Comments and Rationale for Groundfish Forum’s Recommendations Regarding the Essential Fish Habitat Framework

Issue 1:  State Waters

Problem

The proposed framework has no binding authority over identifying, describing, or regulating activities that may adversely affect EFH in state waters.

  • Concern A:  It is within three miles of the coast where scientific evidence indicates that the most sensitive habitats were found.  In noting the importance of wetlands to fish stock production, the proposed framework acknowledges the critical function of the coastal zone, but this concern over habitat loss can not be addressed under the guidelines in the proposed framework.
  • Concern B:  In the previous draft of the proposed framework, (January 9, 1997) it was stressed that NMFS and Fishery Management Councils were required to make recommendations regarding essential fish habitat in state waters.  The present draft has considerably weakened this language and expressly states that NMFS and Management Councils are to merely “furnish” the state with recommendations, recommendations that are not mandatory nor binding in any way.  This language makes the proposed rule powerless regarding activities that may adversely impact EFH in state waters.

Recommendation

If the EFH guidelines are to ensure sustainable fisheries and healthy ecosystems it will require more than the ability to consult with states.  The framework must motivate coastal states to adopt parallel regulations.  Moreover, the framework must explicitly state that the most sensitive area, (the area where there was a confirmed causal link between habitat and productivity) is the coastal environment, and that states shall seek to protect the coastal zone from further degradation and habitat loss.

Issue 2:  Link Between Habitat and Productivity

Problem

It is inaccurate to claim that scientific evidence which shows a causal link between habitat loss and reduced production in some fisheries applies generically to all ocean environments (as implied in the draft Environmental Assessment and Finding of No Significant Impact (section 5.2)).

  • Concern A:  Very little research conducted in the open ocean environment, (where EFH regulations apply) has focused on the link between production and habitat.  It appears that the scientific evidence noted in the proposed rule most likely refers to studies of anadromous fish and other species critically dependent on the coastal environment.  Scientific evidence does indicate a causal link between coastal environmental health and fisheries production, but, as stated previously, the proposed framework is impotent in addressing activities detrimental to the coastal environment.  By implying a generic causal link between habitat and fish stock production, the proposed EFH guidelines may erroneously impact the fishing industry without scientific justification.
  • Concern B:  It is true that the link between habitat and productivity has been studied and verified in some systems, but determining “sufficient quantity” of habitat based on the available data may be difficult if not impossible to accomplish.  Presence/absence of data do not indicate how much habitat is required to sustain productivity or maintain ecological integrity.  What may occur is that this process will result in defining scientifically unfounded protected areas.

Recommendation

Revise the language in the proposed EFH guidelines that implies a substantiated link between habitat and productivity in the open ocean environment or document the presence of this linkage and cite the pertinent scientific evidence if available.

Issue 3:  Decisions Based on Inference and Professional Judgment

Problem

Insufficient guidance for Councils in the protection of Essential Fish Habitat.

  • Concern:  Because the proposed framework does not provide sufficient guidance, management decisions relevant to EFH are left to the discretion of Council members who are generally not scientists and are often motivated by politics and individual self-interest.  The proposed framework acknowledges that many of these decisions will be based on “inference” and “professional judgment.”  This seems inherently unwise.  In the hands of Council members, it will no doubt lead to arbitrary rule-making, disparate impacts on gear groups with less representation on the Councils, and a deviation from the main purpose of the EFH framework which calls for decisions to be based on scientific evidence.  Ultimately, insufficient guidance for Management Councils may detract from the primary goal of the proposed rule, i.e., habitat protection.

Recommendation

We recommend that the EFH framework lay-out specific objectives that first call for careful scientific analysis before Councils restrict activities suspected of adversely affecting essential habitat.  Moreover, we recommend that all language regarding “inference” and “best professional judgment” be modified, because the current proposed rule gives too much discretion to politically influenced or motivated actors, especially when inference or judgment is based on gray literature or unsubstantiated data.

Issue 4:  “Damage” and “Levels” of Information

Problem

Current levels of knowledge and data preclude management of essential habitat based on scientific evidence.  This deficiency may result in unnecessarily restrictive regulations.

  • Concern A:  Because the paucity of detailed geographic information will forestall adequate identification of different habitat types in some regions, overly broad “essential” areas will be delineated.  If protective regulations are proscribed based on these maps, how will those regulations account for uncertainties such as, species ranges or habitat vulnerability?  Moreover, we are concerned that all activities in an area will be curtailed based on the mere presence of a species even though it is known that all of the “essential” area is not critical to sustaining that species.
  • Concern B:  By its definition, the “level one” type of information described in the proposed rule will produce broad areas defined as Essential Fish Habitat.  If activities are restricted in those areas, the lack of empirical data regarding impacts and/or links between habitat and productivity may impose exacting restrictions on a faultless industry.  Specifically, under this proposed rule it is inevitable that regulations will be based on presumed impacts, rather than scientific evidence as required in the EFH framework.
  • Concern C:  Current knowledge and information does not allow a comparison of long-term versus short-term damage.  However, the proposed rule calls  for immediate action to protect vulnerable habitat and/or depleted stocks.  Without knowledge regarding the true long-term impacts, we are concerned that regulations would be based on apparent short-term disturbances that do not accurately reflect the actual impacts on the long-term sustainability of a stock or the health of the ecosystem.

Recommendation

The Essential Fish Habitat framework should instruct federal and state agencies to collect empirical data:  geographical information that includes open ocean habitat:  research that compares apparent short-term disturbance to true long-term damage.  Moreover, the rule should require that regulations designed to protect habitat focus on those areas where empirical evidence indicates that habitat is vulnerable or that stocks are in jeopardy.  When it is known that stocks are healthy and abundant, such as in the North Pacific, essential habitat should not be used as a tool to further restrict activities.

Issue 5:  Benefit/Cost Analysis to Determine if the Potential Cost of Restrictions was Reasonable

Problem

The proposed rule recognizes the need to balance the potential benefits of Essential Fish Habitat protection against the costs imposed on the fishing industry, industries, and government agencies whose activities may adversely impact EFH.  The need to balance benefits and costs is a dominant theme in the proposed rule, especially in regard to minimizing, “to the extent practicable,” adverse effects on EFH.  Additionally, the proposed rule also instructs Councils to determine the extent an activity adversely impacts EFH, the nature of the impact, and whether the cost of restrictions is reasonable.  However, the language in the proposed rule referencing formal Benefit/Cost analysis is neither strong nor explicit.

  • Concern A:  The Groundfish Forum is concerned that NMFS may lose sight of the importance of Benefit/Cost analysis as they will undoubtedly receive comments from the public objecting to any requirement to compare benefits to costs.  At the public hearings on EFH, we heard several groups espouse the “inherent benefit” of protection, even though the value of an increment of essential habitat at the margin (in an economic sense) to fish stocks may be small or even negligible.  We are concerned that protection of EFH in this case may not outweigh the costs to industry.  Some groups were adamant that the “precautionary approach” should be the tool of choice in determining protection strategies, rather than benefit/cost analysis.  The Groundfish Forum is concerned about this “protectionist” approach.  We feel it is imperative to quantify benefits and costs so that any steps undertaken to protect essential fish habitat will result in a net benefit to the nation, as required of FMPs under the Magnuson-Stevens Act.
  • Concern B:  The Groundfish Forum is familiar with the difficulties involved in assessing the benefit of a given increment of habitat in both the short and long term, especially given the dearth of scientific knowledge of the relationship between habitat and sustainable productivity.  We contend, however, that there is no reason to circumvent a formal comparison of benefits to costs (admittedly costs are simpler to quantify).

Recommendation

The EFH rule should mandate the use of Benefit/Cost analysis to compare any benefits stemming from adverse impacts on EFH to the costs imposed on the party or parties responsible for adverse impacts.  We believe the proposed rule should directly mandate the need for any proposed restriction to pass the National Standards in terms of net national benefit as outlined in the Magnuson-Stevens Act.  This mandate will compel a formal comparison of the benefits and costs, ensuring that the public’s interest will  be protected from the imposition of costs without compensatory benefits.  We feel this guidance to Councils is necessary and should be made even more explicit.

Additionally, in order to quantify the intrinsic benefits of habitat protection as a means to facilitate Benefit/Cost analysis, we recommend using those state of the art methodologies commonly used in analyses of projects where benefits are intangible or non-monetary to some extent (e.g., water projects).  These methodologies have proven adequate for gross comparisons of benefits and costs for these often controversial projects.  A body of technical and legal literature has developed to guide analysts and reviewers on how to resolve any potential inherent biases in the methods.  Admittedly, there are limitations to Benefit/Cost analysis.  We firmly believe, however, that this is not an adequate reason to shun the importance of a formal comparison of the impacts on industry, the public sector, and consumers, against the potential benefits of measures to protect EFH.

Issue 6:  Draft Environmental Assessment (EA) and Finding of No Significant Impact (FONSI)

Problem

The Groundfish Forum feels it is inappropriate for the Environmental Assessment (EA) to make a finding of no significant impact at this time.  The first step in the Essential Fish Habitat process is to amass all pertinent data, the next step is to evaluate the extent of evidence of adverse impacts on EFH in different regions.  Until this process is complete, there is no credible way to determine if measures taken to stem adverse impacts will not significantly impact some or all sectors of the fishing industry, industries, the public, or government agencies.  At this point, there is not enough information to determine no significant impact will occur.

  • Concern A:  A major concern regards the reasoning on which the “finding of no significant impact” is based.  The rationale underlying the FONSI relies on the notion that the industry will incur no significant impact from changing fishing areas or gear types, is specious at best.  The proposed rule should recognize the possibility that some area restrictions may preempt fishing for some species altogether because fish are not sufficiently concentrated outside of EFH areas to allow commercially viable fishing.  Furthermore, some species cannot be efficiently caught with gears other than those currently in use.  We foresee that potentially the EFH regulations will impose significant costs on the fishing industry, particularly in regions where the extent of knowledge regarding essential habitat is limited to the presence/absence of a species, leading to restrictions that imposed expansive closed areas.  As previously noted, we are chiefly concerned about the North Pacific waters where fin fish stocks are healthy and well managed.  This area is vast and remote, and the dearth of data on bottom habitats will likely result in “level one” EFH determinations.  The extent of the area and the paucity of the data will result in broadly defined essential habitat.  Based on this fact, it is difficult to comprehend how NMFS can determine a finding of no significant impact.
  • Concern B:  Finally, the EA should examine the potential side effects of the EFH process.  If implemented as currently proposed, it may concentrate fishing effort into allowable fishing areas.  The concentration of effort into allowable areas has the potential to produce adverse effects where no significant impacts occurred previously.  For example, suppose that a number of fishing gears imposed a temporary effect on benthic habitats, but these effects are not permanent or particularly adverse because growth of benthic flora and fauna outpaces disturbance caused by the fishing gears.  Essential Fish Habitat regulations that closed one area would concentrate effort in another area, increasing the potential for habitat damage.

Recommendation

Withdraw the “finding of no significant impact” until such time that information is available to legitimately make that claim.  Additionally, the EA should address effects that may result from unanticipated consequences (as described above) and our incomplete understanding of the effects of fishing on fish habitat.

Issue 7:  Language

Problem

There remain many ambiguous terms and phrases in the proposed rule.

Recommendation

The Groundfish Forum recommends the following changes to clarify and/or strengthen the Essential Fish Habitat framework:

  • It is noted in the draft Environmental Assessment and Finding of No Significant Impact (section 1.2) that “[a] national habitat program is necessary to prevent overfishing.”  It is unclear how protection of habitat will prevent overfishing.  The term overfishing is specific to removals of fish, not impacts on habitat.  In order to prevent any misunderstanding of the intent of EFH regulations, this passage should be deleted.
  • The framework should make a distinction between “physical disturbance” and long-term damage to the environment.  Identifying and describing a range of effects will facilitate Councils in managing the range of activities that interact with the environment.
  • The framework should provide guidelines that assist Councils in determining the health of an ecosystem.  Councils should also be instructed as to how to account for natural climate variations and oceanographic fluctuations when determining ecosystem health.
  • “Use of presence/absence data may result in the designation of broad geographic areas, similar to critical habitat designations.”  In this context, it could be inferred that EFH is equivalent to critical habitat as defined and protected by the ESA, a much more restrictive definition.  The framework should make a clearer distinction between essential habitat and critical habitat.
  • The terms “adverse effect,” “vulnerable habitat,” and “human-induced degradation” are not defined in the proposed rule.  For the EFH guidelines to be effective at managing activities that interact with essential habitat, these terms must be defined.  The definitions must reflect the range of impacts (from benign to adverse) and acknowledge the distinction between short-term disturbance and long-term degradation.