29 ELR 10463 | Environmental Law Reporter | copyright © 1999 | All rights reserved


Essential Fish Habitat: A New Regulatory Hurdle for Development

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.

[29 ELR 10463]

Adopted with relatively little fanfare in 1996, the essential fish habitat (EFH) provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act)1 have the potential to cause the next great "train wreck" for federally permitted or funded development activities. The 1996 EFH amendments created a new regulatory process for federal actions that may adversely affect EFH as identified under the Magnuson-Stevens Act, combining environmental assessment obligations parallel to those of the National Environmental Policy Act (NEPA)2 with the consultation obligations similar to those of the Endangered Species Act (ESA).3

The amendments have just become fully effective over the past few months as the Secretary of Commerce (Secretary) has made final decisions designating EFH in the Atlantic and Gulf and West Coasts, as well as in Alaska, Hawaii, and U.S. territories and possessions. If experience is any guide, the introduction of this new and complex regulatory process will almost surely be marked by confusion, uncertainty, and missteps. Moreover, it will likely generate litigation over the meaning and effect of the Magnuson-Stevens Act and its implementing regulations, and it may create significant new hurdles, at least in the short term, for coastal development.4

This Article begins with an overview of the statutory requirements of the Magnuson-Stevens Act EFH provisions and then goes on to discuss the legislative history behind these provisions. Next, the Article addresses issues surrounding the development of the rules that implement the EFH 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.

Statutory Requirements

The EFH provisions of the Magnuson-Stevens Act are found in several parts of the statute, which combine to create a potentially powerful new tool for affecting coastal development.

EFH is first mentioned in the findings and purposes sections of the Act. Section 2(a)(6) of the Act finds that a national program is necessary "to facilitate long-term protection of essential fish habitats,"5 while § 2(b)(7) declares that one purpose of the Magnuson-Stevens Act is "to promote the protection of essential fish habitat in the review of projects conducted under Federal permits, licenses, [29 ELR 10464] or other authorities that affect or have the potential to affect such habitat."6

The Act goes on to define EFH in broad terms. Section 3(10) defines EFH as "those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity."7 There is no apparent geographic limitation to this provision. Thus, while the Magnuson-Stevens Act generally only deals with the management of fishery resources in the Exclusive Economic Zone (EEZ) of the United States (3-200 miles offshore), EFH appears to include state as well as federal waters.

The Magnuson-Stevens Act amendments also impose new EFH duties on the Regional Fishery Management Councils (Councils). The Councils, of which there are eight made up of federal, state, and private parties appointed by the Secretary, have the primary responsibility of preparing federal fishery management plans (FMPs) concerning the conservation and management of fisheries in the EEZ.8 Section 303(a)(7) of the Act mandates the Councils to "describe and identify" EFH for any fishery under federal management within their jurisdiction in accordance with guidelines developed by the Secretary.9 In addition, the Councils must identify actions to conserve and enhance such habitat. The language of the Act is clear that EFH only covers habitat of fishery resources regulated under an FMP, that is, fish primarily harvested in the EEZ. Consequently, state-managed resources such as striped bass that are primarily harvested in state waters (0-3 miles offshore) are not covered.

The heart of the EFH provisions is found in § 305(b) of the Act. It has three essential components. First, the Secretary must "establish by regulation guidelines" that assist the Councils in describing and identifying EFH.10 The Secretary must also develop a schedule for amending FMPs to include EFH and for reviewing EFH identification based on new information, must provide the Councils with information and recommendations, must review departmental programs, and must provide information to other federal agencies to further EFH conservation and enhancement.11

Second, § 305(b)(2) establishes "consultation" requirements parallel to those of the ESA. It provides that each federal agency "shall consult with the Secretary with respect to any action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by such agency that may adversely affect any essential fish habitat identified"12 under the Act. It is immediately apparent that the scope of the consultation requirement is enormously broad. All federal permitting activities, as well as all federally funded activities, in the coastal and estuarine environment are potentially subject to the EFH requirements. This means that the scope of the new requirements encompasses literally thousands of projects, many of which may have been under review under other authorities for a number of years. At the same time, however, it must be underscored that although the EFH consultation provisions are modeled on ESA § 7, the Magnuson-Stevens Act imposes no substantive obligations on the action agency. There is no obligation to avoid adverse effects; the law's only requirements are procedural.

Third, § 305(b) provides for commenting by both the Councils and the Secretaryon federal agency actions that may adversely affect EFH.13 The Councils "may" comment on and make recommendations to the Secretary and other federal and state agencies on actions that "may" affect the habitat of a fishery resource under their authority.14 However, Councils must comment if the activities are "likely to substantially affect" such habitat.15 As for the Secretary, § 305(b)(4)(A) provides that if the Secretary receives information from a Council, a federal or state agency, or through some other means that an activity would adversely affect EFH, the Secretary "shall recommend to such agency measures that can be taken by such agency to conserve such habitat."16 Federal agencies must respond to the Secretary and Council within 30 days of receipt of comments.17 The response must include a description of the measures used by the agency to avoid, mitigate, or offset the impact of the activity on EFH. If the Secretary's recommendations are not followed, the federal agency "shall explain its reasons for not following the recommendation."18 The strict time frame, coupled with the requirement that agencies justify their actions, is rife with prospects for litigation over agency procedural compliance.

Legislative History of the EFH Amendments

As noted above, the EFH provisions were adopted in § 110 of the Sustainable Fisheries Act of 1996 (SFA).19 They dramatically expanded previous, less rigorous provisions of the Act relating to habitat conservation.20 As a whole, the SFA, including the EFH provisions, was viewed as a great victory for the conservation community, whose lobbying efforts were spearheaded by the Marine Fish Conservation Network, and it reflects the increasing concern that the health of fish stocks is linked to their habitat. Development interests, not focused on or familiar with the Magnuson-Stevens Act, played little role during the legislative process. Predictably, the law tilts very much in favor of environmental protection.

Perhaps because of the lack of involvement of the development community, the EFH provisions do not contain the kind of specific agency guidance that one has come to expect in recent congressional enactments. Not only is the language of the Act itself general, leaving broad discretion with the Secretary, the legislative history does little to constrain [29 ELR 10465] far-reaching interpretations of agency authority. The House Report merely underscores that habitat protection was a "key area of concern" addressed by Congress.21 Likewise, the Senate Report simply emphasizes the Act's congressional goal to "expand existing Federal authority to identify and protect essential fish habitat."22 Neither report elaborates significantly on the scope and effect of the new requirements.

Similarly, the debate on the EFH provisions was singularly unenlightening, consisting largely of generalities about the importance of habitat protection. For example, Sen. Fritz Hollings (D-S.C.), one of the bill's principal sponsors, noted that habitat protection had become of greater concern because coastal development and pollution threaten the environment and thus the health of fish stocks.23 Sen. John Kerry (D-Mass.) pointed out that if habitat is destroyed, nurseries and the ecosystems on which nurseries depend are also destroyed, which in turn would diminish the ability to have sustainable fisheries.24 Despite noble intentions to protect the habitat of fish stocks, there was little or no detailed discussion during the House and Senate debate about how the EFH provisions would actually work in practice. In fact, it is probably fair to say that the implications of the EFH provisions were not well understood by Congress.

Development of the EFH Rules

The National Marine Fisheries Service (NMFS), a subagency of the U.S. Department of Commerce, is delegated the authority to implement the Magnuson-Stevens Act. NMFS issued proposed EFH rules on April 23, 1997,25 and issued interim final rules on December 19, 1997.26 The interim final rules became effective on January 20, 1998, and remain in effect today.27 NMFS does not anticipate issuing final rules at least until the end of this year, after it has gained some experience with the interim final rules. No litigation has yet been brought challenging the interim final rules.28

In connection with its rulemaking, NMFS held six regional public meetings and received more than 200 written comments, including comments from 49 conservation groups and 60 nonfishing industry groups. Development interests were represented in force. A number of major issues surfaced during the course of NMFS rulemaking. In almost all cases, however, NMFS interpreted its authority expansively.

A critical issue in the rulemaking concerned what EFH encompassed. The proposed EFH regulations linked EFH to the amount of habitat necessary to support a sustainable and healthy ecosystem, not just particular fish stocks. While industry argued that this exceeded NMFS' authority, NMFS has continued to adhere to a broad view of EFH.29 In its response to comments, NMFS also clarified that EFH should be linked to fisheries production rather than to the support of fish populations, despite objections from conservation groups.30 In addition, NMFS broadly defined EFH as those "waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity."31 It included "biological properties" and "substrate" in its interpretation of "waters," and included "biological communities" and "structures underlying the waters" in its interpretation of "substrate."32 NMFS is also allowing "historic or degraded habitat" to be designated as EFH where habitat loss has resulted in reduced yields and where restoration is feasible.33 Further, NMFS stressed that the Councils should follow a "risk averse" approach to EFH designation, adopting the "precautionary principle" and opting for protection in the face of uncertainty.34 Finally, NMFS underscored that the Magnuson-Stevens Act imposes no geographic limitations on EFH.35 EFH, therefore, may include state and tribal waters in addition to federal waters.

Another major issue was what species could be covered. NMFS, over objections from several commenters, has continued to provide that EFH need only be identified for species managed under an FMP, not for all species within a Council's jurisdiction.36 Thus, for example, EFH would not be designated for prey species, even though the loss of prey may be considered to constitute an adverse effect on designated EFH for a target species.

Some commenters argued that NMFS could not establish mandatory requirements for the contents of FMP amendments developed by the Councils. Relying on the statutory language that the Secretary must "establish by regulation guidelines to assist Councils" in the description and identification of EFH, NMFS disagreed.37 The statutory ambiguity that results from the use of both "regulation" and "guidelines" in the same sentence may be the subject of continuing dispute.

Perhaps the most hotly contested issue was NMFS' authority to address nonfishing activities. Nonfishing industry commenters contended that there was no authority under the Magnuson-Stevens Act for either the Secretary or the Councils to comment on and make recommendations about nonfishing activities. NMFS' response was that the Act provided otherwise.38 First, NMFS noted that "one of the stated purposes of the Magnuson-Stevens Act is to promote the protection of EFH through the review of projects [29 ELR 10466] conducted under Federal permits, licenses, or other authorities…."39 Second, NMFS noted that the requirement in § 303(a)(7) that FMPs identify conservation and enhancement measures for EFH is "not limited by statute to addressing only fishing activities."40 Third, NMFS emphasized that "the requirements for coordination, consultation, and recommendations relate directly to non-fishing actions."41 It seems unlikely that this interpretation could be successfully challenged. It is likely, however, that there will be continuing debate, somewhat similar to early debate over NEPA's applicability, regarding the full scope of actions—permits, grants, loans, etc.—to which the EFH consultation and assessment requirements apply.

NMFS proposed detailed regulations for the consultation process. Most importantly, it included requirements that the action agency prepare EFH assessments under a "best scientific information available" standard and that it participate in dispute resolution.42 NMFS basically rejected complaints about its lack of authority for such regulations, though in the interim final rule it retitled "dispute resolution" as "further review" to clarify that formal dispute resolution was not envisioned.43 In essence, NMFS' position is that its regulations, similar to the Council on Environmental Quality's regulations under NEPA,44 could govern the assessment and consultation obligations of the action agencies, detailing, among other things, how action agencies should respond to its recommendations, including the nature of the scientific justification required. NMFS agreed that conservation recommendations are not mandatory and that it has "no authority to stop a project based on adverse effects on EFH."45 NMFS also clarified that it is the action agency, not the Council or the Secretary, that must determine in the first instance whether there is adverse impact on EFH.46 However, it underscored that no actions would be exempt from consultation requirements simply because they were covered by other consultation procedures such as ESA § 7. But it acknowledged that EFH consultations might be "consolidated with other existing consultation and environmental review processes."47

The regulations' application to ongoing projects was a significant point of controversy. NMFS confirmed that the EFH consultation process would not be required until the Secretary had approvedFMP amendments designating EFH.48 Thus, projects still in the pipeline while the EFH designations were pending could be approved without being subject to assessment and consultation procedures. However, there is likely to be substantial controversy over the application of assessment and consultation requirements to projects that have been under review for a long period of time but have not yet been approved when EFH is designated.

Public involvement in the consultation process was also of concern to many commenters. Somewhat like ESA § 7 consultations, the process is not open and transparent. There is no provision for applicants, the conservation community, or other interested, nongovernmental parties to participate in the EFH consultation process. Despite complaints, NMFS has made no special provision for such involvement, though it has explained that Council deliberations are open to the public.49 This is cold comfort for nonfishing industry groups that typically have not participated in the Council process.

Finally, several groups urged NMFS to make clear that recommendations would not be impractical, too costly, and so on. NMFS responded that, while recommendations should be "practical," it will not conduct a cost-benefit analysis or do a "public interest" test.50 It emphasized that the action agencies "will make their own decisions" on these questions.51

Operation of the EFH Rules

NMFS' interim final rules, as they relate to coastal development, have two essential parts—the contents of FMPs and the procedures applicable to EFH coordination, consultation, and recommendations.

The Contents of FMPs

The rules provide that, in new or amended FMPs, the Councils must describe and identify EFH, must identify adverse impacts, and must develop suggested measures to conserve and enhance EFH.52

Sufficient EFH must be protected and conserved in order to support sustainable fisheries and the managed species' contribution to a healthy ecosystem.53 There are four levels of detail at which EFH may be described, depending on the availability of data and on the nature of the habitat.54 As part of the identification process, the rules require the general distribution and geographic limits of EFH to be mapped for each life-cycle stage of covered species.55 In addition, the Councils must prioritize habitats by identifying "habitat areas of particular concern" in order to focus conservation efforts on areas in greatest need.56

The rules also require the identification of nonfishing activities that have the potential to adversely affect habitat.57 Specific examples include dredging, fill, excavation, mining, impoundment, discharge, water diversions, and thermal [29 ELR 10467] additions. Actions that contribute to nonpoint source pollution and sedimentation, the introduction of potentially hazardous materials, the introduction of exotic species, and the conversion of aquatic habitat that may eliminate, diminish, or disrupt the functions of EFH are also examples of nonfishing activities having the potential to adversely effect habitat. The Councils must also include a cumulative impacts analysis of such activities.58

Finally, the regulations mandate that FMP amendments contain general conservation and enhancement recommendations, e.g., that "generally, non-water dependent actions should not be located in EFH if such actions may have adverse effects on EFH [and that a]ctivities that may result in significant adverse affects [sic] on EFH, should be avoided where less environmentally harmful alternatives are available."59

Coordination, Consultation, and Recommendations

The rules contain detailed requirements for coordination, consultation, and recommendations.60 They require the federal action agency to consult with NMFS on any action that may "adversely affect EFH."61 Three types of consultation, which depend on the degree of the action's impact, are specified in the rules—General Concurrence, Abbreviated Consultation, and Expanded Consultation. General Concurrence is used only for activities that NMFS has determined "will likely result in no more than minimal adverse effects individually and cumulatively."62 Otherwise, actual consultation is required for each project or activity.

Agencies must provide notice to NMFS at least 60 days in advance of the proposed action and at least 90 days in advance "if the action would result in substantial adverse impacts."63 Except where there is a General Concurrence for the activity, notification must include the action agency's written assessment of impacts in accordance with the rule's detailed requirements for EFH assessments.64 The EFH assessments must include a description of the proposed action, an analysis of effects, including "cumulative effects," the federal agency's views, and proposed mitigation, if applicable. In addition, agencies are required to respond to NMFS' EFH recommendations within 30 days, with such response being made at least 10 days before final approval of the action.65

Finally, the regulations establish a procedure for NMFS to request a meeting with the head of the action agency if an agency decision is inconsistent with an NMFS EFH conservation recommendation.66 It would not be surprising if NMFS developed memoranda of understanding with action agencies, such as the U.S. Army Corps of Engineers, similar to those developed under § 404 of the Clean Water Act (CWA).67

The EFH Rules' Impact on Development

As explained in the next section, the process of amending FMPs to incorporate EFH provisions is now largely complete. Thus, chances for influencing the substantive content of these provisions has passed, and the development community will (absent litigation) have to live with them. It is too early to tell whether, when coupled with the consultation, coordination, and recommendation requirements, they will turn out to be a significant constraint on coastal development. One thing, however, is sure: the development community must work closely with the action agencies to ensure both that the action agencies' assessments are adequate and that their compliance with the new procedural obligations is beyond reproach. Otherwise, one can readily foresee that EFH will be an effective litigation weapon in the arsenal of opponents to development.

Status and Coverage of FMP Amendments

Within 24 months of the SFA's enactment or by October 11, 1998, the Councils were required to submit for the Secretary's approval FMP amendments identifying and describing EFH for species under their management.68 The Secretary is required, within five days of receipt of an FMP amendment, to publish notice of its availability and provide a 60-day public comment period for the amendment.69 He must thereafter approve, disapprove, or partially approve the amendment within 30 days of the close of the public comment period.70

With notable exception of the Pacific Council's salmon EFH amendment, the Councils met the October 11, 1998, statutory deadline for submitting FMP amendments.71 The environmental community, on the whole, has praised the job done by the Councils insofar as nonfishing activities have been concerned.72

Secretarial review is currently underway or recently completed for most submitted amendments. For example, the Western Pacific omnibus EFH amendments were approved on February 3, 1999; the Gulf of Mexico omnibus EFH amendments were partially approved on February 8, 1999; the Caribbean omnibus amendments were partially approved on February 18, 1999; and the New England omnibus and Pacific groundfish amendments were approved on March 3, 1999.73 Other amendments were scheduled to be [29 ELR 10468] approved throughout the spring and summer.74 Once amendments are approved, the EFH coordination, consultation, and recommendation requirements apply to federal permitting and other actions.

The Councils have taken an expansive view of what geographic areas constitute EFH, what protective measures are appropriate, and what nonfishing actions have the potential to cause adverse effects on EFH, thereby subjecting them to assessment procedures. For example, the Gulf of Mexico amendments include "all marine waters and substrates (mud, sand, shell, rock, and associated biological communities) from the shoreline to the seaward limit of the exclusive economic zone."75 The Bluefish FMP designates the mixing and seawater portions of 52 estuaries, from Penobscot Bay, Maine, to St. Johns River, Florida, as EFH for juvenile bluefish, and 42 estuaries in this region as EFH for adult bluefish.76 Similarly, the Summer Flounder, Scup, and Black Sea Bass FMP designates all or part of 42 estuaries from Waquiot Bay, Massachusetts, to Biscayne Bay, Florida, as EFH for some or all of the life cycle of summer flounder.77 Maps provided with the FMP amendments underscore that little of the Atlantic Coast and its immediate offshore environment is not designated as EFH for one species or another.

Few, if any, coastal activities are not deemed potential threats. For example, the Summer Flounder, Scup, and Black Sea Bass FMP identifies as "habitat threats" coastal development, water withdrawal and diversion, construction, construction of infrastructure, shoreline stabilization, urban and agricultural nonpoint source contamination, and dredging and disposal of dredged material.78 Marinas and recreational boating, energy production and transport (including hydroelectric, nuclear, and fossil fuels), offshore oil and gas operations, sewage treatment and disposal, industrial wastewater and solid waste, marine mining, aquaculture, ocean disposal, introduced species, and port development, utilization, and shipping are also deemed to be threats to EFH.79

For each of the activities listed as a potential threat, FMP amendments specify generic measures for conservation and enhancement. For example, the Summer Flounder, Scup, and Black Sea Bass FMP states that

water withdrawals should be regulated to provide flows adequate to maintain the biological, chemical, and physical integrity of waters flowing into summer flounder, scup and black sea bass EFH; filling of wetlands and shallow coastal water habitat should not be permitted in or near summer flounder, scup or black sea bass EFH; marina siting and design should allow maximum flushing of the water supply for the site; [and so on].80

Multiple recommendations are made for each "threat." In addition, the FMP amendment calls for a cumulative impact analysis for all threats, "to the extent feasible and practicable."81

The test of the EFH amendments' impact on the development community will be in the extent to which these generic conservation measures are actually adopted by the action agencies and translated into specific restrictions applicable to specific projects. At a minimum, however, it is essential for those representing the development community to be fully familiar with the new requirements and their potential implications and, to the extent possible, seek to ensure that their clients' interests are adequately reflected in the consultation process.

Conclusion

We are just on the cusp of the new EFH regulatory process. It is obviously too early to state with certainty just what its significance will be. Yet, the procedural requirements alone, with their precise timetables, are daunting, providing every opportunity for agencies to misstep, as they are wont to do with new authorities. Further, the assessment obligations surely suggest the prospect of litigation over the adequacy of EFH analyses. Finally, even though there are no substantive conservation obligations imposed on the action agencies, the expansive nature of EFH designations, threat identifications, and conservation recommendations suggests the very real possibility of conflict between NMFS and federal action agencies, with the concomitant risk of delay for many new development projects in the coastal and marine environment. Some have predicted that the impact of EFH will be as great as that of NEPA, the ESA, or the CWA. By the end of 1999, we should have some sense of the accuracy of those predictions.

1. 16 U.S.C. §§ 1801-1882, amended by Pub. L. No. 104-297, 110 Stat. 3559 (1996). The amendments to the Magnuson-Stevens Act were adopted in the Sustainable Fisheries Act of 1996 (SFA). Section 110 of the SFA created the EFH provisions.

2. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

3. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

4. The EFH amendments also require that fishery management measures be adopted under the Magnuson-Stevens Act to address adverse effects of fishing on EFH. The fishing-related EFH provisions are outside the scope of this Article.,

5. 16 U.S.C. § 1801(a)(6).

6. Id. § 1801(b)(7).

7. Id. § 1802(10).

8. For a general discussion of the role of the Councils under the Magnuson-Stevens Act, see Eldon V.C. Greenberg, Ocean Fisheries, in SUSTAINABLE ENVIRONMENTAL LAW: 415-16 (Celia Campbell-Mohn et al. eds., West Publishing Co. 1993).

9. 16 U.S.C. § 1853(a)(7).

10. Magnuson-Stevens Act § 305(b)(1)(A), 16 U.S.C. § 1855(b)(1)(A). The Secretary was to establish the guidelines by April 11, 1997.

11. Id. § 305(b)(1), 16 U.S.C. § 1855(b)(1).

12. 16 U.S.C. § 1855(b)(2).

13. Comments may also be made to state agencies and tribes, but they have no obligation to respond to such comments.

14. Magnuson-Stevens Act § 305(b)(3), 16 U.S.C. § 1855(b)(3).

15. Id.

16. Id. § 305(b)(4)(A), 16 U.S.C. § 1855(b)(4)(A).

17. Id. § 305(b)(4)(B), 16 U.S.C. § 1855(b)(4)(B).

18. Id.

19. Pub. L. No. 104-297, 110 Stat. 3559.

20. See 16 U.S.C. §§ 1852(i) (1995) (providing for Council commentary and recommendation on state or federal activities affecting habitat), and 1853(a)(7) (1995) (requiring FMPs to "include readily available information regarding the significance of habitat to the fishery and assessment as to the effects which changes to the habitat may have upon the fishery").

21. H.R. REP. NO. 104-171, at 20, 28, 32 (1995).

22. S. REP. NO. 104-276, at 1, 6, 24-25 (1996).

23. 142 CONG. REC. S10820 (daily ed. Sept. 18, 1996).

24. Id. at S10812.

25. Essential Fish Habitat Proposed Rule, 62 Fed. Reg. 19723 (Apr. 23, 1997) [hereinafter EFH Proposed Rule].

26. Essential Fish Habitat Interim Final Rule, 62 Fed. Reg. 66531 (Dec. 19, 1997) [hereinafter EFH Interim Final Rule].

27. 50 C.F.R. pt. 600, subpts. J & K (1998).

28. In addition to its regulations, NMFS has published a technical guidance document on EFH, which provides a useful explanation and elaboration of the rules. See U.S. NMFS, TECHNICAL GUIDANCE TO IMPLEMENT THE ESSENTIAL FISH HABITAT REQUIREMENTS FOR THE MAGNUSON-STEVENS ACT (visited Apr. 19, 1999) http://www.nmfs.gov/habitat/efh/index.htm (available from the ELR Document Service, ELR Order No. AD-4114).

29. EFH Interim Final Rule, supra note 26, at 66532-33.

30. Id. at 66533.

31. 50 C.F.R. § 600.10 (1998).

32. Id.

33. Id.; see EFH Interim Final Rule, supra note 26, at 66534.

34. EFH Interim Final Rule, supra note 26, at 66537. For a general discussion of the "precautionary principle," see, e.g., Peterman & M'Gonigle, Statistical Power Analysis and the Precautionary Prinicple, 24 MARINE POLLUTION BULL. 231 (1992).

35. EFH Interim Final Rule, supra note 26, at 66535.

36. Id. at 66534.

37. Id.

38. Id. at 66539. NMFS did agree that it could impose no requirements on private parties and that the Act's provisions are only triggered by federal or state agency action.

39. Id.

40. Id.

41. Id. at 66539-40.

42. EFH Proposed Rule, supra note 25, at 19732.

43. EFH Interim Final Rule, supra note 26, at 66542.

44. See 40 C.F.R. pt. 1500.

45. EFH Interim Final Rule, supra note 26, at 66543.

46. Id. at 66544.

47. Id. at 66543.

48. Id. at 66544.

49. Id.

50. Id. at 66546.

51. Id.

52. 50 C.F.R. § 600.815 (1998).

53. Id. § 600.10.

54. Id. § 600.815(a)(2). Level One, which provides the least level of detail, may be used when the presence/absence distribution data are available for some or all of the geographic range of the species. Level Two will be used when data on habitat-related densities are available, and Level Three is to be used when growth, reproduction, or survival rates within habitats are available. Level Four, which provides the highest level of detail, is to be used when production rates by habitat areavailable.

55. Id. § 600.815(a)(2)(iii).

56. Id. § 600.815(a)(9).

57. Id. § 600.815(a)(5).

58. Id. § 600.15(a)(6).

59. Id. § 600.15(a)(7).

60. Id. §§ 600.905-930.

61. Id. § 600.920(a)(1).

62. Id. § 600.920(f).

63. Id. § 600.920(e)(i).

64. Id. § 600.920(g).

65. Id. § 600.920(j).

66. Id.

67. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

68. SFA § 108(b).

69. Magnuson-Stevens Act § 304(a), 16 U.S.C. § 1854(a).

70. Id.

71. For example, notice of the Gulf of Mexico Council's amendments, covering areas where various life cycles of 26 selected managed species and the coral complex "commonly occur," was published on November 9, 1998 (63 Fed. Reg. 60287); notice of the New England Council's amendments to the Northeast Multispecies, Sea Scallop, Monkfish, Atlantic Salmon, and Atlantic Herring FMPs was published on December 1, 1998 (63 Fed. Reg. 66110); notice of the Pacific Council's amendments to the Pacific Groundfish FMP was published on the same date (63 Fed. Reg. 66111); and notice of the Mid-Atlantic Council's amendments to the Summer Flounder, Scup, Black Sea Bass, and Bluefish plans was published on January 27, 1999 (64 Fed. Reg. 4065).

72. See CENTER FOR MARINE CONSERVATION, MISSING THE BOAT (1999), available online at http://www.cmc-ocean.org/missingboat/index.html.

73. See http://www.nmfs.gov/habitat/efh/Schedule399.htm.

74. Id. For example, notice of approval for the North Pacific Council's amendments to the Groundfish, Scallops, Salmon, and Commercial King and Tanner Crab plans was published on April 26, 1999 (64 Fed. Reg. 20216).

75. 63 Fed. Reg. 60287 (Nov. 9, 1998).

76. MID-ATLANTIC FISHERY MANAGEMENT COUNCIL ET AL., AMENDMENT 1 TO THE BLUEFISH FISHERY MANAGEMENT PLAN 242 (Oct. 7, 1998).

77. MID-ATLANTIC FISHERY MANAGEMENT COUNCIL ET AL., AMENDMENT 12 TO THE SUMMER FLOUNDER, SCUP, AND BLACK SEA BASS FISHERY MANAGEMENT PLAN 238-42 (Oct. 7, 1998).

78. Id. at 76-92.

79. Id. at 93-106.

80. Id. at 80, 92, 96.

81. Id. at 107.


29 ELR 10463 | Environmental Law Reporter | copyright © 1999 | All rights reserved