[acn-l] URGENT: ESSENTIAL FISH HABITAT COMMENT PERIOD CLOSES 3/19

FISH1IFR (FISH1IFR at aol.com)
Mon, 9 Mar 1998 02:16:00 EST

FISHLINK ALERT 3/8/98

ESSENTIAL FISH HABITAT COMMENT PERIOD CLOSES 3/19

Fisheries and Conservation News from the Pacific
Coast Federation of Fishermen's Associations and the Insititute
for Fisheries Resources

PLEASE REPOST TO YOUR NETWORKS
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BACKGROUND: The Magnuson-Stevens Fishery Conservation and
Management Act was originally passed in 1976 (16 U.S.C. 1801-1883) .
The Act provided the National Marine Fisheries Service legislative
authority for fisheries regulation in the United States, in the area between
three miles to 200 miles offshore, and established the eight regional fishery
management councils (Councils) that manage the harvest of fish and
shellfish resources in these waters.

The Pacific Fishery Management Council covers the area offshore of the
states of California, Oregon, and Washington, while the North Pacific
Fishery Management Council manages Alaska's fishery resources. Councils
prepare Fishery Management Plans (FMPs) to govern their management
activities, which are submitted to NMFS for approval. No fisheries can
take place outside state territorial waters without a published and approved
Fishery Management Plan.

In 1996, the Act was reauthorized and changed extensively by amendments
called the Sustainable Fisheries Act (SFA) and was signed into law October
11, 1996 (P.L. 104-297, Title I, 110(a)-(d), 111(a) and 110 Stat. 3587,
3592). Among other changes, these amendments were intended to
emphasize the importance of habitat protection to healthy fisheries and to
strengthen the ability of the National Marine Fisheries Service and the
Councils to protect the habitat needed by the fish they manage. This habitat
is called "Essential Fish Habitat" (EFH) under the Act, and is broadly
defined to include "those waters and substrate necessary to fish for
spawning, breeding, feeding, or growth to maturity."

The EFH language was pushed hard by both conservation groups and
fisheries groups in the 104th Congress, and is even now one of the few
ways fisheries managers can exert some controls over activites (particularly
for Pacific salmon) which destroy estuary and inland habitat from which
commercially and recreationally valuable species are produced. Without
habitat protection many more species will be driven into extinction.
Habitat destruction is by far the most serious threat to the nation's
fisheries.

The EFH provisions, however, have been under strenuous attack by inland
mining, industrial forestry and agricultural groups whose activities have
contributed emormously to the depletion of many fish species, most notably
the Pacific Salmon. Many once abundant runs of salmon are now either listed
or proposed for listing under the Endangered Species Act, and widespread
habitat loss has been identified as the leading factor in these declines.
Your comments supporting a broad definition of "essential fish habitat" TO
INCLUDE ALL STREAM AREAS USED BY PACIFIC SALMON SPECIES
are needed to defend these statutory gains and see that the Rules which
implement them actually do protect these fish at all stages of their life
cycle.
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Under 16 U.S.C. 1855(b)(1)(A) the Secretary was supposed to publish
Guidelines for the implementation of the "essential fish habitat" provisions
of the SFA within 6 months of the date of passage of the
Magnuson-Stevens Fishery Conservation and Management Act (The
"Sustainable Fisheries Act" -- 16 U.S.C. 1801-1883). Draft Guidelines
were published in the Federal Register on April 23, 1997 (62 Fed. Reg.
19723) and "Interim Final Rules" where published and made available for
comments on December 19, 1997 (62 Fed. Reg. 66531-66559.

The comment period for the interim final rule to implement the Essential
Fish Habitat (EFH) provisions of the Magnuson-Stevens Fishery
Conservation and Management Act has been extended to March 19,
1998.

WHAT YOU CAN DO: NMFS will be accepting comments on the interim
final rule through March 19, 1998.

*** COMMENTS MUST BE RECEIVED BY MARCH 19, 1998 ***

COMMENTS SHOULD BE SENT TO:
The Director, Office of Habitat Conservation
Attention: EFH
National Marine Fisheries Service
1315 East-West Highway
Silver Spring, MD 20910-3282
Comments can also be faxed to (301) 713-1043

The actual EFH Interim Final Regulations can be accessed via the Internet
through the NMFS Homepage:

<http://kingfish.ssp.nmfs.gov>

(under "Office of Habitat Protection"), or by calling the NMFS Office of
Habitat Protection at (301) 713-2325. They can also be obtained directly
from the Internet at:

<http://kingfish.ssp.nmfs.gov/rschreib/html/reg2fin.htm>

and were published in the Federal Register at 62 Fed. Reg. 66531
(December 19, 1997).

You can also obtain copies of all relevant documents directly from the
Federal Register's home page at:

<http://www.access.gpo.gov/su_docs/aces/aces140.html>.

Then enter in the appropriate options (i.e. Federal Register for 12/19/97).
For search terms, if you type in simply "Magnuson-Stevens" (without the
quote marks), the first item to come up should be the EFH rule. Then, if
you have adobe acrobat or something that can read PDF files, click on that
because it will give you the document as it looks in the Federal Register. If
not, click on text and the document will just be longer.

DRAFT EFH AMENDMENTS DUE OUT SOON

Pacific Fishery Management Council (PFMC): The National Marine
Fisheries Service is in the process of developing recommendations on EFH
for West Coast salmon, Coastal Pelagics EFH, and Pacific Coast
Groundfish Fishery Management Plans (i.e., for fish managed by the Pacific
Fishery Management Council). Public Hearings for the NMFS EFH
recommendations are as follows*:

Portland, Oregon - April 6th, Columbia River Doubletree, ballroom,
7:00-10:00pm

Seattle, Washington - April 14, NOAA Sand Point auditorium,
7:00-10:00pm

San Francisco Area, California - April 15, Park Plaza Hotel,
Burlingame, 7:00-10:00pm

Boise, Idaho - April 16, 7-10 pm. Owyhee Plaza Hotel, Bosie
208-343-4611. 7:00 - 10:00 p.m.

*NMFS Salmon EFH recommendations will be at all 4 hearings;
Groundfish will be at the Portland, Seattle, and San Francisco only, and
Coastal Pelagics at the San Francisco hearing only.

During the PFMC meeting of June 22-26 in Seattle, NMFS is scheduled to
present its final EFH recommendations to Pacific Fishery Management
Council. At the September meeting in California, the PFMC will adopt the
final EFH amendment to the three Fishery Management Plans.

There are a number of documents being generated for the designation of
EFH by the Pacific Fishery Management Council and other agencies. For
Further Information on the NMFS's EFH recommendations contact:

Coastal Pelagics: Mark Helvey of the National Marine Fisheries Service at
(707) 575-6078;

Salmon: Joe Scordino (206) 526-6150;

Groundfish: Cyreis Schmitt (206) 860-3322.

Further Information on the Pacific Fishery Management Council (PFMC)
can be accessed on their web site at: <http://www.pcouncil.org>, or by
phone at (503) 326-6352.

OTHER REGIONAL COUNCILS: Every Regional Fishery
Management Council is dealing with this same problem. The North Pacific
Fishery Management Council will review the draft EFH amendments at
their meeting the week of the April 20 in Anchorage, AK, and make a final
decision on the amendments at their meeting in Dutch Harbor, AK the
week of June 8, 1998.

For Further Information Contact: Dave Witherell the North Pacific Fishery
Management Council at (907) 271-2809; Cindy Hartmann of the National
Marine Fisheries Service at (907) 586-7235.

Internet: The North Pacific Fishery Management Council web site can be
found at: <http://www.fakr.noaa.gov/npfmc/npfmc.htm>.

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Magnuson-Stevens Fishery Conservation and Management Act
Essential Habitat Provisions

***********************************************

Actual Statutory Language -- Most Relevant Parts Underlined

16. U.S.C. 1801: (a) Findings. "Congress finds and declares the
following:
.....
(2) Certain stocks of fish have declined to the point where their
survival is threatened, and other stocks of fish have been so
substantially reduced in number that they could become similarly
threatened as a consequence of (A) increased fishing pressure, (B)
the inadequacy of fishery resource conservation and management
controls, or direct and indirect habitat losses which have resulted
in a diminished capacity to support existing fishing levels."
.....
(6) A national program for the conservation and management of the
fishery resources of the United States is necessary to prevent
overfishing, to rebuild overfished stocks, to insure conservation, to
facilitate long-term protection of essential fish habitats, and to
realize the full potential of the Nation's fishery resources.
.....
(9) One of the greatest long-term threats to the viability of
commercial and recreational fisheries is the continuing loss of
marine, estuarine, and other aquatic habitats. Habitat
considerations should receive increased attention for the
conservation and management of fishery resources of the United
States.....

"(b) Purposes. It is therefore declared to be the purposes of the
Congress in this Act ---
.....
(7) To promote the protection of essential fish habitat in the review
of projects conducted under Federal permits, licenses, or other
authorities that affect or have the potential to affect such habitat."

What does the term "essential fish habitat" actually mean? It is, in fact,
designed to be broad:

16 U.S.C. 1802 "As used in this Act, unless the context otherwise
requires ---
.....
(10) The term "essential fish habitat" means those waters and
substrate necessary to fish for spawning, breeding, feeding or
growth to maturity."

The real teeth of these provisions is that a delineation of "essential fish
habitat" is now REQUIRED to be in all Fishery Management Plans (FMPs)
under the Act:

16 U.S.C. 1853 -- (a) Required provisions. "Any fishery
management plan which is prepared by any Council, or by the
Secretary, with respect to any fishery, shall ---
.....
(7) describe and identify essential fish habitat for the fishery based
on the guidelines established by the Secretary under section
305(b)(1)(A) [16 U.S.C. 1855(b)(1)(A)], minimize to the extent
practicable adverse effects on such habitat caused by fishing, and
identify other actions to encourage the conservation and
enhancement of such habitat.

However, this Act gives no real power to the Councils or the Secretary
other than the requirement to consult and allow comment or actions
affecting essential fish habitat, though any refusal to adopt recommended
mitigation measures must be explained. Still, this alone can be a powerful
incentive for agencies to protect habitat.

16 U.S.C. 1853(b)(2) "Each Federal agency shall consult with the
Secretary with respect to any action authorized, funded, ore
undertaken, or proposed to be authorized, funded, or undertaken,
by such agency that may adversely affect any essential fish habitat
identified under this Act.

(3) Each Council --
(A) may comment on and make recommendations to the Secretary
and any Federal or State agency concerning any activity authorized,
funded, or undertaken or proposed to be authorized, funded, or
undertaken, by any Federal or State agency that, in the view of the
Council, may affect the habitat, including essential fish habitat, of a
fishery resource under its authority; and

(B) shall comment on and make recommendations to the Secretary
and any Federal or State agency concerning any such activity that,
in the view of the Council, is likely to substantially affect the
habitat, including essential fish habitat, or an anadromous fishery
resource under its authority.

(4)(A) If the Secretary receives information from a Council or
Federal or State agency or determines from other sources that an
action authorized, funded, or undertaken, or proposed to be
authorized, funded, or undertaken, by any State or Federal agency
would adversely affect any essential habitat identified under the
Act, the Secretary shall recommend to such agency measures that
can be taken by such agency to conserve such habitat.

(B) Within 30 days after receiving a recommendation under
subparagraph (A), a Federal agency shall provide a detailed
response in writing to any Council commenting under paragraph (3)
and the Secretary regarding the matter. The response shall include
a description of measures proposed by the agency for avoiding,
mitigating, or offsetting the impact of the activity on such habitat.
In the case of a response that is inconsistent with the
recommendations of the Secretary, the Federal agency shall explain
its reasons for not following the recommendations."

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SEVERAL CONSERVATION ORGANIZATIONS HAVE
COMMENTED. ALTHOUGH NOT ALL ORGANIZATIONS
(INCLUDING PCFFA) WOULD NECESSARILY HAVE THE SAME
COMMENTS, THE FOLLOWING ARE SAMPLE COMMENTS FOR
YOUR INTEREST:
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COMMENTS OF THE NATURAL RESOURCES DEFENSE COUNCIL
ON THE INTERIM FINAL RULE TO IMPLEMENT THE ESSENTIAL
FISH HABITAT PROVISIONS OF THE MAGNUSON-STEVENS
FISHERY CONSERVATION AND MANAGEMENT ACT

PREPARED BY SARAH CHASIS
SENIOR ATTORNEY, NRDC

February 17, 1998

These comments are submitted by the Natural Resources Defense
Council (NRDC) on the interim final rule on Essential Fish Habitat (EFH)
that was published on December 19, 1997 (62 Federal Register
66531-66559) and went into effect January 20, 1998. NRDC has
commented at each stage of the rule-making for this important new
provision of the Magnuson-Stevens Fishery Conservation and Management
Act (the "Act" or the "Maguson-Stevens Act").

Overall, NRDC believes the interim final rule provides useful guidance
to the Councils and NMFS on the identification and protection of EFH, is
consistent with the spirit and letter of the statute and its legislative
history,
and is an improvement over the proposed rule. It should be finalized in its
current form, with the exceptions noted below. In particular, we strongly
support the changes that have been made since the proposed rule was
published to the requirement specifying how fishing activities are to be
regulated under Fishery Management Plans (FMPs).

Fishing activities that may adversely affect EFH

Section 600.815 ("Contents of Fishery Management Plans")(a)(3)(iii)
drops use of the term "substantial" and instead provides that if a fishing
practice is having an "identifiable" adverse effect on EFH, the Councils
must take action, to the extent practicable. There was no statutory basis
for use of the modifier "substantial" and we believe NMFS was correct to
delete it. While we are generally comfortable with use of the term
"identifiable" in the regulation, we do not support the statement in the
preamble suggesting that the term "identifiable" means "more than minimal
and not temporary in nature." (62 Federal Register 66538, Section 14).
This language is bound to create ambiguity and uncertainty. What is
"temporary"? An effect that lasts momentarily or anything that is "not
permanent"? Clearly, the latter would be unacceptable. We recommend
deleting this description of "identifiable" and leaving the term
"identifiable"
in the regulation, without further elaboration.

In addition to the improvement resulting from the deletion of the term
"substantial," we support the deletion of the language in the proposed rule
that suggested that a cost/benefit analysis and determination had to be
made before imposing management controls on fishing. Section
600.815(a)(3)(iv) makes clear that, while both costs and benefits are to be
considered in determining whether management measures are practicable, a
cost/benefit analysis showing that the benefits outweigh the risks is not
required. Again the objectionable language in the proposed rule was
inconsistent with the statutory language and legislative intent and therefore
NMFS was correct to revise and clarify it.

We strongly support the rule's specific reference to "marine protected
areas" as a tool to limit adverse effects of fishing practices. See Section
600.815.(a)(4)(ii). It is vital for NMFS and the Councils to recognize the
legitimacy and, in some instances, perhaps the necessity of creating marine
protected areas that are closed to fishing in order to ensure the protection
of certain EFH.

One question that was not totally clear in the interim final rule is which
FMP should contain the management measures in the instance where it is
the fishing equipment used in another fishery, subject to a different FMP,
that adversely affects the EFH. For example, would time/area closures for
scallop dredging to protect bluefish EFH be controlled under the bluefish
FMP or the scallop FMP or both? It would be helpful if this were clarified
in the final rule.

Description and identification of EFH

NRDC continues to have concerns about restricting EFH identification
to those areas "most commonly used" (where there is Level 1 information)
or "most highly valued" (for Levels 2 through 4 information). See Section
600.815(a)(2)(ii). The statutory definition of "essential fish habitat" means
those waters and substrate necessary to fish for spawning, breeding,
feeding or growth to maturity." 16 U.S.C. 1802(10). This statutory
definition is not limited to the most valuable waters and substrate, but what
is "necessary."

We are concerned that if only the most productive or most used areas
are designated, the designation will not be sufficiently inclusive to capture
the full extent and type of habitat necessary for the different life stages
and
functions. Unless there are data showing that areas are not "necessary" for
the key life stages and functions of the fish, we favor their inclusion. At a
minimum, it would be better for the identification to exclude areas
"infrequently used" or "least valued," rather than for it to only include
those
areas most commonly used or most valued habitat.

NRDC strongly supports the notion that if a fish is overfished and
habitat degradation or loss may be contributing to the species being
identified as overfished, then all habitats currently used by the species
should be considered essential (including certain historic habitats) See
Section 600.815(a)(2)(ii)(B). If a species is overfished, it is important to
do everything possible to help its recovery, including protecting its habitat.

Conservation and enhancement

The section of the rule on the general conservation and enhancement
recommendations that should be contained in FMPs states that: "Activities
that may result in significant adverse {affects} on EFH, should be avoided
where less environmentally harmful alternatives are available. If there are
no alternatives, the impacts of these actions should be minimized."
600.815(a)(7)(ii).

There will be instances where, even if there are no alternatives
available,
an action should not go forward because its adverse impacts are so
significant. The Councils should be able to recommend against the action
proceeding in such instances, even if there is no alternative available. The
rule should recognize that such instances may arise.

EFH Coordination, Consultation, and Recommendations (Subpart K)

NMFS was wise to include these procedures in the rule. It is important
to make clear in advance how the EFH identification and determination can
be used by the Councils and NMFS in making recommendations to other
federal (and state) agencies and how the federal agencies are to use this
information and proceed.

Geograhpic scope

The rule provides that Councils may describe, identify and protect
habitats of managed species beyond the exclusive economic zone; however,
such habitat may not be considered EFH. Section 600.805(b)(2). If there
is essential habitat beyond the EEZ, particularly of an overfished species,
that otherwise meets the definition of EFH, then NRDC recommends that
NMFS reconsider whether or not the Councils may identify it as EFH. The
consequences of such a designation would be beneficial in that it would
require U.S. fishing vessels to avoid adverse impacts on this habitat, where
practicable, and authorize Councils to make recommendations to federal
agencies regarding actions authorized, funded, or undertaken by those
agencies that may adversely affect such EFH.

We see a definite advantage in having EFH identified where ever it
occurs, without artificial limitation, so that all measures, consistent with
international treaties and obligations, may be pursued to protect that
habitat from adverse impacts. There is no artificial limitation for habitat
found landward of the Council's jurisdiction and we are unclear why there
should be a prohibition on identification of EFH beyond the EEZ so long as
it can be done consistently with international law.

It has been pointed out that the U.S. does assert jurisdiction over
anadromous species that spawn in U.S. waters throughout their migratory
range beyond the EEZ, as well as all Continental Shelf fishery resources
beyond the EEZ. 16 U.S.C. 1811 (b). For these species, at a minimum, it
would seem that identification and determination of EFH beyond the EEZ
should be provided for in the rule.

In conclusion, NRDC appreciates this opportunity to comment and
looks forward to working with NMFS and the Councils on implementation
of this important aspect of the Magnuson-Stevens Act.

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