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Water Log 20.4

Court Finds Essential Fish Habitat Evaluation Inadequate

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

In a key decision for the evolution of Essential Fish Habitat, Judge Gladys Kessler of the U.S. District Court for the District of Columbia found that the five fishery management plans that were challenged for failing to protect fish habitat are adequate. The environmental analysis of those plans, however, was insufficient to meet federal standards and the National Marine Fisheries Service must repeat the analysis and consider additional alternatives.

The Challenge to EFH
Essential Fish Habitat (EFH), defined as “those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity,”1 was added to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act) in 1996 and mandated improved habitat protection for federally managed fish species. The nation’s Regional Fishery Management Councils were directed to identify EFH for each federally managed species, minimize adverse effects caused by fishing, and identify actions to encourage the conservation and enhancement of EFH. The information was added in the form of amendments to existing fishery management plans for federal fisheries.

The deadline for submission of amendments was October of 1998. During October and the months following, the National Marine Fisheries Service (NMFS) received EFH amendments which presented information about each species’ habitat needs. After approving and partially approving the amendments, environmental groups filed suit against the agency claiming that the EFH amendments from the Gulf of Mexico, New England, Caribbean, Pacific, and North Pacific regions were inadequate because they failed to adequately address the negative effects of fishing gear on EFH. In the court’s words,“all Councils identified some EFH within each of their jurisdictions, yet none adopted measures that would restrict fishing gear in order to minimize adverse effects . . . .”2 The plaintiffs also claimed that the NMFS violated the National Environmental Policy Act3 (NEPA) by failing to adequately analyze the environmental impacts and possible alternatives to the amendments.

Fulfilling the EFH Mandate
For each region, an EFH amendment was prepared and then followed by environmental analysis under the NEPA. The NEPA requires the federal agency to take into account the environmental impacts of its action and consider alternatives to the proposed action. The NMFS approved or partially approved each amendment and determined that only informal environmental analysis was necessary.

The Gulf of Mexico Regional Fishery Management Council (Gulf Council) submitted its Generic EFH Amendment in October of 1998 including “only a cursory discussion of the effects of three types of fishing gear on EFH.”4 On February 8, 1999, the NMFS partially approved the Amendment noting that the Gulf Council “lacked the detailed scientific information necessary to determine the practicality of additional management measures.”5 Similarly, the October 1998 Amendment submitted by the New England Fishery Management Council (New England Council) “contained no assessment of fishing gear impacts on EFHs. The 15-page discussion of fishing gear contained minimal discussion of the likely impacts of the various types of gear considered on the EFHs; the discussion primarily emphasized the lack of information on the specific effects of any specific gear on any particular habitat or species.”6 NMFS also approved the Caribbean, Pacific, and North Pacific amendments, finding little analysis of fishing gear impacts or recommendations to reduce adverse effects. In each instance, the NMFS cited lack of scientific information upon which the Councils could draw.

District Court Analysis
Standing. The defendants first challenged whether the environmental groups could legally sue. The plaintiffs claimed that NMFS’ actions harmed them because EFH was not adequately protected from commercial fishing, citing locations where the plaintiffs fish, scuba dive, or photograph reefs that may be damaged.7 By showing particularized injuries to aesthetic, environmental, and recreational interests, the plaintiffs demonstrated legal standing to bring their claims.

Judicial Review. In addition, the defendants claimed that the plaintiffs cannot seek a court’s review of the actions at hand. The defendants cited the Magnuson Act which provides that regulations promulgated by the Secretary are subject to judicial review. Thus, they argue that because none of the EFH amendments resulted in the promulgation of a formal federal regulation, that the Magnuson Act does not allow judicial review for the plaintiffs. The court analyzed the regulation and Magnuson Act language in light of another federal statute, the Administrative Procedures Act, which provides that all agency action is reviewable. Under this statute, the terms “rule” and “regulation” are used interchangeably and include an “agency statement of general or particular applicability . . . designed to implement, interpret, or prescribe law and policy.”8 The court found that “each of the EFH Amendments was affirmatively approved by the Secretary, and this approval constitutes a reviewable action. . . .”9

Magnuson Act Requirements. After ruling on the standing and judicial review questions, the court turned to whether the EFH amendments complied with the Magnuson Act and the applicable regulations. Initially, the court made clear that “[r]eview of the Secretary’s action must be especially deferential, given the highly complicated scientific data that the agency must interpret” and the court must exercise “its narrowly defined duty of holding agencies to certain minimal standards of rationality.”10

The plaintiffs alleged that the EFH amendments failed to sufficiently analyze the effects of fishing activities and fishing gear. To determine if the Councils went far enough in their analysis, the court first noted the requirements of the EFH regulation, which it called “very specific,” compelling the gathering of a wide range of information to identify EFH and the assessment of potential adverse effects of fishing activities. Even though such specificity exists, the court found that neither the statute nor the regulation requires the Councils to affirmatively conduct research to better identify EFH and the adverse effects of fishing on it.11 Because of this lack of affirmative duty, the court held that the Councils’ reliance on the best available scientific information was sufficient and, thus, met the requirements of the Magnuson Act.

The court explained that “while the plaintiffs would have preferred a more detailed analysis of the effects of fishing activities and of the three types of gear. . . the Secretary did consider the relevant factors in determining that the analysis was adequate based on the best available scientific information. . . .”12 The court extended this rationale to conclude that the Secretary may use discretion in determining when Councils must adopt additional protective measures, considering both the protective measures already in place and the lack of available scientific evidence on the adverse effects of fishing gear.

National Environmental Policy Act. The court did find that the defendants failed to conduct adequate environmental analyses of the EFH amendments under the NEPA. The statute requires the NMFS to consider environmental impacts before an action is taken by conducting either an Environmental Assessment (EA) or the more comprehensive Environmental Impact Statement (EIS). Once the agency conducts an EA and finds that the action will not have a significant impact, it can then go forward with the project without conducting an EIS. However, the preparation of an EIS for a fishery management plan or amendment is automatically required whenever significant beneficial or adverse impacts may be expected to result from the action. The decision to conduct an EIS is determined using five factors including impact on long-term productivity of stocks, damage to ocean and coastal habitats, threats to endangered or threatened species, and controversy or socio-economic effects. Because the EAs failed to consider these factors, the court found that “there is simply not enough evidence or analysis in any EA to determine whether an EIS is necessary.”13
In addition, the NEPA requires the agency to consider all feasible alternatives. The plaintiffs claimed that because the EAs only considered the two alternatives of maintaining the status quo (no EFH amendment) and approving the amendment, they didn’t meet the NEPA requirement to adequately appraise other alternatives. The court agreed and added that the EAs were couched in general and vague terms and spent more time describing the proposed alternative than actually analyzing it.

Conclusion
Finally, the court ordered a new EA or EIS for each EFH amendment calling for more than the initial “glaring lack of discussion” of environmental impacts on the designated EFH. The NMFS and Councils must now reevaluate the environmental consequences of the EFH amendments and possible alternatives to the amendments as proposed.

ENDNOTES
1. 16 U.S.C. § 1802 (10) (2000).
2. American Oceans Campaign v. Daley, Civil Action No. 99-982 at 6 (Dist. DC 2000).
3. 42 U.S.C. § 4321 (2000).
4. American Oceans Campaign at 8.
5. Id.
6. Id. at 9.
7. Id. at 16.
8. 5 U.S.C. § 551(4) (2000).
9. American Oceans Campaign at 19.
10. Id. at 20 - 21.
11. Id. at 24.
12. Id. at 25.
13. Id. at 39.

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