TESTIMONY
OF
ASSISTANT
ADMINISTRATOR FOR FISHERIES
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
ON
THE
ESSENTIAL FISH HABITAT PROVISIONS OF THE
MAGNUSON-STEVENS
FISHERY CONSERVATION AND MANAGEMENT ACT
BEFORE
THE
WILDLIFE
AND OCEANS
COMMITTEE
ON RESOURCES
MARCH
9, 2000
Mr.
Chairman and members of the Subcommittee, thank you for inviting me to testify
on the implementation of the “essential fish habitat” (EFH) provisions of
the Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act). I
am Penny Dalton, Assistant Administrator for Fisheries for the National
Oceanic and Atmospheric Administration.
American
Fisheries
Commercial
and recreational fisheries are important national resources.
In 1998, U.S. commercial fisheries produced about $3.1 billion in
dockside revenues. By weight of
catch, the United States is the world’s fifth largest fishing nation,
harvesting almost 10 billion pounds annually.
The United States also is the third largest seafood exporter, with
exports valued at over $2.3 billion in 1998.
In addition to supporting the commercial seafood industry, U.S. fishery
resources provided enjoyment for over 8 million saltwater anglers who caught
an estimated 312 million fish in 1998.
While
the seafood and marine recreational fishing industries make substantial
contributions to the economies of coastal communities throughout the Nation,
harvest levels have declined noticeably in some key fisheries.
Current harvest yields are substantially lower than the long-term
potential yield. As of 1999, 11
percent of U.S. living marine resources are overfished or are approaching an
overfished condition, 14 percent are not over fished, and there is another 75
percent whose status is unknown. NOAA
Fisheries is working to fill these information gaps and rebuild fish stocks,
which will support increased harvests and greater economic and social
benefits. Key contributors
to rebuilding and maintaining healthy fisheries will be the ability to
identify and protect essential fish habitat.
The
Sustainable Fisheries Act
The
Magnuson-Stevens Act provides the national framework for conserving and
managing the wealth of U.S. fishery resources.
In 1996, Congress ushered in a new era in fisheries management, making
significant revisions to the Magnuson-Stevens Act in the Sustainable
Fisheries Act. In particular,
the1996 amendment refined the focus of fisheries management by emphasizing the
need to protect fish habitat. To
support this goal, the Sustainable Fisheries Act required that fishery
management plans identify as “essential fish habitat” those areas that are
necessary to fish for their basic life functions.
The new law also clarified NOAA Fisheries’ authority to comment on
certain actions that affect EFH.
NOAA
Fisheries is working to ensure that all Sustainable Fisheries Act requirements
are implemented, and that conservation and management measures fully protect
the resources and provide for the needs of fishing communities and the Nation.
We are laying a better foundation for future fisheries management, yet
the benefits of the changes made by Congress in 1996 will take years, perhaps
decades, to realize fully. In addition, the management decisions that we face are
becoming ever more complex and contentious, and good solutions that are
universally supported are hard to come by.
We need to direct resources and effort to the scientific and technical
aspects of our work. We also must
build consensus with the public and among various stakeholders to help develop
management programs that will move us toward the goal of healthy and
sustainable marine fisheries.
Congress
imposed a deadline of October 11, 1998 for amendments to each of 39 existing
fishery management plans to implement the changes required by the Sustainable
Fisheries Act. Amendments
prepared by three of the regional Fishery Management Councils (Councils) did
not fully address the requirements for EFH.
NOAA Fisheries partially approved these amendments and is working with
the Councils to improve them. Nearly
all of the other fishery management plans have been completed and many are
being implemented.
The
Magnuson-Stevens Act defines EFH as: “...those waters and substrate
necessary to fish for spawning, breeding, feeding, or growth to maturity.”
NOAA Fisheries provided additional regulatory guidance to ensure
consistency in the interpretation of this definition: “Waters” include
aquatic areas and their associated physical, chemical, and biological
properties that are used by fish and may include aquatic areas historically
used by fish where appropriate; “substrate” includes sediment, hard
bottom, structures underlying the waters, and associated biological
communities; “necessary” means the habitat required to support a
sustainable fishery and the managed species’ contribution to a healthy
ecosystem; and “spawning, breeding, feeding, or growth to maturity” covers
a species’ full life cycle.
We
have heard both praise and concern from our constituents over the increased
emphasis we are placing on habitat conservation to implement the EFH
provisions of the Magnuson-Stevens Act.
NOAA Fisheries regards the EFH mandate as a significant opportunity to
improve the management of sustainable fisheries.
This opportunity, however, depends on building better relationships and
cooperation with Federal, state, and local government agencies, fishing and
non-fishing industries, conservation groups, academia, land owners, and other
members of the general public.
I
will focus the rest of my remarks on three major issues regarding the
implementation of EFH. First,
there is concern in some quarters that EFH designations are too broad and have
therefore lost their intended meaning. I
will explain why the EFH designations look the way they do, including the
scientific basis behind the process NOAA Fisheries and the Councils used to
describe and identify EFH. Second,
I will explain our efforts to minimize the effects of fishing on EFH, and how
we are working to improve our ability to address this issue in the future.
Third, I will explain the steps NOAA Fisheries has taken to make the
EFH consultation process effective and efficient for action agencies and
non-fishing industries. I
will also address several common misconceptions regarding EFH.
EFH
Designations
From
the broadest perspective, fish habitat is the geographic area where a species
occurs at any time during its life cycle.
Habitats can be characterized by various attributes including
biological, physical, and chemical parameters, location, and time.
Ecologically, species distributions are controlled or focused by
habitat characteristics that include obvious structure or substrate (e.g.,
coral reefs, marshes, or kelp beds) and other habitat features that are less
distinct. Spatially, habitat use
may shift over time due to changes in stock size, seasonal migrations,
climatic change, human uses, or other factors.
Habitats not currently used may be important to meet long-term
goals for species productivity, particularly if a stock is over fished. Habitat restoration is a valuable tool to enhance degraded
habitats and improve habitat quality and quantity, with benefits to the
species and society.
Fishery
management goals cannot be achieved if the managed species do not have
sufficient quantities of suitable habitat.
Fishery species use habitat for spawning, breeding, migration, feeding, growth, and shelter. Most
habitats provide only a subset of these functions. The habitat utilized by a species changes with life history
stage, abundance of the species, competition from other species, and
environmental variability in time and space.
The role of habitat in supporting the productivity of organisms has
been thoroughly documented in the ecological literature, and the linkage
between habitat availability and fishery productivity has been clearly
established for a number of fishery species.
By assessing the role of the managed species in the ecosystem, e.g., as
predator or as prey, we can increase our understanding of the habitats
necessary to support sustainable fisheries.
EFH
is the habitat necessary to managed fish species to complete their life
cycles. Generally, EFH for any
given fish species constitutes only a portion of the total available habitat.
The guidelines established by NOAA Fisheries to assist the Councils in
determining what areas to identify as EFH are based on five general
principles. First, the
description and identification of EFH must be based on the best information
available. Second, the procedures for describing and identifying EFH
must be scientifically defensible. Third,
the guidelines require a risk-averse or precautionary approach to
describing and identifying EFH to ensure adequate habitat protection.
Fourth, the guidelines are sufficiently broad to address the habitat
needs of many different species in many different regions, as well as for
varied physical, chemical, and biological processes that affect habitat
quantity and quality. Finally,
the ecological relationships among species and between the species and their
habitats require, where possible, that an ecosystem approach be used in
assessing and conserving EFH.
Where
scientific information was available, NOAA Fisheries and the Councils
identified EFH for each individual managed species and life stage. Because of the great number of managed species and the wide
diversity of habitats utilized by the life stages of those species, habitats
identified as EFH range from freshwater streams and estuaries to submarine
canyons and fronts between water masses.
However, much more scientific information is necessary to identify the
exact type and quantity of habitats necessary to achieve the desired level of
fish production, or even to specify which habitats contribute most to the
growth, reproduction, or survival of target species. In these cases, our guidelines call for identifying EFH based
on where the managed species is found in the highest concentrations, or where
it occurs most commonly. These
are scientifically defensible proxies for habitat value, and they represent
our commitment to developing effective management strategies using the best
available information.
Over
700 species are managed under the Magnuson‑Stevens Act.
The ecological needs of these species run the gamut of what one might
expect for such a diversity of marine life, ranging from giant tunas to small
reef fish and from salmon to surf clams.
Different species and life stages have different ecological
requirements. In many cases,
between 50 percent and 70 percent of the geographic range of a life stage of a
managed species was identified as EFH. However,
once individual EFH designations for all the species are overlaid, the mosaic
of designations is bound to be broad. When
considering the breadth of area covered by a map that encompasses all of the
EFH designations, it is important to remember that the seemingly
broad-brush coverage represents the aggregate of the important habitats
for all species managed under Federal fishery management plans.
NOAA Fisheries will continue to work with the Councils to revise and
refine these designations as additional information becomes available.
One
tack we have taken to help focus EFH conservation priorities has been to
promote the concept of “habitat areas of particular concern” or HAPCs. HAPCs are discrete areas within EFH that provide extremely
important ecological functions and/or are especially vulnerable to
degradation. For instance, HAPC
designation may be warranted for areas that play a vital role in the
reproductive cycle of a managed species, or for areas that contain a rare
habitat type that may be sensitive to disturbance from fishing or other human
activities. Two examples are the
northeast peak of Georges Bank, where the New England Council identified a
cobble bottom habitat as an HAPC for juvenile cod, and areas in the lower
Chesapeake and Delaware Bays, where NOAA Fisheries identified HAPCs for
sandbar sharks because of the role of these areas as summer pupping grounds
and their potential for disturbance from various development activities.
In total, HAPCs comprise a fraction of 1 percent of the areas
identified as EFH.
The
designation of HAPCs is a valuable way to acknowledge cases where we have
especially detailed information on ecological function and/or habitat
vulnerability that allows us to highlight a priority area for conservation and
management. To focus solely on
HAPCs, however, ignores the broader ecological requirements of managed fish
species. It is entirely
appropriate to designate as EFH the areas that provide necessary environments
for managed species to feed, reproduce, and seek shelter from predators.
It should come as no surprise that these areas constitute a sizeable
portion of the managed species’ geographic range. NOAA Fisheries used the best available science to identify
such areas, and is committed to enhancing our knowledge base so we can refine
the EFH designations over time.
The
Effects of Fishing on EFH
The
Magnuson-Stevens Act requires NOAA Fisheries and the Councils to
minimize to the extent practicable adverse effects to EFH caused by
fishing. The management of
fishing effects on EFH in Federal waters is the one area where the Councils
and NOAA Fisheries have direct regulatory authority over actions that may
adversely affect the quality and quantity of EFH available to support
sustainable fisheries. However,
there is very limited information linking physical habitat disturbance with
observable decreases in productivity, survival, and recruitment of managed
species of fish.
NOAA
Fisheries is working in partnership with other agencies and institutions to
conduct new research to improve our understanding of the effects of fishing on
EFH. Within NOAA, we are working
with the National Sea Grant Program to select priority research projects
involving fish habitat, which Sea Grant will fund over the next two years.
We are also working with the National Ocean Service to generate maps
and other syntheses to help the Councils identify EFH and to enable us to
develop internet-based compilations of EFH information.
Outside of NOAA, we are working with the U.S. Geological Survey and
others on a national initiative to identify and map bottom habitats and
determine the effects of fishing gear on EFH.
Our Science Centers also are conducting specific targeted research to
improve our understanding of fishing effects on habitat.
NOAA
Fisheries is being sued by a group of plaintiffs who contend that we have not
imposed sufficient measures to reduce the effects of fishing on habitat. Since this issue is the subject of ongoing litigation, I must
limit my comments. However, I
will note that NOAA Fisheries and the Councils have a long track record of
implementing measures that protect fish habitat, such as area closures and
gear restrictions. Our challenge
is to use the best available and evolving science to identify potential harm
to EFH, and then to work with the Councils to develop practicable management
measures. This is a difficult
task, but we are making progress.
EFH
Consultations for Non-fishing Activities
NOAA
Fisheries has reviewed non-fishing activities and commented on potential
impacts to fish habitat for decades under the Magnuson-Stevens Act and other
authorities. Since 1970, NOAA
Fisheries has reviewed about 10,000 Federal actions per year under the Fish
and Wildlife Coordination Act, Clean Water Act , National Environmental Policy
Act, Federal Power Act, Endangered Species Act, and other laws to evaluate
impacts to fish habitats. These
reviews provide an opportunity to offer our advice on many Federal agency
decisions involving actions that could affect living marine resources. However, during required environmental reviews, Federal
agencies did not typically focus on how proposed actions might affect marine
fishery species and their habitats. In
many cases where NOAA Fisheries commented to the action agency, we were unsure
whether our recommendations were heeded or why they may have been rejected.
The
Sustainable Fisheries Act changed this situation in three important ways.
First, it required Federal agencies to consult with NOAA Fisheries if
they determine their actions may adversely affect EFH for federally managed
species of fish. Second, it required NOAA Fisheries to provide EFH
conservation recommendations for any Federal or state agency action that would
adversely affect EFH. Third, it
required Federal action agencies to respond to those recommendations in
writing, and if the action agency disagrees with our advice, it must explain
why.
NOAA
Fisheries’ approach to the EFH consultation process is to work with Federal
action agencies to build EFH considerations into the environmental reviews
that are required under other laws wherever possible.
Our goal is to promote efficiency and avoid duplication, while ensuring
that EFH consultation provides a meaningful review of potential harm to the
habitats needed by commercially and recreationally important species of fish.
To make this goal a reality, we are working with Federal action
agencies to develop “findings” that detail the operating procedures to be
used to handle EFH consultations within existing environmental processes.
We have completed 21 such agreements to date, and we are working on
many more so affected agencies can ensure that when they address potential
harm to EFH in an environmental impact statement or other document they are
meeting their obligations to consult under the Magnuson‑Stevens Act.
Between
the date EFH became effective for each fishery management plan and December
31, 1999, NOAA Fisheries had completed nearly 5,000 EFH consultations, almost
all of which were integrated into other environmental reviews. The result has been a consultation process that focuses
needed attention on potential impacts to EFH and provides NOAA Fisheries’
recommendations on how to avoid or minimize impacts, without a lot of delays
and new paperwork. We are
avoiding duplication with other reviews while adding a vital new
consideration. Federal agencies
are now starting to assess specifically the impacts of their actions on
habitats used by federally managed fishery species, and they are responding to
NOAA Fisheries’ recommendations in their decisions.
We
understand that several non-fishing industry groups are concerned about
the potential impact the EFH consultation process could have on their
activities. NOAA Fisheries is
working with many non-fishing industries to explain the EFH consultation
process by developing informational brochures for non-fishing interests,
writing articles for non-fishing industry publications, and making
presentations at non-fishing industry meetings.
We have emphasized that non-fishing activities require an EFH
consultation only if the project is federally funded, permitted, or authorized
and the activity may adversely affect EFH.
We are also working closely with individual industries to identify
actions that can be taken to avoid impacts to EFH and obviate the need for
project-by-project EFH consultations in some cases.
EFH
has provided more structure and emphasis to NOAA Fisheries’ review of the
effects of non-fishing activities on fish habitats, and we are committed
to making this a smooth process. To
date, although we have heard concern from non-fishing interests about
potential project delays or disapprovals, we are not aware of any major
problems resulting from the thousands of consultations we have already
completed. On the contrary, I believe the EFH consultation process is
going extremely well.
Misconceptions
About EFH
The
EFH provisions of the Magnuson-Stevens Act have received a great deal of
interest from parties whose activities may potentially be affected by EFH
designations, including the fishing industry, non-fishing industries,
and the environmental community. Some
of the concerns raised about EFH have merit, but unfortunately, several common
misconceptions have led a number of people to believe that EFH is something
very different than what it really is. In
particular, many of the concerns about EFH raised by non-fishing
industries have been exaggerated. NOAA
Fisheries has been working extensively with those groups to address their
concerns. However, I would like
to highlight some of the issues that have been raised and describe briefly our
efforts to ensure that the EFH provisions of the Magnuson-Stevens Act
are implemented efficiently and effectively.
However,
as I indicated earlier, we currently are required to review several thousand
Federal actions each year under long-standing statutory authority. Regarding the consultation process for Federal actions that
may adversely affect EFH, there have been suggestions that NOAA Fisheries will
use the EFH provisions of the Magnuson-Stevens Act to consult on many
actions we have not reviewed previously, including land use practices and
other actions occurring far inland. Our
priority has always been, and will continue to be, concentrating our efforts
on those actions with the greatest potential to harm marine and anadromous
fishery resources. The difference
under EFH is that now we are placing more emphasis on the habitat needs of the
species of fish that support federally managed recreational and commercial
fisheries.
Some
observers have asserted that the EFH consultation process is burdensome and
duplicative. We do not agree. To avoid redundancy, NOAA Fisheries has gone to great lengths
to blend EFH consultations into existing environmental reviews.
These other reviews consider impacts on the aquatic environment in
general or on specific resources of concern such as endangered species.
However, these other environmental reviews do not often specifically
address effects on commercially and recreationally important species of fish
and shellfish and their habitats. Building
EFH assessments into these reviews is an efficient way to identify potential
harm to fishery resources while not being duplicative or burdensome.
NOAA
Fisheries has heard comments that EFH provisions could evolve into a clone of
the Endangered Species Act, with similar restrictions on development and
potential economic consequences. As
provided in the Magnuson-Stevens Act, EFH conservation recommendations
from NOAA Fisheries to an action agency are non-binding.
NOAA Fisheries cannot use EFH to stop or delay development.
Recommended conservation measures stemming from the EFH consultation
process simply require an acknowledgment by the Federal action agency that it
considered the advice. Under the Magnuson-Stevens Act, Federal agencies can,
and sometimes do, decide not to accept NOAA Fisheries’ recommendations.
The EFH provisions simply cannot be interpreted to provide the same
authority as the Endangered Species Act, which imposes a substantive
prohibition against any Federal agency action that is likely to jeopardize the
continued existence of a listed species or adversely modify designated
critical habitat for that species.
Finally,
there appears to be a perception among some parties that the EFH provisions of
the Magnuson-Stevens Act have led to the development of a huge new Federal
bureaucracy. Nothing could be
further from the truth. NOAA
Fisheries allocated $2 million in new resources toward EFH in FY 1998 and
$750,000 in FY 1999. We have also
reprogrammed $650,000 to EFH work from other activities in FY 2000.
Of this total, approximately 60 percent has been devoted to research on
the habitat needs of managed species and the effects of fishing on habitat, and
the remainder has gone towards assisting the Councils and implementing EFH
consultations. The President’s
budget request for FY 2001 includes an additional $1 million for research on the
effects of fishing gear on bottom habitats, and $770,000 for basic science to
refine the description and identification of EFH in fishery management plans.
Reauthorization
Issues
We
are still working to implement the changes to fishery management policies and
procedures made by the Sustainable Fisheries Act.
Consequently, we have not proposed major changes to the
Magnuson-Stevens Act. However,
we have identified some revisions of existing provisions that may be useful to
make the management process more efficient and to resolve some relatively minor
problems.
Special
management areas, including those designated to protect coral reefs, hard
bottoms, and precious corals, are important commercial resources and valuable
habitats for many species. Currently,
the Federal government has the authority to regulate anchoring and other
activities of fishing vessels that affect fish habitat.
However, we remain concerned with threats to those resources from
non-fishing vessels. We intend to work with other Federal agencies to
suggest amendments to the Act to clarify, consolidate, and strengthen the
Federal government’s authority to regulate the actions of any recreational or
commercial vessel that is directly impacting resources being managed under the
Magnuson-Stevens Act.
Conclusions
The
essential fish habitat provisions of the Sustainable Fisheries Act provided
important new tools for NOAA Fisheries and the Councils to build and manage
sustainable fisheries. Under the
amended Magnuson-Stevens Act, fishery managers must account for the effects of
fishing on the habitats needed by commercially and recreationally important
species of fish. We must ensure
that our fishery management decisions consider potential effects on the
environments these species need for their basic life functions.
Likewise, we must ensure that our recommendations to Federal and state
agencies regarding non-fishing activities are focused on measures needed to
conserve the habitats that support managed fisheries. Building sustainable fisheries requires a holistic approach
that considers threats from over fishing, bycatch, habitat loss and degradation,
and other factors that affect fish stocks.
The EFH provisions of the Magnuson-Stevens Act are an important component
of our efforts to maximize benefits from the Nation’s marine fisheries.
Mr.
Chairman, this concludes my testimony. Thank
you for the opportunity to discuss the essential fish habitat provisions of the
Magnuson-Stevens Act. I would
be pleased to answer any questions that you and members of the subcommittee may
have.