Symposium Abstract: The Legal Requirement to Address Fishing Effects on Essential Fish Habitat: Thresholds, Qualifiers, and the Burden of Proof
The 1996 Sustainable Fisheries Act (SFA) requires fisheries managers to describe and identify the essential fish habitat of all managed fish stocks in the U.S. EEZ. The law also requires managers to ‘minimize to the extent practicable adverse effects on such habitat caused by fishing.’ In addition to the practicability language, the SFA’s fishing effects mandate is qualified by the Act’s overall requirement that conservation and management measures ‘shall be based upon the best scientific information available.’ The National Marine Fisheries Service’s (NMFS) 1997 EFH guidelines, requiring councils to mitigate when there was evidence of ‘identifiable adverse effects,’ gave little additional understanding of the threshold for ‘adverse effects’ that would trigger the need for mitigation measures. In the first generation of EFH amendments, the practicability standard did not come into play because most councils concluded there was inadequate scientific information regarding the seafloors and fishing gear impacts in their region to warrant the development of mitigation measures, whether practicable or not. Conservation groups challenged the Secretary’s approval of five of the regional councils’ EFH amendments, claiming the councils had not taken into account the growing scientific consensus that bottom trawling and dredging can have significant ecological effects. Government lawyers defending the Secretary’s action convinced the court that the amendments were adequate because the agency interpreted the SFA’s EFH and ‘best available science’ standards to require site-specific scientific information that particular fishing practices or gears are having identifiable impacts on particular habitats within the council’s region. In deferring to this interpretation, the court thus established that the 1996 provisions require more detailed scientific evidence to cross the threshold for ‘adverse effects’ than was then available for each region. More important, however, was the court’s conclusion that the decision-making process for approving the EFH amendments was deficient under the National Environmental Policy Act (NEPA) because NMFS failed to take a ‘hard look’ at the environmental consequences of fishing practices and gears. NEPA required the agency to analyze a broader range of feasible alternatives for protecting EFH from fishing activities than the status quo alternatives recommended by the councils. Under a court-approved settlement agreement, NMFS and the councils must prepare new environmental impact statements that will improve their EFH identifications and consider a range of alternative approaches to the fishing effects question. This second generation of EFH actions is likely to differ significantly from the first for several reasons. First, NMFS has directed the councils to consider all scientific information currently available regarding fishing effects, a body of literature that has increased considerably since 1997- 98 when the first EFH amendments were prepared and approved. Moreover, NEPA does not have a ‘best available science’ requirement, a standard NMFS used implicitly to justify its limited efforts to require protective EFH amendments. The councils will also need to consider the National Academy of Sciences’ 2002 report, ‘The Effects of Trawling and Dredging on Seafloor Habitat,’ which concludes that seafloor habitat should and can be effectively protected from gear impacts in the absence of site-specific information. The report describes a comparative risk analysis process that NMFS and the councils can use in the face of scientific uncertainty. This risk analysis process is a form of structured decision-making the National Academy of Sciences’ panel on science and the Endangered Species Act recommended agencies use when conservation decisions must be made with incomplete information and where conflicting social values are at play. There is also a strong possibility that Congress will soon amend the EFH and fishing effects mandate as well as the ‘best available science’ requirement. The 107th Congress is considering competing bills that would define in more detail how science-based fishery management decisions are to be made in the face of uncertain scientific information. Thus, the next round of EFH amendments and bycatch provisions are likely to be reviewed for approval under very different thresholds, qualifiers, and burdens of proof.