842B05002
Overview of EPA Authorities
for Natural Resource Managers
Developing Aquatic Invasive Species
Rapid Response and Management Plans
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Overview of EPA Authorities
for Natural Resource Managers
Developing Aquatic Invasive Species
Rapid Response and Management Plans
U.S. Environmental Protection Agency
Office of Wetlands, Oceans, and Watersheds
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Table of Contents
Foreword iii
Introduction 1
Clean Water Act (CWA) 7
Section 402: National Pollutant Discharge Elimination System (NPDES) 8
Section 404: Permits to Discharge Dredged or Fill Material 10
Federal Insecticide, Fungicide, and Rodenticide
Act(FIFRA) 13
Section 18: Emergency Exemptions 14
FIFRA Section 18 Case Study: Eradicating the
Northern Snakeheads in Crofton, Maryland Ponds 18
Section 24(c): Special Local Need Registrations 20
FIFRA Section 24(c) Case Study: Controlling Old World
Climbing Fern in Florida 24
Photo Credits 26
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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Foreword
The U S Environmental Protection Agency (EPA) has developed this
document as a tool for state, tribal, regional, and local natural resource
managers who are preparing or considering the preparation of rapid
response action and/or management plans for aquatic invasive species (AIS).
The document provides an overview of EPA authorities that might apply to
state or local AIS rapid response and control actions. Note that development
of new rapid response or control methods and/or new judicial rulings could
alter the applicability of the EPA authorities described here and make other
EPA authorities relevant.
This tool does not cover other Federal agencies' authorities (e g the
Endangered Species Act and the Magnuson-Stevens Fishery Conservation
and Management Act) or state authorities that might apply to AIS rapid
response and control actions.
This document does not represent final EPA action, is not intended to
supplant or replace regulations and/or guidance for the authorities described
in this document, and is not intended, nor can it be relied upon, to create any
rights enforceable by any party in litigation with the United States
This document was developed in response to Executive Order 13112 on
Invasive Species (EO), signed on February 3, 1999, which orders "each
Federal agency whose actions may affect the status of invasive species
.. to identify such actions [and] use relevant programs and authorities to
detect and respond rapidly to and control populations in a cost-effective and
environmentally sound manner" (For the complete text of the EO, see
www.epa.gov/owow/invasive_speciesfE013n2.pdf.}
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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Water chestnut
Trapa natans
Introduction
Aquatic invasive species (AIS) are organisms introduced to i
freshwater ecosystems to which they are not native and v>,-!i E
causes harm to human health, the environment, or the ecoi k n
negative impacts on aquatic ecosystems throughout the Urine
costing the nation billions of dollars annually in economic and >
damages. AIS are considered one of the greatest threats to co,
environments and can significantly affect public water supplies
activities, such as boating; and valuable natural resources, sucn as fishei le;
Major pathways for AIS include:
discharge of ships'ballast water
fouling, such as barnacle growth, on commercial and recreational
vessels
accidental or intentional release of marine organisms intended for
human consumption, aquaculture, bait, horticulture, aquaria, and the
pet trade
escape or unintended spread of nonnative biocontrol species
Prevention of AIS introductions is generally the most effective means of
avoiding their establishment and spread. If prevention measures fail, the
following steps are critical to managing AIS establishment and spread:
^. routine monitoring of aquatic ecosystems to detect AIS before they
become widespread
2. rapid assessment of potential management options
3. rapid response to eradicate or control AIS
In many cases, eradication ("rapid response") actions must occur quickly,
possibly even within a few days of the AIS introduction, to be effective. For
this reason, natural resource managers are advised to identify and evaluate
potential rapid response actions before species introductions even occur and
prepare detailed rapid response plans that can be carried out quickly. If both
prevention and rapid response actions fail, natural resource managers may
be able to prevent further proliferation and/or minimize harmful AIS impacts
by ongoing control of established AIS populations.
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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* ^ ^f.
Sea lamprey Examples ofAIS Impacts:
Petromyzon mannus
* Nonnative fish in the Great Lakes, such as the round goby Negobius
me/anostomus, sea lamprey Petromyzon marinus, Eurasian ruffe
Gymnocephalus cernuus, and alewife Alosa pseudoharengus, compete with
native fish for food and habitat, significantly impacting Great Lakes food webs
and sports fisheries.
Nonnative plants, such as the common reed Phragmites australis, purple
loosestrife Lythrum salicaria, and Eurasian milfoil Myriophyllum spicatum, have
become established in the Great Lakes, displacing native plants that provide
wildlife habitat and prevent erosion. Their prevalence in recreational waters also
hinders swimming and boating.
The nonnative infectious oyster disease MSX has devastated native oyster
populations along the U.S. East Coast.
The nonnative green crab Carc/nus maenas competes with native fish and birds
for food and preys on native bivalve populations along the U.S. West Coast,
threatening Dungeness crab, clam, and oyster fisheries.
The nonnative Chinese mitten crab Eriocheirsinensis burrows in intertidal
stream banks and levies in California, undermining the structural integrity of the
banks and causing severe erosion problems.
The nonnative freshwater weed water hyacinth Eichhornia crassipes forms
dense mats at the surface of water bodies throughout the United States,
decreasing surface flow and preventing light and oxygen from reaching
phytoplankton and submerged plants.
Caulerpa taxifolia is a highly invasive marine alga used to decorate
saltwater aquaria. It is believed to have been introduced to several
regions, including California, through aquaria releases. Once
introduced, it spreads by fragmentation (even small fragments can
form a new plant) and can form a dense carpet over rock, sand,
and mud bottoms and native vegetation. It can also be transported
between water bodies by boat anchors, fishing gear, and other
equipment. In areas where it has become well-established, it has had
a very detrimental impact on native marine communities, recreational
boating and diving, and commercial fisheries.
Because C. taxifolia is easily spread and very difficult to eradicate,
public education about safe disposal of aquaria contents and routine
checking and cleaning of boat anchors, hulls, rudders, trailers, and
f
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In 1988, zebra mussels Dreissena polymorpha were inadvertently
introduced to Lake St. Clair near Detroit, Michigan, and quickly
spread throughout the Great Lakes and into many inland lakes,
rivers, and canals. Since then, they have caused severe problems
at power plants and municipal water supplies, clogging intake
screens, pipes, and cooling systems. They have also nearly
eliminated native clam populations in the Great Lakes.
To prevent the westward spread of zebra mussels and other AIS,
the 100th Meridian Initiative, a cooperative effort between Federal,
state, and Canadian provincial agencies, was started. The Initiative
works to prevent the spread of zebra mussels by:
informing and educating the public about the biology and
impacts of zebra mussels and pathways for spreading zebra
mussels
voluntary boat inspections and boater surveys
establishing monitoring sites to detect the presence of
zebra mussels
eradicating or containing zebra mussels if they are detected
For more information about the 100th Meridian Initiative, see
www. 100thmeridian.org.
Zebra mussels
Dreissena polymorpha
Chinese mitten crab
Er/ocheir smensis
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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Types of Rapid Response and Control Actions
There are three types of methods to eradicate and/or control AIS
Chemical methods involve the application of chemicals to eradicate
and/or control AIS.
Mechanical and physical methods involve the eradication and/or
control of AIS by hand or machine or the alteration of the physical
environment. Examples of mechanical and physical rapid response
and control actions for invasive plants include manual cutting or
picking, mowing, dredging, and shading to prevent photosynthesis.
Examples of mechanical and physical rapid response and control
actions for invasive animals include netting or trapping, smothering,
and changing ambient water temperature.
Biological methods involve the introduction of parasites, predators,
or pathogens to the environment to control AIS. Biological methods
are not generally considered rapid response methods because they
typically take considerable time to develop and achieve results and
they generally reduce, rather than eradicate, target populations.
The three types of eradication and control methods are not mutually
exclusive because sometimes they can be used in combination and because
some actions might belong to multiple categories For example, the
application of a saline solution to water bodies to eradicate or control AIS
could be considered both a chemical and a physical action.
Eurasian watermilfoil
Mynophyllum sp/catum
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Pla
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Examples of Rapid Response and Control Actions
It can be very difficult to eradicate or control AIS because both AIS and
control agents, such as pesticides, are relatively easily spread. Examples of
successful rapid response and control actions in aquatic environments are.
The marine alga Caulerpa taxifo/ia, which is highly invasive in the
Mediterranean, was eradicated from two coastal locations in southern
California. Natural resource managers covered the C. taxifolia
infestations with tarps and then injected chlorine beneath the tarps to
destroy the alga (Chemical control method).
The marine mussel Mytilopsis sp., a close relative of the zebra
mussel Dreissena polymorpha, was eradicated from Darwin Harbor in
Australia. Chlorine and copper sulphate were added to the waters of
three hydrauhcally and physically locked marinas, and fouled vessels
that were inside the infested marinas were hauled out and cleaned
(Chemical and mechanical/physical control methods).
1 The northern snakehead Channa argus, a large, nonnative predatory
fish, was eradicated from several small ponds in Maryland. Herbicides
were applied to the ponds to remove potential fish refuges and then
a piscicide was used to kill the snakeheads in the ponds (Chemical
control method).
If rapid response actions are not initiated or do not result in AIS eradication,
ongoing control of AIS could be very costly. While there is no credible,
comprehensive estimate of what AIS cost the United States economy, it
is estimated that control costs in the United States for the invasive marsh
weed European purple loosestrife Lythrum salicaria are $45 million annually,
and fouling damages in the United States from the invasive shipworm Teredo
navalis are $1 billion annually.1
Northern snakehead
Channa argus
For estimates of invasive species control costs, see Pimentel, D , L Lach, R Zuniga, D Morrison
(2000) Environmental and economic costs of nonindigenous species in the United States BioScience
50(1) 53-65
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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Green crab
Carc/nus maenas
A Tool for State and Local Natural Resource Managers
Because AIS can have substantial impacts on local environments and
economies, and states and localities are often the first responders to aquatic
invasions, EPA is providing this tool for state and local natural resource
managers. The document provides an overview of EPA authorities that might
apply to state or local AIS rapid response and control actions. The document
summarizes relevant Sections of the Clean Water Act (CWA) and the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
summarizes how to apply for CWA Section 404 permits to discharge
dredged or fill material
summarizes how to apply for FIFRA Section 18 emergency exemptions
and FIFRA Section 24(c) special local need registrations
describes case studies in which state and local natural resource
managers successfully obtained FIFRA emergency exemptions and
special local need registrations for AIS eradication or control actions
This document can be found on EPA's website at www.epa.gov/owow/
in vasive_sp e cies.
Common reed
Phragmites australis
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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Giant salvmia
Salv/ma molesta
mtee
iohie"e the
~ biolcgica
"ction and
'' lie witer
Clean Water Act
What is the Clean Water Act (CWA)?
CWA is the cornerstone of surface water quality protectic n
States The statute employs regulatory and nonregulator\ ti
broad goal of restoring and maintaining the chemical, ph\M
integrity of the nation's waters so that they can support the \
propagation of fish, shellfish, and wildlife and recreation in ar
CWA regulatory and nonregulatory tools are used to:
reduce direct pollutant discharges into waterways
finance municipal wastewater treatment facilities
manage polluted runoff
Currently, many of the tools used for surface water quality protection employ
the watershed approach, which focuses equally on protecting healthy waters
and restoring impaired ones. (For the complete text of the Clean Water Act,
see www. epa.gov/region5/water/pdf/ecwa.pdf.}
In particular, CWA Section 404 might apply to AIS rapid response or control
activities. Section 404, which regulates the discharge of dredged or fill
material, might apply to AIS eradication activities that involve moving dirt or
placing materials into the waters of the United States
"Waters of the United States" means:
navigable-in-fact waters
waters subject to the ebb and flow of the tide
interstate waters and wetlands
all other waters, such as interstate lakes and streams, the use, destruction, or
degradation of which could affect interstate commerce
impoundments of waters of the United States
tributaries of above waters
territorial seas
wetlands adjacent to above waters
See 40 CFR 230.3(s) (www.access.gpo.gov/nara/cfr/waisidx_04/40cfr230_04.html]
for precise regulatory definition. Updates and background information regarding
the scope of "waters of the United States" protected under the CWA can be
found at www.epa.gov/owow/wetlands/guidance/SWANCC.
"Pollutant" means
dredged spoil, solid
waste, incinerator residue,
sewage, garbage, sewage
sludge, munitions, wrecked
or discarded equipment,
rock, sand, cellar dirt,
and industrial, municipal,
and agricultural waste
discharged into water
"Point source" means
any discernible, confined,
and discrete conveyance,
including but not limited to
any pipe, ditch, channel,
tunnel, conduit, well,
discrete fissure, container,
rolling stock, concentrated
animal feeding operation,
or vessel or other
floating craft, from which
pollutants are or may be
discharged.
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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CWA Section 402The National Pollutant
Discharge Elimination System (NPDES)
What is CWA Section 402?
CWA Section 402 establishes the NPDES permit program to regulate point
source discharges of pollutants into waters of the United States. An NPDES
permit sets specific discharge limits for point sources discharging pollutants
into waters of the United States and establishes monitoring and reporting
requirements, as well as special conditions (For more information about the
NPDES permit program, see http://cfpub.epa.gov/npdes.}
EPA is charged with administering the NPDES permit program, but can
authorize states to assume many of the permitting, administrative, and
enforcement responsibilities of the NPDES permit program. Authorized
states are prohibited from adopting standards that are less stringent than
those established under the Federal NPDES permit program, but may adopt
or enforce standards that are more stringent than the Federal standards if
allowed under state law. At the time of publication, 45 states and the Virgin
Islands have assumed NPDES authority 2 (See http://cfpub.epa.gov/npdes/
statestats.cfm for a list of states with full or partial NPDES authority and
http://cfpub.epa.gov/npdes/contacts.cfm?program_id=45Ettype=STATEfor
contact information for state NPDES authorities.)
Does CWA Section 402 apply to AIS rapid response or control
actions?
An interpretive statement issued by EPA in January 2005 stated that the
application of a pesticide to waters of the United States consistent with
all relevant requirements under the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) does not constitute the discharge of a pollutant (and
consequently does not require a Federal NPDES permit) in the following two
circumstances.
the application of pesticides directly to waters of the United States to
control pests. Examples of such applications include applications to
control mosquito larvae, aquatic weeds, or other pests that are present
in the waters of the United States.
the application of pesticides to control pests that are present over
waters of the United States, including near such waters; that results
in a portion of the pesticides being deposited to those waters, for
example, the aerial application of pesticides to waters of the United
States Examples include aerial applications of insecticides to a forest
canopy where waters of the United States may be present below the
Hydnlla verticillata
2 At the time of publication, the only states that have not assumed either full or partial NPDES authority
are Alaska, Idaho, Massachusetts, New Hampshire, and New Mexico
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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canopy, or applications of pesticides over or near water for control of
adult mosquitoes or other pests.
EPA notes that the application of a pesticide in violation of FIFRA is not
covered by the interpretive statement, and the applicator is subject to
enforcement actions under any and all appropriate authorities including, but
not limited to, FIFRA and CWA EPA has proposed incorporating the 2005
interpretive statement into regulations. Further information can be found at
70 Fed. Reg 5093 (February 1, 2005) www.epa.gov/fedrgstr/
EPA-PEST/2005/February/Day- 01/p 1868. htm
For more information about FIFRA and FIFRA compliance, see the FIFRA Section
of this document, the EPA Pesticide Registration Program website www.epa.gov/
pesticides/factsheets/registration.htm, or the National Pesticide Information
Center website http://npic.orst.edu/brochure.pdf.
'
Common water hyacinth
Eichhornia crassipes
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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CWA Section 404Permits to Discharge
Dredged or Fill Material
What is CWA Section 404?
CWA Section 404 establishes a program to regulate the discharge of
dredged and fill material into waters of the United States, including wetlands.
Responsibility for administering and enforcing Section 404 is shared by the
U S Army Corps of Engineers (USAGE) and EPA. USAGE administers the
day-to-day program, including individual permit decisions and jurisdictional
determinations; develops policy and guidance; and enforces Section 404
provisions EPA develops and interprets environmental criteria used in
evaluating permit applications, identifies activities that are exempt from
permitting, reviews/comments on individual permit applications, enforces
Section 404 provisions, and has authority to veto USAGE permit decisions.
(See www.epa.gov/owow/wet/ands/facts/fact10.htm/ior additional
information about CWA Section 404, and www.usace.army.mil/inet/
functions/cw/cecwo/reg/index.htm for additional information about the
USAGE Regulatory Program.)
With EPA approval and oversight, states and tribes can assume
administration of the Section 404 permit program in certain "nonnavigable"
waters within their jurisdiction. At the time of publication, only Michigan and
New Jersey have done this. In those two states, USAGE retains jurisdiction
in tidal and navigable waters and their adjacent wetlands.
Wetland nightshade
Solanum tampicense
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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When does CWA Section 404 apply to A/S rapid response or
control actions?
It is possible that some mechanical/physical AIS rapid response and control
methods, such as the mechanized clearing of riparian areas to remove AIS or
dumping of fill material to smother AIS, might require Federal or state Section
404 permits. EPA and USAGE have issued a rule stating that they regard the
use of mechanized earth-moving equipment to conduct activities in waters of
the United States (e.g. land clearing, ditching, channelization, and m-stream
mining) as regulated discharge of dredged or fill material under Section 404
unless project-specific evidence shows otherwise.
USAGE regulatory program management and administration is focused at the
District office level, with policy oversight at higher levels. District Engineers
are authorized to issue permits, including standard permits, letters of
permission, and regional general permits Division Engineers may also issue
permits under certain circumstances. USAGE also issues nationwide permits
that authorize certain activities that result in minimal adverse environmental
effects Natural resource managers should consult the appropriate USAGE
District office when planning AIS rapid response or control actions to
determine if these actions require a Federal Section 404 permit. (See
www.usace.army.mil/inet/functions/cw/cecwo/reg/district1.htm for contact
information for USAGE District offices.) In Michigan and New Jersey, natural
resource managers should also consult their state Section 404 authorities
when planning AIS rapid response or control actions to determine if these
actions require a state Section 404 permit.
How do I apply for a CWA Section 404 permit?
There are several ways in which activities requiring Section 404 permits can
be authorized.
Standard permits can be issued in situations where, after a public
notice and comment period, the USAGE District Engineer determines
that the proposed activity is not contrary to the public interest. USAGE
issues a public notice within 15 days of receiving a completed permit
application. The public notice describes the proposed activity, its
location, and potential environmental impacts and invites comments
within a specified time period, typically 15 to 30 days. The public at
large, as well as interested Federal, state, and local agencies, have an
opportunity to comment on the proposed activity. *J . *
»»>
'5%
Letters of permission can be issued in situations where the USAGE
District Engineer determines the proposed work would be minor, would
not have significant individual or cumulative impact on environmental
values, and will not encounter appreciable opposition. Concerned .. , oundgoy
Negobius melanostomus
fish and wildlife agencies and, typically, adjacent property owners
who might be affected by the proposal are notified, but the public at
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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Purple loosestrife
Lythrum salicana
large is not Section 404 letters of permission can be issued only in
cases where, after consulting with certain Federal and state agencies,
the USAGE District Engineer has previously approved categories of
activities that can be authorized by letter of permission procedures.
Requesting a letter of permission may be an appropriate and relatively
expedient means of complying with Section 404 for many relatively
localized and non-controversial AIS rapid response or control actions
that require Section 404 compliance.
General permits are often issued by USAGE for categories of activities
that are similar in nature and would have only minimal individual
or cumulative adverse environmental effects. General permits
can be issued on a nationwide ("nationwide permit") or regional
("regional general permit") basis A general permit can also be
issued on a programmatic basis ("programmatic general permit") to
avoid duplication of permits for state, local or other Federal agency
programs. The mechanized clearing of riparian areas for the control of
invasive species may be authorized by a nationwide permit, but the
appropriate USAGE District office should be contacted to determine if a
nationwide permit can be used to authorize a specific activity In some
USAGE Districts, nationwide permits have been suspended or revoked,
and Section 404 standard permits, letters of permission, regional
general permits, or programmatic general permits are used instead.
In general, to obtain a Section 404 permit, applicants must demonstrate that
the discharge of dredged or fill material would not significantly degrade the
nation's waters and there are no practicable alternatives less damaging to the
aquatic environment. Applicants should also describe steps taken to minimize
impacts to water bodies and wetlands and provide appropriate and practicable
mitigation, such as restoring or creating wetlands, for any remaining,
unavoidable impacts. Permits will not be granted for proposals that are
found to be contrary to the public interest. In the case of AIS rapid response
or control actions, the removal of AIS or mitigation of their harmful effects
could be considered a benefit of the action. Compliance with the Endangered
Species Act and/or Section 106 of the National Historic Preservation Act may
also be required before a Section 404 permit can be issued.
On average, individual permit decisions (standard permits and letters of
permission) are made within 2 to 6 months from receipt of a completed
application. For activities authorized by general permits, decisions are
usually made in less than 30 days. In emergencies, USAGE may be able to
expedite the permitting process Natural resource managers considering
AIS rapid response actions should contact their District Engineer to discuss
the circumstances and request use of expedited procedures. Expedited
procedures are authorized on a case-by-case basis. Permit applications
that require the preparation of an Environmental Impact Statement take an
average of 3 years to process
Overview of EPA Author/ties for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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Federal Insecticide, Fungicide,
and Rodenticide Act
What is the Federal Insecticide, Fungicide, and Rodenticide
Act (FIFRA)?
FIFRA is the principal law that authorizes EPA to regulate thu mdnu!-. i ,
distribution, sale, and use of pesticides in the United States EPA d.rr--
that a pesticide meets FIFRA health and safety requirements, and the1'
approves a product label that identifies the terms for safe use of the
pesticide. EPA has authority under FIFRA to regulate pesticide use through
labeling, packaging, composition, and disposal. EPA also has authority to
suspend or cancel pesticide registration if new information shows that
continued use of the pesticide would pose unreasonable risks (For the
complete text of FIFRA, see www.epa.gov/opp00001/regulating/fifra.pdf]
States are also authorized to regulate pesticides under FIFRA and state
pesticide laws. (For the text of Federal regulations regarding state pesticide
registrations, see 40 CFR Part 162 www.access.gpo.gov/nara/cfr/
waisidx_04/40cfr162_04.html] States may place more restrictive
requirements on pesticides than does EPA Contact information for state
pesticide regulatory agencies can be found at http://npic.orst.edu/state1.htm
In particular, FIFRA Sections 18 and 24(c) might apply to AIS rapid response
or control activities Section 18 applies to use of a pesticide for an
unregistered use, and Section 24(c) applies to new uses or new end use
products.
Pesticides are often
understood to be just bug
sprays or weed killers,
but they include almost all
substances or mixtures
intended to kill or repel
pests, prevent their
reproduction, or mitigate
or control their behavior
or life-patterns. They
include repellents and
bactencides, as well as
insecticides, herbicides,
and fungicides
-IT**,;
Flathead catfish
Pylodictus olivans
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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FIFRA Section 18Emergency Exemptions
What is FIFRA Section 18?
FIFRA Section 18 authorizes EPA to allow states to use a pesticide for
an unregistered use for a limited time if EPA determines that emergency
conditions exist (For more information about FIFRA Section 18 emergency
exemptions, see www.epa.gov/opprdOOl/Section18. For the text of Federal
regulations regarding emergency exemptions, see 40 CFR Part 166
www.access.gpo.gov/nara/cfr/waisidx_04/4Qdr166_04.html.}
Water lettuce
Pistia strat/otes
When does FIFRA Section 18 apply to AIS rapid response or
control actions?
AIS rapid response or control methods using pesticides must comply
with FIFRA and the regulations promulgated thereunder. If a pesticide is
already registered for the rapid response or control use under FIFRA, the
action does not require additional permitting from EPA. There are several
pesticides registered for use in aquatic environments, and natural resource
managers may be able to rely on these pesticides to eradicate or control AIS.
If the rapid response or control action requires the use of an unregistered
pesticide or a pesticide registered for a different end use or use pattern
and an emergency situation exists, Federal or state agencies may be able
to obtain approval to use an unregistered, i e nonlabeled, pesticide under
FIFRA Section 18
Emergency exemptions are subject to EPA's regulations at 40 CFR Part 166.
A general summary follows
An emergency condition is an urgent, nonroutme situation that requires the
use of a pesticide or pesticides and meets the following criteria'
no effective registered pesticides are available
no feasible alternative control practices are available
the situation involves the introduction of a new pest, will cause
significant economic loss, or will present significant risks to human
health, endangered species, or the environment
Detection of an AIS can qualify as an emergency condition Natural resource
managers considering use of an unregistered pesticide or a pesticide
registered for a different end use or use pattern to eradicate or control AIS
should consult their lead state agency for pesticides about the possibility
of developing a Section 18 emergency exemption application. Contact
information for state pesticide regulatory agencies can be found at
http://npic. orst. edu/state 7. htm
I
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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How do I apply for a FIFRA Section 18 Emergency Exemption?
Lead state agencies can develop applications for several categories of
emergency exemptions:
specific exemptions are issued to avert significant economic loss
or a significant risk to endangered or threatened species, beneficial
organisms, or the environment
quarantine exemptions are issued to control the introduction or spread
of a new or currently localized pest
public health exemptions are issued to control a pest that poses a
significant risk to human health
crisis exemptions are issued in instances when the time between
discovery of the emergency and the time when pesticide use is needed
is insufficient to allow for the authorization of a specific, quarantine, or
public health exemption
Quarantine exemptions are generally the most appropriate for AIS rapid
response and control actions. Crisis exemptions may be appropriate when
actions need to be taken extremely quickly (i.e within a matter of days or
weeks).
Feathered mosquitofern
Ami/a pinnata
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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Brazilian waterweed
Egena densa
Specific, Quarantine, or Public Health Emergency Exemptions
EPA has developed regulations and guidance documents that describe the
data necessary to apply for a Section 18 exemption. A specific, quarantine, or
public health emergency exemption application must provide the following
information'
1 the type of exemption requested and the identity of contact persons
2 a description of the pesticide and complete labeling for proposed
exemption use
3 a description of the proposed use
4. alternative methods of control
5 the effectiveness of the proposed use
6 residue in food or feed use
7. a discussion of risk information
8 coordination with other affected Federal or state agencies
9 notification of basic manufacturer or registrant
10 compliance and enforcement program for any special requirements
11 repeated uses
12. progress toward registration, if applicable
Quarantine exemption applications must provide the following additional
information:
13 scientific and common name of the pest
14. origin of the pest and the means of its introduction, if known
15. anticipated impact of the pest
16 impact of the pest if uncontrolled
17. pertinent information about the potential economic impacts of
the pest
EPA attempts to make decisions about the exemption within 50 days of
receiving a completed application During this period, EPA conducts dietary,
occupational, and environmental risk assessments of the requested use. EPA
also assesses the emergency situation and the progress toward permanent
pesticide registration for the use in question, if applicable. Some emergency
exemptions require public notification
If EPA determines that the risks posed by the proposed use of the pesticide
are acceptable and that the criteria for an emergency condition have been
met, EPA approves the emergency exemption request. If the proposed
Overview of EPA Author/ties for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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pesticide use may cause unreasonable adverse effects to health or the
environment, or if the emergency exemption criteria are not met, EPA will
deny the emergency exemption request Section 18 emergency exemptions
are typically utilized for pesticides that are already registered under FIFRA
for other uses Quarantine exemptions can be approved for up to 3 years,
whereas other exemptions may only be approved for up to 1 year.
Crisis Exemptions
Crisis exemptions are used in dire situations when an emergency exists, the
time period for pesticide application is critical, and there is insufficient time
to request another type of exemption. A crisis exemption allows for the use
of an unregistered pesticide for up to 15 days If the Federal or state agency
submits or has already submitted an application for a specific, quarantine, or
public health exemption for the same use, use of the unregistered pesticide
under the terms of a crisis exemption may be allowed to continue until EPA
makes a decision on the exemption application.
A crisis exemption request may be issued by the head of a Federal or
state agency, the Governor of a state, or their official designee Whenever
feasible, the Federal or state agency issuing the crisis exemption must notify
EPA of this action at least 36 hours prior to using the crisis provisions. The
notification provided to EPA must contain
1. the name of the active ingredient and Chemical Abstract Service
(CAS) number
2 the site or crop on which the pesticide is to be used
3. the use pattern
4 the approximate start and end date of application
5 an estimate of the expected pesticide residue level for food crops
6 a discussion of the emergency situation and any other pertinent
information available at the time, including an explanation of why
there was insufficient time to request another type of exemption
EPA reviews the notification package to ensure that all required information
has been made available and that the use of the pesticide under the crisis
exemption conditions will not pose an unreasonable risk to health or
the environment Notification must also be given to the registrant or the
manufacturer of the pesticide. Crisis exemptions may not be utilized for
pesticides that have been suspended under FIFRA Section 6(c), pesticides
containing a new active ingredient, or the first food use of a pesticide
Neither are they issued to mitigate emergencies for which crisis exemptions
or specific exemptions have been issued in previous years.
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic invasive Species Rapid Response and Management Plans
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FIFRA Section 18 Case Study:
Eradicating Northern Snakeheads in
Crofton, Maryland Ponds
On May 18, 2002, a recreational angler caught an 18-inch fish
in a small pond in Crofton, Maryland, which is located between
Baltimore, MD and Washington, DC. He photographed the fish
and released it back into the pond. A month later, the Maryland
Department of Natural Resources (MD DNR) identified the fish as
a species of snakehead. In the following two months, a second
adult snakehead (26 inches long) and over 100 juveniles were
caught in the same pond and identified as northern snakehead
Channa argus. Northern snakeheads are large, predatory fish
native to China. They can grow to 3 feet in length and primarily
eat other fish, including fish up to one-third their length. They
can breathe air and survive out of water if kept moist and cool.
They cannot walk, as is commonly reported, but are easily
shipped alive or transported by people. MD DNR conducted
an investigation to determine the source of the snakeheads in
the Crofton pond and learned that in 2000, a local resident had
released two 12- to 14-inch northern snakeheads into the pond.
Immediately after the fish were positively identified and determined to be a risk to local
ecosystems, the Secretary of the MD DNR (Secretary) assembled the Snakehead Scientific
Advisory Panel (Panel) to develop strategies for eradicating and controlling the fish in the Crofton
pond. On July 29, 2002, the Panel presented the Secretary with a list of risks the northern
snakehead posed to natural resources. It recommended
chemical eradication of the Crofton pond vegetation
and fish populations, along with those of two small
adjacent ponds, to prevent the spread of the fish to the
Little Patuxent River. Chemical eradication of vegetation
would remove potential refuges for the fish and facilitate
application of the piscicide rotenone.
The herbicides glyphosate and diquat bromide were
chosen to eliminate emergent and submerged pond
vegetation. After removal of the vegetation, application
of the piscicide rotenone would effectively eradicate
the northern snakeheads in the ponds. These chemicals were chosen for their effectiveness and
relatively rapid decomposition after application. The Panel recommendation to control vegetation
in the entire pond area in one application exceeded the manufacturer's label restriction for a
maximum 50 percent areal application and therefore did not meet Maryland Department of
Environment (MD DE) standards. Because the proposed diquat bromide application differed from
allowable use patterns and the available label for diquat bromide, the MD DNR worked with the
Maryland Department of Agriculture (MD DA), the lead state agency for pesticide registration, to
submit a FIFRA Section 18 emergency exemption application.
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Quarantine exemptions are generally the most appropriate exemptions for AIS rapid response
actions requiring Section 18 emergency exemptions. However, the potential for spread of the
northern snakehead to other water bodies and the potentially devastating environmental impacts
of such a spread led the MD DNR and MD DA to apply for a crisis exemption because those
programs can be initiated immediately after the lead state authority declares a crisis situation.
EPA reviews the crisis on an expedited basis, but use of the pesticide may begin once the lead
state agency has invoked its authority to initiate a crisis program.
In the Crofton ponds case, effective interagency collaboration and communication resulted
in the timely and successful preparation of a Section 18 emergency exemption application.
The application was prepared by the MD DA Pesticide Coordinator with support from the MD
DNR and the EPA Section 18 program. MD DA submitted the application package to EPA on
August 1. The following day, EPA requested confirmation of the pesticide registration number
(EPA's records showed that two pesticides with the same active ingredient were registered) and
additional information regarding steps that would be taken to ensure that fish from the treated
ponds would not be used for human consumption. On August 6, EPA granted a Section 18 crisis
exemption for the proposed use of diquat bromide in the three Crofton ponds for up to 15 days.
State officials faced an additional
obstacle to herbicide application
in the Crofton ponds, however,
because the ponds were on private
property and the State lacked the
statutory authority to access the
property. Permission to access the
property was eventually obtained
from the owners, and the diquat
bromide was applied before the
end of the 15-day crisis exemption
period. After the application of
herbicides and a piscicide took
place, over 1000 juvenile and six
adult northern snakeheads were
recovered. Approximately 800
pounds of native fish were also
removed from the three ponds.
In late September and November 2002, state biologists used electro-shock monitoring in all three
ponds and determined that no northern snakeheads remained in the ponds. Vegetation returned
the following spring, and MD DNR stocked the ponds with native fish. Turtles, frogs, snakes,
ducks, and beavers appear to have been unaffected by the pesticides.
In 2004 and 2005, northern snakeheads were found in several other water bodies in the region.
These fish are believed to be the result of separate introductions rather than the spread of the
species from the Crofton ponds.
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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FIFRA Section 24(c)Special Local Need
Registrations
What is FIFRA Section 24(c)?
FIFRA Section 24(c) authorizes states to register an additional use of a
Federally-registered pesticide product or a new end use product to meet a
special local need. (For EPA guidance on FIFRA Section 24(c) registrations,
see www.epa.gov/opprdOOT/24c.)
When does FIFRA Section 24(c) apply to AIS rapid response or
control actions?
AIS rapid response or control methods using pesticides must comply
with FIFRA and the regulations promulgated thereunder. If a pesticide is
already registered for the rapid response or control use under FIFRA, the
action does not require additional permitting from EPA. There are several
pesticides registered for use in aquatic environments, and natural resource
managers may be able to rely on these pesticides to eradicate or control AIS.
If the rapid response or control action requires the use of an unregistered
pesticide or a pesticide registered for a different end use or use pattern and
a state can demonstrate a special local need, FIFRA Section 24(c) authorizes
a state to register an additional use of a Federally-registered pesticide
product. Section 24(c) registrations are also referred to as state labels or
special local need registrations and are considered Federal registrations
authorizing distribution and use within the granting state only.
Alewife
Alosa pseudoharengus
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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State registrations under Section 24(c) are subject to EPA's regulations at 40
CFR Part 162 A general summary follows.
States may register a new use or use pattern of a Federally-registered
pesticide if all of the following conditions exist'
There is a special local need for the use within the state A special local
need is an existing or imminent pest problem within a state for which
the state has determined that an appropriate Federally-registered
pesticide is not sufficiently available.
If the pesticide use is a food or feed use, there must exist appropriate
tolerances (maximum amount of pesticide residue allowed in or on
a food or feed commodity) or exemptions from the requirement of a
tolerance under Section 408 of the Federal Food, Drug, and Cosmetic
Act (FFDCA). If these tolerances do not already exist, a Section 24(c)
registration cannot be used, and a Section 18 emergency exemption
may be more appropriate. Under FFDCA Section 408, EPA may
establish a temporary tolerance or exemption from the tolerance
requirement for a Section 18 emergency exemption.
Registration for the same use has not previously been denied,
disapproved, suspended or canceled by EPA, or voluntarily canceled
by the registrant subsequent to EPA issuing a notice of intent to
cancel that registration because of health or environmental concerns,
unless such denial, disapproval, suspension or cancellation has been
superseded by a subsequent EPA action.
The registration is in accord with the purposes of FIFRA.
Nutria
Myocastor coyous
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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How do I apply for a FIFRA Section 24(c) Registration?
Each state designs its own review process and timeline for state pesticide
registration. As part of its review process, each state is required to conduct
an ecological risk assessment (ERA) to determine if the pesticide will cause
unreasonable adverse effects on humans or the environment under the
following circumstances.
the pesticide's composition is not similar to any Federally-registered
pesticide
the use of the pesticide is not similar to any Federally-registered use of
the same pesticide or a pesticide of similar composition
EPA has denied, disapproved, suspended, or canceled registration
of other uses of the same pesticide or uses of pesticides of similar
composition
All products registered by a state must meet all appropriate packaging
standards and might need to be classified as restricted use if their toxicity
exceeds EPA specific hazard criteria. Depending on the length of time
needed to conduct an ERA, Section 24(c) pesticide registrations requiring an
ERA may be more useful for ongoing control of AIS rather than for carrying
out AIS rapid response actions.
Brazilian peppertree
Schmus terebinthifolius
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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If a state decides to issue a Section 24(c) registration, it must send EPA a
notification package within 10 days of issuing a registration containing the
following:
an application for the Section 24(c) registration
verification of a special local need
if required, a determination of no unreasonable adverse effects on
humans or the environment
verification of efficacy for public health uses
the original registered labeling and the Section 24(c) labeling of the
pesticide; and
notification of state pesticide registration describing
- tolerances or clearances for food or feed use
- type of registration, i e new pesticide or changed use pattern
- history of previous Section 24(c) activity or registration for the
pesticide
- list of threatened or endangered species within use area of pesticide
EPA has 90 days to verify that the special local need registration meets
FIFRA requirements. If EPA subsequently disapproves the registration, sales
and distribution must stop immediately.
Parrot feather watermilfoil
Mynophyllum aquaticum
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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FIFRA Section 24(c) Case Study:
Controlling Old World Climbing Fern in Florida
Old World climbing fern Lygodium
microphyllum is an aggressive
perennial vine that has invaded
cypress stands, pineflatwoods,
wet prairies, sawgrass marshes,
mangrove communities, and
Everglade tree islands in Florida.
The vine can reach 90 feet in
length and form dense mats in tree
canopies, on the ground, and over
wetlands, killing native vegetation.
The first reported occurrence of
Old World climbing fern in Florida
was a plant in cultivation at a
Delray Beach nursery in 1958. In
1960, the vine was observed in the
wild in Martin County. Old World
climbing fern eventually became
a severe threat to native Florida
ecosystems, especially cypress-
dominated wetlands, and in the 1990s, the South Florida Water Management District (SFWMD)
began evaluating methods of controlling the vine, including herbicides, fire, flooding, physical
removal by hand or machinery, and biological controls.
Aerial spraying of herbicides is one of the most effective means of controlling invasive plants in
remote or otherwise inaccessible areas, but may involve the application of herbicide directly to
water. Old World climbing fern had invaded many remote and inaccessible areas in Florida, and
aerial spraying was desired to control the vine in those areas. At the time, the most effective
product for controlling the vine registered for direct application to water was the glyphosate-
based herbicide Rodeo, a broad spectrum herbicide that injures or kills many nontarget
species. To avoid harming other vegetation in Old World climbing fern-infested areas, SFWMD
sought alternatives to Rodeo. The District found that application of the herbicide Escort XP, a
metsulfuron methyl-based product, directly to water showed promise as an effective means to
control the vine. The application of Escort XP directly to water was not a registered use for the
product and was therefore not in compliance with FIFRA. To use Escort XP for vine control, the
SFWMD pursued a Section 24(c) special local need registration for the herbicide.
Florida natural resource managers wishing to control invasive plants often informally consult
weed management experts at the University of Florida Institute of Food and Agricultural Science
(IFAS) to determine optimal control methods. The SFWMD contacted IFAS about the Old
World climbing fern, and in April 2003, IFAS informally contacted the DuPont Corporation, the
manufacturer of Escort XP, about using the herbicide to control Old World climbing fern in aquatic
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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ecosystems. In Florida, pesticide manufacturers generally begin the
Section 24(c) special local need registration process on behalf of
natural resource managers who want to use one of their pesticide
products for a new use or use pattern. Consequently, in May 2003,
DuPont submitted a Section 24(c) special local need registration
application to the Florida Department of Agriculture and Consumer
Services (DACS), the lead state agency for pesticide registration.
Section 24(c) special local need registration applications in Florida
must include verification of the product's efficacy under Florida or
Florida-like conditions, as well as the information described in the
FIFRA Section 24(c) section of this document.
After DACS received the Section 24(c) special local need registration
application, it reviewed the application to verify the special local
need justification. In June 2003, DACS forwarded the application
to the Florida Pesticide Registration Evaluation Committee (PREC), which is comprised of
representatives from DACS and other state agencies. PREC reviewed the Section 24(c)
special local need registration application to ensure that the proposed herbicide use would
not have unreasonable adverse impacts on human health or the Florida environment and was
in compliance with all applicable pesticide laws. PREC requested that DuPont make several
revisions to the Escort XP Section 24(c) special local need label. After these revisions were made,
the application was submitted to IFAS for independent
external review of whether product label efficacy
claims were justified. Three IFAS weed management
experts offered individual opinions on the Escort XP
efficacy claims. On the basis of these opinions, IFAS
responded to DACS that it supported the Section 24(c)
special local need registration of the herbicide but also
requested additional changes to the product label.
In Florida, the Section 24(c) special local need
registration application review process can take
anywhere from a few months to over a year. In this
case, the process was completed quickly. DACS
accepted DuPont's Section 24(c) special local need
registration with the revised label and submitted a
notification package to EPA in August 2003. EPA also
requested revisions to the Escort XP Section 24(c)
special local need label, including the addition of a
section prohibiting the use of the herbicide in areas
where specific endangered or threatened species
are present. In December 2003, DACS accepted the
revised product label. The herbicide is now available
for controlling Old World climbing fern populations in
aquatic environments in Florida.
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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Photo Credits
Cover Zebra mussels Randy Westbrooks, U.S. Geological Survey www invasive org
Page 1 Water chestnut. Leslie J. Mehrfoff, University of Connecticut wwwinvasive.org
Page 2 Sea lamprey Lee Emery, U.S. Fish and Wildlife Service, www.mvasive.org
Page 2 Caulerpa taxifolia Rachel Woodfield, Merkek & Associates, Inc. www.invasive org
PageS Zebra mussels1 Randy Westbrooks, U.S Geological Survey, www.invasive org
Page 4 Eurasian watermilfoil: Robert L Johnson, Cornell University www.mvasive.org
Page 5 Northern snakehead' Susan Trammell. www.invasive.org
Page 6 Green crab Jim Carlton wwwseagrantnews.org
Page 6 Common reed Jil M Sweanngton, USDI National Park Service, www.invasive org
Page 7 Giant salvinia. Scott Robinson, Georgia Department of Natural Resources.
www invasive org
Page 8 Hydnlla verticillata. Raghavan Charudattan, University of Florida www.invasive.org
Page 9 Common water hyacinth John D Byrd, Mississippi State University, www.invasive.org
Page 10 Wetland nightshade: Alison Fox, University of Florida www.invasive org
Page 11 Round goby. Eric Engbretson, U S Fish and Wildlife Service, www.mvasive.org
Page 12 Purple loosestrife,, Eric Coombs, Oregon Department of Agriculture, www.invasive.org
Page 13 Parrot feather watermilfoil. Alison Fox, University of Florida, www.invasive.org
Page 13 Flathead catfish Eric Engbretson, U.S Fish and Wildlife Service, www.invasive org
Page 14 Water lettuce Rebecca Norns, USDA APHIS, www.invasive.org
Page 15 Feathered mosquitofern. David Nicholls.www.invasive.org
Page 16 Brazilian waterweed' Virginia Tech Weed Identification Guide Archives.
www.invasive org
Page 17 Old World climbing fern Mandy Tu, The Nature Conservancy
Pages 18-19 Snakehead case study photos Maryland Department of Agriculture.
Page 20 Alewife: David Jude, Center for Great Lakes and Aquatic Sciences www.mvasive.org
Page 21 Nutria. John and Karen Hollmgsworth, U S Fish & Wildlife Service, www invasive.org
Page 22 Brazilian peppertree1 Stephen D Might, USDA Agricultural Research Service
www invasive org
Page 23 Parrot feather watermilfoil Alison Fox, University of Florida.
www invasive org
Page 24 Old World climbing fern Peggy Greb, USDA Agricultural Research Service.
www invasive org
Page 25 Old World climbing fern USDA ARS archives, USDA Agricultural Research Service.
www mvasive.org
Page 25 Old World climbing fern Peggy Greb, USDA Agricultural Research Service
www invasive org
Overview of EPA Authorities for Natural Resource Managers Developing Aquatic Invasive Species Rapid Response and Management Plans
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Office of Wetlands, Oceans, and Watersheds
U.S Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460
www.epa.gov/owow
EPA842-B-05-002
December 2005
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