Purpose and Need

The Magnuson-Stevens Act was amended in 1996 by the Sustainable Fisheries Act. Congress recognized that 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. Therefore, the new Act mandated that any FMP must include a provision to describe and identify essential fish habitat (EFH) for the fishery, 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. Essential fish habitat has been broadly defined by the Act to include “those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity”. All eight regional councils were required to amend their fishery management plans by October 1998 to:

• identify and describe EFH for species managed under a fishery management plan;

• describe adverse impacts to that habitat from fishing activities and non-fishing activities; 

• recommend conservation and enhancement measures necessary to help minimize impacts, protect, and restore that habitat; and

• include conservation and enhancement measures necessary to minimize to the extent practicable, adverse impacts from fishing on EFH.

The purpose of this amendment was to provide for improved long-term productivity of the fisheries, to allow NMFS and the Council to be more proactive in protecting habitat areas, and alert other federal and state agencies about areas of concern. Federal agencies engaging in activities that may adversely affect EFH must consult with NMFS regarding those activities. NMFS must, and the Council may, make suggestions on how to mitigate any potential habitat damage. The Council will be required to comment on any project that may adversely affect salmon habitat or habitat of any other anadromous fish (smelt, steelhead, etc.). 

Analysis

A 364-page EA (final draft dated January 1999) and a background assessment report were prepared for this amendment. Three alternatives including the status quo were considered. The action alternative that was not chosen would have defined EFH only as areas of high concentration for each life stage. The alternative chosen was more conservative in that defining a larger area may offer more protection.

Regulation Summary

The alternative adopted and approved defined EFH as all habitat within a general distribution for a species life stage, for all information levels and under all stock conditions. A general distribution area is a subset of a species range. For any species listed under the Endangered Species Act, EFH includes all areas identified as "critical habitat". EFH was described in text, tables, and maps. Habitat areas of particular concern (HAPC) were identified as living substrates in shallow and deep waters, and freshwater habitats used by anadromous fish. HAPC is defined on the basis of its ecological importance, sensitivity, exposure, and rarity of the habitat. The amendment was approved on January 20, 1999.

Results

After the amendment was approved in 1999, NMFS was sued by a coalition of plaintiffs (Earthjustice Legal Defense Fund, Center for Marine Conservation, National Audubon Society, and others) who alleged that the EFH amendment failed to meet statutory requirements (did not analyze the effects of fishing on habitat and did not impose practicable measures to minimize impacts of fishing gear) and violated the National Environmental Policy Act (NEPA). In September 2000, the US District Court decision upheld NMFS’ approval of the EFH amendments, but ruled that the EA violated NEPA. The court ordered NMFS to complete an EIS, and HAPCs were later addressed under Amendments GOA Amendments 65/73. The Council further addressed EFH in GOA Amendments 90 and 105.

Sibling Amendments