Essential Fish Habitat: Does Calling It Essential Make It So?

By Fletcher, Kristen M.; O'Shea, Sharonne E. | Environmental Law, Winter 2000 | Go to article overview

Essential Fish Habitat: Does Calling It Essential Make It So?


Fletcher, Kristen M., O'Shea, Sharonne E., Environmental Law


   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. … 

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