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Water Log 19.1

NMFS, Council Agree Gulf is Essential Habitat

Kristen M. Fletcher, J.D., LL.M.

In February, the National Marine Fisheries Service (NMFS) partially approved the Essential Fish Habitat Amendment drafted by the Gulf of Mexico Fisheries Management Council. Its approval marks the beginning of a new phase in the Essential Fish Habitat (EFH) process, a federally mandated procedure to increase attention to and reduce the threats to marine habitat because "one of the greatest long-term threats to the viability of commercial and recreational fisheries is the continuing loss of marine, estuarine, and other aquatic habitats."¹

Essential Fish Habitat was added to fishery management vocabulary in 1996 when Congress passed the Sustainable Fisheries Act, amending the Magnuson-Stevens Fishery Conservation and Management Act to mandate improved habitat protection for federally managed fish species. The amendments, contained in the 1996 Sustainable Fisheries Act,² were not the first statutory recognition of the importance of fish habitat. When Congress reauthorized the Magnuson Act in 1986, it called for the inclusion of "readily available information regarding the significance of habitat to the fishery and assessment as to the effects which changes to that habitat may have upon the fishery" into fishery management plans (FMPs)^.3

A decade later, Congress determined it was necessary to "expand existing Federal authority to identify and protect essential fish habitat."⁴ To do so, Congress built on the habitat provisions present in the Magnuson Act and added an identification, assessment and consultation scheme similar to provisions of the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). Councils must now include provisions in the FMPs to describe and identify EFH, minimize adverse effects on EFH caused by fishing, and identify other actions to encourage the conservation and enhancement of EFH. These have taken form as individual EFH amendments for specific fisheries or a generic EFH amendment for all managed fisheries in a particular region. For example, the Gulf Council decided that "a single, generic amendment was the only practical means of meeting the requirement to amend all seven FMPs by the October 1998 deadline."⁵
 

Identifying EFH

Once the EFH provisions were passed, the NMFS and the regional Councils began the arduous process of identifying EFH. EFH is defined as "those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity,"⁶ but, for purposes of identification, EFH may actually include migratory routes, open waters, wetlands, estuarine habitats, artificial reefs, shipwrecks, mangroves, mussel beds and coral reefs.⁷ To determine if these areas were "essential," Councils had to synthesize information from available environmental and fisheries data sources relevant to each life stage of each managed species. This information was used to map the location of EFH in each region.

The Gulf Council was especially challenged because it manages over 450 species under its FMPs. Its generic amendment applies to the following FMPs: shrimp, red drum, reef fish, mackerels, stone crab, spiny lobster, and coral and coral reefs. Because many species rely on estuarine waters for early life stages and marine waters once mature, the Gulf Council identified EFH for both estuarine and marine waters. It determined that "[g]iven the broad definition of EFH, the extensive estuarine distribution of the managed species, and NMFS guidance to be risk averse in [the] face of uncertainty, all of the estuarine systems of the Gulf of Mexico are considered essential habitat.⁸ Similarly, EFH for marine waters is virtually all marine waters and substrates from the shoreline to the seaward limit of the United States Exclusive Economic Zone.⁹

Once EFH is identified, the Council then must identify adverse impacts on the habitat and the actions that should be considered to ensure its conservation and enhancement and include it in the EFH amendment. Such activities in the Gulf include nonpoint source pollution, coastal development, introduction of exotic species as well as bottom trawling, traps, bottom long-lines, and harvesting of live rock coral.¹⁰ The Council recommends project-specific conservation measures such as avoiding development, aligning docks to avoid oyster reefs or marsh grasses, and avoiding impoundment of wetlands that does not accommodate use by fish and invertebrates. The NMFS partially approved the Gulf Council Generic EFH amendment in February. Although the Council must complete additional studies for other species, the EFH amendment is in effect in the Gulf of Mexico.
 

Commenting and Review

Now that the Amendment is in effect, Congress' mandate reaches beyond the NMFS and Gulf Council to all Federal agencies. A Federal agency that authorizes, funds, undertakes or proposes to undertake an action that may adversely affect any EFH identified in the Amendment must consult with the NMFS.¹¹ This consultation provision is similar to that found in NEPA, i.e., it is intended to compel Federal agencies to review the potential and likely impacts of its action. The EFH consultation may be general, abbreviated, or expanded, depending on the degree of impact.¹² The NMFS then makes recommendations to conserve the habitat and the Councils may also make recommendations.¹³ The receipt of these comments by the authorizing agency begins a 30-day period in which the agency must respond including a description of measures to mitigate effects and an explanation if the action chosen does not follow the NMFS recommendation.¹⁴
 

Just the Essentials

In the midst of the deadlines and extensions, regulations and guidelines, lies the underlying question of whether or not the EFH provisions will work. In other words, how effective can these efforts be when couched in terms of "should" and "may" and when notice of some activities that shall adversely impact habitat is completely voluntary, leaving commenting and recommendations out of the Council's control? Effectiveness depends on the efforts of the Councils and initiative of Federal agencies but may be limited by the lack of teeth in the statutory provisions.

Since their birth, EFH provisions have been compared to those in the Endangered Species Act for both purpose and process. Although the EFH consultation process is modeled on the ESA section 7 procedure of halting Federal activities that jeopardize the survival of a species, the Magnuson-Stevens Act imposes no substantive obligations on the action agency, only procedural. Thus, there is no obligation to avoid adverse effects. As a result, the EFH provisions mirror the NEPA procedural analysis, but while NEPA has been an effective statute to encourage and maintain public participation and public enforcement, EFH provisions do not provide for this same level of public influence.

The NMFS rule advances the statutory ideals by recognizing "management of fishing practices and habitat protection are both necessary to ensure long-term productivity of our Nation's fisheries."¹⁵ In order to fulfill this ideal, it deems that the regional councils "should protect, conserve, and enhance adequate quantities of EFH to support a fish population that is capable of fulfilling all of those other contributions that the managed species makes to maintaining a healthy ecosystem as well as supporting a sustainable fishery."¹⁶

Beyond the dictates of the statutory language, NMFS officials explain that the EFH provisions exist in order to shift attention from fish harvests to the necessary habitat components of fisheries management. In other words, "fish need a place to call home."¹⁷ Ron Baird of NMFS explained that "we're no longer concentrating on the harvest practices of specific species but we're now bringing into the management equation the whole structured function of biological systems."¹⁸

Whether this shift of attention will make a difference depends upon the will of agencies authorizing particular projects. Tom Bigford, a NMFS habitat specialist, explains that fisheries managers can use this information compiled by the Councils to advise agencies about what government projects might damage areas important to habitat. Recognizing that the agencies are not required to follow the advice, he explains that

Congress and a lot of outside groups are going to be watching and all of that is going to adding just a little bit more pressure for people to take this whole process seriously and make sure that fish and fish habitat perhaps get a little bit more weight in decisions than they have in the past.¹⁹

Even though considering habitat is a breakthrough in fisheries management, the statute still maintains a voluntary and generally unenforceable stance. As Bigford explained, "outside groups" may put additional pressure to adapt a particular project, but have no option to take such objections to a higher level such as citizen suits to force better protections.
 

ENDNOTES

1. 16 U.S.C. § 1801(a)(9) (1998) (Pub. Law 104-297).

2. Sustainable Fisheries Act of 1996, Pub. L. No. 104-297 (October 11, 1996).

3. 16 U.S.C. § 1853(a)(7) (1986).

4. Senate Report No. 276, 104th Cong., 2d Sess. 1, 6, 24-25 (May 23, 1996).

5. Gulf of Mexico Fishery Management Council, Generic Amendment for Addressing Essential Fish Habitat Requirements [for] Fishery Management Plans in the Gulf of Mexico, at 24 (1998).

6. 16 U.S.C. § 1802 (10) (1998).

7. National Marine Fisheries Service, Technical Guidance to Implement the Essential Fish Habitat Requirements for the Magnuson-Stevens Act, at 1 (1998) (available at http://www.nmfs.gov/rschreib/efh . . .).

8. Generic Amendment at 29.

9. Id. at 53.

10. Id. at 115-172.

11. 16 U.S.C. § 1855(b)(2) (1998).

12. The level of consultation is determined by NMFS.

13. See 16 U.S.C. § 1855(b)(3) - (4) (1998). A Regional Council may comment on and make reservations concerning an activity that may affect EFH and shall comment on and make recommendations that is likely to substantially affect the habitat of an anadromous fishery. Id. at (3)(B).

14. 16 U.S.C. § 1855(b)(4)(B) (1998).

15. Magnuson-Stevens Act Provisions, Essential Fish Habitat, 62 Fed. Reg. 66,531 (1997) (codified at 50 C.F.R. pt. 600).

16. Id.

17. Earthwatch Radio, Available at ENN Media (http://www.enn.com).

18. Ron Baird, Presentation to American Fisheries Society, Annual Meeting of American Fisheries Society, July 1998.

19. Tom Bigford, Earthwatch Radio, Enn Media (http://www.enn.com).
 

University of Mississippi