Jump to Navigation
Jump to Content

Essential Fish Habitat: A New Regulatory Hurdle for Development

August 1999

Citation: ELR 10463

Author: Eldon V.C. Greenberg

Editors' Summary: By combining environmental assessment obligations parallel to those of NEPA with consultation requirements similar to those of the ESA, the essential fish habitat provisions set forth in the 1996 amendments to the Magnuson-Stevens Fishery Conservation and Management Act created a new regulatory process for federal actions that may adversely affect essential fish habitat. Consequently, the provisions represent a potentially powerful new tool for influencing coastal development. In addition, the amendments have become fully operational over the past few months as the Secretary of Commerce has made final decisions designating essential fish habitat in our nation's waters. This Article begins with an overview of the statutory requirements of the Magnuson-Stevens Act's essential fish habitat provisions and the legislative history behind these provisions. Next, the Article addresses issues surrounding the development of the rules that implement the provisions' requirements. It then highlights those rules most likely to impact coastal development. The Article ends with a look at where the regulatory process stands today.

Eldon Greenberg is a partner of the law firm Garvey, Schubert & Barer in Washington, D.C. A graduate of Harvard College (A.B. 1965) and Harvard Law School (J.D. 1969), he is a former General Counsel of the National Oceanic and Atmospheric Administration. Portions of the Article are derived from the author's presentation at the Annual ALI-ABA Course on Environmental Law, Bethesda, Maryland, February 12, 1999. Copy-right 1999 by the American Law Institute. Reprinted with Permission of the American Law Institute-American Bar Association Committee on Continuing Professional Education.

You must be a News & Analysis subscriber to download the full article.

You are not logged in. To access this content: