exclusion for all potential scenarios simply
cannot be justified.
For those species in trade or already within the United States an
Environmental Assessment at a minimum is an essential tool for
decisionmakers when evaluating the positive and negative environmental
effects of a proposed action, including identifying one or more
alternative actions that might be selected instead of a simple ban.
Based upon those findings, a properly conducted Environmental Impact
Statement would be required to address substantial controversies
involving the scientific assessments, socioeconomic impacts, potential
mitigation measures, environmental justice issues, or other mechanisms
for regulating or limiting access to such species. A glaring weakness
in the Service's justification of their proposal is the failure to give
due consideration to the balancing act that a NEPA assessment is meant
to provide; that is, not only the potential for harm due to a species'
presence, but also the benefits such presence brings as well.
In our opinion, an Environmental Assessment is a critical and
essential component of any evaluation of a nonnative species as a
potentially ``injurious wildlife'' species. Circumventing a process
that incorporates NEPA-styled processes under the theory that keeping
``species out of the country that are injurious or to prevent their
spread across State lines'' is ill conceived when dealing with species
in-trade or already within the United States. For such species, the
Service cannot legitimately claim such action would have no effect on
the human and natural environment because the species' being listed are
not normally found here when in fact such species are already present,
often in significant numbers. How would the Service determine that such
species are harmful to the named interests under Lacey without
conducting an EA? How can it conclude that its proposed action does not
individually or cumulatively have an impact on the human environment
absent receipt of public comment and completing some form of an
assessment subject to public comment? Again, the NEPA assessment must
weigh not just potentially negative benefits of a species, but the
positive benefits of such species as well.
The simplistic approach of ignoring a NEPA-styled EA or EIS
essentially disregards from the outset any benefits that may result
from trade in many non-native species. Moreover, if the Service can
simply find a non-native species injurious without ascertaining the
scope of its harm (e.g. it impacts a significant portion of the United
States vs. being regional or found locally negatively impacting a
single thermal spring,) or take into consideration alternatives as
contemplated under NEPA, the Service's approach falls far short of any
claim that its decisions are transparent, science-based, or have
thoroughly evaluated whether there are any positive or negative impacts
on the environment.
The pursuit of a more efficient and effective process under the
Lacey Act requires a thorough overhaul of an outdated law not geared to
a modern economy or today's world. Listing criteria for species in
trade should be significantly different than for species not in trade
or not yet found within the United States. Once in trade, however, the
Service should not circumvent processes that promote collaboration,
transparency, and sound science-based decisionmaking. Simply reducing
the time to process a listing should not be the goal--improving the
risk assessment processes, enhancing transparency, and encouraging
increased collaboration by engaging stakeholder involvement in the
process should be the desired objective. Until this Act is updated, an
effective, thorough, and transparent evaluation process is that much
more critical. Inasmuch as the Lacey Act's injurious wildlife
provisions are conspicuously silent as to the criteria for listing or
evaluating the environmental impacts/benefits, NEPA is an essential
safeguard to ensuring a rigorous assessment evaluating all relevant
information and reliance on scientific integrity, public input, and
transparency at various stages of the decisionmaking process.
PIJAC has long advocated updating the injurious wildlife listing
process by differentiating between first time introductions/
importations and species already in international trade or present in
the United States. PIJAC has served on the Invasive Species Advisory
Committee since its inception and recognizes the need for tools that
facilitate more effective and efficient listings. Shortcutting the
process by not automatically conducting an EA to ascertain
injuriousness, as well as conducting an EIS when the species is in
international and/or domestic trade or otherwise exists in the United
States for recreational purposes, pets, research, zoological exhibition
would create a severe risk of unnecessarily restricting species that
not only represent no harm but in fact offer substantial benefits to
the people of this country. For species in trade or already in the
United States, the Service should automatically conduct a NEPA-styled
EA as well as an EIS as a matter of course. And this does not mean that
the process would have to be duplicated under NEPA. The Service would
be able to continue its practice of NEPA compliance as it has in the
past.
It is our position that the Department should step back, withdraw
this proposal, and consider convening stakeholder meetings to explore
how the listing process can be improved consistent with law and
resources, improve transparency, seek public input at different stages
of the process in lieu of publishing at one time a proposed rule
containing the Department's conclusions and findings along with the
Service's Draft Environmental Assessment, Draft Economic Analysis,
Initial Regulatory Flexibility Analysis, etc. By shifting injurious
listings to a Categorical Exclusion and the non-development of an EA,
there is very limited, or even no, disclosure of environmental impacts,
including social impacts, environmental justice issues, and impacts to
disadvantaged communities in the Service's reaching its ultimate
determination. A Categorical Exclusion assumes that none of these occur
and the public could be precluded from submitting comments in an
informed way on impacts normally disclosed in an EA. Eliminating any
chance of public meetings even when the issues are highly
controversial, subject to scientific debate and disagreement.
On behalf of the Pet Industry Joint Advisory Council (PIJAC), we
thank you for providing us an opportunity to share our thoughts and
concerns on utilization of a blanket Categorical Exclusion for
injurious wildlife listings. We recognize and support the need to
improve the injurious wildlife listing process, but do not believe that
this is the most efficacious or proper approach. As mentioned
previously, at best there should be:
1. A tiered process evaluating species not present in the United
States from species in-trade or otherwise already present
in the United States;
2. Adoption of and clear enunciation of the listing criteria and
processes that encompasses the elements that the Service
claims are duplicative under NEPA as an integral part of
the Service's procedures and protocols for listing
injurious wildlife; and
3. For species in trade or otherwise present in the United States
incorporate in the Service's protocols a mandate for public
input at various stages of the process to ascertain which
issues, if any, involve questions of scientific debate and
integrity, highly controversial issues with respect to
significant impacts on the human and natural environment,
and ensure that highly controversial issues are thoroughly
vetted in an open and transparent fashion.
Despite our reservations about the Service's position on this
matter, we remain committed to working with the Subcommittee and the
Service to address this important environmental issue.
Thank you again for inviting me to appear today. I would be happy
to answer any questions.
______
Dr. Fleming. OK. Thank you, Mr. Meyers. Votes have been
called. Rather than going ahead and digging in, I think we will
go ahead and recess for votes. We will return after votes, and
we will hear questions from the panel. And we thank you. We are
in recess.
[Recess.]
Dr. Fleming. The committee is back in session. And we thank
you for your indulgence. Hopefully you enjoyed some good
Capitol coffee while we were voting.
At this point I would like to recognize myself for 5
minutes for questions. And first, for the Fish and Wildlife
Service, these are yes-and-no questions. We will go on to maybe
more discussion, but I would like to get just brief yes-or-no
answers to these, thus far.
Has the Service previously sought a categorical exclusion
for Lacey Act listing in the past?
Mr. Hoskins. Yes. In 2002 we invoked a categorical
exclusion for listings.
Dr. Fleming. So one example, then, thus far.
Mr. Hoskins. Well, there were two different species,
snakehead and a brushtail possum. But yes, it was one case in
which we invoked it in 2002.
Dr. Fleming. OK. According to your congressional affairs
office, the Service has two Federal employees and spends about
$60,000 a year on listing decisions. Does that sound like your
agency believes this is a priority program?
Mr. Hoskins. Given the financial and budget constraints
that we are operating, we are doing the best that we can with
the resources that we have.
Dr. Fleming. Let's see. Well, you have, for candidate
conservation, 74; listing, 144; consultation, 451. Let's see,
where is the land acquisition? Oh, land acquisition, realty
division, 89. So are you having similar difficulties finding
resources for those departments and that manpower?
Mr. Hoskins. Well, in the current budget climate we are in
the process of trying to operate within less funds each year.
And so, those are historical numbers, but I think the other
programs headed by other assistant directors are facing similar
budget constraints.
In the context of the Lacey Act, as you know, the
categorical exclusion is intended to help streamline the
process----
Dr. Fleming. But----
Mr. Hoskins [continuing]. So that we can move forward more
effectively----
Dr. Fleming. But the size has been this way for a number of
years. So this was well before we came into our financial
constraints. So, obviously, that really wouldn't apply, would
it? If you only had two employees 10 years ago, before these
issues came to bear, then you really couldn't use that as an
excuse, can you?
Mr. Hoskins. Well, I take your point that the resources
that we devote to the program are a limiting factor in our
ability to move forward with listings. But, in that context,
the categorical exclusion--that is the subject of the July 1
proposal--is intended to streamline the process so that we can
make more effective and efficient use of the resources that we
have.
Dr. Fleming. Well, needless to say, of the over 1,000
employees you have, 2 employees would be a very, very small,
minuscule aspect, in terms of priority.
How about this question? Would you make the commitment
today that the agency would only use a categorical exclusion
for the listing of species that are not yet here in the United
States?
Mr. Hoskins. The categorical exclusion that we proposed on
July 1 is intended to apply across the board. So the answer, in
terms of the proposal, is that it is intended to apply, under
normal circumstances, because there is an extraordinary----
Dr. Fleming. Again, I am limited in time. A yes or no would
be adequate.
Mr. Hoskins. Is it----
Dr. Fleming. Are we not----
Mr. Hoskins. Would we apply it to species that are not in
trade, that are in trade? Yes, we intend to apply it to both.
Dr. Fleming. OK, thank you. All right. If you have not--
what has dramatically changed that cries out for this
fundamental change?
Mr. Hoskins. As I said in my testimony, the problem of
invasive species is a significant one, costing billions of
dollars per year. And what we are trying to do is work within
the construct of the current Act to move forward more
efficiently and effectively to address that problem, which
causes not only environmental damage, in terms of loss of
biodiversity, but significant economic damage.
Dr. Fleming. You know, I am impressed with the fever, the
energy to streamline regulations for this purpose of
exclusions. But it is amazing how there is not the equal
exuberance when it comes to the effect and impact on private
industry.
But I will move on to the next question. What has been the
environmental community's reaction to your proposed categorical
exclusion?
Mr. Hoskins. I think, as reflected in Mr. Jenkins'
testimony, it has been generally favorable, not because they
are in favor of categorical exclusions under NEPA, per se, but
because they recognize that this is a need that needs to be
addressed, and that, in this case, based on the prior record of
FONSIs, finding of no significant impact, it is warranted.
Dr. Fleming. OK. Can you provide us letters or some
documentation of their support?
Mr. Hoskins. Well, I believe Mr. Jenkins testified on
behalf of several environmental organizations today.
Dr. Fleming. Well, that is kind of secondhand. Can we get a
direct comment from those organizations? Mr. Jenkins?
Mr. Jenkins. Thank you, Mr. Chairman. Yes, happy to address
that. We did submit a detailed letter of support into the
record that the Service has, a comment letter, as well as my
testimony, which reflects the points in our comment letter. We
would be happy to put our comment letter into the record for
this hearing, if you would like.
And, as Mr. Hoskins said, the environmental community
generally has looked disfavorably on categorical exclusions,
and tends to be suspicious of them because, you know, we like
to see EAs about projects. However, as Mr. Sablan pointed out,
this is an ironic situation where the environmental community
sees the real value of this and how it fits with the NEPA
guidelines and history, whereas you have this business
community that typically has wanted more--sorry.
Dr. Fleming. Yes, I am sorry. I am way over my time. I
appreciate your comments.
The Chairman now yields to the Ranking Member, Mr. Sablan,
for 5 minutes.
Mr. Sablan. Thank you very much, Mr. Chairman. I am tempted
to let Mr. Jenkins continue, but I have my own set of
questions.
So, Mr. Hoskins, according to the Fish and Wildlife
Service, the brown tree snake was first detected on Guam in the
1950s, and by the early 1960s had already started devastating
native bird populations. However, the Service did not list the
snake as injurious under the Lacey Act until 1990. Today,
nearly $2.5 million is spent annually to control and detect the
brown tree snake. And the snake continues to wreak havoc on
Guam's island ecosystem.
Will you please talk about how the option to use a
categorical exclusion will help stop costly biological
invasions before they get out of control?
Mr. Hoskins. Well, as reflected in your question, once a
species becomes established, control and eradication is very
expensive and potentially impossible. And the goal of the
categorical exclusion is to try to streamline the listing
process under the Lacey Act so that we can expedite listings to
try to prevent the introduction and establishment before these
species become a problem.
Mr. Sablan. All right. And following a pattern of similar--
the word here is ``eerily similar''--to that of the brown tree
snake on Guam, the boa constrictor has invaded Puerto Rico, and
is having serious negative impacts on native wildlife. I am
very disappointed last year when the Service failed to list the
constrictor, the boa constrictor, along with four other
proposed species of the large constrictor snakes as injurious
under the Lacey Act.
What is the Service doing to stop the spread of invasive
boa constrictors in Puerto Rico, and prevent them from becoming
established elsewhere in the United States? And are you still
considering an injurious wildlife listing for the boa
constrictor? How will that make your job easier?
Mr. Hoskins. I need to consult with our ecological services
and refuge programs about the work that we are doing in Puerto
Rico that you referenced, and I will be happy to get back to
you on that question.
With respect to the proposed listing of nine species, as
you alluded to, we went forward with four, and we are still
considering how to move forward, in terms of a final
determination with respect to the remaining five, which
includes the boa constrictor.
Mr. Sablan. Yes, and I hope it doesn't take you 40 years,
like you did with the brown tree snakes on Guam.
Mr. Hoskins. I hope so, too.
Mr. Sablan. Mr. Jenkins, can you please describe the
purpose of NEPA with respect to protecting our environment and
the meaning of the term ``human environment''? Is it true that
NEPA regulations state clearly that the economic and social
effects of a Federal action do not, by themselves, require an
environmental impact statement?
Mr. Jenkins. That is correct, Mr. Sablan. And that purely
social and economic effects are not the subject of NEPA. As I
said in my testimony, they are the subject of other Federal
laws that require economic effects to be analyzed.
But NEPA is really about tangible environmental effects on
the natural or the human-built environment. So there has to be
some--you know, some visible, tangible impact that is going to
happen. And then, if the Service is analyzing that effect, then
it can also analyze associated economic effects associated with
the tangible environmental impact. But, as has been stated, in
30 years of doing these listings, they have consistently found
that there is no significant harm--environmental harm from
listing an injurious species, which, of course, makes sense.
So, the economic analysis is not under NEPA, it is under the
other acts.
Mr. Sablan. All right. So let me--so does the Lacey Act
provide all the authorities--we need to stop the spread of
invasive species in the United States. And, if not, what other
authorities are necessary?
Mr. Jenkins. Yes----
Mr. Sablan. Is the level of Federal funding for invasive
species prevention adequate?
Mr. Jenkins. Thank you, Mr. Sablan. As we have heard, the
Lacey Act was written 113 years ago. It is not a modern law. I
would hope that this committee would take it up and really dig
into the problems. Because I think we have all agreed that the
Lacey Act is not a great law to be working under, it just
happens to be the one that we have.
So, H.R. 996 is a bill that is in front of this
subcommittee that actually is aimed directly at modernizing the
Lacey Act. And I would hope that the subcommittee would take it
up. It does provide a whole slew of additional authority. And,
for example, it gives the criteria that Mr. Meyers wanted to
see spelled out much more in detail, as far as what would be a
proper listing. It gives emergency authority, disease
authority, and all those sorts of things. So I urge the
subcommittee to grab H.R. 996 and have a hearing on it. Thank
you, sir.
Mr. Sablan. Yes. We don't control the gavel, but we will
send a suggestion upstairs. Thank you.
Dr. Fleming. The gentleman's time is up. Mr. DeFazio has
arrived, so the Chairman--yes, very good, perfect timing. So I
yield 5 minutes for questioning to Mr. DeFazio.
Mr. DeFazio. Thank you, Mr. Chairman. The disconnect here
is those who are involved in the--both in the industry as the
commercial part of the industry and those who are involved in
aquariums and zoos are concerned about, you know, the potential
for their concerns being ignored. As I understand it with zoos
and aquariums, their problem is they have already got some
exceptions in law, but it takes way too long for the agency to
process those exceptions, and they are worried that this could
even further muddle that process. Is that correct on the part
of zoos and aquariums?
Mr. Maddy. Yes, that is correct.
Mr. DeFazio. OK. I haven't heard anyone object to your
exemptions from any perspective. So that is something that we
would need to figure out a way to take care of. And as for the
commercial part of the industry, the concern is that the impact
on business would be ignored without the NEPA process.
I am wondering. And this is, at this point, sort of a work
in progress in my head, but if we gave the agency--you know, I
mean, agencies move slowly. But if we were to create some sort
of new process which would allow for an emergency temporary
designation that would be short-term, and then we would, after
that, there would be a public process, and then you would
either go into, say, the full NEPA process if the case wasn't
made for the need for emergency designation--I am just trying
to think of a way to thread this needle, because I think that
this is really something where we can kind of work this out.
From my perspective, obviously, our goal is both to
safeguard the environment and public assets, as what I talked
about what happened with the Everglades. But also, you know, we
are here for jobs and business, and we are certainly here for
education and public recreation, in terms of those.
So I would just like everybody--if anybody up there has an
idea on perhaps a different process, as opposed to saying,
``Stick to NEPA,'' because, to be truthful, on any other day,
this guy would not be supporting the idea of putting anything
into a NEPA process. No offense, I mean----
[Laughter.]
Mr. DeFazio. But we fight about that here all the time.
Dr. Fleming. I thank the gentleman for speaking for me
today.
[Laughter.]
Mr. DeFazio. So--yes.
Mr. Gehan. Thank you, Member DeFazio. One thing I would
like to clarify--and just before Mr. Jenkins--you came into the
room, Mr. Jenkins reiterated a point he made, that in the case
of NEPA, it is concerned about economic and social impacts to
the extent that they overlap or involve the environmental
concerns.
And that gets to an issue that you begin to address when we
are talking about animals that are and have been in trade,
widely held on a national basis as pets. And that is the
economic incentive created--or I should say disincentive--
created by a listing.
The ban, as the Service reads the law on interstate
commerce, means that if you are a pet owner and your job takes
you to another State, or you are a breeder and you have a large
brood stock that is--you have invested millions in, but it is
very, very, very costly to maintain, that the State Association
of Fish and Wildlife Agencies itself said, ``We are concerned
that this listing will result in releases of these animals,
engender the very harm you are trying to oppose, and this will
tax State resources.'' That is an environmental and economic
concern that the Service never addressed in its environmental
assessment.
So, beyond just the impacts on the industry, which have
been very, very significant, we are concerned about that. And
so, I think, to your question, we are looking for a way to deal
with species that are pets where the--in the case of--Burmese
are very--they have the broadest range of any of the nine
species proposed. Everything else is tropical. In fact, boa
constrictors' range extends to Northern Mexico, but they have
never moved further north, either, because it is too arid, too
dry, or too cold.
And I think State-Federal partnerships are one solution,
allowing the agency to prohibit import only may be a tool they
could use in their toolbox, and I think there are other
solutions we could think of, including public education and
partnerships between the industry, the agency and Congress.
Mr. DeFazio. OK. Well, my time has expired, but, you know,
I would like to continue the discussion. Because, I really
think there are ways to divide this up a bit so that the agency
feels that it has the tools it needs to prevent the importation
of a new problem, and do it relatively quickly.
And then you are raising a whole other issue with dealing
with things that are already in domestic commerce, and how--
what sort of actions--or how should we process those.
And then, the other part we are not even talking about
here, which all goes to the inadvertently--and I have dealt
with this for years on Transportation with ballast water. We
don't have a good solution there. I mean the stuff that is
coming into this country inadvertently has actually caused the
greatest harm, and we don't have great solutions there, either.
So I am really open to ideas that people have. So thank
you, Mr. Chair.
Dr. Fleming. The gentleman's time up, and I think there are
some more questions, so we will have another round for the
panel. And I now yield myself 5 minutes for questions.
Dr. Fleming. These questions are specifically for the other
side of the panel. I focused on the left over here, and now I
am to the right. Mr. Maddy, Gehan, and Meyers.
What is the value of an environmental assessment, as
mandated by the National Environmental Policy Act?
Mr. Maddy. From our perspective, the value is this
opportunity to be heard, the opportunity to formally submit
comments and make sure that the very specific concerns--
scientific, biological, and also economic and business
concerns--to make sure we have a place to get a good hearing,
to work with it.
We do work well with the Service, and we have worked with
the Service more recently on the issue of blanket permits for
some of these accredited institutions. And back to Mr.
DeFazio's comments, that might be a model that could be
expanded for some of these.
Dr. Fleming. OK. So certainly fast-tracking and exclusions
can take away some valuable opportunities for community input.
Mr. Maddy. Correct.
Dr. Fleming. How does the failure to complete an
environmental impact statement, or environmental assessment,
affect the likelihood of your members or clients prevailing in
Federal court?
Mr. Gehan. Thank you, Mr. Chairman. Additionally, I just
want to add to your prior question that--a point I embrace in
testimony. You could take the Magnuson-Stevens Fisheries
Management and Conservation Act, which this subcommittee has
jurisdiction over. It requires the use of best science, impacts
on fishing communities, minimizing habitat, fisheries impact
statements, and NEPA still applies to all these things, but
there are multiple opportunities for input and analysis that
are required at multiple stages.
NEPA is the only tool that provides for public input,
specifically the notice and comment rulemaking. But that
makes--gives the opportunity for the public to comment on the
science, the rationale that is used. And that ties directly
into litigation. Nobody wants to be in litigation. But the
determination as to whether a species is injurious, which
Congress completely committed--didn't define committed to the
agency's discretion, means that any reasonable basis for
thinking it might harm agriculture, human health, or other
issues, you know, no judge would be able to allow it.
But if an agency has to go through the NEPA processes,
there are standards that have been created over years that lay
out what the agency's duties are, and we all know what they
are. And then we are talking about whether the assessment was
reasonable.
Dr. Fleming. OK. What are your specific concerns about the
use of a categorical exclusion by the Fish and Wildlife
Service?
Mr. Meyers. Well, as we have testified on numerous
occasions, because there are no statutory standards, no
prescribed process, we really feel that this could become a
shortcut, it could become a bureaucratic--lead to some
bureaucratic inertia on really doing a thorough and complete
NEPA-styled analysis.
We need that type of a record to be able to--really to
justify and to try to figure out exactly how this will be
implemented. This is a serious problem--again, going back to
the weaknesses in the underlying statute. And, therefore, we
look to the NEPA-styled assessments as being critical. And if
they are going to be able to exclude that under categorical
exclusion, where are we? We are back to being in controversy
and questioning the science. And it is just going to be a
bigger morass of stalling tactics, possibly by everybody.
Dr. Fleming. Sure. Would the regulated community be less
concerned about the negative impacts of a Lacey Act categorical
exclusion if it was limited to species that are not here or
established in the United States?
Mr. Gehan. Well, briefly, I think that raises a lot less
concern. However, USARK, you know, is in favor of just simply a
blanket ban on every non-native species. You know, there are
species in the European trade that aren't traded here. There
may be future opportunities. I just don't think there is a
substitute for an actual injurious finding, based on a record.
Dr. Fleming. OK.
Mr. Meyers. And in my testimony I point out that because
you have been able to use it in the past on certain listings, I
don't know how you can predict that that is uniformly
applicable in the future for all other species. So it is--I
think it is a dangerous road to walk.
Dr. Fleming. OK. One more question. What is your reaction
to Mr. Jenkins' testimony that preparing a NEPA EA is
redundant? Avoiding that administrative step will help speed up
listings?
Mr. Gehan. Redundant of what? I mean there is no other law
that requires the agency to do such analyses.
Dr. Fleming. OK.
Mr. Gehan. And I can't imagine that preparing an
environmental assessment has delayed brown tree snakes for 40
years.
Dr. Fleming. Right.
Mr. Gehan. Or--you know, any of the others.
Mr. Meyers. And I find it interesting, because it has been
the environmental community that has enjoyed the NEPA
requirements, as a club to oversee Federal activities. So I
guess what is good for the goose isn't good for the gander.
Dr. Fleming. Right. Well, my point, precisely. Cutting
through red tape, cutting through bureaucracy is great. But it
should be a two-way street, not simply for the environmental
community or for government. These impacts, the ultimate price
is paid for, often, by the private industry.
My time is up. I yield to my colleague----
Mr. Sablan. Thank you very much, Mr. Chairman. And I want
to thank you also for staying behind and probably rearranging
your flights. I don't have that problem, so----
[Laughter.]
Mr. Sablan. But Mr. Jenkins, let me ask. Even if a species
is already here, isn't the Lacey Act's provision against
interstate transport a powerful tool to keep invasions from
spreading?
Mr. Jenkins. Yes, and I would like to address that question
about somehow having different categorical exclusion, depending
on whether a species is here or not here.
When I was at Defenders of Wildlife 2007, we issued a
report called ``Broken Screens,'' that actually did a FOIA on
all the records the Fish and Wildlife Service has about
imports. We know that there are at least 3,000 different
species of non-native animals that are imported--or have been
imported in the United States, according to those records. Now,
the exact number could be up to 10,000. Marshall Meyers with
PIJAC may tell you that their industry has imported, you know,
many more than the ones that are shown in the records by
species name.
The problem is, what does it mean that a species has
already been imported? Are all those species going to be
excluded from further analysis? No, that doesn't make sense.
What does it mean that a species is here? It has been shipped
into the United States once or twice, or it is already in--as
somebody's pet?
Now, I agree there are concerns about the way the Lacey Act
regulates people who have private pets that got later listed
under the Lacey Act. And H.R. 996 would deal with that. It has
a grandfathering exemption to give them a grandfathering
ability to keep those species and take them across State lines
without becoming a Federal felon, which I agree is a problem.
But that is an entirely different issue from NEPA. The risk
that the species propose--doesn't matter if it has been
imported once or twice already or not--the scientists just need
to look at the risks, scientifically.
Mr. Sablan. All right. And so I am going to come back to
Mr. Hoskins.
Some of the testimony we have heard today makes it sound
like this categorical exclusion gives the Service a carte
blanche to list whatever species it wants to as injurious with
no justification. And I don't think so, but I don't want you to
do that. But--so is it true, or will species still be reviewed
on a case-by-case basis to determine if listing under the
categorical exclusion is appropriate?
Mr. Hoskins. Well, first of all, I think the threshold
question is whether it would qualify for a categorical
exclusion. And based on the CEQ's own guidance, we believe it
is reflected in the notice that it does, because it maintains
the environmental status quo, and there is a long record of
environmental assessments that had found findings of no
significant impact.
In addition, it does not obviate our need to comply with
the Administrative Procedures Act, the requirements of the
Lacey Act, the Regulatory Flexibility Act, and Executive Order
12866, as reflected in my testimony.
And, finally, to address your specific question, we would
continue in that context to assess whether a species qualifies
for injurious listing under the provisions of the Lacey Act and
the APA.
Finally, in circumstances that are deemed extraordinary,
there would be an obligation on the Service at that point to
invoke the normal EA requirement.
Mr. Sablan. So you are talking the bureaucracy--so let me
ask you this now. Will the science behind any listing proposal
under the categorical exclusion still be cited in the Federal
Register for all of us to see?
Mr. Hoskins. We would explain, in the context of the
proposed listing, why the action is necessary, and the effect
that the action is expected to have on the public. It also
would provide opportunities for comment. And that would include
looking at the science that underpins the decision whether to
list that species as insurance under the Lacey Act.
Mr. Sablan. So, the proposed rule--does the proposed rule
eliminate any avenues for judicial review of decisions made by
the Service? Will the proposed listing of species under the
categorical exclusions still be subject to public notice and
comment?
Mr. Hoskins. It would still be subject to public notice and
comment if it is a regulatory action under the APA.
Mr. Sablan. And the judicial review?
Mr. Hoskins. They would also be subject to judicial review.
Mr. Sablan. All right, thank you. Mr. Chairman, I yield
back my time.
Dr. Fleming. The gentleman yields back. Are there any
further questions?
Mr. Sablan. No, sir.
Dr. Fleming. OK. Well, I want to thank the members of our
panel for a very important, very enlightening, educational
discussion today.
Members of this subcommittee may have additional questions
for the witnesses, and we ask you to respond to these in
writing. The hearing record will be open for 10 days to receive
these responses.
Before closing, I would like to ask unanimous consent to
submit for the record a letter I wrote, along with our
colleagues, Rob Bishop, Don Young, and Steve Southerland, to
Director Dan Ashe, asking him to withdraw the proposal, and the
recent response of the Fish and Wildlife Service.
Dr. Fleming. No objection? So ordered.
[The letter and response provided by Dr. Fleming for the
record follows:]
LETTER TO U.S. FISH AND WILDLIFE SERVICE
U.S. House of Representatives,
Washington, DC,
July 24, 2013.
Hon. Daniel M. Ashe, Director,
U.S. Fish and Wildlife Service,
1848 C Street, N.W.,
Washington, DC 20240.
Dear Director Ashe:
On July 1, 2013, the U.S. Fish and Wildlife Service announced in
the Federal Register its intention to implement a Categorical Exclusion
under the National Environmental Policy Act (NEPA) for the addition of
species to the ``injurious wildlife'' list under the Lacey Act.
While invasive species pose a growing challenge to the Fish and
Wildlife Service (Service), the public has an interest in the Service
continuing to conduct Environmental Assessments to determine whether a
particular species or group of species merits inclusion on the
``injurious wildlife'' list. This is particularly important in light of
the fact that the Service has recently been listing species causing
major economic impact on thousands of small businesses in the United
States. Those Americans who will potentially be affected in the future
deserve a full examination of the environmental, economic and social
impacts of such a listing.
In particular, on March 20, 2012, the Service proposed to list nine
species of non-native constrictor snakes. After nearly 2 years of
careful analysis of the Environmental Assessment by the Small Business
Administration and the Office of Management and Budget, the Service
decided to only list four of the nine snake species. At that time,
Secretary Ken Salazar said his decision was to ``strike a balance''
between economic and environmental concerns. This careful review would
not have occurred with a NEPA Categorical Exclusion.
The Service has not made a sufficient case to establish the
necessity of a categorical exclusion for the Lacey Act. Further, we are
not aware that the Service even publicly mentioned this idea prior to
July 1, 2013. Therefore, we request that the Service immediately
withdraw this ill-timed proposal.
As you know, the Natural Resources Committee is currently in the
process of holding a series of oversight hearings on the Lacey Act.
Once the proposal has been withdrawn, we will invite the Service to
testify in a public hearing to the justification, rationale and need
for this fundamental change in the application of the National
Environmental Policy Act.
Mr. Director, we would be pleased to discuss this with you further
at any time and look forward to hearing from you at your earliest
convenience.
Sincerely,
John Fleming,
Rob Bishop,
Steve Southerland,
Don Young,
Committee on Natural Resources.
______
RESPONSE LETTER FROM U.S. FISH AND WILDLIFE SERVICE
U.S. Department of the Interior,
Fish and Wildlife Service,
Washington, DC 20240,
August 28, 2013.
Hon. John Fleming,
U.S. House of Representatives,
Committee on Natural Resources,
Washington, DC 20510.
Dear Representative Fleming:
Thank you for your letter of July 24, 2013 regarding the proposed
Categorical Exclusion under the National Environmental Policy Act
(NEPA) for the Administrative listing of species to the injurious
wildlife list under the Lacey Act (18 U.S.C. 42).
The proposed Categorical Exclusion (CE) would affect only one small
part of a much larger and more complex regulatory procedure. It would
simply provide the U.S. Fish and Wildlife Service (Service) with the
flexibility to use a CE when appropriate for a given injurious wildlife
listing procedure, which means we would not necessarily have to prepare
an Environmental Assessment (EA). Just as with all promulgations of
Federal regulations, injurious wildlife listings would still be subject
to NEPA, and the Service would have to make a determination for each
one as to whether or not its circumstances fit the conditions of the
CE.
All other statutory requirements for establishing Federal
regulations would remain in place, including those under the
Administrative Procedure Act (APA), Executive Order 12866, and the
Regulatory Flexibility Act (RFA). These laws impose the bulk of public
participation and analysis that you mention in your letter. As they did
with the constrictor snake rule, these statutes provide for the
preparation of rules that contain an evaluation of each species
proposed for listing, including the biological and risk assessments
(which include environmental effects), as well as economic and
regulatory flexibility analyses. Under the APA, we will also continue
to offer the public an opportunity to review and comment on any
proposed listing under the Lacey Act. All of these actions are
conducted separately from the EA.
The EA for the constrictor snake rule resulted in a ``Finding of No
Significant Impact''. The only comments we received on that EA, per se,
stated that the Service should consider impacts of harvesting these
snake species in their native ranges. The Small Business Administration
(SBA) did not provide any comments on that EA, but the SBA did provide
comments on the economic analysis and regulatory flexibility analysis,
which were prepared under Executive Order 12866 and RFA. The Service
addressed SBA's comments in the final versions of the economic analysis
and the regulatory flexibility analysis in January 2012.
The case made by the Service for the proposed action consists of
three justifications that uphold the Council on Environmental Quality's
(CEQ) guidelines for a CE: (1) maintaining the environmental status
quo, meaning the listing action does not cause the condition of the
environment to change; (2) history of findings of ``no significant
impact''; and (3) the proposed CE would be consistent with existing
CEs. CEQ reviewed and approved this notice prior to publication. In
response to your concerns, the Service has reopened the public comment
period for an additional 60 days, closing on October 15, 2013, to give
the public more time to provide input on the proposal. We have provided
the Federal Register notice and other related information on our
website at http://www.fws.gov/injuriouswildlife/catex.html. When we
review and address public comments from the current notice, we will
again coordinate with CEQ on a final determination.
The Service agrees with your observation that invasive species pose
a growing threat to our Nation. By working proactively to reduce this
threat through implementation of the Lacey Act's injurious wildlife
provisions, we are striving to reduce the long-term economic and
environmental burden on the public by preventing irreversible harm to
natural resources from invasive species.
Thank you for the opportunity to respond and address your concerns.
If you have any further questions, please contact me personally, or
have your staff contact the Service's Assistant Director for Fish and
Aquatic Conservation, Mr. David Hoskins, at (202) 208-6393.
Sincerely,
Rowan W. Gould, Deputy Director,
Fish and Wildlife Service.
______
Dr. Fleming. I find it fascinating that there has not been
more outrage from the environmental community, who never
hesitates to demand full NEPA compliance, but is strangely
quiet in this particular case.
In the final analysis, I am pleased that the Service
decided to extend the public comment period until October 15.
However, the case has not been made for the categorical
exclusion. And I agree with the Small Business Administration's
office of advocacy, who, in their comments on the proposal,
wrote that--and quote--``It is unclear why the Interior would
propose a categorical exclusion for FWS's listing under the
Lacey Act, based upon the premise that those listings will have
no environmental impact when, by statute, all wildlife that is
proposed to be listed under the Lacey Act must be shown to have
an injurious environmental impact.''
I want to thank Members and their staff for their
contributions today for this hearing. If there are no further
business, without objection, the subcommittee stands adjourned.
[Whereupon, at 12:55 p.m., the subcommittee was adjourned.]
------
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Questions Submitted for the Record by Chairman Fleming to the U.S. Fish
and Wildlife Service
Question. Did you consult with the Council on Environmental Quality
on the proposed Categorical Exclusion? Please provide the Subcommittee
with copies of your correspondence to them.
Answer. Pursuant to section 1507.3(a) of Council on Environmental
Quality (CEQ) Regulations, the Service must consult with and receive
approval from the CEQ before establishing a new or revised categorical
exclusion. For this categorical exclusion, the Service coordinated with
CEQ through the Department's Office of Environmental Policy and
Compliance (OEPC).
Question. In the future, how will the regulated community know when
the Service used a Categorical Exclusion? Is there a requirement to
print its use in the Federal Register?
Answer. In the future, when the Service uses a categorical
exclusion in a rule to list a species as injurious, the Service will
include that information when it publishes its proposed and final rules
in the Federal Register. This information is required and will be found
under the heading ``Required Determinations'' and the subheading
``National Environmental Policy Act'', where each published injurious
wildlife rule will include information on how the Service addressed
NEPA and whether the Service relied upon a categorical exclusion.
Question. If the Categorical Exclusion is utilized, what sort of
record will the Service's decision be based on and will such record be
provided to the public?
Answer. If the Service uses a categorical exclusion, we must
document our decision with an Environmental Action Statement (form 550
FW 3, Exhibit 4). That form will be part of the broader Administrative
Record for the injurious wildlife rulemaking and will be made available
to the public.
Question. Will the Service's ``extraordinary circumstances''
analysis be published, either in the record or in the Federal Register
notice?
Answer. In determining whether to utilize the categorical
exclusion, the Service will consider whether any of the ``extraordinary
circumstances'' set forth in 43 CFR 46.215 applies to the proposed
action, and will document that determination in the Environmental
Action Statement and injurious wildlife rulemaking administrative
record.
Question. What is a normal time-frame to complete an Environmental
Impact Statement (EIS)? What about the costs to the agency?
Answer. Time-frames and costs for environmental impact statements
vary widely with the complexity of each proposed action. Preparation
times for environmental impact statements among Department of the
Interior bureaus have ranged from 18 months to 5 years at costs ranging
from around $500,000 to $2 million.
Question. How long does it take to complete an Environmental
Assessment? How is it fundamentally different from an EIS? What are the
cost differences between the two?
Answer. Environmental Assessments (EAs) may take up to 1 year to
complete, but we have no cost estimates for them. The content
requirements for an EIS are more extensive than for an EA and are set
forth in Council on Environmental Quality regulations at 40 CFR
Sec. Sec. 1502.10 through 1502.25. In contrast, environmental
assessments include brief discussions of the proposal, the need for the
proposal, alternatives, environmental impacts of the proposed action
and the alternatives, and a list of agencies and persons consulted (40
CFR Sec. 1508.9 and 43 CFR Sec. 46.310),
Question. What is the value of these environmental assessments?
Answer. Under NEPA regulations, the purpose of an environmental
assessment is to determine whether the proposed action has the
potential to cause significant impact on the human environment and to
inform the decisionmaker and the public of such environmental
determinations. The EA is used to determine whether to prepare an
environmental impact statement or to make a finding of no significant
impact (FONSI). Its value lies in saving an agency from having to
prepare a very lengthy document (EIS) when there is reason to believe
that an EIS will not be necessary.
Question. When the Fish and Wildlife Service proposes to
administratively establish a new national wildlife refuge does it
conduct an Environmental Impact Statement or an Environmental
Assessment? Who makes that decision?
Answer. The Service routinely completes an EA for refuge
establishments and major refuge expansions, unless circumstances
warrant the completion of an EIS. The regional director decides if an
EIS is to be completed at the outset, rather than an EA, based on a
review of known or reasonably foreseeable, potential impacts on the
human environment or that controversy over the environmental effects
exists. The assessment made through the development of the EA may
result in a determination that an EIS is necessary. In either case,
with respect to refuge establishments and major refuge expansions,
developing an EIS has been rare. For example, every establishment and
major refuge expansion in the Southeast Region over the past 25 years
has been accomplished through the completion of an EA with the
exception of the establishment of Waccamaw National Wildlife Refuge
(NWR) in 1998. The Waccamaw establishment was completed through an EIS
at the request of State elected officials and because of the level of
environmental controversy associated with the proposed project.
Question. In the case of the Everglades Headwaters National
Wildlife Refuge, the Fish and Wildlife Service conducted an
Environmental Impact Statement. Why was this considered a major Federal
action?
Answer. The Service did not find the establishment of Everglades
Headwaters NWR to be a major Federal action under NEPA requiring
preparation of an EIS. An EA for the establishment of Everglades
Headwaters NWR was prepared, and it was published in January 2012. The
EA resulted in a Finding of No Significant Impact, which negated the
need to prepare an EIS.
Question. Conversely, when the Fish and Wildlife Service proposed
to increase the size of the Chickasaw and Lower Hatchie National
Wildlife Refuges in Tennessee, which would be more than twice the
number of acres acquired by fee title in Central Florida, the Service
used an Environmental Assessment. What was the difference?
Answer. Similar to the establishment of Everglades Headwaters NWR,
the Service has drafted an EA in the proposed boundary expansions of
Lower Hatchie and Chickasaw NWRs. The draft EA is not yet final.
Question. Does the Fish and Wildlife Service use an Environmental
Impact Statement or Environmental Assessment for the completion of a
statutory required refuge Comprehensive Conservation Plan? Wouldn't it
be much more efficient to simply seek a Category Exclusion for the
completion of these plans?
Answer. Similar to the land acquisition planning process, the
decision to complete an EIS or EA for a refuge's Comprehensive
Conservation Plan (CCP) is usually based on a review of known,
reasonably foreseeable potential impacts of the project on the human
environment or environmental controversy that exists at the outset of
determining the need for the action. According to Service Manual 602 FW
3, each CCP must comply with NEPA through the concurrent preparation of
an EA or EIS for the completion of the plan. A CCP describes the
desired future conditions of a refuge and provides long-range guidance
and management direction to achieve refuge purposes, as well as
compliance with various laws and executive orders. Given the nature of
a CCP, the variability between needs and management approaches at each
NWR, and the often complex environmental and sociological issues
involved, either an EA or an EIS is appropriate for the completion of a
CCP.
The Service may use only categorical exclusions that have been
approved. There is no categorical exclusion on record for the CCP, and
the Service does not believe this activity fits the guidelines for
establishing categorical exclusions.
Question. Has the Fish and Wildlife Service previously sought a
Categorical Exclusion for Lacey Act listings in the past?
Answer. Although the Service has utilized an existing NEPA
Categorical Exclusion (see response to Question 16), it has not
previously sought the addition of a new Categorical Exclusion for the
listing of injurious wildlife under the Lacey Act.
Question. If you have not, what has dramatically changed that cries
out for this fundamental change? After all, you are already doing just
an Environmental Assessment on these species. is that not correct?
Answer. The Service implements 18 U.S.C. 42 to protect United
States interests from the harm such species can cause to the Nation's
economic, environmental, and human interests. This statutory tool
protects these interests by preventing harmful species from being
imported into the Nation or from being transported over State lines
without a permit. However, the administrative process for listing
injurious wildlife can be protracted and complex, reducing its
effectiveness. We are seeking opportunities available under the
regulatory process to expedite the listing process and, in so doing,
support the purposes of the Lacey Act's injurious wildlife provisions.
Question. Under a Categorical Exclusion is the Fish and Wildlife
Service required to conduct any environmental analysis? Please describe
in detail.
Answer. For the purposes of rulemaking, the Administrative
Procedure Act (APA) requires the Service to explain in our listing
rules the basis for our determination. For each proposed injurious
wildlife listing, we also present risk and biological assessments of
the proposed species for injuriousness in the listing rule as part of
our analyses that we use in the decisionmaking process to justify
listing species under the Lacey Act. The risk and biological
assessments are not specifically required in the law, but the Service
provides them as a part of our explanation for the basis of our
determinations.
If a categorical exclusion is applied to a Federal action, an
Environmental Action Statement is prepared. The Service explains why
the proposed rule qualifies for the categorical exclusion under NEPA
and also considers whether any of the ``extraordinary circumstances''
found at 43 CFR 46.215 apply.
Question. Is the Fish and Wildlife Service required to complete an
economic analysis under a Categorical Exclusion? Please describe in
detail.
Answer. Under NEPA, an economic analysis is not required, but it
may be carried out as part of an Environmental Assessment in order to
assess the economic impacts generated by the impacts of a Federal
action on the human environment. If a Federal action is eligible for a
categorical exclusion, it has no significant impacts on the quality of
the human environment, and therefore no economic analysis is carried
out for that purpose.
However, as part of the rulemaking process, the Regulatory
Flexibility Act (RFA) requires Federal agencies to analyze the effect
of their regulatory actions on small entities (small businesses, small
non-profit organizations, and small jurisdictions of government) and
consider less burdensome alternatives, if the regulatory effect is
likely to be ``significant,'' affecting a ``substantial number'' of
these small entities. The economic analysis conducted by the Service
under the RFA is independent of any requirements or process under NEPA.
Also part of the rulemaking process, Executive Order 12866 for
Regulatory Planning and Review Looks at whether: (1) the rule will have
an annual effect of $100 million or more on the economy or adversely
affect an economic sector, productivity, jobs, the environment, or
other units of the government; (2) the rule will create inconsistencies
with other Federal agencies' actions; (3) the rule will materially
affect entitlements, grants, user fees, loan programs, or the rights
and obligations of their recipients; or (4) the rule raises novel legal
or policy issues. Significant rulemakings under EO 12866 are required
to assess the potential costs and benefits of the regulatory action,
which would extend to impacts beyond the scope of analyses pursuant to
RFA. Any ``economically significant'' rulemakings under section 3(f)(1)
of this Executive Order must include not only an assessment of costs
and benefits but also reasonably feasible alternatives. The Service
will continue to conduct economic analyses, where appropriate, under
this Executive Order, for injurious wildlife listing actions,
regardless of whether or not the proposed categorical exclusion is
finalized.
Question. In 2002, the Service utilized the Department's
Categorical Exclusion to list the brushtail possum and snakehead fish.
Why is it no longer appropriate to utilize this existing authority?
Answer. In 2002, the Service used an existing departmental
categorical exclusion: ``Policies, directives, regulations, and
guidelines: that are of an administrative, financial, legal, technical,
or procedural nature; or whose environmental effects are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and will later be subject to the NEPA process, either collectively or
case-by-case'' [(43 CFR 46.210(i)] in the listing actions for the
brushtail possum and snakehead fish species, The Service stated in its
proposal for the categorical exclusion at issue: ``Upon further review,
the Service believes that this is not the best description of why
injurious species listings do not have a significant effect on the
human environment. Therefore, the Service is pursuing the addition of a
new categorical exclusion for the listing of injurious species under
the Act.''
Question. In its comments on the proposed Categorical Exclusion,
the United States Association of Reptile Keepers claims the
Environmental Assessment the Service prepared for this listing failed
to address significant scientific issues and to respond to significant
environmental issues raised by environmental groups, State wildlife
officials, the zoo and aquarium community, academic and private
conservation researchers during the comment period. How were these
issues addressed in the NEPA documents?
Answer. Many of the comments raised by United States Association of
Reptile Keepers (USARK) for the Service's listing of several
constrictor snakes as injurious wildlife were for subjects not relevant
to NEPA. They were addressed in responses published in the final rule.
Question. Of the previous 230 Lacey Act listing, how did the
constrictor snake case compare and contrast with those efforts? Isn't
this the first time that a widely held species was listed as injurious?
Answer. One example of how the listing of injurious wildlife has
differed in some cases from the 2012 listing of large, constrictor
snakes is by virtue of some prior listings having been completed
through the legislative process. Reasons for listing by the Service may
vary, depending on a range of factors that may include how the species
may enter the United States or be transported between States, its
natural history, and how it impacts the specified statutory interests,
However, all injurious wildlife listings completed through the
rulemaking process are consistent with all applicable Federal laws.
Bighead carp, a species commonly kept and traded in the aquaculture
industry and listed by Congress in 2010, was also a widely held
injurious wildlife species at the time of listing, albeit not by
individuals as pets.
Question. Does the Service intend to use a Categorical Exclusion
for the remaining five constrictor snakes that Secretary Salazar
decided not to list 20 months ago?
Answer. The proposed categorical exclusion (published in the
Federal Register July 1, 2013) will not be applied in the Service's
consideration of injurious wildlife listing for the remaining five
species of large, constrictor snakes proposed for such listing in March
of 2010.
Question. When will a decision be made on these species? It strikes
me that it is fundamentally unfair that these species have been treated
as defacto listings for the past 20 months.
Answer. The status of the remaining fives species is under
consideration and review, and we anticipate that a decision will be
made in early 2014.
Question. What other species are pending a decision on whether they
qualify as injurious wildlife? Please explain the delay.
Answer. The Service received a petition in September 2009 to list
all amphibians as injurious unless they are accompanied on import or
interstate transport by a certificate declaring them as free of
Batrachochytrium dendrobatidis (amphibian chytrid fungus). The Service
published a Notice of Inquiry in the Federal Register in September
2010, and the petition is currently still under consideration. The
Service also received a petition on May 28, 2003, from the North
American Brown Tree Snake Control Team requesting that the entire Boiga
genus of snakes be considered for inclusion in the injurious wildlife
regulations. The Service published a Notice of Inquiry in the Federal
Register on September 12, 2003. We received public comments and started
the process for preparing a risk assessment for the Boigas. The delay
for the listing process for these petitions is primarily due to their
complexity, competing priorities, and limited available resources.
Question. Under current law, the Fish and Wildlife Service can
petition itself to list a species as ``injurious wildlife''. By making
it easier or in the words of the agency ``more efficient'', are there
any limits on what the Service could list under the Lacey Act? Could
the agency simply decide to list all non-native species?
Answer. The Service may list species as injurious wildlife only to
the extent allowed by existing Federal law. For example, the Lacey Act
authorizes only specific taxonomic groups that may be listed as
injurious (wild mammals, wild birds, fish, reptiles, amphibians,
mollusks, and crustaceans). In addition, we must justify that they are
injurious to the health and welfare of human beings, to the interests
of forestry, agriculture, and horticulture, or to wildlife or wildlife
resources of the United States. New efficiencies captured by the
Service in the regulatory listing process must also conform to existing
Federal laws. Making the process more efficient means that the Service
will be able to expedite the injurious wildlife listing process,
allowing it to tackle major threats to the American people and economy
more cost-effectively, while also continuing to ensure that listings
remain scientifically accurate and promote public transparency and
accountability.
Question. Does the Fish and Wildlife Service believe that the
listing of non-native species as ``injurious wildlife'' is a priority
program within the agency?
Answer. The Service considers the listing of harmful species as
injurious wildlife one of many priorities within the agency.
Question. If yes, how many FTEs and how much money is dedicated to
the listing program each year? Please provide to the Subcommittee an
annual breakdown over the past 20 years on the number of FTEs that have
worked on the listing process.
Answer. The Service currently employs two FTEs for injurious
wildlife. Prior to 2000, listing of injurious wildlife activities were
carried out as part of the duties of staff also assigned to other work
in the Fish and Aquatic Conservation Program. From 2000 until 2009, the
Service dedicated one FTE for injurious wildlife listing. A second FTE
was added in 2010. Funding for the listing program supports the FTEs
(estimated at $150,000 per FTE per year) and includes some additional
funds to support administering listings, such as Federal Register
printing costs and related technical work, such as conducting risk
assessments.
Question. By contrast, the Fish and Wildlife Service has 1,139
employees working on the Endangered Species Act, 89 employees working
in the Realty Division, and 105 employees in the Federal Aid to Sport
Fish and Wildlife Program who calculate and distribute excise taxes
collected by the Department of the Treasury to the States. Can you
honestly tell me that 2 Federal employees who must decide whether to
list or not list a species demonstrates a commitment to remove the
threats of invasive species?
Answer. While the Service agrees that removing the threat of
invasive species through the listing of injurious wildlife is
important, the agency has no specific appropriation to carry out this
work. Many statutory obligations and commitments are also considered in
our allocation of limited discretionary funds, and most of our
resources are appropriated for a specific purpose, such as Land
Acquisition or the Sport Fish and Wildlife Restoration programs. The
law prevents the Service from using specifically appropriated funds for
purposes other than as intended by Congress.
______
Letter Submitted for the Record from Imperial Irrigation District
Imperial Irrigation District
Imperial, CA 92251
October 3, 2013.
Hon. John Fleming, Chairman,
Hon. Gregorio Kilili Camacho Sablan, Ranking Member,
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs,
Committee on Natural Resources,
Washington, DC 20515.
Re: Statement for the record of the hearing on The Department of the
Interior's proposal to use a Categorical Exclusion under the
National Environmental Policy Act (NEPA) for adding species to
the Lacey Act's list of injurious wildlife
Dear Chairman Fleming and Ranking Member Sablan:
The Imperial Irrigation District of California respectfully
requests that this letter be included in the record of the
Subcommittee's hearing on The Department of the Interior's proposal to
use a Categorical Exclusion under the National Environmental Policy Act
(NEPA) for adding species to the Lacey Act's list of injurious
wildlife.
IID is seriously concerned that the U.S. Fish and Wildlife
Service's (USFWS) proposal to forgo a full NEPA review of proposed
additions to the Lacey Act's list of injurious species, specifically
the possible addition of the invasive quagga mussel, would not allow
for proper consideration of the potential adverse effects that such a
listing would have on existing and future interstate water supply
operations and water transfers.
IID is a public agency that diverts 3.1 million acre-feet of water
annually from the Colorado River to irrigate 520,000 acres of highly
productive farm land in California's Imperial Valley. IID's water
supplies are conveyed through the federally owned Imperial Dam and All-
American Canal, which IID operates and maintains under contracts with
the Department of the Interior, and through IID's own system of more
than 3,000 miles of canals and drains. Additionally, IID distributes
electricity generated by hydroelectric facilities built along the All-
American Canal.
IID is well aware of the threat posed by aquatic invasive species,
including the quagga mussels in the Colorado River water supply, and we
support the intensive state and local efforts already under way to
prevent and control the spread of these destructive invasives.
However, IID is concerned by the proposal to adopt a blanket
categorical exclusion for NEPA review on new additions to the Lacey Act
list, particularly in light of the USFWS use of the Lacey Act to
curtail water supply and transfer operations on Lake Texoma in Texas.
In the Texas case, the USFWS invoked the Lacey Act to halt a critical
water supply project because of the presence of invasive zebra mussels
in the lake, even though the transfer project included special
provisions to prevent the spread of the mussels. The 112th Congress had
to enact legislation (PL 112-237) to allow the Texas water project to
continue operation.
Zebra mussels are listed as ``injurious'' under the Lacey Act,
while the similarly destructive quagga mussels are not listed under the
Act. Quagga mussels are present in the Colorado River. If quagga
mussels are added to the Lacey Act list, the Act's strict restrictions
on interstate transport of listed invasive species could be applied in
a manner that would disrupt vital water supply operations on the
Colorado River, including water transfer agreements to which IID is a
party.
For this reason, IID and other public agencies in the Lower
Colorado River Basin asked for a 60-day extension of the initial 30-day
comment period on the USFWS categorical exemption proposal so that the
potential effects on Colorado River operations and transfers can be
more fully considered. In response to these requests, the USFWS
reopened the comment period for 60 days, ending October 15.
IID believes that a categorical exclusion is inappropriate when
additional Federal regulation of the species proposed for listing would
have potentially significant adverse impacts on water supply and
hydroelectric operations vital to the regional economy and the well-
being of millions of citizens.
Actions taken under the Lacey Act to alter, delay or halt Colorado
River operations--as the USFWS did at Lake Texoma--would disrupt both
the human and environmental status quo and could be expected to
significantly affect highly productive agricultural lands and fish and
wildlife habitat (including ongoing efforts to improve conditions at
the Salton Sea), Further, such actions would be highly controversial,
would likely have unforeseen consequences, could conflict with existing
inter- and intrastate agreements, and may undermine the authorized
purposes of the Federal Government's water storage and distribution
facilities in the Lower Colorado River Basin.
For these reasons, IID believes that the USFWS should not apply a
categorical exclusion to proposed Lacey Act listings when such a
listing would likely affect interstate water supply operations,
hydroelectric operations or water transfers. Potential impacts to these
operations must be thoroughly examined in a transparent, public process
before a new listing is made.
IID greatly appreciates the Subcommittee's oversight of the USFWS
proposal and its potential consequences. Thank you for considering
IID's views on this important matter.
Sincerely,
Kevin E. Kelley,
General Manager.
______
Prepared Statement of North Texas Municipal Water District
The North Texas Municipal Water District [NTMWD] wishes to express
its appreciation for the hearing which you conducted on September 20,
2013 concerning the categorical exclusion, which is being proposed by
the United States Fish and Wildlife Service [FWS] for listing a species
under the Lacey Act. During this hearing, FWS Assistant Director David
Hoskins testified that implementation of a categorical exclusion would
allow the Service to, ``. . . bypass the completion of an EA or an EIS
when undertaking actions that a Federal agency identifies that, under
normal circumstances, do not have a potentially significant
environmental impact, either individually or cumulatively.''
NTMWD is deeply concerned over the issue of listing species under
the Lacey Act, particularly with regard to invasive mussels. Nearly 4
years ago, zebra mussels were discovered in Lake Texoma, a water supply
reservoir that provides 28 percent of the water supply for NTMWD's 1.7
million customers. This Subcommittee is well aware of the subsequent
steps that were necessary to restore this essential water supply,
including the introduction and passage of H.R. 6007, the ``North Texas
Zebra Mussel Barrier Act of 2012'' which subsequently became P.L. 112-
237. This effort also required NTMWD to spend over $300 million of our
customers' money to construct a 46-mile long closed pipeline from Lake
Texoma to our water treatment plant in Wylie, Texas. The closed
pipeline ensures that zebra mussels, although technically transported
across the Oklahoma/Texas border will not be spread by the NTMWD into
the waters of Texas.
The Subcommittee will also recall that while FWS did not question
whether our proposed plan essentially eliminated the spread of zebra
mussels, they opposed the North Texas Zebra Mussel Barrier Act of 2012
based on their rigid interpretation of the Lacey Act, which prohibits
any possession or transport of a listed species, regardless of whether
a critical water supply for an entire region would be put at risk. The
counteroffer of FWS for a 5-year moratorium on prosecution under the
Lacey Act would have required us to enter into a non-prosecution
agreement with the U.S. Attorney for the Eastern District of Texas. It
also required the formal approval of numerous Federal and State
agencies in both Texas and Oklahoma and had to be renewed every 5
years. Given the fact that NTMWD's need to deliver water is ongoing and
cannot be broken down into 5-year cycles, it would have been
irresponsible for NTMWD to agree to a plan that would have exposed 28
percent of its water supply to repeated interruption.
FWS has identified more than 4,400 invasive species which inhabit
their National Wildlife Refuge System. Each of these species is a
candidate for listing under the Lacey Act, with that process shortened
by implementation of a categorical exclusion. There is also an effort
in the 113th Congress to legislatively mandate that quagga mussels be
listed as an invasive species under the Lacey Act. The use of a
categorical exclusion that removes the requirement for either an
Environmental Assessment or an Environmental Impact Study has the
potential to greatly speed this listing process based on a
congressional mandate. Given the current state of FWS policy with
regard to enforcement of the Lacey Act, the question must be asked how
this expedited process would impact the water supply of tens of
millions of people throughout the Southwest.
Zebra mussels were the subject of the Non-Indigenous Aquatic
Nuisance Prevention and Control Act of 1990 and were formally listed as
an invasive species under the Lacey Act on November 7, 1991. This was a
reasonable response to a problem that was at that time confined to the
Great Lakes and had been traced to contaminated ballast water. But,
over the next 20 years, and despite the efforts of Federal agencies
like the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife
Service, and a host of State agencies, zebra mussels inexorably spread
throughout the eastern half of the United States. They reached the
border of Texas and NTMWD's Lake Texoma water supplies in 2009. Despite
the fact that NTMWD stopped its pumping activities upon discovering
that zebra mussels were present in this reservoir, the mussels have
recently been discovered by the Texas Parks and Wildlife Service in
lakes hundreds of miles south of the Oklahoma/Texas border.
The Federal Government could not stop the march of the zebra mussel
from the Great Lakes to Lake Texoma. Nor did NTMWD have anything to do
with spreading the mussel throughout Texas. This likely occurred
through the movement of boats among various reservoirs as well as birds
and animals which are well-known as contributors to the spread of zebra
mussels. But, the prohibitions of the Lacey Act against moving an
invasive species over a State line have been fully brought to bear on
NTMWD's water supplies despite the fact that the mussels are already
well established in Oklahoma and increasingly in Texas.
We trust the Committee will remember its experience in helping
NTMWD deal with FWS and the Lacey Act, and consider the potential
impact of a categorical exclusion with regard to the quagga mussel
without an Environmental Assessment or an Environmental Impact
Statement. Would this lead to a quick listing of quagga mussels? If
this occurs, would FWS implement the same policies it has with NTMWD,
despite the fact that quaggas are already well established from
Colorado to California, including the Colorado River aqueduct? Would it
matter that water resource agencies which depend upon the Colorado
River for their water needs have already established aggressive
programs to remove quaggas, ranging from scrapping them off of intake
and pumping facilities to the use of chlorine to prevent their
colonizing in holding areas.
The criteria under 43 CFR 46.215, ``Extraordinary Circumstances Not
to Do a Categorical Exclusion,'' should be clarified to specifically
address and include water transport, whether in North Texas or anywhere
in the Nation. To limit delays in adding species to the Lacey Act, this
request should be further bracketed to apply only to adding species
that already exist in the waters of the United States. Without
recognition of water transfers in the West as exceptional
circumstances, the proposed categorical exclusion raises the larger
issue of how the Lacey Act and its prohibitions of transporting or
possessing a listed species can be made to work in conjunction with
long-established water transfers, which are essential to regional water
supplies. In the case of NTMWD, adding quagga mussels to the Lacey Act
and subsequently finding a single quagga in Lake Texoma could negate a
$300 million investment to restore 28 percent of NTMWD's water supply
from Lake Texoma.
Because of these complicating issues, NTMWD opposes a categorical
exclusion for listing species under the Lacey Act, until additional
clarification can be developed by FWS with regard to how it proposes to
administer the Act's provisions while not interrupting the delivery of
critical water supplies. NTMWD's closed conveyance system now nearing
completion was opposed by the Service and required congressional
legislation for our district to restore 28 percent of the water supply
of 1.7 million people. What is essential to remember is that stopping
cross border water transfers of a species that is already well
established is not an effective policy in implementing the Lacey Act.
When listing aquatic species which impact interstate water
supplies, it is essential that FWS prepare an EA and an EIS during the
listing process, addressing the substantial social and economic impacts
that accrue to the extraordinary circumstances of water supply
transfers. We also urge that the criteria under 43 CFR 46.215
``Extraordinary Circumstances Not to Do a Categorical Exclusion,''
needs to be clarified and expanded to specifically address water
transports. In conclusion, NTMWD wishes to thank the Subcommittee once
again for its attention to these very important issues.
______
MOU Submitted by the U.S. Fish and Wildlife Service
MEMORANDUM OF UNDERSTANDING
between
the UNITED STATES FISH AND WILDLIFE SERVICE and
the PET INDUSTRY JOINT ADVISORY COUNCIL and
the ASSOCIATION OF FISH AND WILDLIFE AGENCIES
to COLLABORATE
ON THE DEVELOPMENT OF NONREGULATORY
APPROACHES TO REDUCE THE RISK OF INTRODUCING
POTENTIALLY INVASIVE SPECIES
THROUGH INTERNATIONAL TRADE AND
TO PROMOTE VOLUNTARY NO-TRADE
IN CERTAIN SPECIES NOT PRESENTLY IN TRADE
This Memorandum of Understanding (MOU) is entered into by the Pet
Industry Joint Advisory Council (PIJAC) (hereinafter referred to as
``nongovernmental parties'') and the following Federal agencies,
hereinafter referred to as the ``agencies'' or by their name or
initials:
United States Fish and Wildlife Service (FWS)
and the following State Government Trade Associations, hereinafter
referred to as ``Associations'' or by their name or initials:
Association of Fish and Wildlife Agencies (AFWA)
I. PURPOSE
The purpose of this MOU is to establish a general framework for
cooperating and collaborating among FWS, the States (via their
Associations), industry, and other nongovernmental parties to promote
nonregulatory approaches with the goal of reducing the risks of
potentially invasive, nonnative species being introduced into the
United States. The parties to this MOU desire to explore a variety of
voluntary risk-management approaches that can be implemented
collaboratively by industry and Federal and State governments. Under
this Federal, State, and industry partnership, species that are not
currently in trade and not currently found in the United States, but
that are determined by FWS under section VIII to be of high or
uncertain ecological risk to the United States, would voluntarily not
be imported or traded, or if they enter the United States, such entry
would be conducted only through voluntary biosecurity and mitigation
practices designed to minimize the likelihood of release and
establishment consistent with pledges made by companies, individuals,
or other entities. While this approach is voluntary and therefore
cannot guarantee that the trade of such species will not occur, the
non-Federal parties to this MOU will endeavor to educate the respective
industries on the benefits of preventative action.
II. AUTHORITIES
1. Fish and Wildlife Programs Improvement and National Wildlife
Refuge System Centennial Act of 2000, Public Law 106-408;
2. Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq.;
3. Take Pride in America Act, Public Law 101-628;
4. Executive Order 13112 on Invasive Species, Executive Orders.
February 8, 1999;
5. Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990, as amended (16 U.S.C. 4701 et seq.);
6. Lacey Act, as amended (18 U.S.C. 42);
7. Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1544);
and
8. National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
III. DEFINITIONS
For the purposes of this MOU, the following definitions are used:
1. Alien species: ``. . . with respect to a particular ecosystem,
any species, including its seeds, eggs, spores, or other
biological material capable of propagating that species,
that is not native to that ecosystem.''\1\ For the purposes
of this MOU, this does not include nonnative species in
such States where they are being managed under the
authority of State Fish and Wildlife agencies.
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\1\ Executive Order 13112, February 8, 1999.
2. Biosecurity: utilizing a combination of measures designed to
protect the environment by preventing the escape to or
establishment of species in the natural environment.
Measures include, but are not limited to, preventing high-
risk species from coming in contact with the natural
environment by ensuring containment in facilities that are
designed to maintain the species in closed systems in which
effluent discharge and other waste materials are treated to
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prevent to prevent the release of live organisms.
3. Invasive species: ``. . . an alien species whose introduction
does or is likely to cause economic or environmental harm
or harm to human health.'' \2\ While current funding is
limited to aquatic species, the MOU applies to any species.
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\2\ Executive Order 13112, February 8, 1999.
4. Risk management: The process of identifying, evaluating,
selecting, and implementing actions to reduce risk
(Anderson et al. 2004); \3\ can include voluntary and
regulatory approaches that prevent invasive species from
entering the U.S. by limiting or prohibiting the
importation of species classified as either high risk or
uncertain risk.
---------------------------------------------------------------------------
\3\ Andersen, M.C., H. Adams, B. Hope, and M. Powell, 2004. Risk
Assessment for Invasive Species. Risk Analysis 24(4):787-793.
5. Risk screening: a risk assessment system designed to rapidly
evaluate the invasiveness (establishment and impact)
potential of a nonnative species.
IV. THE PARTIES
1. The Pet Industry Joint Advisory Council (PIJAC) is a nonprofit,
service-oriented organization composed of members from
every segment of the pet industry. These include importers
and exporters of live organisms, retail pet stores, product
manufacturers, other industry trade associations in the
United States and other countries, as well as hobby clubs
and aquarium societies. PIJAC, a nonprofit corporation
organized pursuant to the laws of the District of Columbia,
enters into this MOU pursuant to the approval of its Board
of Directors.
2. The Association of Fish and Wildlife Agencies (AFWA) is a
nonprofit trade association representing North America's
State and territorial fish and wildlife agencies, promoting
sound management and conservation policy that speaks with a
collective voice at the national level.
3. The mission of the Fish and Wildlife Service includes working
with others to conserve, protect, and enhance fish,
wildlife, and plants and their habitats for the continuing
benefit of the American people. The vision of the FWS is to
continue to be a leader and trusted partner in fish and
wildlife conservation, known for its scientific excellence,
stewardship of lands and natural resources, dedicated
professionals, and commitment to public service. The
conservation principles of FWS include:
``Science--Our work is grounded in thorough, objective science.
Stewardship--Our ethic is to conserve natural resources for
future generations.
Service--It is our privilege to serve the American people.
Professionalism--We hold ourselves to the highest ethical
standards, strive for excellence and respect others.
Partnerships--We emphasize creative, innovative partnerships.
People--Our employees are our most valued asset.
Legacy--We ensure the future of natural resource conservation
by connecting people with nature.''
V. STATEMENT OF MUTUAL INTERESTS AND BENEFITS
1. FWS manages 150 million acres in 556 national wildlife refuges
and other units of the Refuge System, owns or manages 38
wetland management districts, and includes nearly 16,000
acres of lands and waters in the National Fish Hatchery
System. FWS's responsibilities include conservation of
threatened and endangered species, migratory birds,
fisheries, and native habitats both on and off refuge
lands.
2. AFWA represents the State and district fish and wildlife agencies
charged with the management of fish and wildlife resources
in the public trust.
3. Each of the parties participating in this MOU is a national
entity with an interest in fostering environmental
stewardship within its respective community, including
protecting the environment from the release of nonnative
invasive species.
4. Each of the parties acknowledges that the introduction of various
invasive, nonnative species may be detrimental to, and not
in the best interests of, their respective communities and
the natural resources of the United States.
5. The parties recognize that the most effective way to manage
invasive species is to prevent importation, and that
nonregulatory methods of prevention are beneficial.
6. All parties would benefit from the development of science-based
assessments of the likely adverse ecological effects of
potentially invasive species that could guide their
internal management or policy decisions.
VI. PRINCIPLES
The parties agree that invasions by nonnative, species imported for
the live animal and plant trade can cause the United States
incalculable environmental and human harm as well as financial losses
every year. Stopping initial importation of risky, nonnative species is
the most effective way of preventing these invasions in the United
States. The industries that trade in live, nonnative species can take a
voluntary, responsible, proactive approach to assist the regulatory
agencies in preventing these introductions.
Coordination of these voluntary actions will be facilitated by the
nongovernmental parties with FWS as described in section VII.
VII. IMPLEMENTATION
To the extent authorized by law and consistent with agency
management objectives, all of the parties to this MOU agree:
1. To provide consistent and effective communication among the MOU
parties, the non-Federal entities shall appoint
representatives to a steering committee of no fewer than
three or greater than nine, where committee members may be
asked to complete assigned tasks and to discuss and
consider new activities as appropriate that may be pursued
under this MOU.
2. To develop a work plan (through the steering committee) that
includes, but is not limited to:
a. Participating in scheduled Steering Committee meetings
and conference calls;
b. Participating in an annual strategic planning meeting of
the Steering Committee and identifying goals and objectives as
appropriate under this MOU;
c. Reviewing the Ecological Risk Screening protocol and
standard operating procedures and providing recommendations
with respect to its application and implementation;
d. Explaining how FWS would logistically receive species
nominations from individual representatives on the steering
committee of species that would be covered by the MOU;
e. Developing and implementing a collaborative
communication strategy to increase public awareness about the
need to prevent the introduction of living organisms that the
parties have identified as species of high or uncertain
ecological risk to the United States and that may present a
high or uncertain risk of becoming an invasive species.
3. The parties agree that the highest priority is to promote a
collaborative and comprehensive voluntary approach to
prevent the introduction into the United States of species
not present in the United States that have been
demonstrated through ecological risk screening procedures
to possess a high or uncertain risk of becoming an invasive
species if introduced into the United States. Furthermore,
the parties agree to similarly address low risk species as
resources permit.
4. The parties will explore the alternatives of industry-supported
initiatives that may include: (a) no-trade, (b)
implementation of mitigation measures or best management
practices, and (c) regionally based trade through which an
ecological risk screening procedure identifies species that
are of low risk of population establishment, spread, and
harm. The companies, individuals, or other entities may
pledge to refrain from trading (see (a) of this paragraph).
The species determined to be high or uncertain risk through
the Ecological Risk Screenings are listed on FWS's website,
which may be amended as appropriate.
5. The parties recognize and acknowledge that the collaborative
voluntary approach implemented pursuant to this MOU in no
way preempts the FWS from listing a species as injurious
wildlife under Title 18 of the Lacey Act or other
applicable statutes or regulations, or precludes any State
or Territory from enforcing existing, or implementing new,
statutes or regulations concerning nonnative or invasive
wildlife species. The Service retains all existing
discretion and authority under applicable laws.
VIII. TO THE EXTENT AUTHORIZED BY LAW AND CONSISTENT WITH AGENCY
MANAGEMENT OBJECTIVES, THE ASSOCIATIONS AND THE AGENCIES AGREE
TO:
1. FWS agrees to:
a. Provide background materials to the parties, including
protocols and standard operating procedures, associated with
the ``Ecological Risk Screening'' process being utilized by the
FWS to evaluate nonnative species;
b. Provide a public FWS website with:
1. all completed Ecological Risk Screening
Summaries;
2. an email address for the general public to
provide information and observations on the Ecological
Risk Screening Summaries that will be provided to the
author(s) for consideration; and
3. the revised Ecological Risk Screening Summaries;
c. Work with the parties to foster integration of
regulatory and nonregulatory approaches to reduce the risks or
invasive nonnative species affecting the United States;
d. Conduct an Ecological Risk Screening for species that
are nominated by individual representatives of the steering
committee, within available funding or personnel constraints;
e. Conduct an Ecological Risk Screening for species that
are nominated by the public through the PWS website soliciting
public input, within available funding or personnel
constraints;
f. Inform the Steering Committee of additional Ecological
Risk Screenings conducted based on FWS's scientific knowledge;
and
g. Provide a list of species of low, uncertain, and high
risk that will be posted online at a publicly available FWS
website and provided to the Steering Committee, along with
explanations for the risk categories (found in the Standard
Operating Procedures being posted on FWS's website).
2. AFWA, in its role in providing a national forum for coordinated
action among State and territorial fish and wildlife
agencies, agrees to:
a. Facilitate compilation of responses to data requests by
State and territorial members of the AFWA Invasive Species
Committee (and other committees as relevant and appropriate) as
requested by one or more of the parties, within available
personnel and resource constraints;
b. Coordinate review by State and territorial agencies of
ecological risk screening procedures, best management
practices, or other related reports and policies through the
AFWA Invasive Species Committee (and other committees as
relevant and appropriate), within available personnel and
resource constraints;
c. Provide a foundation for discussion and development of
strategic prioritization of invasive species threats through
the AFWA Invasive Species Committee; and
d. Inform its State and territorial members of
opportunities to engage in educational and outreach campaigns
being conducted by one or more of the parties, and inform the
parties of such campaigns that any of its State and territorial
members may be conducting.
3. Each of the nongovernmental parties agrees to:
a. Take steps to engage members within their respective
communities to conduct proactive public outreach and education
campaigns that promote awareness of species determined to be of
high or uncertain ecological risk to the United States;
b. Evaluate various voluntary mitigation practices that
include sterilization, single sex trade, facility biosecurity
protocols, rating systems for certain species that may be
appropriate by region of the country, and other best management
practices;
c. Encourage their members to review and consider the
environmental covenant pledge in the Appendix; and
d. Provide to its respective Steering Committee
representative nominations for species to be screened by FWS.
IX. PRINCIPAL CONTACTS
The principal contact for the Fish and Wildlife Service concerning
this MOU is:
Name: Jeff Underwood (Acting)
Title: Assistant Director, Fish and Aquatic Conservation
Address: MS 3043, 1849 C Street, NW, Washington, DC 20240
Telephone: 202-208-6393
The principal contact for the Pet Industry Joint Advisory Council
concerning this MOU is:
Name: Marshall Meyers
Title: Senior Advisor
Address: 1620 L Street, NW, Suite 610, Washington, DC 20016
Telephone: 202-256-6726
The principal contact for the Association of Fish and Wildlife
Agencies concerning this MOU is:
Name:
Title:
Address:
Telephone:
The principal contact information for other agencies or
nongovernmental parties shall be indicated in an Addendum to this
Agreement.
X. MISCELLANEOUS PROVISIONS
1. The parties will carry out their own activities related to this
MOU and use their own resources, including the expenditure
of their own funds, in pursuing the objectives outlined in
this MOU.
2. In implementing this MOU, each Party will operate under its own
applicable laws, regulations, and policies, subject to the
availability of funds and personnel constraints.
3. Nothing in this MOU authorizes any of the parties to obligate or
transfer funds. Specific projects or activities that
involve the transfer of funds, services, or property among
the parties requires execution of separate agreements and
are contingent upon the availability of funds. These
activities must be independently authorized as appropriate.
Negotiation, execution, and administration of these
agreements must comply with all applicable laws.
4. Other than the agencies' and Associations' support of the
principles in this MOU, nothing in this MOU constitutes or
shall be interpreted to imply an endorsement by the United
States of any product, service, or opinion of any of the
nongovernmental parties.
5. Nothing in this MOU is intended to alter, limit, or expand the
agencies' or States' statutory and regulatory authorities.
6. This MOU in no way restricts any of the parties from
participating in similar activities with other public or
private agencies, organizations, and individuals.
7. This MOU is not intended to (nor does it) create any rights,
benefits, or trust responsibilities, substantive or
procedural, enforceable by law or equity, by a party
against the United States and its individual States or
territories, its agencies, its officers, or any person.
8. Each nongovernmental party recognizes and acknowledges that the
MOU does not provide immunity from Federal or State
antitrust laws.
9. Each party represents that its participation in the MOU, and any
action it takes relating to the MOU (including the
nomination of species to be included in this agreement), is
independent and voluntary, is not conditioned upon the
participation or actions of any other entity, and is not
the result of any agreement or understanding with any
actual or potential competitor.
10. Each party represents that, in conducting activities relating to
the MOU, it shall not disclose directly or indirectly to
another party any information regarding its business plans,
strategies, costs, production, inventories, prices, sales,
customers, or other competitively sensitive information.
11. Pursuant to Federal Law, no member of, or delegate to, Congress
may benefit from this MOU either directly or indirectly.
12. Any information furnished to the agencies or States (via their
representative Associations) under this MOU is subject to
the Freedom of Information Act, 5 U.S.C. Section 552.
13. All parties will Comply with the Federal Advisory Committee Act
to the extent that it is applicable.
14. Other Federal agencies and nongovernmental entities may be added
to this MOU with the unanimous written concurrence of all
of the parties.
15. This MOU takes effect on the date it is fully executed and will
expire 10 years from its effective date. This MOU may be
extended or amended upon written agreement of all of the
parties.
16. Either the Federal agencies collectively, Associations
collectively, or the nongovernmental parties collectively
may terminate this MOU 60 days after written notice. Any
individual party may terminate its participation in the MOU
60 days after written notice to the other parties.
______
Prepared Statement of The Western Coalition of Arid States (WESTCAS)
The Western Coalition of Arid States represents municipalities,
regional water and wastewater agencies, irrigation districts, water
resource agencies, counties, engineering firms and law firms in
Arizona, California, Colorado, New Mexico, Nevada, and Texas. Our goal
is to promote policies, laws, and regulations that help ensure
sustainable water quality in the Arid West.
WESTCAS wishes to provide its thoughts and perspectives with regard
to your hearing of September 20, 2013 to consider a proposal by the
U.S. Fish and Wildlife Service to implement a categorical exclusion
from the National Environmental Policy Act (NEPA) process for adding
species to the injurious wildlife list under the Lacey Act. It also
proposes that the application of this categorical exclusion for each
listing action would include the review of all ``extraordinary
circumstances'' under 43 CFR 46.215, which we agreed should be
conducted. In this regard, WESTCAS believes it is essential that the
extraordinary circumstances associated with existing and future managed
water supply transfers across State lines in the Western United States
be a part of the categorical exclusion process.
We appreciate that a fast-track process for the Service to use in
adding a species to the Lacey Act could enable the Fish and Wildlife
Service to stop a species before it becomes ``irrevocably invasive.''
However, we are concerned that the extraordinary circumstances of these
water transfers is not or will not be fully recognized in the proposed
categorical exclusion to the Department's Manual (DM).
REQUEST
For the reasons cited above, WESTCAS requests that when the Fish
and Wildlife Service is considering an aquatic species for addition to
the injurious list, that the Department of Interior Manual recognize
Western water transfers as an exceptional circumstance. We urge that
the criteria under 43 CFR 46.215 ``Extraordinary Circumstances Not to
Do a Categorical Exclusion'' be clarified and expanded to specifically
address and include Western water transport. To limit delays in adding
species to the Lacey Act, this request can be further bracketed to
apply only to adding species that already exist in the waters of the
United States.
ANALYSIS
Without recognition of water transfers in the West as exceptional
circumstances, the proposed categorical exclusion raises the larger
issue of how the Lacey Act and its prohibitions of transporting a
listed species across a State line can be made to work in conjunction
with long-established water transfer arrangements that are essential to
the water supply of much of the Arid West. Our concerns are centered
upon the zebra mussel, which is already a listed species under the
Lacey Act and also the quagga mussel which is not listed but already
present throughout most of the Western States and is the subject of
pending Congressional Legislation which would require the Service to
add this species to the Lacey Act.
Water supply transfers in the West are critical to a sustainable
water supply that benefit not only human health and welfare but also
underpin the economy and provide crucial environmental flow. The
Department of Interior through the Bureau of Reclamation plays a major
role in transporting water over State lines through its water supply
and water transfer facilities. Unless accompanied with an extraordinary
circumstances definition that it applied to cross-border water supply
transfers, the proposed categorical exclusion may be inconsistent with
the Bureau of Reclamation operations or policies. Time limits on
responding to the Notice have prevented WESTCAS from a thorough review
of this concern.
Western water agencies are working actively to control the spread
of invasive species. In the case of zebra mussels, this includes a $300
million closed-pipeline currently under construction by the North Texas
Municipal Water District that will carry zebra mussels from over the
Oklahoma-Texas State line to a treatment plant where all mussels will
be removed. The treatment process is so thorough that although zebra
mussels will technically be moved over a State line, they will not be
spread to the waters of Texas.
With regard to quagga mussels, the Metropolitan Water District of
Southern California employs scuba divers 24 hours a day, 7 days a week
to scrape quagga mussels off of its intake and pumping structures. The
Coachella Valley Water District has adopted special treatment
strategies designed to prevent quagga mussels from colonizing its
distribution system. Coachella has also prohibited boating activities
on its water conveyance and storage facilities and also actively
supports Federal and State boat inspection programs. The San Juan Water
Commission in New Mexico has already implemented policies ranging from
early detection of quagga mussels to enhanced inspection partnerships
with Federal and State agencies.
Western water resource agencies are united in their efforts to try
and control the spread of invasive species, especially aquatic
varieties. But the fact remains that the population centers and the
agricultural production of the Arid West, including helping sustain the
intervening aquatic habitat, are dependent upon the long-established
movement of water supply across State boundaries. This frequently
involves formal partnerships with the U.S. Army Corps of Engineers and
the Bureau of Reclamation. Providing an uninterrupted water supply is a
challenge that can require finding compatibilities rather than
inflexible prohibitions. While Western water transfer arrangements may
involve the transport each day of zebra or quagga mussels across a
state line, the interruption or suspension of water transfers would
create chaos with the water supply of millions of people as well as
with important segments of the agricultural industry.
Because of this complicating feature, WESTCAS opposes a categorical
exclusion for the Service for listing species under the Lacey Act until
additional clarification can be developed by the Service with regard to
how it proposes to administer the Act's provisions while not
interrupting the delivery of water supply in the Arid West. The closed
conveyance system proposed by the North Texas Municipal Water District
was vigorously opposed by the Service and required Congressional
Legislation for the District to restore 28 percent of the water supply
of 1.7 million customers.
Western water agencies are mounting determined efforts to control
the spread of quagga mussels. But their efforts do not embrace outright
bans on interstate water transport. It would take many billions of
dollars to build and operate closed conveyance treatment systems
throughout the Arid West. It must be recognized that species such as
quagga mussels and zebra mussels are already well established in the
water supplies of multiple states. Stopping cross border water
transfers would not stop the spread of these mussels.
CONCLUSION
When listing aquatic species which impact interstate water
supplies, WESTCAS believes that is essential that the Service prepare
an EA and an EIS during the listing process, including the substantial
social and economic impacts that accrue to the extraordinary
circumstances of water supply transfers. We also urge that the criteria
under 43 CFR 46.215 ``Extraordinary Circumstances Not to Do a
Categorical Exclusion'' needs to be clarified and expanded to
specifically address and include Western water transport related
issues. WESTCAS strongly supports the implementation of NEPA
requirements for EA's and EIS's as an essential part of the listing
process any time a cross-border water transfer could be impacted by the
Lacey Act.
While WESTCAS appreciates the opportunity to submit these comments,
due to the limited time available, we were not able to fully develop
our concerns. If the comment period is extended, WESTCAS may elect to
supplement or more fully support these comments.
Thank you for the opportunity to provide our perspectives with
regard to this issue.
______
[LIST OF MATERIAL RETAINED IN COMMITTEE'S OFFICIAL FILES]
--Letter from Kelley Drye & Warren LLP on behalf of the
United States Association of Reptile Keepers
(USARK) submitted to Mr. Daniel M. Ashe, Director,
U.S. Fish and Wildlife Service.
[all]