406 Dirksen EPW Hearing Room

Timothy R.E. Keeney

Deputy Assistant Secretary of Commerce for Oceans and Atmosphere, U.S. National Ocean and Atmospheric Agency

Good morning, Chairman Crapo and Members of the Subcommittee. I am Timothy Keeney, Deputy Assistant Secretary of Commerce for Oceans and Atmosphere and the National Oceanic and Atmospheric Administration (NOAA) co-chair of the Aquatic Nuisance Species Task Force. I appreciate the opportunity to present NOAA views on S. 525, which would reauthorize the Nonindigenous Aquatic Nuisance Prevention and Control Act as amended by the National Invasive Species Act of 1996.


I begin my testimony with some observations on the evolution of the Act which mirrors our current state of understanding of aquatic invasive species. I will then comment on some general concerns with the legislation as currently drafted, and finally I will touch on some specific provisions of the bill.


When the Act was first passed, the focus was on a single species–the zebra mussel, a single region–the Great Lakes, and a single pathway–ballast water. It subsequently became obvious that the problems caused by invasive species generally, and aquatic invasive species specifically, are broader than originally envisioned and this was reflected in the 1996 amendments. This recognition is further reflected in S. 525, and the bill would constitute a major rewrite of the existing law if it is enacted.


Last year, the Aquatic Nuisance Species Task Force adopted a five-year strategic plan in which we assessed current activities and looked at areas requiring additional attention. In several areas, the Task Force’s conclusions are similar to issues addressed in this legislation. S. 525 addresses some gaps in our existing programs.


Even though ballast water continues to be the most significant pathway for new introductions into coastal waters, there is a need to systematically assess other pathways to determine how best to interdict them as well as prevent invasions from occurring. Finally, the Task Force recognized that education and research are important supporting elements for all invasive species activities. The importance of these activities is emphasized in the pending legislation.


There is a need to develop an early detection and rapid response mechanism in order to detect invasions while they are still localized and to control them before they spread. Recognizing this, the Task Force already has asked its Regional Panels to prepare rapid response contingency plans. The first of these plans, prepared by the Western Regional Panel, was approved by the Task Force in November. The Northeast Regional Panel began to work on its plan at a meeting last month, and the Great Lakes Panel will work on its plan at a meeting next week.


NOAA is acutely aware of both the economic and environmental impacts of aquatic invasives and strongly supports the existing program. We also support reauthorization of the program. Nevertheless, we have significant concerns about both general and specific provisions of the pending legislation.


Our first general concern is that the bill requires 31 separate actions each with deadlines that must be completed by members of the Aquatic Nuisance Species Task Force within 18 months of passage. It will be difficult to simultaneously give all of these actions the level of attention they deserve in the time allowed. In some instances, the Task Force has already initiated action and the deadlines are reasonable. In other cases, it will be necessary to develop capacity to implement the activities. We recommend that the Committee assess the priority level of each of these actions and allow for additional time for lower level priority activities. We would be happy to work with the Committees on such an assessment.


Similarly there is a multiplicity of reporting requirements. Each report will require a significant commitment of resources that could actually inhibit implementation activities. NOAA recommends that there be a single reporting requirement and that the Committee identify elements to be included in the report.


Title IV of the legislation contains several elements that are duplicated in other sections of the legislation. In at least one instance, different agencies are identified to implement the same activity. Areas that are duplicated include ecological surveys and developing protocols for those surveys, pathway analysis, performance tests for ballast water exchange, and dispersal barriers.


In addition to these general concerns, NOAA has concerns with a number of specific proposals.


Even though progress has been made, ballast water still remains the most significant pathway for new introductions of nonindigenous species into coastal waters. Title I of the legislation recognizes that we still have work to do in this area. Nevertheless, NOAA believes that some of the elements in Title I need to be revised.


During the last re-authorization in 1996, the need to develop more effective ballast water management was recognized. As the Coast Guard’s report to the Congress last June pointed out, compliance with the voluntary guidelines, even to the extent of reporting, has not been satisfactory. Since 1996, we have continued to see the introduction of non-native species into coastal areas, and the situation has been serious enough that west coast states have acted independently to require ballast water management measures. The Federal government should develop a coordinated nationwide response to ensure that the shipping industry is not burdened by a variety of standards in different geographic locations. Such action is possible under existing law, and the Coast Guard, in its report to Congress on compliance with voluntary guidelines, has indicated that it would take steps to issue national standards. We support the Coast Guard’s efforts to establish mandatory guidelines and appreciate the Committees’ support of such efforts.


The bill requires that rapid response measures be included in a ship’s invasive species management plan. As I indicated earlier, NOAA supports additional efforts on rapid response. We cannot envision, however, that all ships would be aware of each State’s rapid response contingency plan. Since such plans are likely to vary among the States, preparation for compliance with such provisions by the shipping companies may be unnecessarily problematic. The primary purpose behind a ballast water management plan should be to reduce the risk that a ship will be the source of new inoculations. The major responsibility for a ship during a rapid response is likely to be either not entering an area where a rapid response action is occurring, not loading ballast water which could contribute to the spread of an invasive species, or not discharging water known to have originated from a rapid response area. Rather than require a rapid response plan for unknown organisms in a multiplicity of areas, the better approach would be to require that a ship cooperate with State governments during a rapid response effort.


NOAA is aware of the frustration in developing a standard for new ballast water treatment technologies. We believe that ultimately there needs to be a discharge standard based on sound science that is biologically meaningful and enforceable. NOAA is concerned about a “kill rate” being used as a standard. Although a 95 percent kill rate may reduce the risk of new invasions, there may be difficulties posed with verification and enforcement. In addition to verification and enforcement difficulties, there is no scientific evidence that a 95 percent “kill rate” reduces the risk of new invasions. Verification of kill rates may also be impractical because in order to prove such a kill rate both the departure point and the discharge point must be sampled. There also could be a significant gap in coverage by this standard. What is killed can be as important, if not more so, then what percentage is killed (e.g., the phytoplankton that cause harmful algal blooms). Some algal blooms in other countries have been attributed to ballast water introductions. Concentrations of up to 10 million cells per liter have been documented during some blooms. For such species, the normal maximum for shellfish safety is 5,000 cells per liter. A technology could successfully kill 95 percent of the organisms and still be at an order of magnitude above what is safe for human health. The Coast Guard, in cooperation with other Federal Agencies, is currently assessing various options for the standards, including standards based on allowable concentrations of organisms. This process should be allowed to continue in order to ensure that the standards are biologically meaningful and technologically feasible.


NOAA fully supports the provision in §1101(b)(4) which would allow approval of experimental technologies for ballast treatment, but we wonder if it was really the intent of the Congress that such authority expire after 18 months. NOAA believes that a provision for onboard testing of promising technologies should remain in place until final standards become effective, and we suggest that it may be useful to allow testing of experimental technologies on board ships even after the standard is in place.


In Title II Section 1105(e)(2), the Congress may intend that there be a permitting requirement for exceptions to a prohibition on importation, but NOAA suggests that such a procedure be made explicit. A formal permitting process would enable the Federal agency of jurisdiction to place restrictions on handling of organisms after they are imported. As examples, subsequent transfer of organisms to third parties could be prohibited, or instructions for proper disposal could be included. NOAA also suggests that, with a formal permitting requirement, the exception could be expanded to include entities such as commercial aquaria which might want to develop educational displays on invasive species.


NOAA is also concerned about the provision that grants the Department of Agriculture the sole authority to screen species proposed for aquaculture use. NOAA believes that the end use of an importation is irrelevant to whether or not a species is invasive. We are concerned because, in the case of aquaculture, what is most often cultured are wild species normally under the jurisdiction of either NOAA or the U.S. Fish and Wildlife Service. In addition, aquaculture is not limited to closed systems. Often species such as oysters and clams are released into natural ecosystems. We would also point out that much of the scientific expertise for making determinations on aquatic imports is in the management agencies. In order to make such determinations, information on life history and impacts on natural ecosystems and native species is necessary. Finally, if end use helps to determine whether a species should be prohibited, we could end up with contradictory decisions. The recent case of the northern snakehead is illustrative. The fish released into the local pond were imported for human consumption and would presumably be under the authority of the U.S. Fish and Wildlife Service. The same species has been cultured in Hawaii and a determination of invasiveness would presumably be made by the Department of Agriculture.


As I indicated above, NOAA recognizes that an additional effort needs to be made on rapid response. We also recognize rapid response activities must involve State and Local governments. Finally, as co-chair of the Aquatic Nuisance Species Task Force, we are more than willing to add a rapid response contingency plan as one of the components of State Management Plans. We do not believe, however, that having such a plan in place should be a prerequisite for receiving matching funds for rapid response to serious invaders. If an invader presents a serious enough threat to warrant a rapid response action, the response should be made whether a State has developed a contingency plan or not.


Similarly, while any activities to improve early detection should be encouraged, NOAA does not believe that an early detection strategy should be a prerequisite for a rapid response plan. Recently, considerable attention has been given to the economic difficulties facing State governments, and the monitoring necessary for an effective early detection strategy can be quite costly. Such a provision actually may discourage States from developing rapid response plans. As indicated above, we could be in the incongruous situation of being unable to respond to a serious invasion because a State does not have a monitoring program set up.


Finally, while education and outreach is an essential part of prevention and control activities and could be an important element of a response and is already included in the guidelines for State Management Plans, a rapid response is essentially an emergency response and requirements to have education and outreach provisions in place for addressing pathways and industries which may introduce species is not an appropriate requirement for a response strategy.


The Aquatic Nuisance Species Task Force is already working with its Regional Panels to develop regional rapid response plans, and NOAA is providing funding during the current fiscal year to help the Panels develop such plans. The first plan, developed by the Western Regional Panel, has been completed and approved by the Task Force. As currently written, the Task Force would be responsible for encouraging development of such plans, but the Coast Guard would be responsible for formal approval. NOAA suggests that the Task Force, which includes the Coast Guard, is the appropriate entity for approval of such plans. It is important that management agencies are included in this process which would be accomplished by giving the Task Force responsibility for formal approval.


NOAA supports the increasing emphasis on research in Title IV and elsewhere in the bill. The science involved with aquatic invasives is much less advanced than the science dealing with terrestrial invasives–particularly as they relate to livestock and crops. While some of our colleagues in the Department of Agriculture have been dealing with weed and insect problems for most of the last century, the science of biological invasions in aquatic ecosystems is still very young. The Aquatic Nuisance Species Task Force has recognized that virtually every activity from prevention to control to restoration needs to have a scientific underpinning. Over the last decade, considerable progress has been made–much of which has been the result of the competitive grant program administered by the National Sea Grant Program under §1202(f), but there are still areas in which our knowledge is seriously deficient.


I would like to discuss two areas as an illustration of our current challenges.


First, there is inadequate monitoring in aquatic systems. In many instances, we do not even have baselines so that we know when a serious new invader has been introduced. This also hampers efforts to characterize invasion rates, and without monitoring activities, early detection and rapid response occur only by chance. It should be noted that there are exceptions, but they are limited to specific geographic areas. As an example, the Aquatic Nuisance Species Task Force sponsored study of San Francisco Bay by Cohen and Carlton is outstanding in documenting nonindigenous species occurrence in that ecosystem and is often cited even in terrestrial studies. A similar study of Chesapeake Bay sponsored by U.S. Fish and Wildlife Service and performed by the Smithsonian Environmental Research Center provides a very good baseline for Chesapeake Bay. Both the Aquatic Nuisance Species Task Force and NOAA recognize this shortcoming and have taken first steps to correct the deficiency in monitoring. The U.S. Fish and Wildlife Service sponsored a workshop on developing protocols and requirements for an effective monitoring program in aquatic ecosystems, and earlier this year, NOAA’s National Ocean Service conducted a similar workshop for monitoring within the National Estuarine Research Reserve System. Title IV of the bill would take steps to address this gap by requiring the development of protocols and setting up a monitoring system.


Second, our scientific knowledge of control methods in aquatic environments is still in its infancy, and control in aquatic ecosystems present unique problems. Because water is a medium which will move chemicals from one place to another, it is much more difficult to localize biocide applications. In addition, there is special concern that available chemicals are not species specific. Last summer when the State of Maryland used rotenone to eradicate the northern snakehead from a pond near Washington DC, it should be noted that the application was in a small body of water and that all other fish species were also killed. Obviously, there are only limited circumstances when such a method can be used. There are even taxonomic groups for which there is no scientific knowledge of control methods. NOAA confronted this issue two summers ago when there was a bloom of spotted jellyfish in the Gulf of Mexico. We recognized that the species was having a major impact in localized areas and was affecting commercial fisheries, but we were in a situation where nobody had ever tried to control jellyfish in the past.


With the exception of aquatic weeds, where the Army Corps of Engineers and the Agriculture Research Service have had some notable successes, we also have just begun to look at biocontrol agents. We do have some promising results, though, with a pathogen that could be used for zebra mussel control. In a project funded by NOAA Sea Grant and the U.S. Fish and Wildlife Service, a researcher has found that a pseudomonas bacterium causes extremely high mortality in zebra mussels and preliminary results indicate that it may be species specific. To show the difficulty in finding an acceptable biocontrol agent, it should be noted that the researcher looked at over 600 different pathogens. In addition, once such a pathogen is found, it is necessary to make sure that the biocontrol agent will not affect native species. This is particularly important in this case because many of our native bivalves are already listed as threatened and endangered.


Chairman Crapo and Members of the Subcommittee, the legislation before you builds on the previous Act and addresses some gaps that have already been identified by the Aquatic Nuisance Species Task Force. S. 525 would be major rewrite of existing law, and as with any complicated piece of legislation, there are some technical difficulties, and we would be happy to work with the Subcommittee to address them. Among these issues, we note that new spending authorized by this bill is not currently included in the President’s Budget, and as such, these actions must be considered within existing priorities. As one of the trustees for marine and coastal resources, NOAA has been aware of the problems caused by aquatic invasive species and recognized that we have a responsibility to help prevent these invasions and reduce the impact if such invasions occur. NOAA also recognizes that we cannot be successful without partnerships with other Federal agencies, State and local governments, and the private sector. We are pleased that the proposed legislation places an increasing emphasis on such partnerships. Thank you for allowing me the opportunity to present the Department of Commerce’s views on this topic. This concludes my testimony, and I would be happy to answer any questions you may have.