Essential fish habitat: does calling it essential make it so?

• Author: Fletcher, Kristen M.

In 1996 Congress amended the Magnuson-Stevens Fishery Conservation and Management Act with the Sustainable Fisheries Act (SFA), adopting language that some predict will change fisheries management. Through the SFA, and its "essential fish habitat" (EFH) provisions, Congress sought to increase the attention fisheries managers and other federal coastal zone users pay to habitat. But what exactly do the EFH provisions mean? This Article addresses that question by following the evolution of previous Magnuson Act habitat provisions and by describing EFH statutory and regulatory provisions. The Article compares the EFH provisions to similar provisions in the Endangered Species Act, National Environmental Policy Act, and Fish and Wildlife Coordination Act. It then applies lessons learned from these founding environmental statutes to the future implementation of the EFH provisions in the hope that successes may be repeated and failures avoided. The Article concludes by attempting to comfort those affected by the EFH requirements and by examining the EFH debate within the larger context of governmental regulatory successes and failures. I. INTRODUCTION

The United States Congress opened the proverbial can of worms in 1996 when it amended the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act)(1) with the Sustainable Fisheries Act (SFA),(2) adopting language that some predict will change fisheries management. Through the SFA, and its "essential fish habitat" (EFH) provisions, Congress sought to increase the attention fisheries managers and other federal coastal zone users pay to habitat.(3) Since its adoption, EFH has elicited numerous reactions including curiosity, satisfaction, elation, and fear. The variety of reactions can leave one wondering whether the comments all refer to the same legislation. What exactly do the EFH provisions of the SFA mean?

Ronald Baird, Director of the National Sea Grant College Program of the National Oceanic and Atmospheric Administration (NOAA) explains that

[the SFA] is the most significant piece of environmental legislation since the Clean Water Act of 1972. The law now mandates not only the management of the harvest of commercial species, but the environment necessary for the reproduction, feeding and growth of those species as well. The full implications of essential fish habitat are not widely appreciated by the public. They will be shortly.(4) These unidentified "full implications" are alarming coastal development and fishery representatives. One critic has noted that

even though there are no substantive conservation obligations imposed on permitting agencies, the expansive nature of EFH designations, threat identification and conservation recommendations [suggest] the very real possibility of conflict between [the National Marine Fisheries Service (NMFS)] and Federal permitting agencies, with the concomitant risk of delay for many new projects in the coastal and marine environment.(5) The perceptions of environmentalists represent a middle ground of sorts, because they are pleased about the new emphasis on habitat protection, but they are concerned with careful implementation and meaningful protections. One environmental representative notes that

[i]t cannot be denied that habitat is essential to healthy fish populations.... However, traditional management practices have neglected and continue to ignore threats to important fish habitat. The essential fish habitat (EFH) provisions ... present an unprecedented opportunity to develop habitat-based management approaches to protect and restore important fish habitats in the ocean and in vital estuarine areas. This is not to say the EFH provisions ... are a panacea for habitat protection. For example, there is no enforceable mechanism for preventing activities that destroy areas of EFH. Nonetheless [if properly implemented] the EFH provisions of the [SFA] can go far in achieving the intended results.... [NMFS] and the regional fishery management councils must be required to take full advantage of this unique opportunity.(6) The EFH provisions require the regional fishery management councils (the Councils or FMCs) and the Secretary of Commerce to identify essential habitat, assess adverse impacts to it, and communicate any concerns to federal agencies planning activities that may affect the habitat.(7) The EFH assessment and consultation provisions have been compared to those of the Endangered Species Act of 1973 (ESA).(8) This comparison has resulted in anxiety in both the development and fishing industries, because ESA provisions have already adversely affected their methods and actions.(9) Although the EFH consultation process parallels that of ESA section 7,(10) the similarities end there. The EFH provisions impose no substantive obligations on the action agency to avoid adverse effects--they only impose certain procedural requirements.(11) For this reason, the EFH provisions more closely mirror the report-driven statutes, such as the National Environmental Policy Act of 1969 (NEPA)(12) and the Fish and Wildlife Coordination Act (FWCA).(13) These comparisons, however, fail to adequately clarify the procedures and requirements of EFH, leaving many fisheries managers wading through muddy waters.

So, just what is EFH, and what does its presence mean for fisheries management, coastal development, and the habitat itself? Part II of this Article addresses these questions by discussing the evolution of the 1976 and 1986 Magnuson Act habitat provisions and the effect that these measures had on fisheries habitat. It then defines and describes EFH statutory and regulatory provisions in light of the "interim final" regulations currently used by NMFS to implement EFH. Readers familiar with the ESA, NEPA, and the FWCA will recognize some similarities between the EFH provisions and those pillars of modern environmental law. Part III compares EFH provisions with the ESA, and Part IV compares them with similar provisions in NEPA and the FWCA. To the extent that implementation lessons have been learned from these founding environmental statutes, this Article then applies those lessons to the future implementation of EFH, in the hope that successes can be repeated and failures avoided. Finally, Part V concludes by offering words of comfort to those parties caught in the EFH vortex by placing the EFH uproar within the larger context of government regulatory successes and failures.

2. HABITAT JOINS THE MAGNUSON ACT

   Reacting to heavy fishing of foreign vessels off U.S. coasts, Congress passed the Fishery Conservation and Management Act (Magnuson Act)(14) to eliminate foreign fishing within two hundred nautical miles of all U.S. coasts.(15) The Act successfully lowered the foreign vessel harvest(16) but did little to address continued domestic overfishing, which resulted from the historical, yet incorrect, view that marine fishery resources are so vast that fishing could not have a major effect?

   The Magnuson Act established eight regional fishery management councils that were given the authority to manage fisheries through the creation of fisheries management plans (FMPs).(18) The Councils are responsible for meeting the larger goal of preventing overfishing while still achieving optimum yields from each fishery.(19) This is done through various techniques, including seasonal closures, quota limitations, gear restrictions, and other limited entry techniques.(20) The regulations and the science they were based on were--and still are--often criticized. Andrew Sansom, the Executive Director of the Texas Parks and Wildlife Department, recently explained, "We've got a problem with relying on statistical uncertainties that will damage an industry that contributes several hundred million dollars to the Texas economy. We're supposed to be running these fisheries like a business and you don't run a business by going out of business."(21) This perspective is not new. One critic notes that although "[t]he Magnuson Act, as envisioned by its sponsors, was primarily a conservation-oriented statute, focused upon the biological aspects of managing fish stocks, ... the focus of managers has been on the social and economic interests of the users."(22)

   The business of managing fisheries did not include significant habitat considerations under the 1976 Magnuson Act.(23) Originally, the Magnuson Act called for the National Marine Fisheries Service, the federal agency responsible for assisting the Councils in fishery management, to "'initiate and maintain' a comprehensive fisheries research program, including research on the effects of habitat degradation and improvements on fish populations."(24) Yet, Congress stopped short of requiring the incorporation of such research into FMPs, treating habitat as a research issue, not a management issue. Furthermore, the Councils were never granted the authority to halt development actions that might adversely impact a fishery.

   This separation of harvest and habitat took its toll. By the late 1980s a large portion of traditional and highly prized species were overfished, or at least fully harvested, and signs that harvests had exceeded capacity were common.(25) On a national and international level, parties began demanding that habitat degradation, especially of the coastal environment, become a higher priority issue. (26)

   1. The 1986 Predecessor to EFH

      Congress took note of the declining habitat conditions. In deliberation before the vote on the 1986 Magnuson Act reauthorization bill, Congressperson Henry Douglas Bosco (D-Cal.) explained the original hope for the Magnuson Act and the resulting failure:

      With its passage in 1976, many felt the [Magnuson Act] would provide an effective and responsive regulatory mechanism for managing the fishery resources of the United States within our 200-mile zone. Unfortunately, almost 10 years later, it has proven itself neither effective in protecting the resource...