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.
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. …