The Lacey Act failed to keep Asian carp out: Can new bills before Congress do better?

Federal law has placed restrictions on importation and shipping of certain non-native species since 1900, but many listed species have continued to spread.

Lacey Act and Asian carp invasion timeline. Photo courtesy: Dan O'Keefe
Lacey Act and Asian carp invasion timeline. Photo courtesy: Dan O'Keefe

When it comes to invasive species prevention, ballast water and Chicago-area canals might come to mind as prime targets for prevention efforts, but there is another important pathway for invasive species that does not grab as many headlines. In the jargon of Michigan State University Extension educators, biologists and policy-makers this is referred to as “organisms in trade”, or OIT. The federal regulation of organisms in trade dates back to the Lacey Act, which was passed in 1900. Through the years, the Lacey Act has been updated and specific taxa (species or groups of species) have been listed as “injurious” or removed from that list.  The importation of injurious species is banned, except under special permit, and additional restrictions limit interstate shipping. 

Currently, 23 taxa are listed as injurious. This includes mammals, birds, reptiles, and fish along with three invertebrates and it seems a small number relative to the 180+ non-native aquatic species established in the Great Lakes alone. The average time required to list proposed taxa under the current USFWS rulemaking procedures is four years, and many taxa are not proposed for listing until after they are already established and causing problems. A study conducted by University of Notre Dame researchers found that half of the taxa listed under the Lacey Act’s injurious wildlife provision were already present in the U.S. before they were listed. Most of these species continued to spread after they were listed. 

This should come as no surprise; after all, the Lacey Act prohibits importation and shipping of listed species but does nothing to prevent invaders from moving around on their own accord once they arrive from overseas. The study’s authors concluded that Lacey Act “revision or replacement is required” if federal policy is to be effective at preventing future invasions.

Supporters of bills S. 1153 and H.R. 996 contend that the Invasive Fish and Wildlife Prevention Act is a viable solution. While Lacey Act now takes a “blacklist” approach that assumes non-native wildlife are harmless until proven otherwise, the Invasive Fish and Wildlife Prevention Act would require that importers foot the bill for review of each non-native species that is brought into the United States. Other provisions include:

  • Establishment of 180-day timeframe for USFWS review of potentially injurious species
  • Inclusion of wildlife pathogens and parasites for consideration as injurious species
  • Adoption of two-tiered (Injurious I and Injurious II) and emergency temporary designation system

Although the Invasive Fish and Wildlife Prevention Act would substantially expand and expedite the listing process as it stands under the Lacey Act, it would also require additional funds that would be generated by user fees. This could place a financial strain on importers of non-native wildlife and could influence the pet trade. Pet owners have also expressed concern that new listings could directly affect their pets. Bills currently under consideration have several provisions intended to alleviate these and other common concerns:

  • All clearly domesticated species (e.g., dog, cat, sheep, chicken) are not considered nonnative species and would not be considered for listing under the new act
  • Qualified zoos and aquariums would be exempt from restrictions on injurious species and could continue to display them
  • Pets that are eventually listed as injurious (as pythons were in the past) would be grandfathered in such that non-commercial movement across state lines would be allowed without a permit

While the Invasive Fish and Wildlife Prevention Act would likely go farther than the current Lacey Act in protecting us from the undesired effects of new invaders, it has also come under fire from U.S. reptile and amphibian breeders who would lose business if no longer able to sell and transport animals across state lines. One point made by opponents is that bills currently under consideration do not make distinctions among regions of the U.S. that vary greatly in climate and habitat suitability for potential invaders. For example, south Florida now has reproducing populations of pythons, iguanas, and many other nonnative reptiles that would never survive the winter if released in any other area of the country.

This is also true when it comes to aquatic invaders. In comments to Congress, the American Fisheries Society (AFS) declined to take a position on H.R. 996, noting that shortfalls of the bill include lack of a regional approach to risk assessment, little emphasis on the possibility of effective risk management, and some lack of clarity regarding USFWS rulemaking and implementation process. Despite these shortcomings, the promise of a new approach to OIT regulation has led over 80 groups to endorse H.R. 996. These include four state chapters of AFS and many groups centered in the Great Lakes region, including Alliance for the Great Lakes, Chippewa-Ottawa Resource Authority, Great Lakes Fishery Commission, Ludington Area Charter Boat Association, Northwest Indiana Steelheaders, and Tip of the Mitt Watershed Council.

Effective invasive species prevention requires a rethinking of the status quo. Complex problems often demand complex policies, and the balance of ecological and economic pros and cons can be difficult to weigh. How do you think the Invasive Fish and Wildlife Prevention Act stacks up?

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