The Plight of the Blue Mud Shrimp

SandBar Printer-Friendly Article
SandBar 10.1, January, 2011 Recommended citation: Nicholas Lund, The Plight of the Blue Mud Shrimp, 10:1 SandBar 4 (2011). The Plight of the Blue Mud Shrimp Nicholas Lund , J.D. In addition to heaps of deserved praise, the Endangered Species Act (ESA) has endured its fair share of criticism. Among the most potent claims are that the Act is unable to respond quickly enough to species facing a rapid decline and that one of the Act’s major tools for protection, critical habitat designation, is inadequate for certain species, especially those at risk from aquatic invasive species. Dr. John Chapman, a scientist at Oregon State University, found both of these criticisms to be true when he asked the National Sea Grant Law Center to examine the feasibility of listing a creature he studies, the blue mud shrimp, under the ESA. With little hope of obtaining federal protection for the shrimp, Dr. Chapman has found himself in the position that the ESA was designed to prevent: having to stand by and watch a species go extinct. The Case of the Blue Mud Shrimp In the late 1980s, scientists noted the appearance of a small isopod in the waters off Washington state. Though originally thought to be a native species, the small crustacean was actually new to American waters, having been brought from the Asian coast in ships’ ballast water. The isopod lay dormant until 1997 when scientists, including Dr. Chapman, began to notice the animal attached to the sides of most of the reproductive-sized blue mud shrimp, Upogebia pugettensis. It was quickly realized that the isopod, Orthione griffenis, was bad news: attaching itself to the shrimp’s gill chamber, the parasite sucks the shrimp’s blood, leaving its host alive but unable to reproduce. Because the castrated shrimp were left alive to compete with unaffected shrimp for food and space, the isopod invasion was soon recognized to be potentially devastating to blue mud shrimp populations. Not surprisingly, then, with the 1997 boom in the O. griffenis population came a parallel crash in U. pugettensis numbers. California populations of the shrimp appear to be either extinct or at <0.01% of their former abundances. The largest remaining populations, which Dr. Chapman has been studying in Oregon, have declined by around 18% per year since 2002. Faced with what appears to be the imminent extinction of U. pugettensis, Dr. Chapman contacted the National Sea Grant Law Center to inquire about protection from the country’s most famous wildlife protection law: the Endangered Species Act. ESA Protection The Law Center quickly found, however, that even if a petition to list the blue mud shrimp on the ESA was successful, the Act might not be able to provide much protection for the shrimp. Passed with a primary aim to protect species from direct human harms like commercial exploitation and loss of habitat to development, the ESA appears much less effective at combating the aggressive takeovers of human-aided invasive species, especially when those species live in the water. The experience highlighted the need for better legal protection against invasive species infestations. Passed in 1973, the Endangered Species Act (ESA) is designed to protect imperiled species from extinction as a “consequence of economic growth and development untempered by adequate concern and conservation.”1 The centerpieces of the ESA are the endangered species list and the threatened species list. Once listed, the ESA requires federal agencies to consult with the U.S. Fish and Wildlife Service (USFWS) and/or the NOAA Fisheries Service (depending on the species at issue) to ensure that actions they authorize, fund or carry out are not likely to jeopardize the continued existence of the species or result in the destruction or adverse modification of designated critical habitat of the species. The ESA further prohibits the “taking” of a listed species and severely restricts trade related to the species. Two major protections are extended to listed species: critical habitat designation2 and recovery plans.3 Critical habitat is to be designated within one year of the species being listed under the Act. Once designated, federal agencies are prohibited from authorizing, funding or carrying out any action likely to result in the destruction or adverse modification of the critical habitat. The area designated as critical habitat can be publicly or privately-owned, but the restrictions on destruction or adverse modification are, similar to NEPA, restricted to those with federal involvement such as a permit or approval. Habitat designations can help once they’re made, and it has been shown that species receiving critical habitat designations are twice as likely to recover.4 Despite critical habitat being a centerpiece of Endangered Species Act protection, its designation would do almost nothing to protect the blue mud shrimp from O. griffenis infestation. For most other species, critical habitat offers protection by putting the brakes on human encroachment. Aquatic isopods, though, aren’t slowed by human boundaries. Because the isopod can move freely through the water (though how it travels is poorly understood, it is now found all along the Pacific coast from California to Canada), designating an area as critical habitat would not do anything to prevent the isopod from infecting shrimp there. In addition to a critical habitat designation, NOAA Fisheries (which would be responsible for the ocean-dwelling blue mud shrimp if it were listed under the ESA) would also be required to produce a recovery plan for the blue mud shrimp if it were listed. The statute requires that, at a minimum, these recovery plans include: a description of site-specific management actions necessary to recover the species; objective measurable criteria which, when met, would result in a determination that the species be taken off the list; and, estimates of the time and costs required to achieve the plan’s goal.5 For the blue mud shrimp, the problem with the ESA’s recovery plans is that they take too long to develop. While the statute does not specify a timeframe for recovery plan development, the agencies have had a policy that plans should be developed within two-and-a-half years of a species listing.6 In reality, though, the wait is much longer, and many species have to wait more than a decade for a recovery plan.7 This timeframe is unacceptable for a species that has gone extinct in much of its range since just 1997. Complaints about delays in the ESA process are not new. At least forty-two species became extinct between the time they were proposed for protection and when they were finally listed.8 Hundreds of species suffered lengthy delays between the time they were first identified as declining and when they were finally given ESA protection, making their recovery more difficult and more expensive, if possible at all.9 While these delays affect all species, the double-whammy of delay and the inadequacy of critical habitat designations are unique to those species, like the blue mud shrimp, under siege from aquatic invasive species. The experience left Dr. Chapman looking in other areas for protection; perhaps ballast water legislation could provide funds for impacts of invasive species transported in the past. An Answer in Ballast Water Legislation? A more logical source of protection for species at risk from aquatic invasive species might be found in legislation seeking to regulate ballast water to prevent the introduction of new species. For years there have been calls to strengthen standards for the cleanliness of ballast water discharged into American waters from foreign ships. With Congress slow on passing legislation (likely fearing harm to the shipping industry), the U.S. Coast Guard has taken the lead by working through internal rulemaking to create a higher standard of protection. While current rules only require mid-ocean ballast water exchanges – a technique criticized because of the amount of organism-containing sediment left on the bottom of the ship’s ballast tank – new rules would mandate an upper limit for the number of organisms in each ship’s ballast and provide mechanisms to approve ballast-cleaning equipment.10 The Environmental Protection Agency has also recently addressed ballast water discharge. In early 2009, the EPA began requiring ships to obtain Vessel General Permits to comply with the Clean Water Act (CWA). Ballast water discharges had previously been excluded from compliance with the CWA, but are now required to meet a series of Best Management Practices and reporting requirements.11 While the momentum towards tighter regulation of ballast water is encouraging, cleaner discharges alone would do nothing to protect the blue mud shrimp from an animal that arrived in ballast water two decades ago. One potential solution could be the creation of recovery funds within any newly created ballast water or invasive species legislation. Such funds are common in environmental management, akin to conservation trusts existing in many states that are funded by the money generated from hunting and fishing licenses. In the case of ballast water legislation, proceeds from newly required permits or fees could be dedicated to the eradication of invasive species or the protection of those species threatened. Such a program would likely be a quicker and more effective source of protection than the ESA. No Time to Wait The blue mud shrimp cannot afford to wait for the passage of new legislation, however. The inapplicability of the ESA and the lack of other options have left Dr. Chapman unsure of where to turn. Oregon’s state Endangered Species Act is equally unhelpful, as it specifically excludes invertebrates from protection. Even though Dr. Chapman has outlined a plan that could potentially save the shrimp – which involves culturing some of the remaining unaffected shrimp in isolation until the isopod dies off for lack of hosts and then reintroducing the shrimp. However, he lacks the support to implement this plan quickly with only ad-hoc and volunteer efforts. Some funded organized research is critical to develop and test such long-term culture and reintroduction methods. While time may be running out for the blue mud shrimp, the inadequacy of the ESA means that the need for better protection from aquatic invasive species remains. Endnotes 1. 16 U.S.C. § 1531(a)(1) (2010). 2. Id. at § 1536(a)(2). 3. Id. at § 1533(f). 4. Martin F. J. Taylor et al., The Effectiveness of the Endangered Species Act: A Quantitative Analysis, BioScience 55(4):360-367 (2005). 5. 16 U.S.C. § 1533(f) (2010). 6 Endangered and Threatened Wildlife and Plants: Notice of Interagency Cooperative Policy on Recovery Plan Participation and Implementation Under the Endangered Species Act, 59 Fed. Reg. 34272 (July 1, 1994). 7. See Species and Populations With Recovery Plans, U.S. Fish & Wildlife Service, http://ecos.fws.gov/tess_public/ TESSWebpageRecovery?sort=1 (last visited Dec. 1, 2010). 8. D. Noah Greenwald et al., The Listing Record, in The Endangered Species Act at Thirty: Volume 1 51, 51 (Dale D. Gobel et al eds., 2006). 9. Id. 10. See U.S. Coast Guard Ballast Water Management Regulations, http://www.uscg.mil/hq/cg5/ cg522/ cg5224/bwm.asp (last visited Dec. 1, 2010). 11. See National Pollutant Discharge Elimination System (NPDES) – Vessel Discharges, http://cfpub.epa.gov/npdes/home.cfm?program_id=350 (last visited Dec. 2, 2010).
Phone (662) 915-7775 • Fax (662) 915-5267 • 256 Kinard Hall, Wing E, University, MS 38677-1848

SandBar 10.1, January, 2011
Recommended citation: Nicholas Lund, The Plight of the Blue Mud Shrimp, 10:1 SandBar 4 (2011).

Nicholas Lund , J.D.

In addition to heaps of deserved praise, the Endangered Species Act (ESA) has endured its fair share of criticism. Among the most potent claims are that the Act is unable to respond quickly enough to species facing a rapid decline and that one of the Act’s major tools for protection, critical habitat designation, is inadequate for certain species, especially those at risk from aquatic invasive species. Dr. John Chapman, a scientist at Oregon State University, found both of these criticisms to be true when he asked the National Sea Grant Law Center to examine the feasibility of listing a creature he studies, the blue mud shrimp, under the ESA. With little hope of obtaining federal protection for the shrimp, Dr. Chapman has found himself in the position that the ESA was designed to prevent: having to stand by and watch a species go extinct.

The Case of the Blue Mud Shrimp
In the late 1980s, scientists noted the appearance of a small isopod in the waters off Washington state. Though originally thought to be a native species, the small crustacean was actually new to American waters, having been brought from the Asian coast in ships’ ballast water. The isopod lay dormant until 1997 when scientists, including Dr. Chapman, began to notice the animal attached to the sides of most of the reproductive-sized blue mud shrimp, Upogebia pugettensis. It was quickly realized that the isopod, Orthione griffenis, was bad news: attaching itself to the shrimp’s gill chamber, the parasite sucks the shrimp’s blood, leaving its host alive but unable to reproduce.
Because the castrated shrimp were left alive to compete with unaffected shrimp for food and space, the isopod invasion was soon recognized to be potentially devastating to blue mud shrimp populations. Not surprisingly, then, with the 1997 boom in the O. griffenis population came a parallel crash in U. pugettensis numbers. California populations of the shrimp appear to be either extinct or at <0.01% of their former abundances. The largest remaining populations, which Dr. Chapman has been studying in Oregon, have declined by around 18% per year since 2002. Faced with what appears to be the imminent extinction of U. pugettensis, Dr. Chapman contacted the National Sea Grant Law Center to inquire about protection from the country’s most famous wildlife protection law: the Endangered Species Act.

ESA Protection
The Law Center quickly found, however, that even if a petition to list the blue mud shrimp on the ESA was successful, the Act might not be able to provide much protection for the shrimp. Passed with a primary aim to protect species from direct human harms like commercial exploitation and loss of habitat to development, the ESA appears much less effective at combating the aggressive takeovers of human-aided invasive species, especially when those species live in the water. The experience highlighted the need for better legal protection against invasive species infestations.
      Passed in 1973, the Endangered Species Act (ESA) is designed to protect imperiled species from extinction as a “consequence of economic growth and development untempered by adequate concern and conservation.”1 The centerpieces of the ESA are the endangered species list and the threatened species list. Once listed, the ESA requires federal agencies to consult with the U.S. Fish and Wildlife Service (USFWS) and/or the NOAA Fisheries Service (depending on the species at issue) to ensure that actions they authorize, fund or carry out are not likely to jeopardize the continued existence of the species or result in the destruction or adverse modification of designated critical habitat of the species. The ESA further prohibits the “taking” of a listed species and severely restricts trade related to the species.
      Two major protections are extended to listed species: critical habitat designation2 and recovery plans.3 Critical habitat is to be designated within one year of the species being listed under the Act. Once designated, federal agencies are prohibited from authorizing, funding or carrying out any action likely to result in the destruction or adverse modification of the critical habitat. The area designated as critical habitat can be publicly or privately-owned, but the restrictions on destruction or adverse modification are, similar to NEPA, restricted to those with federal involvement such as a permit or approval. Habitat designations can help once they’re made, and it has been shown that species receiving critical habitat designations are twice as likely to recover.4
      Despite critical habitat being a centerpiece of Endangered Species Act protection, its designation would do almost nothing to protect the blue mud shrimp from O. griffenis infestation. For most other species, critical habitat offers protection by putting the brakes on human encroachment. Aquatic isopods, though, aren’t slowed by human boundaries. Because the isopod can move freely through the water (though how it travels is poorly understood, it is now found all along the Pacific coast from California to Canada), designating an area as critical habitat would not do anything to prevent the isopod from infecting shrimp there.
      In addition to a critical habitat designation, NOAA Fisheries (which would be responsible for the ocean-dwelling blue mud shrimp if it were listed under the ESA) would also be required to produce a recovery plan for the blue mud shrimp if it were listed. The statute requires that, at a minimum, these recovery plans include: a description of site-specific management actions necessary to recover the species; objective measurable criteria which, when met, would result in a determination that the species be taken off the list; and, estimates of the time and costs required to achieve the plan’s goal.5
      For the blue mud shrimp, the problem with the ESA’s recovery plans is that they take too long to develop. While the statute does not specify a timeframe for recovery plan development, the agencies have had a policy that plans should be developed within two-and-a-half years of a species listing.6 In reality, though, the wait is much longer, and many species have to wait more than a decade for a recovery plan.7 This timeframe is unacceptable for a species that has gone extinct in much of its range since just 1997.
      Complaints about delays in the ESA process are not new. At least forty-two species became extinct between the time they were proposed for protection and when they were finally listed.8 Hundreds of species suffered lengthy delays between the time they were first identified as declining and when they were finally given ESA protection, making their recovery more difficult and more expensive, if possible at all.9 While these delays affect all species, the double-whammy of delay and the inadequacy of critical habitat designations are unique to those species, like the blue mud shrimp, under siege from aquatic invasive species. The experience left Dr. Chapman looking in other areas for protection; perhaps ballast water legislation could provide funds for impacts of invasive species transported in the past.

An Answer in Ballast Water Legislation?
A more logical source of protection for species at risk from aquatic invasive species might be found in legislation seeking to regulate ballast water to prevent the introduction of new species. For years there have been calls to strengthen standards for the cleanliness of ballast water discharged into American waters from foreign ships. With Congress slow on passing legislation (likely fearing harm to the shipping industry), the U.S. Coast Guard has taken the lead by working through internal rulemaking to create a higher standard of protection. While current rules only require mid-ocean ballast water exchanges – a technique criticized because of the amount of organism-containing sediment left on the bottom of the ship’s ballast tank – new rules would mandate an upper limit for the number of organisms in each ship’s ballast and provide mechanisms to approve ballast-cleaning equipment.10
The Environmental Protection Agency has also recently addressed ballast water discharge. In early 2009, the EPA began requiring ships to obtain Vessel General Permits to comply with the Clean Water Act (CWA). Ballast water discharges had previously been excluded from compliance with the CWA, but are now required to meet a series of Best Management Practices and reporting requirements.11
While the momentum towards tighter regulation of ballast water is encouraging, cleaner discharges alone would do nothing to protect the blue mud shrimp from an animal that arrived in ballast water two decades ago. One potential solution could be the creation of recovery funds within any newly created ballast water or invasive species legislation. Such funds are common in environmental management, akin to conservation trusts existing in many states that are funded by the money generated from hunting and fishing licenses. In the case of ballast water legislation, proceeds from newly required permits or fees could be dedicated to the eradication of invasive species or the protection of those species threatened. Such a program would likely be a quicker and more effective source of protection than the ESA.

No Time to Wait
The blue mud shrimp cannot afford to wait for the passage of new legislation, however. The inapplicability of the ESA and the lack of other options have left Dr. Chapman unsure of where to turn. Oregon’s state Endangered Species Act is equally unhelpful, as it specifically excludes invertebrates from protection. Even though Dr. Chapman has outlined a plan that could potentially save the shrimp – which involves culturing some of the remaining unaffected shrimp in isolation until the isopod dies off for lack of hosts and then reintroducing the shrimp. However, he lacks the support to implement this plan quickly with only ad-hoc and volunteer efforts. Some funded organized research is critical to develop and test such long-term culture and reintroduction methods. While time may be running out for the blue mud shrimp, the inadequacy of the ESA means that the need for better protection from aquatic invasive species remains.

Endnotes
1. 16 U.S.C. § 1531(a)(1) (2010).
2. Id. at § 1536(a)(2).
3. Id. at § 1533(f).
4. Martin F. J. Taylor et al., The Effectiveness of the Endangered Species Act: A Quantitative Analysis, BioScience 55(4):360-367 (2005).
5. 16 U.S.C. § 1533(f) (2010).
6   Endangered and Threatened Wildlife and Plants: Notice of Interagency Cooperative Policy on Recovery Plan Participation and Implementation Under the Endangered Species Act, 59 Fed. Reg. 34272 (July 1, 1994).
7.  See Species and Populations With Recovery Plans, U.S. Fish & Wildlife Service, http://ecos.fws.gov/tess_public/ TESSWebpageRecovery?sort=1 (last visited Dec. 1, 2010).
8. D. Noah Greenwald et al., The Listing Record, in The Endangered Species Act at Thirty: Volume 1 51, 51 (Dale D. Gobel et al eds., 2006).
9.   Id.
10. See U.S. Coast Guard Ballast Water Management Regulations, http://www.uscg.mil/hq/cg5/ cg522/ cg5224/bwm.asp (last visited Dec. 1, 2010).
11. See National Pollutant Discharge Elimination System (NPDES) – Vessel Discharges, http://cfpub.epa.gov/npdes/home.cfm?program_id=350 (last visited Dec. 2, 2010).