33 ELR 10583 | Environmental Law Reporter | copyright © 2003 | All rights reserved

When Aliens Invade: Regulating the Release of Exotic Species Through the "Takings Clause" of the Endangered Species Act

The author is an Expected Associate, 2003, Venable, L.L.P., Washington, D.C. She received her J.D. 2003, William and Mary School of Law; B.S. 2000, with distinction, University of Victoria, Canada. For helpful comments and suggestions, thanks to Linda Malone, Ronald Rosenberg, Elizabeth Vickery, and Sandra Zellmer. The opinions expressed in this Article are personal to the author and do not reflect the opinion of Venable, L.L.P.

[33 ELR 10583]

In May 2002, biologists made a surprising discovery—snakehead fish had proliferated in a small pond in Crofton, Maryland.¹ Snakeheads are a native fish of China and Korea, capable of tolerating extreme environmental conditions.² They are also fierce predators with the ability to disrupt native ecosystems through predation and competition.³ Immediately, concern arose over the presence of the snakeheads in Maryland due to their non-native status and highly invasive tendencies. Most alarming, however, was the possibility that the snakeheads, capable of walking up to four days across land, would leave the self-enclosed pond and find their way to a river or other large water body. Their impact upon local ecosystems would be devastating.⁴

The possession of snakehead fish was illegal in 13 states, but at the time the snakeheads were discovered in Maryland, neither Maryland, Virginia, nor the District of Columbia had laws prohibiting it.⁵ New regulations published in the Federal Register have since made it illegal for anyone to be in possession of a snakehead fish, with fines for transporting the fish across state lines being set at $ 5,000.⁶ Released by a local Maryland resident, the number of snakeheads living in the Crofton pond increased dramatically in the two years that followed.⁷ Fearful of delay, scientists decided to poison the pond as an extreme, but hopefully thorough, means of eradicating the invasive snakehead fish from U.S. waters.⁸ The difficult decision to poison the pond seemed justified, however, when over 800 dead snakehead fish were recovered.⁹ The scientific community breathed a little easier, knowing that the threat of at least one invasive species had been successfully eliminated by their creative and diligent efforts. That was, at least, until a local fisherman caught a three-foot long snakehead in the Baltimore Harbor a few weeks later.¹⁰

Alien species represent a specialized biological threat to natural ecosystems, with the capability of disrupting the delicate ecological balance that has taken millions of years to evolve. Traditionally, natural barriers kept flora and fauna from expanding their territories at more than a snail's pace. Waterways, mountain barriers, changing salinity levels, temperature variations, isolated islands, and vast deserts were all nature's way of maintaining an ecological balance. Historically, a remote oceanic island might have been colonized by a new species once every 25,000 to 1,000,000 years.¹¹ Researchers now suspect that due to human intervention, a new species colonizes the island of Hawaii once [33 ELR 10584] every 18 days.¹² Preventing, or even reducing, the spread of exotic species has become an increasingly difficult job for governmental officials.¹³

Skeptics may doubt what real harm a few invasive species can do to native ecosystems. The answer, however, lies in the asking—they can invade. And a fear of alien species is well-founded indeed. Primarily through competition, predation, and habitat modification, alien species can force native species into extinction. Many alien species demonstrate strong genetic abilities that allow them to successfully outcompete native species.¹⁴ Over time, the genetically disadvantaged native species may become threatened, endangered, and eventually made extinct.¹⁵ In fact, alien species are now the second-leading cause of native species extinction worldwide.¹⁶ A sparse sampling of these extinct aquatic species include: the round combshell, Sampson's pearly-mussel, and the Tennessee riffleshell.¹⁷ For biologists, naturalists, and environmentalists, extinction should be of the utmost concern.¹⁸

Recent government efforts to improve regulatory response mechanisms to alien species has been an incomplete and sluggish process at best. In November 1990, the Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA) was signed into law.¹⁹ President William J. Clinton added another statutory deterrent to invasive species proliferation when he signed the National Invasive Species Act (NISA) in October 1996.²⁰ This proliferation of new statutes seems to indicate that the federal government previously had no effective deterrent to the introduction of invasive species. Such an assumption, however, would be overlooking a very important environmental statute.

Threatened and endangered species have been protected under the laws of the United States since the introduction of the Endangered Species Act (ESA)²¹ in 1973, which requires that "with respect to any endangered species of fish and wildlife listed pursuant to [§] 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to … take any such species within the United States or the territorial sea of the United States."²² The term "take" has been broadly defined to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct."²³ If invasive species are harming threatened and endangered species in the United States, then it would appear that the ESA could, and in fact should, be enforced against the individuals introducing them.

This Article analyzes whether the introduction of an alien species into a native ecosystem represents a "take" under the ESA. Part I of this Article defines alien and invasive species and discusses the primary modes of introducing them, as well as national and international responses. Part II identifies the relevant portions of the Act for the subsequent analysis. Part III discusses U.S. Supreme Court and lower court decisions that have analyzed the scope and depth of the ESA in relation to the statute's take provision. Part IV presents a quasi-hypothetical situation, then uses the Act to analyze the culpability of a shipmaster who releases foreign ballast water into U.S. waters. Part V discusses the justification and benefits of applying the ESA to invasive species introduction. This Article concludes that regulating the introduction of invasive species into territories of the United States through the "takings clause" of the ESA is not only permissible within the meaning of the Act, but compelled by congressional intent.

I. Invasive Species, Their Introduction, and Their Regulation

A. Invasive Species Defined

Alien species are, "with respect to a particular ecosystem, any species, including its seeds, eggs, spores, or other biological [33 ELR 10585] material capable of propagating that species, that is not native to that ecosystem."²⁴ An invasive species is simply a special category of alien species. An invasive species is "an alien species whose introduction does or is likely to cause economic or environmental harm or harm to human health."²⁵ Invasive species may also be defined as "'nonnative species,' 'aquatic nuisance species,' 'introduced species,' 'exotic organisms,' [or] 'xenobiotic organisms.'"²⁶ The rate of introduction of alien species within the United States has increased in recent years as a result of increased trade and human travel between foreign countries.²⁷ Additionally, the speed at which travel is now possible enables plant and animal hitchhikers to survive journeys over distances that simply wouldn't have been possible a century ago.²⁸ Although the highly publicized introduction of the snakehead fish was brought about almost single-handedly by a resident of Maryland,²⁹ by far the most common method of alien species introduction occurs through the release of ballast water in territorial waters of the United States.³⁰

B. Ballast Water Defined

When a ship carries little or no cargo, its light weight puts it at risk of being knocked over by high winds or rough seas.³¹ As a solution to this problem, shipmasters began taking on "ballast" to increase the ship's weight and stability. Originally, ballast was composed primarily of rock, mud, and sand.³² Shipmasters would take on ballast in their port of origin and then release this rock, mud, and sand prior to taking on cargo in their port of destination. To protect channel depth, ballast dumping was regulated during the 19th century.³³ Toward the end of the 1800s, the prominence of steel-hulled ships and steam-driven water pumps made it more convenient and economically efficient for shipmasters to use water as ballast.³⁴ Ballast water is stored in either the designated ballast tank, or, with older vessels, in the cargo tank.³⁵ Although it varies by ship, ballast is generally taken up and discharged through a pump or gravity system, with a filtering system to prevent large objects from entering and clogging the system.³⁶ This does not, of course, prevent ships taking on ballast water from collecting the smaller organisms that live in the water. As ships began increasing the practice of taking on water in their port of origin and sailing to their port of destination, so too did the rate of importation of alien species increase.³⁷ For the Great Lakes region, invasive species introduction as a result of ballast water release began in the 1930s, increased dramatically after 1960, and accounted for nearly 82% of new invasions in the 1980s.³⁸ Ballast water release in the 1990s is responsible for 53% to 88% of the newly introduced invasive species on the West Coast.³⁹

Vessels around the world transport approximately 3,000 species of aquatic organisms in any given 24-hour period.⁴⁰ Nowadays, ballast water release in ports of the United States is estimated to be over 40,000 gallons per minute.⁴¹ A single ship is capable of releasing millions of species of alien phytoplankton and zooplankton per hour of dumping, as well as large numbers of other relatively small organisms.⁴² Reports on the Great Lakes region have estimated 139 alien species were established by the early 1990s⁴³; the Chesapeake [33 ELR 10586] Bay region of Virginia has reported 160 alien species⁴⁴; and the San Francisco Bay region in California indicates 230 alien species.⁴⁵ By 1993, there were a suspected 4,500 established populations of alien species in the United States.⁴⁶ Our most infamous invasive species include: the European zebra mussel, small Asian clam, European green mitten crab, sea lamprey, Chinese mitten crab, New Zealand mud snail, bighead carp, Dinoflagellates, Red Tide, Eurasian water milfoil, and the Cholera strain.⁴⁷

C. What the United States Is (Not) Doing About Invasive Species

Ballast water is the primary source of introduction for alien species, and it is through this lens that our government's efforts at regulation shall be scrutinized.⁴⁸ Internationally, concern over ballast water discharges first arose in 1973 when the United Nations (U.N.) Conference on Marine Pollution requested the World Health Organization to conduct an investigation into the spread of epidemic disease through ballast water.⁴⁹ Between 1989 and 1993, Australia, Canada, New Zealand, and the U.N.'s International Maritime Organization (IMO) adopted ballast water management guidelines for ships, which included regulations for ballast water.⁵⁰ The IMO guidelines were adopted by the IMO's Marine Environmental Protection Committee (MEPC) in 1991, and by the IMO as a whole in 1993.⁵¹ These guidelines recommend the management of ballast water and sediment, requiring the deep-water exchange of ballast water (in waters at least 2,000 meters in depth) prior to release in the port of destination.⁵² However, the guidelines are voluntary—they are not binding upon the United States, or the ships that enter our ports.⁵³ In 1994, a working group on ballast water was established by the MEPC to propose an annex to the International Convention for the Prevention of Pollution From Ships (MARPOL).⁵⁴ If adopted and ratified by the IMO, the U.S. Senate would have to decide whether to support the proposed annex. Currently, the working group expects to hold a diplomatic conference late in 2003, to adopt new measures.⁵⁵ Their tentative findings indicate that deep-water exchange may be an interim means of dealing with the problems of alien species in ballast water, and that developing technologies may ultimately prove more effective.⁵⁶

Domestically, federal concern over invasive species first arose in 1986, when scientists indicated that the non-native zebra mussels discovered in the Great Lakes had been introduced through ballast water discharges from European ships.⁵⁷ In November 1990, the NANPCA was signed into law.⁵⁸ The NANPCA set guidelines for the release of ballast water, modeled after the IMO guidelines, to regulate all ships entering the Great Lakes from areas outside the Exclusive Economic Zone (EEZ) of the United States.⁵⁹ These voluntary guidelines were published in March 1991, and became mandatory in May 1993.⁶⁰ Similar to the IMO guidelines, [33 ELR 10587] the NANPCA requires ships⁶¹ coming from outside the EEZ of the United States to conduct deep-water exchange of their ballast water, or perform another comparable method of preventing alien species introduction into the Great Lakes.⁶² The NANPCA was considered a more comprehensive and sophisticated federal attempt to regulate invasive species than the Lacey Act.⁶³

When President Clinton signed the NISA into law in October of 1996, it affirmed and expanded the NANPCA, expanding the mandatory exchange guidelines to include ships entering the Upper Hudson River, as well as establishing voluntary deep-water exchange guidelines for all ships entering the EEZ of the United States.⁶⁴ In addition to the NISA's deep-water exchange requirement was a record-keeping requirement.⁶⁵ Shipmasters are asked to submit reports on ballast water management (BWM) to the National Ballast Information Clearinghouse (NBIC), which is run through a collaborative effort of the U.S. Coast Guard and the Smithsonian Environmental Research Center.⁶⁶ All voluntary guidelines under the NISA—the guidelines that apply to all territorial waters of the United States, with the exception of the Upper Hudson River and the Great Lakes region—were to remain voluntary, unless the Secretary of Transportation, acting through the Coast Guard, determined that they were ineffective or not being complied with.⁶⁷ The Secretary of Transportation is specifically instructed, however, that regulations regarding ballast water discharges are not to "affect or supersede any requirements of prohibitions pertaining to the discharge of ballast water into waters of the United States under the Federal Water Pollution Control Act."⁶⁸ The U.S. Environmental Protection Agency (EPA), however, seems to have purposefully exempted themselves from this area of regulation.⁶⁹

After signing the NISA in 1996, President Clinton issued Executive Order No. 13112 in 1999.⁷⁰ Federal agencies are directed to refrain from activities that would "cause or promote the introduction or spread of invasive species in the United States, or elsewhere," unless the Agency has publicly demonstrated that the benefits of the action outweigh the associated risks.⁷¹ Agencies must also take all economically feasible actions to control, prevent, and research the introduction and migration of alien species.⁷² The order also creates a National Invasive Species Council, consisting of representatives from eight federal agencies, and charges the council with developing a National Invasive Species Management Plan.⁷³ After holding a two-month comment period on their proposed management draft, which was published in October 2000, the council issued a final draft in January 2001.⁷⁴ The plan requires agencies to research new technologies to manage ballast water, and obligates the Coast Guard to establish standards to approve (or reject) the new technologies.⁷⁵

In November 2001, the NBIC reported their empirical findings to the Coast Guard.⁷⁶ The NBIC report indicates that during the first 24 months of the reporting requirements, only 30.4% of the vessels entering the Great Lakes region or the Upper Hudson River complied with the mandatory requirements.⁷⁷ The rate of compliance for the voluntary reporting guidelines proved more difficult to estimate.⁷⁸ Shipmasters⁷⁹ have an economical incentive to ignore the guidelines, as it is more costly for them to take the time to conduct a deep-water exchange. In total, the report estimated that 11.1 million metric tons of ballast water from foreign ships was discharged into U.S. waters during this 24-month period without undergoing any sort of deep-water exchange.⁸⁰ Although the NBIC recognized in its report that "at the present rate of improvement for reporting, full compliance with report will not occur for decades[,]" it did not recommend that the voluntary guidelines under the NISA become mandatory.⁸¹ In June 2002, however, the report [33 ELR 10588] submitted by the Secretary of Transportation to the U.S. Congress indicated that the low level of compliance with the voluntary guidelines had prompted their decision to issue regulations making the NISA's voluntary guidelines mandatory.⁸² The Secretary's estimated timeline for issuing final regulations that complete the transition from the voluntary to the mandatory guidelines and "provide the necessary enforcement" is summer 2004.⁸³ It remains to be seen whether the rate of compliance with these new "mandatory" regulations will be any better than the 30.4% found for the old "mandatory" ones.⁸⁴

In a related manner, invasive species are also introduced by ships that enter our waters under a "No Ballast on Board" (NOBOB) status.⁸⁵ A NOBOB status is afforded to ships that do not have any pumpable ballast water on board.⁸⁶ NOBOB allows ships to circumvent the mandatory ballast guidelines under the NISA.⁸⁷ These ships may still be carrying invasive species, however, in the unpumpable ballast water or the sediments at the bottom of the ballast tank. When new water is pumped in, these invasive species mix with the ballast, and may then be released—all without the ship ever leaving U.S. waters, or becoming subject to the NISA's deep-water exchange guidelines. Although several methods of treatment exist, they have been rejected as too expensive.⁸⁸ The Coast Guard has acknowledged the need to address this issue, but federal invasive species regulations remain inadequate.⁸⁹

Exasperated by federal efforts, individuals and environmental groups have challenged the decision of EPA to exclude ships discharging ballast water in their normal course of operations from the regulatory reach of the Clean Water Act (CWA).⁹⁰ Despite the clear indication that Congress empowered it to act, EPA exempted ballast water discharges from the CWA's permit requirements.⁹¹ "The following discharges do not require [national pollutant discharge elimination system (NPDES)] permits … discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel."⁹² The CWA further defines "discharge incidental to the normal operation of a vessel" to include ballast water.⁹³ A federal citizens suit was recently filed in a district court in California alleging that EPA had failed to make a timely response to their petition requiring the repeal of the NPDES permit exception for ballast water, and asking that EPA be ordered to do so within 30 days of the court's ruling.⁹⁴ EPA argued that due to the complicated legal, scientific, technical, and policy issues raised by the plaintiffs, combined with their draft report evaluating the implications of repealing the [33 ELR 10589] exception, EPA was not in violation of the Administrative Procedure Act.⁹⁵ The district court, however, agreed with the plaintiffs that nearly three years constituted unreasonable delay, and granted summary judgment in their favor.⁹⁶ As to the merits of the case, one commentator has already argued that EPA's exemption of ballast water discharge is not a valid exercise of its statutory authority under the CWA.⁹⁷

In sum, it would appear that these recent efforts to regulate invasive species introduction via ballast water are either lacking in effectiveness, or implementation, or both. Therefore, a better solution, or at least a regulatory scheme that could be implemented immediately, and effectively, is desirable. These regulations must be strong enough to deter those who would otherwise harm our threatened and endangered species through the introduction of invasive species. This Article proposes that such a solution lies in the ESA.⁹⁸

II. The ESA

A. What's Protected by the Act?

The ESA was first passed by Congress in 1973, and has subsequently been reauthorized seven times.⁹⁹ The ESA was enacted by Congress in response to its finding that "various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of the economic growth and development untempered by adequate concerns and conservation."¹⁰⁰ The Act requires that either the U.S. Department of the Interior (DOI) or the U.S. Department of Commerce (in the case of marine species) identify and list "endangered" and "threatened" species within the United States.¹⁰¹ "Endangered species" includes

any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to human[s].¹⁰²

"The term 'threatened species' means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."¹⁰³ A species that will become endangered in the future if the current status quo is continued is also considered "threatened."¹⁰⁴

It is the U.S. Fish and Wildlife Service (FWS) that actually carries out the DOI's responsibilities under the Act. Once a species has been so listed, the statute provides for broad protections from threats to their survival, whether they be public or private in origin.¹⁰⁵ The Act requires that the responsible agency list a species and designate critical habitat; develop and implement recovery plans for the listed species; and refrain from federal agency action that is likely to "jeopardize" a listed species or its critical habitat.¹⁰⁶ The Act prohibits an individual from "taking" a listed species in the absence of a successful application that authorizes a "take" incidental to a lawful activity.¹⁰⁷

As of 2001, the FWS had listed 1,254 species in the United States as subject to protection under the ESA.¹⁰⁸ The ESA is triggered after a flora or fauna species is listed by the FWS as endangered or threatened.¹⁰⁹ States may choose, [33 ELR 10590] however, to regulate threatened species that are not officially listed under the ESA.¹¹⁰ Conversely, any state law that may effectively permit that which is prohibited by the ESA is void to that extent.¹¹¹ Interestingly, in order to facilitate ESA enforcement, the FWS lists any species that closely resembles in appearance an endangered or threatened species, even though that species may not genetically qualify for listing.¹¹² The FWS is also empowered under the ESA to remove a species from listing, through a process aptly termed "delisting," but may not consider economic or political factors in so doing.¹¹³ In reality, delisting very rarely occurs.¹¹⁴

Once a species has been listed, the ESA forbids any public or private entity from performing (1) any and all actions that "take" a threatened or endangered species, and (2) federal agency actions that may "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species …."¹¹⁵ Although the ESA does not specifically include a prohibition against the taking of a threatened species of fish, wildlife, or plant, the FWS extended the prohibitions in 16 U.S.C. § 1538(a)(1) for endangered species to threatened species.¹¹⁶

Specifically, once a fish or wildlife species has been listed as endangered, § 9 of the Act makes it

unlawful for any person subject to the jurisdiction of the United States to—

…

(B) take any such species within the United States or the territorial sea of the United States;

(C) take any such species upon the high seas.¹¹⁷

The Act broadly defines "person" to include

an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States.¹¹⁸

Congress appears to have intended the prohibitions under the Act to apply to the widest spectrum of private and governmental entities possible. When the U.S. Court of Appeals for the Ninth Circuit held in United States v. City of Rancho Palos Verdes¹¹⁹ that a municipal corporation was not a "person" for purpose of the Act, Congress promptly amended the legislation to include municipalities.¹²⁰ The term "take" is also broadly defined within the ESA to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect."¹²¹

There are several important exemptions to the taking prohibitions of the ESA. The Secretary may permit an otherwise prohibited act, if it is to be carried out for scientific purposes or to enhance the species' propagation.¹²² A permit may also be granted for an otherwise prohibited act, "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."¹²³ Under the "hardship exemption," if a person has entered into a contract with respect to a species, and that species subsequently becomes listed, then upon a showing that the listing causes undue economic hardship, an exemption may be issued.¹²⁴ The exemption, however, is valid only for one year following the date of publication of the listed species in the Federal Register or for a certain number of the species, not to exceed that specified by the Secretary.¹²⁵ The take provisions of the ESA also do not apply, with certain limitations, to any listed species taken by an Indian, Aleut, or Eskimo who is an Alaska Native residing in Alaska, if the taking was done for subsistence purposes only.¹²⁶

Creative means of avoiding the provisions of the ESA have also been developed in recent years. Some private landowners have contracted with the FWS to obtain permission to engage in activity that which would otherwise be prohibited by the ESA through habitat conservation agreements authorized by § 10. Landowners can receive "credits" by donating funds to the FWS' Young Red-Cockaded Woodpeckers Fund; these credits can then either be used by the landowner to escape liability under the ESA, or entered into a credit banking system where they can be purchased by others.¹²⁷

B. Who Can Enforce the Provisions of the ESA?

Under the ESA the Secretary is empowered to bring a civil suit against a violator, or alleged violator. The Act states:

[33 ELR 10591]

Any person who knowingly violates, and any person engaged in business as an importer or exporter of fish, wildlife, or plants who violates, any provision of this chapter, or any provision of any permit or certificate issued hereunder, or any regulation issued in order to implement [various] subsections … may be assessed a civil penalty by the Secretary of not more than $ 25,000 for each violation.¹²⁸

Additionally, the Secretary may bring criminal violations against a violator, or alleged violator of the ESA. The Act provides that

any person who knowingly violates any provision of this chapter, of any permit or certificate issued hereunder, or of any regulation issued in order to implement [various] subsection[s] … upon conviction, be fined not more than $ 50,000 or imprisoned for not more than one year, or both.¹²⁹

The U.S. Attorney General may also bring a suit to enjoin any person alleged to be in violation of § 9.

One of the greatest potentials for successfully protecting threatened and endangered species from invasive species lies in the citizen suit provision of the ESA.¹³⁰ Under this provision, any individual is entitled to sue another individual, or governmental entity, for a violation or alleged violation of any ESA requirement.¹³¹ In keeping with other federal environmental acts, under the ESA citizen suit provision citizens must provide appropriate notice of the violation, and may not proceed in their suit if the Secretary has already commenced an action against the violator which is being diligently prosecuted.¹³² Citizen suits, however, are only entitled to injunctive relief.¹³³

III. How the Courts Have Interpreted the Relevant Portions of the ESA

In Tennessee Valley Authority v. Hill,¹³⁴ the Court set the stage for all future cases applying the ESA when it stated that "the plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost."¹³⁵ The ESA is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation."¹³⁶ The Ninth Circuit recognized in Forest Conservation Council v. Rosboro Lumber Co.¹³⁷ that where Congress has not specifically addressed an issue, the court must "find that interpretation which can most fairly be said to be embedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested."¹³⁸ The court stated the purpose of the ESA as being twofold: (1) "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved"; and (2) "to provide a program for the conservation of such … species."¹³⁹

Once the FWS decided to extend the regulatory reach of ESA § 9(a)(1)(B) to include threatened species in addition to endangered species,¹⁴⁰ the courts were called upon to review the issuance of take permits. In Sierra Club v. Clark,¹⁴¹ the petitioner had obtained a permit from the FWS to hunt threatened timber wolves. The U.S. Court of Appeals for the Eighth Circuit held that take permits for threatened species were not permissible, except in an extraordinary case in which the data indicates that the species' habitat is unable to support the existing population.¹⁴²

The courts have ruled in favor of government or citizen plaintiffs if, on the merits, they successfully demonstrate that the defendant has instigated a "take" in violation of the ESA. As one court emphasized: "Take is defined … in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife."¹⁴³ Given the broad statutory definition, the FWS chose to further interpret "harass" and "harm" to include "significant habitat modification or degradation where it actually kills or injures wildlife."¹⁴⁴ A federal circuit court of appeals split developed over whether this was an acceptable interpretation,¹⁴⁵ causing the Court to grant certiorari on the issue.

[33 ELR 10592]

In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,¹⁴⁶ the Court found three reasons why the ESA supported the Secretary's interpretation of "harm" and "harass" to include habitat degradation. First, the Court concluded that the ordinary meaning of "harm" included habitat modification.¹⁴⁷ Unless the word "harm" was defined to include indirect as well as direct injuries, the word would have no meaning that did not simply duplicate another term used within the statutory definition of "take."¹⁴⁸ Second, the reasonableness of the Secretary's definition was supported by the broad purpose of the ESA—to provide comprehensive protection for threatened and endangered species.¹⁴⁹ Finally, to hold otherwise would render nonsensical Congress' decision to grant the Secretary the authority to issue permits for takings otherwise prohibited under the ESA, "if such taking is incidental to, and not for the purpose of, the carrying out of an otherwise lawful activity,"¹⁵⁰ as an "incidental" take permit could not realistically be granted to an individual involved in a direct and deliberate action against a threatened or endangered species.¹⁵¹

The majority left certain issues unresolved; issues with which the lower courts have continued to struggle. The majority stated that the ordinary meaning of harm "naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species."¹⁵² Justice Sandra Day O'Connor's concurrence was predicated on the assumption that the regulation would be limited to "significant habitat modification that cause actual, as opposed to hypothetical or speculative, death or injury to identifiable protected animals."¹⁵³ Given these assumptions, O'Connor concluded that the Ninth Circuit's opinion in Palila v. Hawaii Department of Land & Natural Resources,¹⁵⁴ in which the court ordered the removal of grazing sheep from the habitat of an endangered species of bird because the grazing was destroying the birds' habitat, was wrongly decided.¹⁵⁵ Justice O'Connor argued that the "destruction of the seedlings did not proximately cause actual death or injury to identifiable birds; it merely prevented the regeneration of forest land not currently sustaining actual birds."¹⁵⁶

Following Sweet Home, the Ninth Circuit held in Marbled Murrelet v. Pacific Lumber Co.¹⁵⁷ that "the language and legislative history of the ESA, as well as applicable case law support our holding today that a showing of future injury to an endangered or threatened species is actionable under the ESA."¹⁵⁸ The court reasoned that the Secretary had used the words "actually kills or injures wildlife" in its amendment to the "harm" regulation "to prevent a finding of harm from habitat modification alone, without any attendant harm to a protected species."¹⁵⁹ The Ninth Circuit indicated that the Court's opinion in Sweet Home did not overrule its precedent that "a reasonably certain threat of imminent harm to a protected species is sufficient … under [§] 9 of the ESA."¹⁶⁰ The court recognized, however, that the "mere chance" that a taking will occur is insufficient under the language of the Act.¹⁶¹ Other courts have held that even a "potential injury" is insufficient to constitute harm under the ESA.¹⁶²

When analyzing the take requirement, courts have also found that a showing of specific intent is not required to find a violation of the take provision.¹⁶³ Courts have also exercised the power to enjoin conduct that causes or contributes to a taking.¹⁶⁴ In United States v. Glenn-Colusa Irrigation [33 ELR 10593] District,¹⁶⁵ the court enjoined conduct constituting a take, even though the activity was a long-standing practice.

IV. Does Releasing Ballast Water Into Territories of the United States Constitute a "Take" Under the ESA?

Imagine the following scenario: A shipmaster is sailing from Australia to Virginia, with minimal or light-weight cargo, and expects to encounter rough seas. He takes on ballast water while stationed in the port of Sydney, Australia. The shipmaster eventually sails into the port of Norfolk, Virginia, and dumps the vessel's ballast water while the ship is stationed in port. The questions thus posed are twofold: (1) would the shipmaster be in violation of the take provision, if prosecuted under the ESA; and (2) recognizing that liability under the ESA exists, could the Secretary grant an "incidental take permit"¹⁶⁶ to the shipmaster?

While it is possible to imagine a situation where the release of an invasive species would almost certainly constitute a "take" under the ESA,¹⁶⁷ this Article is instead concerned with the more difficult situation of ballast water release, for two reasons. First, ballast water release is the primary method of invasive species introduction and, until such releases cease, the goals of the ESA will continue to be significantly undermined. Second, the deterrent effect of successful prosecution under the ESA should provide sufficient motivation for compliance with the regulatory guidelines for ballast water purification or exchange.¹⁶⁸ Therefore, instead of demonstrating a mere theoretical possibility, the goal of this Article is to demonstrate a useful, but virtually ignored, applicability of the ESA.¹⁶⁹

It should be remembered, however, that accepting the use of the ESA to regulate the introduction of invasive species does not mean that a tourist who travels to Myanmar on vacation and unknowingly brings back a non-native strain of fungus, which later spreads to redwood cedars and renders them functionally extinct, would be subject to prosecution under the ESA. As the Court noted in Sweet Home, both civil and criminal liability under the statute are subject to the ordinary requirements of proximate causation and foreseeability.¹⁷⁰

A. Does Ballast Water Actually "Harm" Threatened and Endangered Species?

In our quasi-hypothetical example, it is the act of release that has the effect of causing harm to threatened and endangered species. To find the shipmaster liable under ESA § 9, a court would need to interpret the definition of "take"—to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect."¹⁷¹ Of these various definitions, the ones that most closely describe the impact releasing invasive species into native ecosystems would have upon threatened or endangered species are "harm" and "harass." Invasive species cause harm by preying upon and competing with listed species, and by altering their habitat. As a result of these various activities, invasive species are now the second leading cause of extinction in the United States.¹⁷² Nearly one-half of the species currently listed as threatened or endangered have achieved their dubious status due to invasive species.¹⁷³ Although the release of ballast water may not immediately harm threatened or endangered species, as competition, predation, and habitat modification caused by invasive species may take time, history has shown us that harm can and will result.¹⁷⁴

It should also be remembered that the predominant interpretation of proximate causation encompasses causes for which, regardless of their spatial proximity, the harmful results were foreseeable.¹⁷⁵ Therefore, the harm that unexchanged ballast water release produces for threatened and endangered species might most accurately be described as an "imminent threat of harm."¹⁷⁶ As the Ninth Circuit noted in Rosboro Lumber: "It is clearly conceivable that one can inflict great harm on a protected species by creating an imminent threat of harm to that species. Such a threat therefore falls easily within the broad scope of Congress' definition of 'take.'"¹⁷⁷ The court did acknowledge, however, the Secretary's viewpoint that a claim for a "potential injury" to fish and wildlife would not be actionable under the ESA.¹⁷⁸ Relying on the Webster's New International Dictionary, the court distinguished between "potential" as meaning "existing [33 ELR 10594] in possibility," and the word "imminent" as meaning "ready to take place; near at hand."¹⁷⁹

Therefore, it appears a successful claim against the shipmaster must demonstrate that ballast water release constitutes an "imminent," rather than merely "potential," harm to threatened and endangered species. Although the labels may be different, the heart of the analysis centers on the issues raised in Sweet Home by Justice O'Connor—that application of the regulation should be limited to actual, "as opposed to hypothetical or speculative," injury. To be successful in a court of federal jurisdiction, with the possible exception of the Ninth Circuit, a petitioner would need to show that the threat of harm posed by the release of the ballast water is "imminent," or at least closer to "imminent" than "merely potential."¹⁸⁰

Empirical evidence suggests that releasing ballast water into the ports of the United States poses an imminent threat of harm to threatened or endangered species. It is estimated that, in total, vessels around the world transport approximately 3,000 species of aquatic organisms in any given 24-hour period.¹⁸¹ Release of ballast water is a common occurrence, with 40,000 gallons dumped into U.S. harbors every minute.¹⁸² As the court stated in Greenpeace v. National Marine Fisheries Service,¹⁸³ "because the [activities] are presently on-going, any threat they present is necessarily imminent."¹⁸⁴ The remaining question then, is whether ballast water release presents a threat of harm. A single ballast water release is capable of introducing millions of species of alien phytoplankton and zooplankton per hour of dumping, as well as large numbers of other relatively small organisms.¹⁸⁵ While not every release of ballast water will contain alien species that pose a threat to native species, it must also be remembered that when considering the harm that is likely to occur in the future, "past takings are indeed instructive, especially if there is evidence that future similar takings are likely."¹⁸⁶ Statistical evidence indicates that at least 139 types of invasive species have become established in the Great Lakes region since the 1930s¹⁸⁷; in the Chesapeake Bay region 160 alien species have established themselves¹⁸⁸; and the San Francisco Bay region contains at least 230.¹⁸⁹ In total, it is suspected that 50,000 invasive and introduced species are now present on U.S. soil or in U.S. waters.¹⁹⁰ Directors of both EPA and the FWS have acknowledged the risk that ballast water may introduce species that alter and destroy marine environments.¹⁹¹

The damage caused by invasive species, both environmental and economic, is significant and alarming. Invasive species threaten native populations by preying upon them, by altering their native habitat, and by engaging in direct competition for the same, limited food sources. This threat is magnified when that native species population is already significantly depleted, as is the case for threatened and endangered species.¹⁹² Invasive species predation and competition with native species is responsible for the listing of approximately 42% of all species currently listed as threatened or endangered under the ESA.¹⁹³ In other words, nearly one-half of the species currently protected by the ESA would not be in need of protection but for alien species introduction.

Furthermore, as the Court noted in Sweet Home, habitat degradation also constitutes "harm" within the meaning of the ESA.¹⁹⁴ The National Marine Fisheries Service has adopted a rule indicating that "releasing non-indigenous … species into a listed species' habitat or where they may access the habitat of a listed species" constitutes a habitat modifying activity that may violate the take provision.¹⁹⁵ One of the most infamous examples of an alien species to have caused harm to native ones through habitat destruction is the European zebra mussel, introduced by Russian [33 ELR 10595] firefighters in 1986.¹⁹⁶ Dealing with that single invasive species has cost the federal government upwards of $ 138 billion dollars.¹⁹⁷ Some of the money was spent trying to keep the zebra mussel from gaining a local foothold, and, once this proved futile, from expanding their range within U.S. territories.¹⁹⁸ The zebra mussel causes habitat degradation by significantly depleting the nutrient levels in the water, which affects the local ecosystem by imperiling the lives of native populations that feed off the plankton.¹⁹⁹ It is able to colonize new habitats quickly, allowing it to out-compete many species of native shellfish.²⁰⁰ An extremely efficient filter-feeder, the zebra mussel is currently responsible for 70% of all native mussels species being classified as threatened, endangered, or deserving of protection under the ESA.²⁰¹ Similar to the problems associated with the zebra mussel are those caused by the Asian clam in the western United States.²⁰² The physical characteristics of the Asian clam have allowed it to quickly out-compete native clam species in the San Francisco Bay region.²⁰³

Although it is easy to limit our thinking of invasive species to the full-grown alien species, and wonder how many zebra mussels or snakeheads could really be transported in ballast water, it must be remembered that they arrive as minute eggs and larvae—of which there may be thousands, or millions, in any given release.²⁰⁴ Fungi, bacteria, eggs, spores, and larvae are almost invisible to the naked eye, and pass easily through the screening systems of ships' pumps and filters.²⁰⁵ Invasive species, however big or small, clearly pose a very real and significant risk of harm to threatened or endangered species. Because ballast water is the primary method of introducing invasive species into our native waters, this harm is proximately caused by the act of release.²⁰⁶ Although not all varieties of invasive species are readily detectable in sampling techniques, certain alien species are. If the percentage of those that are detectable provides any indication of the total percentage of ballast water that currently transports alien species, then the "imminent threat of harm" is very imminent indeed. The Smithsonian Institution conducted a recent survey of 14 ships entering U.S. ports. It detected the cholera strain in 13 of the ballast water holdings.²⁰⁷ Cholera is non-native to the United States, and one of the most infamous invasive species to have colonized the waters of this nation during the past century.²⁰⁸ If the percentage of ships carrying cholera was 93%, one can assume that if we were able to test for all potential invasive species in ballast water, the percentage of ships carrying invasive species in their ballast water would approach 100%.

Accepting that the release of ballast water causes harm, the question still remains whether courts will require a showing of direct causation, i.e., that ship "X" released invasive species "Y" which in turn caused harm to endangered species "Z." It seems fairly certain that this would be an insurmountable burden, given the variables necessary to make such a determination. But such a requirement would also thwart the purpose of the ESA and might impermissibly place the burden of causation on the government. As the court in Summers v. Tice²⁰⁹ made clear, situations may arise in which it would be inappropriate to require the plaintiff to prove which of several defendants was the one that actually caused the harm. The fact remains that any, or all, of the defendants could have caused the harm through their actions, and there is little doubt that harm to threatened and endangered species has occurred. As the court noted in Summers, the defendants

brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless.²¹⁰

Additionally, in an interpretation of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),²¹¹ a court held that even though reference to "joint and several liability" had been deleted from the Act, the "burden of proof as to apportionment is upon each defendant … if the defendants caused an indivisible harm, each is subject to liability for the entire harm."²¹² The court reasoned that this rule was "most likely to advance the legislative policies and objectives of the act."²¹³ The same is true of the ESA.

[33 ELR 10596]

That harm occurs to threatened and endangered species as a result of invasive species released through ballast water seems well established. Requiring the government to prove that ship "X" released invasive species "Y" which harmed threatened or endangered species "Z" runs the risk of allowing shipmasters to evade liability under the ESA. To borrow from the court in United States v. Chem-Dyne Corp.,²¹⁴ this seems in direct contravention to the "legislative polices and objectives of the Act."²¹⁵ In order to "halt and reverse the trend toward species extinction,"²¹⁶ the burden should be placed on the shipmasters to demonstrate that their release of ballast water did not harm threatened or endangered species.²¹⁷

As with most questions of proximate causation and foreseeability, whether the harm posed by ballast water is imminent or merely potential, and whether it is sufficiently traceable to the conduct complained of, is a matter for the trier of fact.²¹⁸ However, the proliferation of invasive species within the waters of the United States, seen in the context of the purpose behind the ESA and the scientifically demonstrable rate at which invasive species have been, and continue to be, imported into U.S. waters through the ballast water of ships, leads to the natural conclusion that in keeping with the "letter and spirit of the statute's purpose—to conserve endangered species,"²¹⁹ ballast water release could be found to cause harm under § 9 of the ESA.

B. Could the Secretary Lawfully Permit Ballast Water Release, Knowing It Violates the Take Provision?

Section 10(a)(1)(B) allows the Secretary to permit "any taking otherwise prohibited by [§ 9](a)(1)(B) of this title if such taking is incidental to, and not for the purpose of, the carrying out of an otherwise lawful activity."²²⁰ At first blush, the release of ballast water appears to satisfy the requirements of § 10(a)(1)(B), especially when considering that the CWA exemption includes ballast water release within the category of "discharge incidental to the normal operation of a vessel."²²¹ This language suggests ballast water release is "incidental to, and not for the purpose of, the carrying out of an otherwise lawful activity."²²² The Secretary should not, however, grant "incidental take permits" to shipmasters seeking to release ballast water.

Section 10(a)(2)(A) does not allow the Secretary to grant an incidental take permit unless the applicant provides a conservation plan that addresses, among other things, "what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized."²²³ Upon consideration of the conservation plan, the Secretary must find, prior to issuing an incidental take permit, that "the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking."²²⁴ Requiring the applicant to minimize the impacts of the taking to the "maximum extent practicable" seems to imply a mandate similar to that imposed by CWA § 301, which speaks of "best practicable control technology [(BPT)]."²²⁵ BPT is considered "equivalent to the average of the best technology in use at the time the limitation is established."²²⁶

As noted earlier, if shipmasters have the technology to take on ballast water in their port of origin, then they certainly have the ability to release it prior to entering the EEZ of the United States.²²⁷ To require that ships stop and release their ballast water outside the territorial waters of the United States, rather than grant them an incidental take permit to do so within, certainly seems "practicable."

The Secretary would, however, be entitled to grant an incidental take permit to NOBOB ships.²²⁸ To require NOBOB ships to implement the current level of technology necessary to purifying leftover sludge and sediment in ballast tanks would be "impracticable." The control technology is too expensive, and has not been implemented by the average vessel. As the CWA makes clear, there is an important distinction between BPT and best available control technology (BAT).²²⁹ While BAT is "designed to elevate performance to the best technology adequately demonstrated even if it is not widely in use,"²³⁰ BPT is determined by the average level of technology in general use. Since the language of the ESA speaks to "maximum extent practicable" rather than the "maximum extent available," it appears that until technology for NOBOB purification becomes more cost-effective, incidental take permits could lawfully be granted by the Secretary.²³¹

[33 ELR 10597]

Conclusion

This Article has argued that an individual who releases an invasive species into territories of the United States, specifically, through unexchanged ballast water, is in violation of the take provision of the ESA. As with any statutory application, one might be inclined to ask both whether this is a fair use of the ESA, and whether such use is worthwhile.

In answer to the first question, the Court has clearly stated that the FWS' definition of "harm" gives fair warning of potential criminal liability for the "take" of a threatened or endangered species listed under the ESA.²³² As civil liability is intrinsically less offensive than criminal liability, one can assume fair notice of civil liability to be subsumed in the Court's Sweet Home opinion. One might also note that shipmasters have several other reasons to be on constructive, if not actual, notice. Shipmasters who dump their ballast water in the ports of the United States have probably been in technical violation of the CWA since its enactment. Shipmasters are additionally subject to the NISA's mandatory deep-water exchange regulations for the Great Lakes and Upper Hudson River regions; they are also charged with being aware of the voluntary request for deep-water exchange of all ballast water prior to entering all other regions of the United States, and the Secretary's recently proposed rule that all voluntary guidelines be replaced with mandatory ones by 2004. Furthermore, the United States would not be alone in its efforts to impose sanctions for illegal dumping of ballast water. In July 2001, Australia implemented mandatory deep-sea exchange of ballast water of ships, in an attempt to reduce alien species introduction into her ports.²³³ Australia's discovery of the seemingly willful disobedience of shipmasters to honor her regulations, however, indicates that shipmasters are not so much unaware of the harm caused by ballast water to native ecosystems as they are unwilling to comply with a government's legitimate efforts to stop it.²³⁴

The second question, whether the use of the ESA in the regulation of ballast water dumping would be advantageous, must also be answered in the affirmative. As Congress has periodically reminded the courts, the purpose behind the ESA is to protect threatened and endangered species. It seems impossible to maintain that the will of Congress is being fulfilled when the primary source of invasive species introduction is ineffectively regulated and almost completely unprosecuted. The U.S. government has been exceedingly slow to implement effective ballast water regulations, or to demonstrate their ability to effectively deter ballast water release.²³⁵ Yet our knowledge of the harm caused by invasive species introduction has been steadily growing, and the consequences for threatened and endangered species increasingly obvious and alarming. Ballast water is the primary method of invasive species introduction into the waters of the United States. Invasive species in turn are the second leading cause of native species extinction. Most significantly, 42% of the threatened and endangered species listed in this country would not be struggling against extinction if it were not for the release of invasive species. Given that the current regulations inadequately control ballast water release in U.S. waters, the "takings clause" of the ESA offers an effective means of regulation to help protect our threatened and endangered species. Using the take provision to punish, and thereby prevent, the introduction of ballast water into the territorial waters of the United States is therefore not only contemplated by the statutory language, but compelled by congressional intent.

1. Anita Huslin, Freakish Fish Feared in Md.; Carnivore Moves on Land, Can Survive 4 Days Without Water, WASH. POST, June 7, 2002, at B4.

2. Snakeheads can survive in oxygen-deprived waters. See id.

3. See id. Biologists have good reason to fear alien fish that possess terrestrial mobility.

Take, for example, the walking catfish (Clarias batrachus). This bit of pedestrian ichthyology normally strolls around Sri Lanka, eastern India, Bangladesh, Burma and the Malay archipelago. But some albino juveniles imported to Florida from Bangkok in the 1960s walked away from a fish farm … the rest is environmental history …. [They] migrated overland during the rainy season like diminutive whiskered land sharks, gobbling every fish snack in sight.

Ken Ringle, Stop That Fish!; Snakeheads Gain a Local Foothold, WASH. POST, July 3, 2002, at C1.

4. See id. "The worst-case scenario is the snakehead gets out and spreads across the Chesapeake Bay to the Atlantic Coast and the rest of the country. It could create a wave of extinctions that would be irreversible and devastating," said Bob Bock, a past president of the North American Native Fishes Association. Anita Huslin, Md. Snakeheads' Destiny Spawns Capitalist Spirit, WASH. POST, Aug. 19, 2002, at B1.

5. Anita Huslin, Freakish Fish Story Flourish; Anglers Crowd Tiny Crofton Pond Seeking Elusive Snakehead, WASH. POST, July 3, 2002, at B1.

6. See Final Rule, 67 Fed. Reg. 62193 (Oct. 4, 2002) (adding 28 species of snakehead fish to the list of injurious fish, crustaceans, and mollusks, thus rendering it a violation to import, transport, or possess the snakehead within the United States); see also At Last, U.S. Hopes, Snakehead Is History; Importers Rush to Bring in Ferocious Fish Before Ban Takes Effect Tomorrow, WASH. POST, Oct. 3, 2002, at B3 [hereinafter Snakehead Is History]. It has, however, always been illegal to release a non-native species into the waters of the United States. See Dan Nephin, Invading Fish Bring Appetite, Attitude; Nonnative Species Harm Ecosystems, WASH. POST, Sept. 8, 2002, at A8.

7. See Anita Huslin, Md. and Va. Consider Ways to Keep the Snakehead Out; Regulations Would Prohibit Possession, Sale of Hungry Fish, WASH. POST, Aug. 21, 2002, at B5.

8. See id. Scientists chose to use the poison Rotenone as it is not supposed to be harmful to mammals or amphibians. See Anita Huslin, Snakeheads Slipped a Fatal Dose; Potent Fish Toxin Nets Scores of the Alien Species in Crofton Pond, WASH. POST, Sept. 5, 2002, at B1.

9. See Anita Huslin, Snakehead in Inner Harbor Creates a Scare; Fish Found by Crabber Is Sold for Aquariums, Poses No Threat. Officials Say, WASH. POST, Sept. 7, 2002, at B3.

10. See id. Of course, during the media hype surrounding the "snakehead scare" in Maryland, very few reporters bothered to highlight the fact that the fish have already invaded other waters of the United States. "Beyond Maryland, two other states—California and Florida—have found reproducing populations of the fish in their waters. Maine, Massachusetts, Rhode Island and Hawaii also have caught individual snakeheads." See Snakehead Is History, supra note 6, at B3.

11. New Flora and Fauna for Old, ECONOMIST, Dec. 23, 2000, at 119.

12. See id.

13. During the media fervor over the snakehead fish, another type of exotic species set off warning bells at the U.S. Fish and Wildlife Service (FWS)—the nuclear worm. See Ken Ringle, Gone Fission: The "Nuclear" Worm; Vietnamese Fish Fodder Has Bait Shops Tickled Pink, WASH. POST, July 27, 2002, at C1. Efforts to control invasive species range from poison to electrical barriers. See HARMFUL INVASIVE SPECIES: LEGAL RESPONSES (Marc Miller & Robert Fabian eds., Envtl. L. Inst. 2003). In response to the fear that the bighead carp will spread from Lake Erie to Lake Michigan, the U.S. Army Corps of Engineers (the Corps) has erected an electrical barrier on the main tributary between the two. See Nephin, supra note 6, at A8. Despite the efforts of the Corps, it is suspected that the carp will find a way to migrate throughout the Great Lakes. See id.

14. Edward Mills et al., Exotic Species and the Integrity of the Great Lakes, BIOSCIENCE, Nov. 1994, at 666 (noting that during the 21st century, exotic species may be included among the pollutants that pose the greatest threat to ecosystems within the United States).

15. Obviously, this evolutionary (if one can call it such) process (leading toward extinction) is quickened when exotic species begin to out-compete native species that are already listed as threatened or endangered.

16. Earth Crash Earth Spirit (ECES), Invasive Species, at http://eces.org/ec/bioinvasion (last visited Apr. 10, 2003). For some ecosystems in California, however, the threat posed by invasive species has become the primary threat to native species' survival. See id.

17. Extinct Species in Region 3, at http://midwest.fws.gov/Endangered/index.html (last visited Apr. 10, 2003). A comprehensive list would be too numerous to be included in the text, or in the footnotes. Suffice to say, extinction is increasing at a rate unprecedented since the time of the dinosaurs. See U.S. EPA, Aquatic Biodiversity, at http://www.epa.gov/bioindicators/aquatic/freshwater.html (last visited Apr. 10, 2003). Since the Endangered Species Act (ESA) was passed in 1973, over 1,000 species have been added to the threatened or endangered list. See League of Conservation Voters Education Fund: Vote Environment, The Endangered Species Act, at http://www.voteenvironment.org/theissues_end-species.htm (last visited Apr. 10, 2003). For the most recent federal list of threatened and endangered species, see 50 C.F.R. § 17.11 (threatened and endangered wildlife) and id. § 17.12 (threatened and endangered plants), at http://www.access.gpo.gov/nara/cfr/index.html (last visited Apr. 10, 2003).

18. Of course, invasive species also raise economical concerns. "Damage from invading plants and animals costs the United States $ 123 billion a year." See Chris Carr, War on Invasive Species Is Joined, WASH. POST, Feb. 3, 1999, at A15. In the Chesapeake Bay, the annual harvest of oysters plummeted from 40 million to 1 million pounds after two diseases were introduced by non-native species. See Reauthorization of the 1990 Nonindigenous Aquatic Nuisance Prevention and Control Act: Hearings on H.R. 3217 Before the Subcomm. on Water Resources and Environment and the Subcomm. on Coast Guard and Maritime Transportation of the House Comm. on Transportation and Infrastructure, 104th Cong. (1996) (testimony of Alfred M. Beeton) [hereinafter H.R. REP. NO. 3217].

19. See 16 U.S.C. §§ 4701-4751.

20. See Implementation of the National Invasive Species Act of 1996, 64 Fed. Reg. 26672 (May 17, 1999).

21. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18. For an in-depth examination of the Act, see ENDANGERED SPECIES DESKBOOK (Envtl. L. Inst. 2003).

22. 16 U.S.C. § 1538(a)(1)(B), ELR STAT. ESA § 9(a)(1)(B). This section is referred to as the "take" provision or the "takings clause" of the ESA.

23. Id. § 1532(19), ELR STAT. ESA § 3(19).

24. Exec. Order No. 13112, 64 Fed. Reg. 6183 (Feb. 3, 1999), available at http://www.elr.info/AdminMat/EO/45105.htm (last visited Apr. 10, 2003). It is important to recognize that while the "invasive species" typically receive the lion's share of the media attention, alien/non-native species have been purposefully introduce for centuries. "Sport fish such as rainbow trout, brown trout and small mouth bass were introduced into Pennsylvania waters more than a century ago." See Nephin, supra note 6, at A8. As Dan Treddinick of the Pennsylvania fish commission says: "A century ago, the idea was, 'Let's see what we can grow here,' but the view of how fisheries should be managed has changed." See id. at A8.

25. See Exec. Order No. 13112, supra note 24.

26. See U.S. EPA, OCEANS, COASTS, AND ESTUARIES, AN INTRODUCTION, available at http://www.epa.gov/owow/invasive_species/intro.html (last visited Apr. 10, 2002).

27. New Flora and Fauna for Old, supra note 11, at 118 (noting that Europeans took with them many types of non-native species when they migrated overseas, including "wheat, barley, rye, cattle, pigs, horses, sheep, and goats"). Today, the "globalization of trade, increased speed of travel and cargo shipments, plus rising tourism all combine to increase the chance of more accidental introductions [of invasive species]." See CONGRESSIONAL RESEARCH SERV., HARMFUL NON-NATIVE SPECIES: ISSUES FOR CONGRESS II, RL 30123 (Apr. 8, 1999), available at http://www.cnie.org/nle/crsreports/biodiversity/biodv-26a.cfm (last visited Apr. 10, 2003).

28. See CONGRESSIONAL RESEARCH SERV., supra note 27.

29. See supra notes 1-10 and accompanying text.

30. GloBallast, The Problem, at http://globallast.imo.org/problem.htm (last visited Apr. 10, 2003) [hereinafter The Problem].

31. See JAMES T. CARLTON ET AL., U.S. COAST GUARD & U.S. DEP'T OF TRANSPORTATION RECORD NO. CG-D-11-95, THE ROLE OF SHIPPING IN THE INTRODUCTION OF NONINDIGENOUS AQUATIC ORGANISMS TO THE COASTAL WATERS OF THE UNITED STATES (OTHER THAN THE GREAT LAKES) AND AN ANALYSIS OF CONTROL OPTIONS (1995).

32. See Andrew N. Cohen & Brent Foster, The Regulation of Biological Pollution: Preventing Exotic Species Invasions From Ballast Water Discharged Into California Coastal Waters, 30 GOLDEN GATE U. L. REV. 787, 788 (2000).

33. See United States v. Standard Oil Co., 384 U.S. 224, 226-27 (1966) (noting that states had placed a number of restrictions upon the dumping of ballast discharges, dating as far back as 1886).

34. See Cohen & Foster, supra note 32, at 789.

35. See James T. Carlton & Jonathan B. Geller, Ecological Roulette: The Global Transport of Nonindigenous Marine Organisms, 261 SCIENCE 78, 361 (1993).

36. See NATIONAL RESEARCH COUNCIL, STEMMING THE TIDE 29 (1996).

37. See The Problem, supra note 30 (noting that anywhere between 3,000 and 4,500 exotic species are suspected to have been transported through ballast water).

38. See E.L. Mills et al., Exotic Species in the Great Lakes: A History of Biotic Crises and Anthropogenic Introductions, 19 J. GREAT LAKES RES. 1, 4, at tbls. 3 & 4 (1993) (noting that nearly one-third of the exotic species that have entered the Great Lakes arrived between 1960 and 1990, resulting from the opening of the St. Lawrence Seaway and a huge increase in the numbers of ocean-going ships arriving at ports on a daily basis).

39. See generally Andrew N. Cohen, Invasions Status and Policy on the U.S. West Coast (Jan. 24-27, 1999), in Proceedings of the First National Conference on Marine Bioinvasions (2000).

40. See 142 CONG. REC. S12398-01, S12399 (daily ed. Oct. 3, 1996) (statement of Sen. Glenn).

41. See H.R. REP. NO. 3217, supra note 18, at S.1660 (testimony of Dr. James T. Carlton, Director of the Maritime Studies Program of Williams College and Mystic Seaport).

42. ANDREW N. COHEN, CALFED BAY DELTA PROGRAM, SHIPS' BALLAST WATER AND THE INTRODUCTION OF EXOTIC ORGANISMS INTO THE SAN FRANCISCO ESTUARY: CURRENT STATUS OF THE PROBLEM AND OPTIONS FOR MANAGEMENT 11 (1998).

43. See Mills et al., supra note 38, at 1 and at tbls. 1 & 4. In total, the Great Lakes region estimates that more the 180 species have been introduced since the 1800s. The fact that the vast majority have been introduced since 1939, coincides with the expansion of the St. Lawrence Seaway in 1959 and increased transoceanic shipping traffic. See Great Lakes Aquatic Nuisance Control, at http://www.michigan.gov/deq/0,1607,7-135-3313_3677_8314-18366—.00.html (last visited Apr. 10, 2003).

44. Carr, supra note 18, at A15.

45. See id.

46. See OFFICE OF TECH. ASSESSMENT, U.S. CONGRESS, HARMFUL NON-INDIGENOUS SPECIES IN THE UNITED STATES 3 (1993).

47. See Cohen & Foster, supra note 32, at 795-99; U.S. FWS, Invasive Species, at http://contaminants.fws.gov/Issues/InvasiveSpecies.cfm (last visited Apr. 10, 2003). Without a doubt, ballast water release from U.S. ships has caused similar environmental damages to foreign ecosystems. The Atlantic comb jellyfish, for example, was introduced into the Black Sea in the early 1980s and had become the dominant species in the Black Sea by 1988. See W.M. von Zharen, Ocean Ecosystem Stewardship, 23 WM. & MARY ENVTL. L. & POL'Y REV. 1, 22 (1998). This introduction of the Atlantic comb jellyfish is attributed with the collapse in fish stocks in the Black Sea, resulting in a loss of $ 250 million dollars in fishing revenues. See Keiran Mulvaney, A Sea of Troubles: In the International Year of the Ocean, Are We Reaching the Limits?, E. ENVTL. MAG. Jan. 11, 1998, at 28.

48. See Faultline, Court to EPA: Respond to Ballast Petition, at http://www.faultline.org/news/2002/01/ballast.html (last visited Apr. 10, 2002). Clearly importation of exotic species can occur through other means as well. Michigan's Department of Environmental Quality has identified the four primary vectors of invasive species introduction into the Great Lakes as: ballast water from ocean-going ships, unintentional releases, multiple sources, and unknown. See Great Lakes Aquatic Nuisance Control, supra note 43. It is beyond the scope of this Article to address each of these vehicles of importation, however much of the analysis herein could be applied to other vehicles beyond the ballast water of ships.

49. For whatever reason, it does not appear that this research was ever conducted by the World Health Organization. See J.M. Kelly, Transport of Non-Native Organisms via Cargo Ship Ballast Water: Characterizing the Science/Policy Interface 77-78 (1992) (unpublished Masters thesis, University of Washington) (on file with the University of Washington Library).

50. See A. Locke et al., Ballast Water Exchange as a Means of Controlling Dispersal of Freshwater Organisms by Ships, 50 CAN. J. FISHING & AQUATIC SCI. 2086-93 (1993). Canada introduced their exchange guidelines in 1982, as an attempt to protect the mussel farms of the Iles-de-la-Madelaine in the gulf of the St. Lawrence Seaway. See D. GAUTHIER & D.A. STEEL, CAN. MANUSCRIPT REP. FISHING & AQUATIC SCI., NO. 2380, A SYNOPSIS OF THE SITUATION REGARDING THE INTRODUCTION OF NONINDIGENOUS SPECIES BY SHIP-TRANSPORTING BALLAST WATER IN CANADA AND SELECTED COUNTRIES 5 (1996).

51. See IMO Resolution A, 774(18), adopted Nov. 4, 1993.

52. See id.

53. See Cohen & Foster, supra note 32, at 826.

54. See Report of the Working Group on Ballast Water convened during MEPC 42, MEPC 43/4 (Jan. 5, 1999).

55. See the International Maritime Organization's website on the Internet at http://www.imo.org/Conventions/mainframe.asp?topic_id=261&doc_id=690 I (last visited Apr. 10, 2003).

56. Id. For a good discussion of these proposed technologies, see Cohen & Foster, supra note 32, at 808-16. Curtailing invasive species introduction by No Ballast on Board ships (NOBOBs) may require shipmasters to invest in some type of new technology, or run the risk of being found in violation of the ESA. See supra notes 85-89 and accompanying text (discussing the lack of invasive species regulations currently equipped to deal with NOBOBs despite the relative frequency with which they introduce invasive species).

57. See generally U.S. OFFICE OF TECH. ASSESSMENT, REPORT NO. OTA-F-565, HARMFUL NON-INDIGENOUS SPECIES IN THE UNITED STATES (1993). Since 1986, the zebra mussel infestation has spread to 18 states and 2 Canadian provinces. Zebra Mussel Targeted: Shellfish Colony Found in Quarry, RICHMOND TIMES-DISPATCH, Oct. 29, 2002 at B1. As its full name reveals, the European zebra mussel clogged pipes and attached to the hulls of ships in Europe long before it became a nuisance to U.S. industries. The dangers posed to native species from ballast water release had been recognized as long ago as 1906. See William et al., Cargo Vessel Ballast Water as a Vector for the Transport of Non-Indigenous Marine Species, 26 ESTUARINE COASTAL & SHELF SCI. 409 (1988) (citing Meddelelser, Fra; Kommissionen Fur Danmarks Fiskeri-og Havundersogelser, Serie Plankton I, No. 6 (1909)).

58. See 16 U.S.C. §§ 4701-4751 (2000). The interagency task force established by the NANPCA was left with the difficult task of deciding what measures would be taken to deal with invasive species; the Act simply set up the task force. See MICHAEL J. BEAN & MELANIE J. ROWLAND, THE EVOLUTION OF NATIONAL WILDLIFE LAW 58 (1997); NATIONAL INVASIVE SPECIES COUNCIL, MEETING THE INVASIVE SPECIES CHALLENGE 8 (2001), available at http://www.invasive species.gov/council/mp.pdf (last visited Apr. 10, 2003).

59. See id.

60. See Ballast Water Management for Vessels Entering the Great Lakes, 58 Fed. Reg. 18330 (Apr. 8, 1993).

61. The regulations apply to ships carrying ballast water that was either taken from waters less than 2,000 meters in depth or within 200 miles of any shore. See Ballast Water Management of Control of Nonindigenous Species in the Great Lakes and Hudson River, 33 C.F.R. § 151.2020 (1999).

62. See NANPCA § 1101(b)(2)(B)(iii). Other methods of purification which have been proposed include particle removal and disinfection. See Cohen & Foster, supra note 32, at 809-14.

63. The Lacey Act simply prohibited the importation of those species deemed to be "invasive." See BEAN & ROWLAND, supra note 58, at 59. The Lacey Act represented the first attempt of the U.S. government to prevent the introduction of harmful exotic species. See id.

64. See Implementation of the National Invasive Species Act of 1996, 64 Fed. Reg. 26672-90 (May 17, 1999).

65. See id. Ships entering the EEZ of the United States are requested to relay their ballast water management program details to the National Ballast Information Clearinghouse. See G.M. RUIZ ET AL., NATIONAL BALLAST INFORMATION CLEARINGHOUSE, RESULTS OF THE FIRST YEAR OF DATA MANAGEMENT AND ANALYSIS: SHIPPING INDUSTRY COMPLIANCE WITH MANDATORY BALLAST WATER REPORTING REQUIREMENTS, SHIPPING INDUSTRY COMPLIANCE WITH VOLUNTARY BALLAST WATER MANAGEMENT GUIDELINES I (2000).

66. G.M. RUIZ ET AL., STATUS AND TRENDS OF BALLAST WATER MANAGEMENT IN THE UNITED STATES, FIRST BIENNIAL REPORT OF THE NATIONAL BALLAST INFORMATION CLEARING HOUSE (2001), available at http://invasions.si.edu/NBIC/NABSBienRpt1.pdf (last visited Apr. 10, 2003).

67. NISA § 1101(d); see D.M. Whalin, The Control of Aquatic Nuisance Nonindigenous Species, 5 ENVTL. LAW. 123-27 (1998); Cohen & Foster, supra note 32, at 825 (noting that the Coast Guard is responsible for collecting the data from ship logs to determine whether or not the guidelines are effective and sufficient). This data is provided in Ballast Water Reporting Forms, which states whether or not the ship conducted a deep-water exchange. See id.

68. 16 U.S.C. § 4711(b)(2), (c)(2)(J).

69. See infra notes 90-97 and accompanying text (discussing EPA's decision to exempt ballast water discharge from the permit requirements of the Clean Water Act (CWA)).

70. Exec. Order No. 13112, supra note 24. In issuing this order, the previous order on invasive species, Executive Order No. 11987, was revoked. See id.

71. Id.

72. Id.

73. Id.

74. See NATIONAL INVASIVE SPECIES MANAGEMENT COUNCIL, MEETING THE INVASIVE SPECIES CHALLENGE 8 (2001), available at http://www.invasivespecies.gov/council/mp.pdf (last visited Apr. 10, 2003).

75. Id.

76. West Coast Ballast Outreach Project, Laws and Policies, at http://ballast-outreach-ucsgep.ucdavis.edu/Law%20&%20Policies.html (last visited Apr. 10, 2003).

77. See id. at 4.

78. Id. at 4.

79. "Shipmaster" is used in this Article to refer to whatever legal entity is responsible for the vessel in question.

80. Id. at 5.

81. See id. at 6; see also Jason R. Hamilton, All Together Now: Legal Responses to the Introduction of Aquatic Nuisance Species in Washington Through Ballast Water, 75 WASH. L. REV. 251, 251 (2000) (suggesting that the United States should not require mandatory ballast water exchange).

82. U.S. COAST GUARD, REPORT TO CONGRESS ON THE VOLUNTARY NATIONAL GUIDELINES FOR BALLAST WATER MANAGEMENT 1-80 (2002). available at http://www.uscg.mil/hq/g-m/mso/HotIssue6-02.pdf (last visited Apr. 10, 2003). Had the Secretary declined to issue mandatory guidelines for the rest of the country, there is a strong possibility that a citizen suit under the ESA could have compelled them to do so. See Strahan v. Coxe, 127 F.3d 155, 28 ELR 20114 (1st Cir. 1997) (affirming a motion for injunctive relief against the state of Massachusetts, and compelling the state to implement measures to provide greater regulatory protection to the endangered northern right whale).

83. See REPORT TO CONGRESS, supra note 82, at 3, 8. This prediction may, ultimately, prove unrealistic. The Coast Guard initially forecasted that it would have the voluntary guidelines in place by October 1, 1996, yet they were not issued until July 1, 1999. 16 U.S.C. § 4711(c)(1); see also 33 C.F.R. pt. 151 (1999).

84. Perhaps conscious of the low rate of compliance with the mandatory guidelines, the Coast Guard has also acknowledged that a penalty system (for failure to submit ballast water management reports) will be a necessary addition to the NISA. See id. Although these regulatory efforts may ultimately reduce the number of alien species introduced through ballast water release, an effective, but relatively ignored, method for regulation already exists through the ESA.

85. See ERIC REEVES, ANALYSIS OF LAWS AND POLICIES CONCERNING EXOTIC INVASIONS OF THE GREAT LAKES: A REPORT TO THE MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY 54-55 (1999), available at http://www.deq.state.mi.us/documents/deq-water-great-lakes-aquatics-exotic2.pdf (last visited Apr. 10, 2003).

86. Id. at 54; Implementation of the National Invasive Species Act of 1996 (NISA), 66 Fed. Reg. 58381 (Nov. 21, 2001) (codified at 33 C.F.R. pt. 151).

87. See Sandra B. Zellmer, The Virtues of "Command-and-Control" Regulation: Barring Exotic Species From Aquatic Ecosystems, 2000 U. ILL. L. REV. 1233 (noting that the NISA's failure to require treatment of sediments and slop in NOBOB tanks is "perhaps NISA's greatest shortcoming").

88. See ERIC REEVES & U.S. COAST GUARD, PROTECTION OF THE GREAT LAKES FROM INFECTION BY EXOTIC ORGANISMS IN BALLAST WATER 19-20 (1998) (investigating the use of glutaraldehyde or organic acids to treat the unpumpable ballast water remaining on NOBOBs).

89. In 1998, in an effort to deal with the NOBOB problem, the Coast Guard proposed implementing performance standards similar to those of the CWA, but the interim rule was rejected "because of strong opposition by the shipping industry." See Implementation of the National Invasive Species Act of 1996 (NISA), 64 Fed. Reg. 26672, 26675 (May 17, 1999) (to be codified at 33 C.F.R. pt. 151). A proposal to amend the NISA that would require regulations for the treatment of ballast and NOBOBs entering the Great Lakes "to the maximum extent practicable … through the most effective and efficient techniques available …" is currently pending before both the House and the Senate. See Great Lakes Ecology Protection Act of 2001, H.R. 1680, 107th Cong. (2001), available at http://thomas.loc.gov/cgi-bin/bdquery/z?d107:s.01034: (last visited Apr. 10, 2003); Great Lakes Ecology Protection Act of 2001, S. 1034, 107th Cong. (2001), available at http://thomas.loc.gov/cgibin/bdquery/z?d107:h.r.01680: (last visited Apr. 10, 2003).

90. 33 U.S.C. § 1362(12), ELR STAT. FWPCA § 502(12) (1996), as amended by Pub. L. No. 106-284, 11 Stat. 870 (2000) (noting that the central purpose of the CWA is to prevent point source discharges). See Zellmer, supra note 87, at 1233-34 (concluding that ballast water release is properly within the scope of the CWA, and discussing the resulting implications were EPA to repeal its exemption); see also Lisa A. Brautigam, Control of Aquatic Nuisance Species Introductions Via Ballast Water in the United States: Is the Exemption of Ballast Water Discharges From Water Act Regulation a Yalid Exercise of Authority by the Environmental Protection Agency? 6 OCEAN & COASTAL L.J. 33 (2001) (arguing that the exemption of ballast water is not a valid exercise of EPA's authority under the CWA). The CWA includes within the definition of "pollutants" biological materials; ships are by definition point sources; and dumping occurs in the navigable waters of the United States—so it would seem ballast water discharges that release (or threaten to release) exotic species would be regulated under the CWA. See generally 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

91. See Zellmer, supra note 87, at 1284.

92. See 40 C.F.R. § 122.3(a) (2000).

93. See 33 U.S.C. § 1322(a)(12)(A)(i), ELR STAT. FWPCA § 312(a)(12)(A)(i), as amended by Pub. L. No. 106-284, 11 Stat. 870 (2000).

94. See Northwest Envtl. Advocates v. EPA, No. C01-1297 MJJ (N.D. Cal. Jan. 30, 2002) (unreported opinion), available at http://www.lclark.edu/org/peac/objects/District_Court_Opinion.pdf (last visted Apr. 10, 2003) (granting plaintiff's motion for summary judgement); see also Aquatic Nuisance Species in Ballast Water Discharges: Issues and Options, 66 Fed. Reg. 49381 (Sept. 1, 2001). The APA requires that "each agency shall give an interested person the right to petition for the issuance, amendment or repeal of a rule." 5 U.S.C. § 553(e), available in ELR STAT. ADMIN. PROC. In addition, "within a reasonable time, each agency shall proceed to conclude a matter presented to it," and a reviewing court may "compel agency action unlawfully withheld or unreasonably delayed." Id. at §§ 555(b), 706(1).

95. U.S. EPA, AQUATIC NUISANCE SPECIES IN BALLAST WATER DISCHARGES: ISSUES AND OPTIONS (2001), available at http://www.epa.gov/owow/invasive_species/ballast_report/reportl.html (last visited Apr. 10, 2003).

96. See Northwest Envtl. Advocates v. EPA, No. C01-1297 MJJ, at 7.

97. See Brautigam, supra note 90, at 74.

98. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

99. See id.

100. Id. § 1531(a)(1), ELR STAT. ESA § 2(a)(1).

101. Id. § 1533, ELR STAT. ESA § 4. Congress clarified the criteria for listing an endangered species in the 1982 Amendments to the Act, when it stated that listing must be made "solely on the basis of the best scientific and commercial data available." See Oliver Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce, 64 U. COLO. L. REV. 277 (1995). The ESA requires the FWS to determine whether a species is endangered or threatened by evaluating factors which include

the threatened destruction, modification, or curtailment of its habitat or range, over-utilization for commercial, recreational, scientific, or education purposes; disease or predation; the inadequacy of existing regulatory mechanisms; and other natural or manmade factors affecting its continued existence.

JAN G. LAITOS, NATURAL RESOURCES LAW 189 (2002); see 16 U.S.C. § 1533(a)(1), ELR STAT. ESA § 4(a)(1). Whether a species has become extinct over a significant portion of its natural habitat range is also a factor the FWS must consider. See Defenders of Wildlife v. Norton, 258 F.3d 1136, 31 ELR 20846 (9th Cir. 2001). The FWS must also demonstrate how the factors it used to evaluate the status of a species resulted in its chosen decision, or the decision may be deemed to be arbitrary and capricious. See San Luis v. Badgley, 136 F. Supp. 2d 1136 (E.D. Cal. 2000) (overturning the FWS' decision to list the splittail fish as threatened).

102. 16 U.S.C. § 1532(6), ELR STAT. ESA § 3(6); see also RIVERSIDE WEBSTER'S II DICTIONARY (rev'd ed. 1996) (defining endangered as "threatened with extinction").

103. 16 U.S.C. § 1532(20), ELR STAT. ESA § 3(20); see also Oklahoma Department of Wildlife Conservation, Oklahoma's Endangered and Threatened Species and Species of Special Concern, available at http://www.wildlifedepartment.com/endanger.htm (last visited Apr. 10, 2003) (defining a threatened species as "a native species that, although not presently in danger of extirpation, is likely to become endangered in the foreseeable future in the absence of special protection and management efforts").

104. See Biodiversity Legal Found. v. Babbitt, 943 F. Supp. 23, 27 ELR 20462 (D.D.C. 1996) (holding that the FWS improperly relied on a speculative plan of the U.S. Forest Service to revise its national forest land and resource management plan as grounds for denying a petition to list a species of wolf as threatened or endangered under the ESA).

105. See 16 U.S.C. § 1533(d), ELR STAT. ESA § 4(d).

106. See id. § 1536, ELR STAT. ESA § 7. The only way for an agency to be exempted from this prohibition on "jeopardizing" is to make a successful appeal to the Endangered Species Act Committee (commonly referred to as the "God Squad"), which may grant relief in certain exceptional circumstances. See id. §§ 1536(e), (h), ELR STAT. ESA §§ 7(e), (h).

107. See id. § 1538, ELR STAT. ESA § 9; see also J.B. Ruhl, How to Kill Endangered Species Legally: The Nuts and Bolts of Endangered Species Act "HCP" Permits for Real Estate Developments, 5 ENVTL. L. 346 (1999).

108. See U.S. FWS, Endangered Species Program, at http://endangered.fws.gov/stats/cy_count2001.PDF (last visited Apr. 10, 2003); see also Endangered and Threatened Wildlife and Plants, 50 C.F.R. §§ 17.11, .12 (1999) (an inclusive FWS species listing for 1999). A nongovernmental ranking by the Nature Conservancy Natural Heritage lists 1,184 species as being "at risk" within the United States. See NatureServe, InfoNatura, at http://www.natureserve.org/infonatura/Labinhn.htm (last visited Apr. 10, 2003). The Natural Heritage ranking is widely used by scientists, and referred to by the FWS. See also 59 Fed. Reg. 34271 (July 1, 1994) (an example of the DOI explicitly referring to the ranking).

109. 16 U.S.C. § 1533, ELR STAT. ESA § 4. If the species is only proposed for listing, then agencies are obliged to "confer" with the FWS prior to taking any action, but they are not prohibited from taking some action. See id. § 1536(a)(4), ELR STAT. ESA § 7(a)(4); Enos v. Marsh, 769 F.2d 1363, 15 ELR 20853 (9th Cir. 1985).

110. See H.J. Justin & Sons, Inc. v. Deukmejian, 702 F.2d 758, 13 ELR 20479 (9th Cir. 1983); United States v. Billie, 667 F.Supp. 1485, 18 ELR 20209 (S.D. Fla. 1987).

111. 16 U.S.C. § 1535(f), ELR STAT. ESA § 6(f); see also Swan View Coalition v. Turner, 824 F. Supp. 923, 24 ELR 20318 (D. Mont. 1992) (voiding a state law that was less restrictive than the ESA); see also Gibbs v. Babbitt, 214 F.3d 483, 30 ELR 20602 (4th Cir. 2000).

112. See 16 U.S.C. § 1533(e), ELR STAT. ESA § 4(e).

113. See id. § 1533(c), ELR STAT. ESA § 4(c). The FWS is required to review the listing every five years to determine whether a species should be removed from the list or have its status changed. See id.

114. See United States v. Guthrie, 50 F.3d 936, 25 ELR 21097 (11th Cir. 1995); City of Las Vegas v. Lujan, 891 F.2d 697, 20 ELR 20313 (D.C. Cir. 1989); Pacific Legal Found. v. Andrus, 657 F.2d 829, 11 ELR 20871 (6th Cir. 1981); see also Holly Doremus, Delisting Endangered Species: An Aspirational Goal, Not a Realistic Expectation, 30 ELR 10434 (June 2000) (discussing the difficulties attendant to delisting species under the ESA); Federico Cheever, The Rhetoric of Delisting Species Under the Endangered Species Act: How to Declare Victory Without Winning the War, 31 ELR 11302 (Nov. 2001).

115. 16 U.S.C. § 1536(a)(2), ELR STAT. ESA § 7(a)(2).

116. 50 C.F.R. § 17.31(a) (1994); 16 U.S.C. § 1533(d), ELR STAT. ESA § 4(d).

117. 16 U.S.C. § 1538(a)(1)(B), (C), ELR STAT. ESA § 9(a)(1)(B), (C).

118. Id. § 1532(13), ELR STAT. ESA § 3(13).

119. 841 F.2d 329, 18 ELR 20597 (9th Cir. 1988).

120. See Craig Anthony Arnold, Conserving Habitats and Building Habitats: The Emerging Impact of the Endangered Species Act on Land Use Development, 10 STAN. ENVTL. L.J. 1, 7 (1990).

121. 16 U.S.C. § 1532(19), ELR STAT. ESA § 3(19).

122. Id. § 1539(a)(1)(A), ELR STAT. ESA § 10(a)(1)(A).

123. Id. § 1539(a)(1), ELR STAT. ESA § 10(a)(1).

124. See id. § 1539(b)(1), ELR STAT. ESA § 10(b)(1). The exemption might apply, for example, to persons who "derived a substantial portion of their income from the lawful taking of any listed species, which taking would be made unlawful [under the ESA]." Id. § 1539(b)(2)(B), ELR STAT. ESA § 10(b)(2)(B).

125. Id.

126. See id. § 1539(e)(1), ELR STAT. ESA § 10(e)(1). The term "subsistence" includes the selling of all edible portions of the fish or wildlife, if done in native towns of Alaska for native consumption. See id. § 1539(e)(3)(i), ELR STAT. ESA § 10(e)(3)(i).

127. Biodiversity Partnership, Summary of Conservation Incentives, Financial Incentives, tbl. 10, at http://www.biodiversitypartners.org/Incentives/StrTable_10.pdf (last visited Apr. 10, 2003).

128. See 16 U.S.C. § 1540(a)(1), ELR STAT. ESA § 11(a)(1).

129. See id. § 1540(b)(1), ELR STAT. ESA § 11(b)(1).

130. Id. § 1540(g)(1)(A), ELR STAT. ESA § 11(g)(1)(A).

131. See id.

Any person may commence a civil suit on his own behalf—

(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the Eleventh Amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or

(B) to compel the Secretary to apply, pursuant to [§] 1535(g)(2)(B)(ii) of this title, the prohibitions set forth in or authorized pursuant to [§] 1533(d) or [§] 1538(a)(1)(B) of this title with respect to the taking of any resident endangered species or threatened species within any State; or

(C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under [§] 1533 of this title which is not discretionary with the Secretary.

Id. § 1540(A), (B) & (C), ELR STAT. ESA § 11(A), (B), & (C) (emphasis added).

132. See id. § 1540(g)(2), ELR STAT. ESA § 11(g)(2); see also 33 U.S.C. § 1365, ELR STAT. FWPCA § 505 (permitting citizen suits under similar conditions to those of the ESA). There has been some dispute over the proper interpretation of the term "diligently prosecuting." See Derek Dickinson, Is "Diligent Prosecution of an Action in a Court" Required to Preempt Citizen Suits Under the Major Federal Environmental Statutes?, 38 WM. & MARY L. REV. 1545, 1547 (1997).

133. 16 U.S.C. § 1540(g), ELR STAT. ESA 11(g).

134. 437 U.S. 153, 8 ELR 20513 (1978).

135. Id. at 184, 8 ELR at 20520 (emphasis added).

136. Id. at 180, 8 ELR at 20519.

137. 50 F.3d 781, 25 ELR 20706 (9th Cir. 1995).

138. Id. (quoting United States v. Koyomejian, 946 F.2d 1450, 1453 (9th Cir. 1991) (citations omitted)).

139. See id.; 16 U.S.C. § 1531(b), ELR STAT. ESA § 2(b).

140. See 50 C.F.R. § 17.31(a) (1993).

141. 755 F.2d 608, 15 ELR 20391 (8th Cir. 1985).

142. See id. at 610, 15 ELR at 20392. The court remanded to determine if this was actually the situation in this case. See id.

143. Strahan v. Coxe, 127 F.3d 155, 162, 28 ELR 20114, 20116 (1st Cir. 1997) (quoting S. REP. NO. 93-307, at 7 (1973)). Not all courts have interpreted the term "take" quite as liberally, however.

144. 50 C.F.R. § 17.3; Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 25 ELR 21194 (1995).

145. See Palila v. Hawaii Dep't of Land & Natural Resources, 649 F. Supp. 1070, 17 ELR 20514 (D. Haw. 1988), aff'd, 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988) (holding that the grazing of sheep was prohibited in a state forest, because the grazing destroyed aspects of the forest ecosystem upon which endangered birds depended); National Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 24 ELR 20802 (9th Cir. 1994) (holding that a showing of habitat degradation which prevents the recovery of an endangered species would satisfy the showing of "harm," but the National Wildlife Federation failed to carry its burden of proof); but cf. Sweet Home Chapter of Communities for a Great Or. v. Babbitt, 17 F.3d 1463, 24 ELR 20680 (D.C. Cir.), petition for reh'g en banc denied, 30 F.3d 190, 24 ELR 21470 (D.C. Cir. 1994), rev'd, 515 U.S. 687, 25 ELR 21194 (1995).

146. 515 U.S. 687, 25 ELR 21194 (1995).

147. See id. Some have suggested that the appropriate definition of "harm" is even more expansive than the Court's ruling. See L. Misha Preheim, Biophilia, the New Endangered Species Act, and a New Endangered Species, 42 WM. & MARY L. REV. 1053, 1055 (2001).

148. See Sweet Home, 515 U.S. at 687, 25 ELR at 21194.

149. See id.

150. 16 U.S.C. § 1539(a)(1)(B), ELR STAT. ESA § 10(a)(1)(B).

151. See Sweet Home, 515 U.S. at 692, 25 ELR at 21196.

152. Id. at 697, 25 ELR at 21198.

153. Id. at 708-09, 25 ELR at 21199 (O'Connor, J., concurring) (emphasis added). Justice O'Connor also assumed that the regulation would be limited by ordinary notions of proximate causation and foreseeability. Id. at 709, 25 ELR at 21199.

154. 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988).

155. Sweet Home, 515 U.S. at 713-14, 25 ELR at 21201.

156. Id. at 714, 25 ELR at 21201.

157. 83 F.3d 1060, 26 ELR 20995 (9th Cir. 1996), cert. denied, 519 U.S. 1108 (1997).

158. Id. at 1064-65, 26 ELR at 20997, cert. denied, 519 U.S. 1108 (1997).

159. Id. at 1065, 26 ELR at 20997.

160. Id. at 1066, 26 ELR at 20998. See also Defenders of Wildlife v. Bernal, 204 F.3d 920, 30 ELR 20403 (9th Cir. 2000); Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 25 ELR 20706 (9th Cir 1995); National Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 24 ELR 20802 (9th Cir. 1994); Palila v. Hawaii Dep't of Land & Natural Resources, 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988).

161. See Arizona Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 32 ELR 20392 (9th Cir. 2001).

162. See, e.g., American Bald Eagle v. Bhatti, 9 F.3d 163, 24 ELR 20173 (1st Cir. 1993); National Wildlife Fed'n v. National Park Serv., 669 F. Supp. 384 (D. Wyo. 1987).

163. The court in Underwater Exotics, Ltd. v. Secretary of the Interior, 1994 WL 80878 *4 (D.D.C. 1994), when addressing the defendant's protest that his violations of 15 U.S.C. § 1540(a), ELR STAT. ESA § 11(a), had been procured through an imposition of strict liability under the ESA, stated that "the committee does not intend to make knowledge of the law an element of either civil penalty or criminal violations of the Act." See H.R. REP. NO. 95-1625, at 26 (1978), reprinted in 1978 U.S.C.C.A.N. 9453; see also Newell v. Baldridge, 548 F. Supp. 39, 13 ELR 20476 (W.D. Wa. 1982) (holding that "the 1978 Amendments to the ESA … made clear that commercial operators were strictly liable"; defendant either knew or should have known that his actions violated the ESA through the sale of endangered turtles); United States v. McKittrick, 142 F.3d 1170, 28 ELR 21197 (9th Cir. 1998) (defendant illegally took a gray wolf from Canada into the United States); United States v. Ivey, 949 F.2d 759 (5th Cir. 1991); United States v. Nguyen, 916 F.2d 1016, 21 ELR 20486 (5th Cir. 1990) (holding that defendant violated the ESA by possessing a threatened species of sea turtle, regardless of whether defendant knew the turtle was endangered or that it was illegal to import or transport the turtle); United States v. St. Onge, 676 F. Supp. 1044, 18 ELR 20733 (D. Mont. 1988) (holding that it was sufficient that the defendant had the intent to take an animal, and that animal was an endangered grizzly bear); United States v. Billie, 667 F. Supp. 1485, 18 ELR 20209 (S.D. Fla. 1987) (government was not required to show that the defendant was aware of the specific species of panther that he shot, only that he acted with general intent to shoot the animal); cf. United States v. Grigsby, 111 F.3d 806 (11th Cir. 1997) (holding in a case of first impression that the Arms Export Control Act section calling for criminal sanctions upon those who "knowingly violate" the statute required specific intent on behalf of the defendant).

164. See United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126, 22 ELR 20877 (E.D. Cal. 1992) (holding that the district's pumping of water constituted a "take" of salmon, and that the ESA could be enforced prior to the completion of an environmental impact statement or the development of a recovery plan).

165. 788 F. Supp. 1126, 22 ELR 20877 (E.D. Cal. 1992).

166. See 16 U.S.C. § 1538(a)(1)(B), ELR STAT. ESA § 9(a)(1)(B).

167. One might imagine that instead of releasing the snakeheads into the pond in Crofton, Maryland, our unsuspecting defendant instead released them into a wetland containing endangered fairy shrimp. These snakeheads immediately begin to prey upon the endangered fairy shrimp. Therefore, the release of the snakeheads was the direct cause of the harm to the fairy shrimp, and such harm would occur almost immediately. ESA liability seems likely. See id.; 50 C.F.R. § 17.3 (defining harm to include any act which actually kills protected wildlife).

168. National Invasive Species Act of 1996, 16 U.S.C. §§ 4701-4751.

169. The potential applicability of the ESA in these areas has been considered in a superficial manner, but no court or commentator of which I am aware has analyzed the issue in depth. An environmental group provided the U.S. Army Corps of Engineers (the Corps) with a 60-day letter notifying their intent to sue the Corps over its failure to consult with the FWS and the National Marine Fisheries Service regarding its plans to increase the channel depth of the San Francisco Bay, and for failing to consider how increased amounts of ballast water discharge would affect the threatened and endangered species living in the bay. See Letter from Deborah A. Sivas, attorney representing Center for Marine Conservation and San Francisco BayKeeper, to Lt. Gen. Joe Ballard, Chief of Engineers and Commander, U.S. Army Corps of Engineers (Jan. 4, 1999). When the government failed to respond, Northwest Environmental Advocates filed a suit to compel the Corps to respond to their petition. See Lewis & Clark College's website on the Internet at http://www.lclark.edu/org/peac/objects/3_complaint.pdf (last visited Apr. 10, 2003). A few authors have mentioned the topic in passing. See Cohen & Foster, supra note 32, at 855-58.

170. See Sweet Home, 515 U.S. at 700 n.13, 25 ELR at 21197 n.13.

171. Id. § 1532(19), ELR STAT. ESA § 3(19).

172. The leading cause of species extinction is habitat destruction. See ECES, supra note 16. A U.N. Environment Program report warns that if current trends continue, 11,000 species, including 24% of the world's mammal population, will become extinct by the year 2032, as a result of habitat loss, alien species introduction, and other human impacts. See id.

173. See http://eces.org/ec/bioinvasion/ (last visited Apr. 10, 2003).

174. See infra notes 196-201 and accompanying text (discussing the manner in which zebra mussels alters their environment to the detriment of other filter-feeders).

175. BLACK'S LAW DICTIONARY 213 (7th ed. 1999) (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 43, at 282-83 (5th ed. 1984).

176. Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784, 25 ELR 20706, 20708 (9th Cir. 1995).

177. Id. at 784, 25 ELR at 20708 (emphasis added).

178. See id.; 46 Fed. Reg. 54749 (1981).

179. Rosboro Lumber Co., 50 F.3d at 785, 25 ELR at 20709. The court held that despite the absence of a demonstration of past or current injury the defendant's plans to harvest timber within the endangered spotted owl's habitat constituted an imminent source of harm, thus enjoining the action. See id. at 781, 25 ELR at 20707. The argument for "harm" seems even stronger here when a demonstration of past and current injury by invasive species released through ballast water is possible.

180. The Ninth Circuit refused to find "harm" where there was only a "mere chance" that the taking would occur. Arizona Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 32 ELR 20392 (9th Cir. 2001). The less onerous the burden of "harm" as applied by the courts, the greater the chance that their decisions will do justice to the legislative intent behind the ESA. See Paul Boudreaux, Understanding "Take" in the Endangered Species Act, 34 ARIZ. ST. L.J. 733, 734 (2002) (arguing that the pervasive standard of "harm" in the federal courts is unnecessarily high, and should be replaced by the civil-law standard of "more likely than not" or a "preponderance of the evidence").

181. See 142 CONG. REC. S12398-01, S12399 (daily ed. Oct. 3, 1996) (statement of Sen. John Glenn (D-Ohio)).

182. See S. 1660, H.R. REP. NO. 3217, supra note 18 (testimony of Dr. James T. Carlton, Director of Maritime Studies Program of the Williams College and Mystic Seaport).

183. 106 F. Supp. 2d 1066 (W.D. Wash. 2000).

184. Id.

185. COHEN, supra note 42, at 11.

186. National Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 24 ELR 20802 (9th Cir. 1994).

187. See supra note 43 and accompanying text.

188. Carr, supra note 18, at A15.

189. See id.

190. See Mark Robichaux, Alien Invasion: Plague of Asian Eels Highlights Damage From Foreign Species: Latest of Many Interlopers, These Creatures Could Threaten Everglades, WASH. POST, Sept. 9, 2000, at A1. Other invasive species that present an imminent threat to several native terrestrial species include the long-horned Asian beetles, ash sawfly, beech tree scale, Eurasian gypsy moths, and Avian flu. See http://www.virginiaiscouncil.com (last visited Apr. 10, 2003).

191. "The unintentional introduction of exotic species affects almost all of our Nation's … fragile coastal, estuarine, and inland waters. These nonindigenous species … seriously threaten ecosystems nationwide." H.R. REP. NO. 3217, supra note 18 (testimony of David G. Davis, Deputy Director Officer of Wetlands, Ocean and Watersheds, Office of Water, U.S. EPA. "Many of these [nonindigenous species] introductions are likely to become nuisances and have substantial impacts on the Nation's fish and wildlife resources."). Id. at S. 1660 (testimony of Rowan W. Gould, Deputy Assistant Director of Fisheries, U.S. FWS, U.S. DOI).

192. The Asian swamp eel, for example, "has a bottomless appetite for any aquatic life in its path—fish, frogs, shrimp, crayfish and insects." Robichaux, supra note 190, at A1. Scientists might be less concerned about the Asian swamp eel if it had been released in a self-enclosed pond in the manner of the snakehead fish; unfortunately, it was released into the Florida Everglades, which is home to a variety of threatened and endangered species that will likely become prey for the creature. See id. Scientists fear that the swamp eel may eliminate the bottom of the food chain, upon which the rest of the Everglades depends. See ECES, supra note 16.

193. See id.

194. See Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 25 ELR 21194 (1995).

195. 64 Fed. Reg. 60727 (Nov. 8, 1999) (codified at 50 C.F.R. pt. 222).

196. See Robichaux, supra note 190; see also U.S. GEOLOGICAL SURVEY, NATIONAL ATLAS OF THE UNITED STATES, REMOVAL AND CONTROL OF THE ZEBRA MUSSEL (2002), available at http://www.nationalatlas.gov/zmussels4.html (last visited Apr. 10, 2003).

197. See Robichaux, supra note 190.

198. See id. One such effort was described as follows:

The boat, which is equipped with an "electro-fishing unit," slows to a stop, and one of the men lowers two chandeliers of thick wires into the water. With the press of a pedal, he unleashes up to 800 volts into the murky depths. The scientists are stalking one of the newest, most indestructible aquatic predators in the U.S.: the Asian swamp eel.

Id.

199. See Ladd E. Johnson & James T. Carlton, Post-Establishment Spread in Large-Scale Invasions: Dispersal Mechanisms of the Zebra Mussel Dreissena Polymorpha, ECOLOGY, Sept. 1996, at 1686-87. Zebra mussels feed upon the phytoplankton and the zooplankton, which form the base of the food web, and upon which many other species depend. See John Ross, An Aquatic Invader Is Running Amok in U.S. Waterways, SMITHSONIAN, Feb. 1994, at 10.

200. See Johnson & Carlton, supra note 199, at 1686.

201. See supra note 173.

202. See ANDREW N. COHEN, SAN FRANCISCO ESTUARY INSTITUTE, SHIP'S BALLAST WATER AND THE INTRODUCTION OF EXOTIC ORGANISMS IN THE SAN FRANCISCO ESTUARY: CURRENT STATUS OF THE PROBLEM AND OPTIONS FOR MANAGEMENT 13 (1998).

203. See id.

204. COHEN, supra note 42, at 11.

205. Howard Youth, Aliens Among Us; Invader Species of the Mid-Atlantic, WASH. POST, Apr. 4, 1999, at H1.

206. See Faultline, supra note 48.

207. Carr, supra note 18, at A15.

208. See id.

209. 199 P.2d 1, 3 (Cal. 1948) ("Implicit in such finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one shot from each of them.").

210. Id.

211. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

212. United States v. Chem-Dyne Corp., 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983). Additionally, under the CWA, "the owner or operator of a vessel which illegally discharges may be jointly and severally liable to the government for its expenses in cleaning up the substances." 33 U.S.C. §§ 1321(b)(2)(B)(ii). ELR STAT. FWPCA §§ 311(b)(2)(B)(ii); United States v. M/V Big Sam, 681 F.2d 432, 539 (5th Cir. 1982); In re Berkley Curtis Bay Co., 557 F. Supp. 335, 339 (S.D.N.Y. 1983).

213. Chem-Dyne Corp., 572 F. Supp. at 810, 13 ELR at 20989.

214. 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1983).

215. Id.

216. Tennessee Valley Auth. v. Hill, 437 U.S. 153, 8 ELR 20513 (1978).

217. See Cohen & Foster, supra note 32, at 858 (suggesting that by creating "biologically polluted waters" ballast water release might constitute a violation of § 9).

218. See Justice O'Connor's concurring opinion in Sweet Home, arguing that the Ninth Circuit's decision in Palila was wrongly decided (on issues of proximate cause and foreseeability) because "destruction of the seedlings did not proximately cause actual death or injury to identifiable birds; it merely prevented the regeneration of forest land not currently inhabited by actual birds." Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 714, 25 ELR 21194, 21201 (1995) (O'Connor, J., concurring); but see Marbled Murrelet v. Babbitt, 83 F.3d 1060, 26 ELR 20995 (9th Cir. 1996), cert. denied, 519 U.S. 1108, 1064-65 (1997) (maintaining that Palila was correctly determined).

219. Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 785, 25 ELR 20706, 20709 (9th Cir. 1995).

220. 16 U.S.C. § 1539(a)(1)(B), ELR STAT. ESA § 10(a)(1)(B).

221. 33 U.S.C. § 1322(a)(12)(A)(i), ELR STAT. FWPCA § 312(a)(12)(A)(i), as amended by Pub. L. No. 106-284, 11 Stat. 870 (2000); see also supra notes 90-97 and accompanying text (discussing the recent legal challenge to the NPDES exemption).

222. 16 U.S.C. § 1539(a)(1)(B), ELR STAT. ESA § 10(a)(1)(B).

223. Id. § 1539(a)(2)(A)(iii), ELR STAT. ESA § 10(a)(2)(A)(iii); see generally id. § 1539(a)(2)(A), ELR STAT. § 10(a)(2)(A).

224. Id. § 1539(a)(2)(B)(ii), ELR STAT. ESA § 10(a)(2)(B)(ii). The Secretary must find other criteria in addition to the one mentioned, prior to the granting of a permit. See id. § 1539 (a)(2)(B), ELR STAT. ESA § 10(a)(2)(B)(ii).

225. 33 U.S.C. § 1311(b)(1)(A), ELR STAT. FWPCA § 301(b)(1)(A) (emphasis added).

226. LINDA A. MALONE, ENVIRONMENTAL REGULATION OF LAND USE 8-36 (2002).

227. This technology usually takes the form of water-pumps, but may also be a gravity-based system. See NATIONAL RESEARCH COUNCIL, supra note 36, at 29.

228. For a discussion of NOBOB ships, see supra notes 85-89 and accompanying text.

229. 33 U.S.C. §§ 1314(b)(1)(B), (b)(2)(B), ELR STAT. FWPCA § 304(b)(1)(B), (b)(2)(B).

230. MALONE, supra note 226, at 8-36.

231. As with the CWA, in determining what is "practicable" under § 10(a)(1)(B) of the ESA the Secretary should consider "the total cost of application of technology in relation to the … benefits to be achieved from such application." 33 U.S.C. § 1314(b)(1)(B), ELR STAT. FWPCA § 304(b)(1)(B). Therefore, as the cost of this technology decreases, consideration weighs more strongly in favor of requiring its implementation.

232. See Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 25 ELR 21194 (1995).

233. See Managing Ballast Water Discharges in Australia, at http://www.unep.org/geo/geo3/english/330.htm (last visited Apr. 10, 2003).

234. See Cohen & Foster, supra note 32, at 825-26.

235. See supra Part I and accompanying text.

33 ELR 10583 | Environmental Law Reporter | copyright © 2003 | All rights reserved