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The following are excerpts of Congressional testimony, given by PCFFA Executive Director Zeke Grader to the House Resources Committee, Subcommittee on Fisheries, Wildlife & Oceans, on April 26, 2007 on the “Oceans 21” bill, HR 21. That bill would establish a national oceans policy and bring some of the most important elements of the reports of the U.S. Oceans Commission and the Pew Oceans Commission into law. This is active legislation introduced originally by California Congressman Sam Farr of California, and now has 60 cosponsors. Following the excerpts of the testimony are excerpts from a summary of the bill itself. For more information on the bill, including full text, search the Library of Congress’s THOMAS search library under H.R. 21 at: thomas.loc.gov.
As an organization, PCFFA has always taken considerable interest in the development of national ocean policy. This interest in the development of an overall ocean policy goes back to the early days of the Fishery Conservation & Management Act, now called the Magnuson-Stevens Act, and our frustration with not being able to address non-fishing factors, such as land and water use practices and pollution impacts as they affect the conservation and management of fish stocks.
While it was true at that time that most of the impacts on fish stocks came from fishing, a few species such as salmon were being ravaged by factors well beyond the control of either the regional fishery management council, the National Marine Fisheries Service, or even the state fishery agencies. Indeed, the only way at all we’ve been able to effectively get at non-fishing impacts on fish stocks has been through the Endangered Species Act, and to a lesser extent the Clean Water Act. The problem is, the ESA only kicks in well after any directed fishery has been stopped and stocks are in deep trouble, even threatened with extinction. We’ve had no similar statute at hand for protecting healthy fish stocks from non-fishing factors.
Thus, any measure that can help to protect fish habitat and fish stocks from non-fishing activities – those activities the fishery councils and agencies have no authority over – is welcomed. A national ocean policy to coordinate the activities of the various federal departments and agencies whose activities affect our oceans will help the regional councils and NMFS be effective in carrying out their conservation and management mandates.
Reviewing Title I of HR 21 in its current draft, the language captures the recommendations of both the Pew Oceans Commission and the U.S. Commission on Ocean Policy. It should help national efforts to better manage our fish stocks – restoring and protecting them and ensuring their sustainable use.
We do have concerns regarding the application of the precautionary approach and what that could mean in situations where we are data poor with the potential for severe restrictions or closures in such instances. However, we also recognize the need for caution when little is known to prevent potential fishery collapses through inadvertent over-harvest. The precautionary approach needs to go hand-in-hand with a well-funded program for research and regular and comprehensive data collection. This is why we believe the creation of a fishery trust fund, as well as one for ocean research and management generally, is urgent
There is one bit of caution we would add here, however. In our experiences in working with departments such as Interior, there are those agencies with an alpha dog complex that tend to dominate, e.g., the Minerals Management Service or the Bureau of Reclamation, that too often override sister agencies charged with the conservation of resources, i.e., the U.S. Fish & Wildlife Service. Thus, simply creating an ocean policy and calling for agencies to coordinate their activities affecting oceans and marine life will not by itself work unless there is constant diligence – by the Congress and non-governmental organizations, both conservation and fishing – to ensure development does not override conservation and the protection of natural resources, including the fish stocks fishing men and women rely on for their livelihoods.
A change that would be welcomed to HR 21 is in its Title II, adding sections prior to the existing Section 204 Resource Management, setting forth the role of a fishery agency. A name change, too, may be in order; perhaps a Bureau of Fisheries & Aquaculture - recalling the history of the old Bureau of Fisheries with an acknowledgement of the need for tight regulation over aquaculture in coastal and ocean waters. The charge here is broader than just resource protection; it should also include the preservation of the nation’s fishery heritage (commercial, recreational, tribal), its fishing communities, and abundant and healthful, not merely sustainable, fish populations. Moreover, there is an urgent need to provide direction to aquaculture development to ensure it is conducted in an ecologically sound manner and does not threaten, but compliments our wild capture fisheries.
Frankly, we need a fishery agency that has its own identification and that is viewed internationally on its own and not as mere stepchild of NOAA. We don’t need a “NOAA Fisheries,” no more than we’d tolerate a DOD Navy, or a Homeland Security Coast Guard. That’s why it may be time, with the reorganization called for in HR 21, to finally establish a U.S. Bureau of Fisheries & Aquaculture – recognized as the nation’s fishery agency.
PCFFA is pleased that fisheries have been included in Section 304, the Council of Advisors on Ocean Policy, along with the tribes. The establishment of a system of regional coordination in Title IV of HR 21 also has the potential for empowering the regional fishery management councils – giving them a say in the non-fishing activities that affect the health of fish stocks.
Regional ecosystem panels should enhance the authority of the regional fishery councils, not diminish it. For the first time, the Council’s could have a major voice over non-fishing activities that may impair the implementation and effectiveness of fishery management plans.
PCFFA is very supportive of the language in Section 405 to create Ocean Ecosystem Resource Information Systems. We have become solid converts to this method of gathering, organizing and presenting data, including research, graphs, photographs, etc., based on the Klamath Resource Information System (KRIS) that was developed for watershed management in Northern California watersheds, as well as some in British Columbia and Maine.
It strikes us that if ecosystem based management is to go beyond hype and press releases it must have a solid foundation and that is a knowledge base. A resource information system serves as a repository for all types of data for a specified place (place-based) and organizes and integrates it in such a way as to be useful. Moreover, it can provide the “so-what” of the data, making it meaningful to both policy makers and the public, by posing hypothesis in a peer-reviewed fashion regarding the meaning of various data. Further, a resource information system, such as proposed in HR 21, provides an inventory of research to better identify data gaps and prioritize research needs.
Finally, we wish to commend the authors for including a trust fund to support our nation’s ocean management activities. For at least a decade our organization has recognized the inadequacy of funding sources for fisheries and oceans and has been pushing for both a fishery trust fund (an article and draft legislative language is attached to this testimony) and a larger ocean trust fund. I am concerned about the funding source for the trust fund put forward in HR 21, but at the very least the bill is raising the issue and it would be a start.
Indeed, the trust fund language established in the recently reauthorized Magnuson-Stevens Fishery Conservation & Management Act is from a small source, but it is an important beginning. We believe it can be built on with the funding source we have suggested together with a detailed method for the distribution of the monies to ensure the funds are appropriately applied and well-spent. The same we think could be true with what is being proposed in HR 21 – that it is a beginning to be expanded upon. Thank you for the opportunity to provide this information.
Attachment to the testimony: “Planning And Paying For Future Fisheries Research, Fish Stocks and Fishing Communities Depend on Good Data,” By Pietro Parravano, Ky Russell and Paul Siri, Fishermen’s News, August 2003 (www.pcffa.org/fn-aug03.htm).
H.R. 21 (introduced 4 January 2007 by Congressman Sam Farr and a bipartisan list of cosponsors) builds on numerous national ocean commission reports calling for basic reforms of national ocean policy and governance. The panels’ recommendations included a more holistic, ecosystem-based approach to fisheries management and resource use generally as well as a more unified, coordinated governance structure among Federal agencies, States, Tribes, and others whose activities affect the marine environment.(1) Major provisions of the proposed legislation would:
The bill would foster efforts to integrate coastal zone management issues into the broader picture and help fisheries managers address concerns that lie outside the purview of the MSA, such as protection of watersheds and coastal habitats used by fish species. Importantly, according to many observers, the legislation is not intended to supersede existing legislation but to encourage agencies to incorporate the policies and standards to the fullest extent possible. There are, however, some uncertainties and ambiguities to resolve within each of these broad objectives. Ultimately a great deal would depend on the regulations drafted by NOAA to implement the law.
OCEANS-21 would make protection, maintenance, and restoration of healthy ecosystems an objective of coastal and oceans management. Sec. 204 (Resource Management) requires the Secretary of Commerce to maintain and restore the health and sustainability of coastal, ocean and Great Lakes resources through ecosystem-based management.(2) Sustainability is defined from an ecological perspective as capable of maintaining biological diversity and ecosystem structure and functioning (Sec. 4(10)). The bill would also institute a precautionary approach such that lack of full scientific certainty would not be used as a justification for postponing action to prevent environmental degradation. The bill directs agencies to interpret other laws, regulations and policies “to the fullest extent possible” in accordance with the national ocean policy. Many assert that this is intended to clarify that the policy does not override other federal laws, but rather that, to the extent there is discretion under those other laws, they are to be interpreted consistently with the policy. Others argue that it creates ambiguity in the implementation of such other federal laws.
The definition of “covered action” in Sec. 4(4) means any activity affecting U.S. ocean or coastal waters or resources that is authorized, carried out, or funded by a Federal agency. Sec. 101(b)(2) states that each federal agency that undertakes, authorizes, or funds a covered action shall ensure…that any covered action complies with the national ocean policy and national standards (i.e., “in a manner that is consistent with the protection, maintenance, and restoration of healthy ecosystems”). Any covered action that may significantly affect U.S. ocean waters or ocean resources may proceed only if the action (i) is not likely to significantly harm the health of any marine ecosystem, and (ii) is not likely to significantly impede the restoration of the health of any marine ecosystem.(3) In the case of uncertain or incomplete information, “decisions shall be made using the precautionary approach to ensure protection, maintenance, and restoration of healthy marine ecosystems.”
Title II would codify the NOAA. Sec. 201 (Mission) establishes NOAA as the lead civilian Federal agency with responsibility for providing oversight of all U.S. coastal, ocean, and Great Lakes waters and resources, with responsibility for conserving and managing their ecosystems and resources in accordance with the policies and standards in Title I. Sec. 201((c)(6) gives NOAA a coordinating role among Federal agencies, “acting as a focal point regarding oceans research and management.” Sec. 202(a)(2)(E) stipulates that the NOAA Administrator is the official for all ocean and atmosphere issues within the Department of Commerce and with other Federal agencies, State, tribal, and local governments. Sec. 101(d) (Implementation) states that each Federal agency which undertakes, authorizes or funds a covered action must certify that actions comply with the ocean policy and national standards and submit the certification to the NOAA Administrator for concurrence. The intent is not to give NOAA veto power but rather to enable NOAA to offer expert opinion and play a consultative role.
Title IV would establish a national network of governance bodies at the regional level, building on existing State and regional coordinating bodies. The Administrator and appropriate States, in consultation with the Committee on Ocean Policy,(4) would establish Regional Ocean Partnerships to formalize the collaboration and integration of Federal and State resource management efforts. As now written, the NOAA Administrator and Committee on Ocean Policy would coordinate the establishment of the ROPs consisting of Federal, State, and Tribal representatives, as well as the executive director of each regional fishery management council. Sec. 402 (c)(4) specifies that fishery management council EDs would serve as voting members of their respective ROPs as non-federal representatives.
Title V establishes an Oceans & Great Lakes Conservation Trust Fund to support the purposes of the Act. Deposits from the U.S. Treasury and revenues from a U.S. Postal Service special stamp plus interest (totaling $1.3 billion/year) would provide a funding source for State and Federal activities related only to developing and implementing Regional Ocean Strategic Plans. The NOAA Administrator would determine the regional allocation based on a weighted formula involving miles of coastal shoreline and population in each of the coastal States.
H.R. 21’s national policies and standards would seem to require changes in the way fisheries are managed under the MSA, but the extent of those changes is subject to interpretation and may ultimately depend on how loosely or strictly “consistency” is construed and on how “significance” of actions is determined. For instance, it is unclear that existing law has precedence in cases of conflict with OCEANS-21, although most insiders say that existing law would take precedence. The CRS summary of the bill indicates that regional ocean partnerships would not supplant the functions or authorities of existing regional entities – presumably that includes the MSA fishery management councils. Thus there are some significant ambiguities that need to be ironed out and the effects on fisheries management under the MSA will depend on that outcome.
At the very least, OCEANS-21 would seem to require fisheries managers to elevate ecosystem concerns (such as forage fish conservation) to a higher priority. Currently ecosystem considerations and ecosystem-based management are discretionary action items under the MSA and generally receive low priority at the Councils. Further, the MSA does not formally acknowledge the precautionary approach. The MSA defines conservation and management principally in terms of maintaining a supply of food and other products, albeit with the intent to avoid irreversible or long-term adverse effects on the marine environment (16 U.S.C. 1802).(5) The primary objective is resource utilization and the absence of any formal recognition of the precautionary approach means that the burden of proof is always on the environment to demonstrate harm before limits on fishing are considered or accepted, even when good circumstantial evidence is brought forward. OCEANS-21’s codification of ecosystem-based management would presumably require fishery managers to accelerate efforts to implement ecosystem-based management and align management objectives to be consistent with OCEANS-21 whenever possible, but the precise mechanisms or procedures for determining “consistency with” H.R. 21’s policies and standards are unclear.
OCEANS-21’s definition of “covered action” in Sec. 4(4) is sufficiently broad in scope to encompass just about any action involving Fishery Management Plan development or amendment, in which case it would seem that many if not all major actions at the fishery management councils could require NMFS to undergo the certification process outlined in Title II. It appears to be intended that the action agency would still decide if an action rises to the level of significance requiring that agency to submit certification to the NOAA administrator, in which case there may more flexibility than implied by the current language in the bill. Much will hinge on the determination of what constitutes “significant harm.” In addition, OCEANS-21 does recognize that social and economic impacts must be considered in the certification process: Sec. 101(b)(2)(D) states that adverse social and economic impacts on resource dependent communities “shall be minimized to the extent practicable, while remaining consistent with other provisions of this Act…” If there are alternatives that have less impact on fisheries, those could be adopted so long as they achieve the goal of ecosystem protection. Thus fisheries managers may have considerable flexibility in achieving consistency with OCEANS-21.
According to the CRS review of the bill, ROPs would not supplant the functions or authorities of the existing regional entities such as the regional fishery management councils. Nevertheless, the covered actions and other provisions of the bill clearly imply that fishery management councils would have to justify their actions in terms of the policies and standards of OCEANS-21. Once again, as elsewhere, the mechanisms for balancing precedence of existing laws such as the MSA with need for consistency with a new national oceans policy are not clearly spelled out.
Since the trust fund is intended to support development and implementation of Regional Ocean Plans, the extent to which those funds may be used to support fishery-focused objectives such as research and data collection will depend on the projects prioritized in ROPs. As written, it seems open-ended but fisheries are only one of the constituencies seeking funds. Thus fisheries-focused projects would presumably have to compete with other issue areas and priorities for the grant money.
(1) E.g., Ecosystem Principles Advisory Panel 1999; National Research Council 1999; Pew Oceans Commission 2003; U.S. Commission on Ocean Policy 2004.
(2) According to the CRS summary of the bill, this section codifies NOAA’s ecosystem-based management strategy – identified as a goal in NOAA’s Strategic Plan for FY 2006-2011.
(3) This determination would be made by the implementing agency – i.e., the Corps of Engineers for dredging projects, MMS for offshore energy development, etc.
(4) Title III establishes a National Oceans Advisor to advise the President on implementation of the Act and other covered actions, along with the Committee on Ocean Policy, which would facilitate interagency coordination, resolve interagency disputes, coordinate and certify agency ocean budgets – all with the aim of achieving the policy and standards set forth in Sec. 101.
(5) “all the rules and regulations designed to assure that (i) a supply of food and other products may be taken, and that recreational benefits may be obtained, on a continuing basis; (ii) irreversible or long-term adverse effects on fishery resources and the marine environment are avoided; (iii) there will be a multiplicity of options available with respect to future uses of these resources.”
Zeke Grader is the Executive Director of the Pacific Coast Federation of Fishermen’s Associations (PCFFA), the west coast’s largest trade association of commercial fishing families. PCFFA can be reached at its Southwest Office at PO Box 29370, San Francisco, CA 94129-0370, (415)561-5080, and at its Northwest Office at PO Box 11170, Eugene, OR 97440-3370, (541)689-2000 or by email to: fish1ifr@aol.com. PCFFA’s Internet Home Page is at: www.pcffa.org.
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