[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT AND ITS
RELATIONSHIP TO THE NATIONAL ENVIRONMENTAL POLICY ACT
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON FISHERIES AND OCEANS
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
Thursday, April 14, 2005
__________
Serial No. 109-6
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://resourcescommittee.house.gov
______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
Jim Saxton, New Jersey Eni F.H. Faleomavaega, American
Elton Gallegly, California Samoa
John J. Duncan, Jr., Tennessee Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming Donna M. Christensen, Virgin
Vice Chair Islands
George P. Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Grace F. Napolitano, California
Carolina Tom Udall, New Mexico
Chris Cannon, Utah Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada Jim Costa, California
Greg Walden, Oregon Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado Dan Boren, Oklahoma
J.D. Hayworth, Arizona George Miller, California
Jeff Flake, Arizona Edward J. Markey, Massachusetts
Rick Renzi, Arizona Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico Jay Inslee, Washington
Devin Nunes, California Mark Udall, Colorado
Henry Brown, Jr., South Carolina Dennis Cardoza, California
Thelma Drake, Virginia Stephanie Herseth, South Dakota
Luis G. Fortuno, Puerto Rico
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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SUBCOMMITTEE ON FISHERIES AND OCEANS
WAYNE T. GILCHREST, Maryland, Chairman
FRANK PALLONE, JR., New Jersey, Ranking Democrat Member
Don Young, Alaska Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Walter B. Jones, Jr., North Neil Abercrombie, Hawaii
Carolina Solomon P. Ortiz, Texas
Thelma Drake, Virginia Ron Kind, Wisconsin
Luis G. Fortuno, Puerto Rico Madeleine Z. Bordallo, Guam
Bobby Jindal, Louisiana Nick J. Rahall II, West Virginia,
Marilyn N. Musgrave, Colorado ex officio
Richard W. Pombo, California, ex
officio
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C O N T E N T S
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Page
Hearing held on Thursday, April 14, 2005......................... 1
Statement of Members:
Drake, Hon. Thelma, a Representative in Congress from the
State of Virginia.......................................... 30
Gilchrest, Hon. Wayne T., a Representative in Congress from
the State of Maryland...................................... 1
Prepared statement of.................................... 2
Pallone, Frank Jr., a Representative in Congress from the
State of New Jersey........................................ 2
Statement of Witnesses:
Bear, Dinah, General Counsel, White House Council on
Environmental Quality...................................... 7
Prepared statement of.................................... 10
Frulla, David, Attorney, Collier Shannon Scott, PLLC......... 42
Prepared statement of.................................... 44
Furlong, Daniel T., Executive Director, Mid-Atlantic Fishery
Management Council......................................... 18
Prepared statement of.................................... 20
Greenberg, Eldon, Attorney, Garvey Shubert Barer............. 38
Prepared statement of.................................... 40
Hogarth, Dr. William T., Director, National Marine Fisheries
Service, National Oceanic and Atmospheric Administration,
U.S. Department of Commerce................................ 13
Prepared statement of.................................... 15
Iudicello, Suzanne, Author/Independent Consultant on Marine
Conservation............................................... 33
Prepared statement of.................................... 35
Additional materials supplied:
National Academy of Public Administration, Statement
submitted for the record................................... 3
OVERSIGHT HEARING ON THE MAGNUSON-STEVENS FISHERY CONSERVATION AND
MANAGEMENT ACT AND ITS RELATIONSHIP TO THE NATIONAL ENVIRONMENTAL
POLICY ACT.
----------
Thursday, April 14, 2005
U.S. House of Representatives
Subcommittee on Fisheries and Oceans
Committee on Resources
Washington, D.C.
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The Subcommittee met, pursuant to notice, at 10:04 a.m., in
Room 1334, Longworth House Office Building, Hon. Wayne T.
Gilchrest [Chairman of the Subcommittee] presiding.
Present: Representatives Gilchrest, Pallone, Drake, and
Bordallo.
STATEMENT OF THE HON. WAYNE T. GILCHREST, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MARYLAND
Mr. Gilchrest. The hearing will come to order.
This morning, the Fisheries and Oceans Subcommittee will
hold a hearing on the process that NEPA plays in fisheries
management plans. I have a statement that I will submit for the
record, and I ask unanimous consent. Without objection, so
ordered.
We appreciate the witnesses coming here this morning to
discuss this interesting process of NEPA, and the Fishery
Management Council's complying with the Sustainable Fisheries
Act, looking for ways to protect the economic and the cultural
resources of regions around the country and still fully enforce
and implement the idea of fishery conservation.
We are in a process to reauthorize the Magnuson-Stevens Act
along with the Senate, and we hope, and are fairly certain,
that that can happen in this particular Congress. We do all
this in the context of both the Pew Commission and the U.S.
Ocean Commission and their relevant recommendations in this
most broad arena.
We will be looking at reauthorizing the Magnuson-Stevens
Act, and also dealing with some of the recommendations in the
study ``Oceans 21.'' We are looking closely at the Ocean Action
Plan that the Administration is setting forth. And in that
context, we are trying to understand in a broader way the
physics and its system in the ocean. How do the oceans work?
What makes them dynamic? What is the interface between the
oceans' climate and the atmosphere and the air we breathe? And
all of that in the context of fisheries.
This is a small but significant part of that process, the
National Environmental Policy Act, and how does it interface,
enhance or duplicate, improve or slow down the process of
instituting, inculcating science into the councils? Can we do
all of this in a timely fashion, a proper fashion, and engage
the fishermen, the scientists, and the community for a well
laid out plan?
And it is this hearing where we will exchange that
information, take advice from all of you, and try to come up
with a process that benefits both the conservation effort that
we have been pursuing now for some years, and that lone
lobsterman off of Bar Harbor, or the lone fisherman facing the
treacherous waters of the Bering Sea, or those in the Gulf of
Mexico or other areas of the Pacific or other areas of the
Atlantic. And also, we don't want to forget our friends in the
Caribbean.
We look forward to your testimony. We take it all into
consideration. We will try to create a system that will be of
great benefit to future generations.
And I will yield now to the great gentleman from the Garden
State of New Jersey, Mr. Pallone.
[The prepared statement of Mr. Gilchrest follows:]
Statement of The Honorable Wayne Gilchrest, Chairman,
Subcommittee on Fisheries and Oceans
I would like to welcome the witnesses to today's hearing on the
relationship between the Magnuson-Stevens Fishery Conservation and
Management Act and the National Environmental Policy Act (NEPA). Both
Acts are important pieces of this nation's environmental legal
framework and fulfill important roles in fisheries management.
In the Subcommittee's efforts to reauthorize the Magnuson-Stevens
Act, we have heard a number of times that there may be provisions
within the two Acts that may not work well together. In particular, we
have heard that some of the time requirements within the two Acts may
be duplicative and cause unnecessary delays in making fishery
management decisions. If this is the case, and I hope we will hear more
from our witnesses about this issue, we need to examine what can be
done to maintain the important concepts in both Acts while making
fisheries management more responsive, timely, and environmentally
friendly.
Since this Subcommittee has not dealt with NEPA in the fisheries
management context, I want to thank Ms. Dinah Bear, the General Counsel
for the Council on Environmental Quality, who will start us off with an
explanation of how NEPA works. We will then hear from other witnesses
with their views on whether there really is a conflict between the two
Acts.
I look forward to hearing from our witnesses and having a healthy
debate about how these two important environmental statutes work in the
fisheries management world. I suspect we will not come to any
resolution on the issue today and I look forward to working with all of
you in examining this issue further as we work on the reauthorization
of the Magnuson-Stevens Act.
______
STATEMENT OF THE HON. FRANK PALLONE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW JERSEY
Mr. Pallone. Thank you, Mr. Chairman. I do want to express
some concern this morning that, while over the past six months
we have received two major reports describing the crisis facing
our ocean ecosystems and outlining what Congress needs to do,
we are holding a hearing on something that, in my opinion, is a
very minor problem, if there is any problem at all.
I appreciate in the past that the National Marine Fisheries
Service has experienced a spike in litigation, and has not had
a good track record of defending its decisions in courts.
However, as described in the National Academy of Public
Administrators report released in February, the agency has made
dramatic improvements that have reduced litigation and improved
NMFS' record in court. In fact, the academy's report identifies
inadequate funding for NEPA implementation as the primary
challenge to NMFS' continued improvement.
[The prepared statement of the National Academy of Public
Administration follows:]
Statement submitted for the record by the
National Academy of Public Administration
Mr. Chairman and Members of the Subcommittee:
The National Academy of Public Administration appreciates the
opportunity to submit this statement for the record regarding efforts
by the National Marine Fisheries Service (NMFS) to improve the nation's
fisheries management process. The Academy is an independent non-profit
organization chartered by Congress to assist public institutions in
improving their performance. The Academy staff recently completed a
follow-up effort to determine what actions NMFS has taken to address
significant concerns an Academy Panel first identified in 2002.
At the time of our first study, both Congress and the agency's
constituents were increasingly vocal in their criticism of NMFS. The
Academy Panel, along with a Committee of the National Research Council
(NRC) of the National Academy of Sciences, made numerous
recommendations to improve fisheries management, including recommended
changes in management and regulatory processes, constituent relations,
and NMFS' program budget and science activities.
During this follow-up effort, the Academy staff identified numerous
fundamental changes underway in NMFS that directly address many of the
concerns the Academy Panel and the NRC Committee reported in 2002. NMFS
management has expended considerable effort in developing and
implementing new management approaches aimed at improving the timing
and quality of fisheries management decisions; the agency's ability to
set priorities and devote appropriate resources to its many mission
goals, including its science mission; and interactions with its
constituencies and partners. However, it remains to be seen whether
NMFS can successfully implement all of the planned changes, especially
in light of what agency officials see as limited resources. Success
will depend on the continued support of Congress and the
Administration, the fishery management councils, NMFS' constituents and
partners, as well as NMFS' own strong and determined leadership.
Below is a discussion of the agency's actions to improve the
fisheries management process that relate most directly to the subject
before the Subcommittee today.
Concerns Identified in 2002
In 2002 the Academy reported that as NMFS and the fishery
management councils (councils) struggled to develop and implement
management plans and other management actions, the process had bogged
down. The Academy's study confirmed many problems that had already been
identified from internal and external assessments, including lack of
clarity in responsibilities among NMFS regional offices, centers, and
the councils; lack of timeliness in decisions on management actions;
lengthy layered reviews; excessive delays; outdated policies and
guidance; inadequate analyses; and unpredictable outcomes.
One critical area of concern was NMFS' ability to successfully
carry out its responsibilities under the National Environmental Policy
Act. The Academy reported that of 42 Fishery Management Plans (FMPs) in
place at the time of our study, 30 had not had comprehensive
environmental impact statements (EISs) within the last 5 years; 7 had
no EIS analysis at all. Recent court settlements and decisions had made
updating EISs an urgent concern. Congress began appropriating funding
specifically to enable the agency to conduct NEPA activities in FY
2001, but a year later, the agency had made only limited progress in
hiring staff or completing NEPA actions.
However at that time, in response to Congressional direction, NMFS
was developing its Regulatory Streamlining Project (RSP). The new
process was designed to improve the agency's ability to meet its
responsibilities under the many applicable legislative authorities,
especially NEPA. NMFS was also attempting to improve its capabilities
with regard to its NEPA responsibilities.
The Academy supported those efforts and made several
recommendations that focused on implementing RSP, improving NEPA
efforts, and revising the Operational Guidelines that support these
actions. The Academy also made a number of recommendations aimed at
clarifying roles and responsibilities among the regional offices,
centers and fisheries management councils; making the process itself
more seamless and less bureaucratic; and improving the support for and
documentation of council decisions. As envisioned, RSP would address
most of these concerns.
NMFS Actions
NMFS is seeking to make a dramatic change in its approach to
fisheries management, moving from a laborious, sequential rule-making
process to a more collaborative, transparent one. NMFS has directed
considerable resources and effort toward developing and implementing
RSP, and may be on the brink of a fundamental change in how it
operates. Some of the key components of RSP, which are discussed in
more detail, are:
Improving the agency's ability to meet its
responsibilities under NEPA
Reducing review levels and relying more on regional
expertise and authority
Frontloading the regulatory process, ensuring
participation by all responsible parties early and throughout the
process to better ensure that all important issues are identified and
dealt with early in the process, not after a final regional or
headquarters review
Revising the Operational Guidelines
Improved NEPA Capabilities
NMFS has made significant progress with regard to its NEPA
capabilities. In 2002 difficulties in complying with NEPA were seen as
a primary factor slowing the rule-making process and contributing to
many of the judicial challenges to NMFS actions.
Largely funded through specific appropriations, \1\ the agency now
has 21 positions dedicated to NEPA responsibilities, including a NEPA
coordinator in headquarters and in each of the regions. In each year
since 2001, NMFS has allocated over $100,000 of the NEPA appropriation
to each of the eight councils to improve their NEPA expertise. Academy
staff spoke to two Council Executive Directors who said that funding
has been instrumental in allowing their councils to hire staff; one
specifically noted that the funding allowed completion of several NEPA
analyses that, otherwise, probably would not have been done.
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\1\In FY 2001 Congress appropriated $8 million for agency-wide NEPA
effor ts as well as additional funds for some specific NEPA
responsibilities, such as those related to Hawaiian sea turtles.
Appropriations for agency-wide NEPA efforts were reduced to $5 million
in FY 2002 and 2003, and again to $3 million in FY 2004 and 2005.
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NMFS also has established a training protocol for NEPA, specifying
key subjects to be covered in a variety of classes for NMFS and council
staff, as well as council members. Over 1,000 people have received
training in the last two years. Additionally, the agency's NEPA webpage
provides ``how to'' information, as well as examples of NEPA
documentation. The NEPA national coordinator has monthly conference
calls to monitor progress and identify issues that need to be resolved.
NMFS officials reported that by 2004 EISs for all FMPs had been
updated, with the exception of two that had been in process for over
five years.
Reduced Levels of Review
Several actions have already been taken to delegate authority and
thereby reduce layers of review and streamline the process for
approving fishery management actions. Two key delegations are:
In 2001, signature authority for fishery management
actions was delegated from the Under Secretary for Oceans and
Atmosphere in NOAA to the Assistant Administrator for Fisheries.
More recently, in May 2004, NOAA's Office of General
Counsel implemented a policy eliminating routine review of fisheries
regulatory packages by the headquarters OGC for Fisheries.
Frontloading
Frontloading the regulatory process is fundamental to the RSP
design. Conceptually, frontloading is intended to ensure that all
parties with responsibility for issues addressed in fishery management
actions--those responsible, for example, for legal issues, NEPA,
fisheries, habitat, and protected resources--are involved in the
process from the beginning and on a continuing basis. This broad and
early involvement is intended to ensure that all policy and legal
issues are dealt with early in the process, not at the end. The goal is
to ``get it right the first time.'' NMFS used the NEPA goals and
process requirements as the foundation for developing procedures for
RSP. NEPA serves as the umbrella for considering all impacts of a range
of regulation options, including socioeconomic impacts and effects on
endangered species and marine mammals.
NMFS officials identified two regions that had begun using the
interdisciplinary action teams that are a key part of the formal RSP
frontloading. \2\ Academy staff visited one of those regions, and found
that the region had been making wide use of these teams for developing
fishery management plans and other key actions. Officials were highly
satisfied with the frontloading approach. The officials saw the process
as more timely and efficient, and said through the process, they had
been effective in identifying and dealing with issues early. Academy
staff also spoke to the Executive Director of one the region's
councils. He was very satisfied with the team approach.
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\2\ Headquarters officials stated that although two regions are
piloting these teams for several management actions, the concept has
been in use in several regions on an ``ad hoc'' basis for some time.
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Revised Operational Guidelines
NMFS Operational Guidelines set forth detailed procedures and
standards for fishery management actions. The guidelines were last
revised in 1997; NMFS has been in the process of revising them again
since 2002. Agency officials recently set April 29th of this year as
the expected issue date. Revising these guidelines is a critical step
in implementing RSP and the frontloading process. Among other things,
the guidelines will:
Formalize the frontloading process by establishing
membership and responsibilities of Fishery Management Action Teams to
be created for each major action undertaken.
Establish at least four ``critical feedback points'' at
which the regional OGC will certify the record to that point is
``legally sufficient'' and the regional administrator will prepare an
assessment statement that the process and documents support and provide
a rational basis for decision-making and that the process can move
forward. These feedback points are the formal quality control points to
ensure the decisions are adequately supported by the record. One such
critical feedback point is after identification of the preferred NEPA
alternative and adoption of draft analyses. The final one is the
regional administrator's decision memorandum which forwards the action
for final headquarters approval. Under RSP these regional decisions
will receive much less review at headquarters than is currently the
case.
Require written operating agreements among regions,
centers and councils establishing regional priorities and
responsibilities for achieving those priorities.
Continued Diligence is Needed
Officials have expressed concern about the agency's ability to
fully implement plans for RSP, absent sufficient resources. Fully
implementing frontloading, a core concept, will require dedication of
additional resources. Components to support headquarters oversight of
this new, more regionally based process, are not yet being implemented.
Frontloading, a core principle of RSP, is resource intensive.
Headquarters officials have cautioned that more staff and funding are
needed to fully implement the frontloading process, especially in OGC,
the regions and councils. Field office officials that Academy staff
spoke with reiterated this concern. They said that the frontloading
approach added considerably to the staff workload. All three
organizations (regional office, science center and council) had
received some additional funding and staffing (largely through the
specific appropriations for NEPA and socio-economic analysis) and
officials saw these funds as critical to their success thus far in
implementing RSP. They all also indicated that, though the teams were
working well, staffing was stretched and more personnel were needed.
The region specifically noted that they originally had been able to
hire 10 additional staff; but three left. Because of the Congressional
cut in FY 2004's NEPA funding (from $5 million in FY 2003 to $3 million
in FY 2004), they could not refill those positions. Region officials
believe the staff is being stretched thin and signs of burnout are
evident. \3\
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\3\ Officials in the offices visited also cautioned that the use of
dedicated access privileges (such as individual fishing quotas or
individual transferable quotas) to manage fisheries may increase
significantly in the near future. Indeed, in 2004 the U.S. Commission
on Ocean Policy recommended that Congress amend the Magnuson-Stevens
Fishery Conservation and Management Act (MSA) to affirm use of this
management approach, and that NMFS issue national guidelines for
implementation. Such an approach, officials said, would increase field
offices' workload in terms of monitoring, which would stretch their
staff even further--reinforcing the need for additional resources.
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At the time of our staff follow-up review, NMFS was drafting a
curriculum for the first course in an overall training program for
rulemaking. The program will be both classroom-based and web-based and
will provide training for council members and staff as well as NMFS
field office and headquarters staff. The first course, a ``regulatory
overview,'' covers the wide array of laws that mandate NMFS
responsibilities, as well as an overview of the revised Operational
Guidelines. NMFS was also analyzing data from a survey of regional
offices, science centers, and councils concerning training needs, and
anticipates developing other courses in the future. Some high ranking
needs not being covered extensively in the first course include
detailed training on National Standards 1 and 2, \4\ and refresher
training on the Regulatory Flexibility Act. However, officials noted
that the speed at which the training program is developed and the
extent to which training is provided will depend in part on the
availability of resources.
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\4\ MSA lists 10 national standards that FMPs must meet. Standard 1
requires FMPs to ``prevent overfishing while achieving, on a continuing
basis, the optimum yield from each fishery for the United States
fishing industry.'' Standard 2 mandates the use of ``the best
scientific information available.''
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NMFS also is developing a headquarters-based quality assurance
program for regional implementation of RSP. NMFS is adapting a
business-based quality assurance program to the regulatory process. The
ultimate program will include on-site review of selected projects along
with a feedback loop, and the program will also allow ``third party''
reviewers/auditors to assess quality. NMFS intends to develop baseline
measures to allow an overall assessment of quality, in addition to the
individual quality checks the system will conduct. A draft quality
protocol has been produced and steps are underway to select personnel
to form one or more Quality Management Teams. However, officials did
not know, at the time of our staff follow-up review, how soon this
quality assurance program could be implemented.
NMFS is also taking steps to develop electronic databases to
improve headquarters' ability to track actions and assess workloads and
to facilitate concurrent review of actions in the regions and
headquarters. Two have been completed: one for consultations required
under section 7 of the Endangered Species Act and another for
litigation. The latter was specifically recommended in the Academy's
2002 report. However, the two databases most directly related to RSP,
one for regulatory actions and one for NEPA actions, are still being
designed. Again, the agency was not sure when these databases would be
deployed and funding, especially for the NEPA database, was a key
issue.
In summary, although NMFS has designed new processes that have
potential for significantly improving the fisheries management process,
and NMFS officials appear committed to implementing them, success is
not guaranteed. Without sufficient staff and funding the frontloading
process may be only partially implemented. Additionally, not only is
the new approach a fundamental change in how the agency does business,
but an approach that is more reliant on having final actions taken in
the region. Consequently, related headquarters efforts, such as
training, quality assurance, development of baseline measures, and
development of electronic databases to allow tracking and assessment of
progress, take on increased importance. It is important that these
oversight and quality assurance mechanisms proceed in tandem with
implementation of processes that devolve more responsibility to the
field offices.
______
Mr. Pallone. And while I welcome the opportunity to learn
more about the success of the service in better integrating
NEPA and Magnuson, I want to emphasize that there are much more
pressing ocean and coastal issues that we should be addressing
in this Subcommittee.
Mr. Chairman, I hope we can work together to lay out a plan
for how this Committee can meaningfully address the
recommendations of the U.S. Commission on Ocean Policy and the
Pew Oceans Commission. I know that you in your opening
statement did mention that the Committee was going to deal with
some of those issues, but I really think that since the U.S.
Commission's recommendations were directed specifically at
Congress, and specifically for the purpose of ensuring the
long-term sustainability of U.S. fisheries, we really should be
having several hearings and trying to deal with both the U.S.
Ocean Commission's and the Pew Ocean Commission's report in a
comprehensive way. And it is already April, and we really
haven't done much, if anything, in that regard.
Now, I am not saying that serious work doesn't need to be
done to improve Magnuson-Stevens. It certainly does. It is our
nation's cornerstone piece of legislation governing the
management of America's fishery resource. And I hope we can
begin that work soon. But I really feel that the Subcommittee
needs to pay more attention to the Ocean Commission's report
and the recommendations, before it gets too late into the
calendar year.
Thank you, Mr. Chairman.
Mr. Gilchrest. Thank you, Mr. Pallone. And we probably
should have breakfast next Wednesday morning and talk about the
strategy that we are working on to do that. About eight
o'clock?
Mr. Pallone. When?
Mr. Gilchrest. Tuesday.
Mr. Pallone. Tuesday?
Mr. Gilchrest. Thursday morning.
Mr. Pallone. Thursday? When?
[Laughter.]
Mr. Gilchrest. We will work that out.
Mr. Pallone. Thursday morning--We will work that out.
Mr. Gilchrest. Yes, we will figure that out. Thanks.
Mr. Pallone. We will work that out.
Mr. Gilchrest. Our first panel this morning is Ms. Dinah
Bear, General Counsel, White House Council on Environmental
Quality; Dr. William Hogarth, Director, National Marine
Fisheries Service; Dr. Hogarth is accompanied by Mr. James
Walpole, General Counsel; and Mr. Daniel Furlong, Executive
Director, Mid-Atlantic Fishery Management Council. Thank you
all very much for attending this morning.
Ms. Bear, you may begin.
STATEMENT OF DINAH BEAR, GENERAL COUNSEL,
WHITE HOUSE COUNCIL ON ENVIRONMENTAL QUALITY
Ms. Bear. Mr. Chairman and members of the Subcommittee,
thank you very much for the opportunity to testify this morning
about the National Environmental Policy Act. While this is a
law that is often referred to as ``America's environmental
magna carta,'' it is often misunderstood, and hence
mischaracterized.
Despite what you may have heard or may surmise from what
you hear, the purpose of NEPA is neither to produce lengthy
documents, nor to document a lengthy process. The purpose of
NEPA is exactly what its title suggests; which is to implement
our national environmental policies.
The process to implement NEPA set out in CEQ's regulations,
binding on all Federal agencies, provides a method of both
developing and evaluating high-quality information by Federal
decisionmakers, state, local, and tribal representatives and,
very importantly, the public. In the words of our regulations,
ultimately, of course, it is not better documents, but better
decisions that count.
NEPA's purpose is not to generate paperwork, even excellent
paperwork; but rather, to foster excellent action. And the CEQ
regulations in fact were written with the idea of reducing
delays, paperwork, and duplication.
CEQ's procedural regulations are generic in nature. In
other words, they set out the basic procedural requirements,
and ask each agency to develop their own NEPA procedures that
take our requirements and bring them down to fit each agency's
specific mission activities. We ask each agency in those
procedures to identify the typical types of actions that the
agency takes that would normally require preparation of an
environmental impact statement or an environmental assessment,
or actions that can normally be categorically excluded. I will
very briefly discuss each of these classes, and then move to
the issue of flexibility under our regulations.
The environmental impact statement is the most well-known
document in NEPA, but it is also by far the rarest. It
basically starts off when an agency publishes a notice of
intent, telling the public that they plan to prepare an EIS.
The next step is the scoping process, which is a time to get
organized. It is a time to identify the other agencies and
interested parties that will be involved in the process; to
designate cooperating agencies and their responsibilities; to
set time lines and page limits for the EIS; to identify studies
or information that needs to be obtained early in order to do
an adequate analysis. In other words, to get organized. There
is no particular timeframe or specific requirements on how to
do the scoping.
The EIS itself is supposed to be written in plain English,
readable English, and generally to be no longer than 150 pages.
It is to contain a brief description of the agency's purpose
and need for taking the action; a brief description of the
affected environment; the reasonable alternative ways of
achieving the agency's purpose and need; the environmental
consequences of all of the alternatives, direct, indirect, and
cumulative effects. And that draft EIS is put out for public
review and comment, generally for a 45-day period. That is what
our regulations require, unless the agency asks for an
exception to that. In the final EIS, the agency needs to
respond to those comments received.
There is occasionally a need to supplement an EIS, either a
draft or final. That need arises if the agency itself makes
substantial changes to its proposal, or if there is significant
new information or circumstances that bear on the environmental
effects of the action.
The heart of the EIS is alternatives analysis. NEPA
requires that the agency looks at reasonable alternatives.
There is no set number of required alternatives, and there is
no need for agencies to develop so-called ``strawman''
alternatives to analyze. There is a requirement that agencies
always look at the no-action alternative. That doesn't mean in
the context of management of public resources no management; it
simply means whatever management regime is in place at the time
the EIS is being prepared.
The EIS process concludes with the preparation of a record
of decision, and that document contains any monitoring or
mitigation provisions that the agency is committed to.
Types of actions that either individually or cumulatively
do not have significant effects on the human environment in the
agency's experience can be categorically excluded from the NEPA
process. We ask for an administrative record that shows the
justification for a categorical exclusion; but once that
categorical exclusion is promulgated, then there is no
requirement under NEPA for any further paperwork for that kind
of action.
The agency does have to look for any extraordinary
circumstances that in one particular instance may in fact
require additional analysis. But if a categorical exclusion is
crafted appropriately, then normally that shouldn't happen.
There should just be no further analysis at all.
The vast majority of actions fall somewhere between the
need to prepare an EIS and categorical exclusions. And those
are the kinds of actions for which agencies prepare an
environment assessment. An environment assessment is supposed
to be a very brief document. Our guidance is ten to 15 pages. I
am well aware that it often exceeds that. But an environment
assessment is supposed to, again, briefly identify the need for
the proposed action; most of the time, reasonable alternatives;
environmental consequences; and just simply a list of who
prepared the EA.
Agencies have flexibility as to how to involve the public
in that process. There are no set time limits. At the end of
the environment assessment, an agency needs to determine
whether or not it thinks there will be significant impacts from
the proposed action. If there are, it would proceed to do an
EIS. If it finds there will not be significant impacts, it
signs a document called a ``Finding of No Significant Impact.''
In a couple of unusual circumstances, the finding of no
significant impact needs to go out for 30 days of public
review, but that is the only required time line associated with
the EA process.
Agencies do have quite a bit of flexibility under our
regulations. The only set time periods in the whole process are
the 45-day comment period for a draft EIS; there is a 30-day
waiting period between a final EIS and when the record of
decision can be signed; and in two rare cases, a 30-day period
on a finding of no significant impact.
We encourage agencies to integrate the NEPA analysis with
other documents, like plans. They are free to change the
recommended format of an EIS. We encourage them to think
through carefully what the scope of the proposed action is, and
how they can tier from the original analysis to future actions.
There are also provisions in our regulations to develop
alternative arrangements to comply with our regulations in
several circumstances, such as emergencies or supplemental
EIS's or when time periods need to be reduced for various
compelling reasons of national policy.
In the case of the National Marine Fisheries Service, we
have approved alternative arrangements six times. My testimony
references the two most recent circumstances. In one of those
earlier instances, we actually developed and approved what are
essentially permanent alternative arrangements for one
particular fishery.
There are, just briefly, three Federal agencies that do
have a role in overseeing NEPA: CEQ, of course, promulgates the
regulations binding on Federal agencies. The Supreme Court has
set our interpretation as ``owed substantial deference.'' The
Environmental Protection Agency reviews and rates individual
EIS's. And in 1998, Congress established a new agency, the U.S.
Institute for Environmental Conflict Resolution, that works
with us to help resolve conflicts between Federal agencies, and
to help implement Section 101 of NEPA, the policy provisions of
NEPA.
I think that is really all I want to say in my testimony at
the moment. I would ask that my full testimony be entered for
the record, and am happy to answer any questions.
[The prepared statement of Ms. Bear follows:]
Statement of Dinah Bear, General Counsel,
Council on Environmental Quality
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to testify about the National Environmental Policy Act
(NEPA). In NEPA, Congress set forth a general environmental policy for
the nation and mandated a systematic examination of the environmental
effects of proposed federal actions to help carry out that policy.
The Council on Environmental Quality (CEQ) oversees implementation
of the Act, and promulgates the regulations binding all federal
agencies to implement the procedural requirements of NEPA (40 C.F.R.
Parts 1500-1508). The purpose of the NEPA process is to inform the
decisionmaker of the environmental consequences of his or her proposal,
based on high quality, accurate scientific analysis, agency expertise
and public involvement. The regulations were written with the goals of
reducing paperwork and delay in mind, and state that, ``NEPA's purpose
is not to generate paperwork-even excellent paperwork-but to foster
excellent action.'' 40 C.F.R. Sec. 1500.1(c).
CEQ's regulations are generic in nature--that is, they lay out the
components of the NEPA process, but do not address requirements for
specific types of actions. Instead, they require federal agencies to
issue their own NEPA procedures that implement the CEQ NEPA
requirements in the context of each agency's specific mission. The
individual agency NEPA procedures identify which types of actions will
typically require preparation of an ``environmental impact statement
(EIS)'', which types of actions may typically be ``categorically
excluded'', and which types of actions generally trigger the need to
prepare an ``environmental assessment (EA)''.
The most well-known type of document under NEPA, but, I must add,
also the rarest, is an environmental impact statement (EIS)
1. The trigger for an EIS is a ``proposal for legislation
and other major federal actions significantly affecting the quality of
the human environment''. 42 U.S.C. 4332(2)(C) 2.
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\1\ There was a total of 597 draft, final and supplemental EISs
prepared by all federal agencies in 2004.
\2\ The term ``major federal action'' reinforces, but does not have
a meaning independent of ``significantly'' under NEPA law. Minnesota
PIRG v. Butz, 498 F.2d 1314 (8th Cir. 1974), incorporated into the CEQ
regulations at 40 C.F.R. Sec. 1508.18.
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An agency initiates the EIS process by publishing a notice of
intent in the Federal Register, 40 C.F.R. Sec. 1508.22 3.
The next step, ``scoping'', is a process to determine the significant
issues to be addressed and eliminate from detailed study issues that
are not significant or have been covered by prior environmental review;
identify interested and affected parties, including state, local and
tribal governments as well members of the public; identify cooperating
agency involvement and assignment of responsibilities; identify other
environmental review and consultation requirements so that analyses and
studies required other under federal, state, local or tribal laws may
be prepared concurrently, rather than, sequentially, with the EIS; and
set time and page limits for that particular EIS. 40 C.F.R.
Sec. 1501.7. There are no set time periods for scoping that need to be
met prior to preparation of the draft EIS. Scoping includes internal
and interagency discussion, as well as dialogue with the public through
whatever form the agency determines is most effective.
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\3\ The NOI should be a very brief notice stating the agency's
intent to prepare an EIS for a particular proposed action, including
possible alternatives identified, information about the scoping
process, and an agency contact person.
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The EIS may be prepared either by the federal agency or by a
consultant or contractor selected by and working for the agency who
must execute a public disclosure statement to the effect that they have
no financial or other interest in the outcome of the decision
4. The EIS is to be written in plain language, typically be
no longer than 150 pages, 40 C.F.R. Sec. 1502.7 5, and
include a discussion of the purpose and need of the proposed action,
alternative ways of achieving that purpose and need, a brief
description of the affected environment and an analysis of the
environmental consequences (direct, indirect and cumulative) of all of
the alternatives set forth in the EIS. 40 C.F.R. Sec. 1502.
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\4\ 40 C.F.R. Sec. 1506.5.
\5\ An agency may include material substantiating analysis in the
EIS, including discussion of methodology, in an appendix to an EIS. The
appendix must either be circulated with the EIS or be readily available
on request. 40 C.F.R.Sec. Sec. 1502.18; 1502.24. Agencies may also
incorporate existing material by reference when the effect will be cut
down on bulk without impeding agency and public review of the action.
40 C.F.R. Sec. 1502.21.
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As the CEQ regulations state, the ``heart'' of the EIS is the
analysis of alternatives 40 C.F.R. Sec. 1502.14. The agency must
identify and analyze reasonable alternatives that meet the agency's
purpose and need. It need not develop so-called ``strawman''
alternatives, nor is there any set number of required alternatives
6. Outside parties may propose alternatives and the agency
must consider whether they are ``reasonable alternatives'' and
therefore need to be analyzed. An agency must analyze a full range of
the effects of those reasonable alternatives identified in the EIS,
including ecological, cultural, economic, social, and health effects.
40 C.F.R. Sec. 1508.8(b).
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\6\ An agency does have to analyze a ``no action'' alternative in
an EIS. In the case of management of public resources, ``no action'' is
whatever the status quo management regime is at the time the analysis
is being written. 40 C.F.R. 1502.14(d); also see ``Forty Most Asked
Questions Concerning CEQ's National Environmental Policy Act
Regulations'', 46 Fed. Reg. 18026, Question 3.
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Absent modification of the comment period, the agency must allow
the public at least 45 days to comment on the draft EIS. In an agency's
final EIS, it must consider those comments and either modify the
information in the EIS or explain why the comments do not warrant a
change. 40 C.F.R. 1503.4. The agency decisionmaker is free to make his
or her decision once thirty days has passed following publication of
the final EIS. 40 C.F.R. Sec. 1506.10 7 The record of
decision includes information about any applicable monitoring of the
action chosen, as well as an explanation of the rationale for the
decision.
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\7\ An agency may make a decision simultaneous with publication of
the FEIS if the proposal at issue is rulemaking for the purpose of
protecting public health or safety or if there is a formal internal
appeal process that exists within the agency. Id.
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NEPA does not require that the most environmentally preferable
alternative be chosen. Agencies may make whatever decision they choose
based on relevant factors including economic and technical
considerations and agency statutory missions. 40 C.F.R. Sec. 1505.2.
An agency must prepare a supplement to either a draft or final EIS
if: i) the agency makes substantial changes in the proposed action that
are relevant to environmental concerns, or ii) there are significant
new circumstances or information relevant to environmental concerns and
bearing on the proposed action or its impacts. Supplements are prepared
in the same manner as regular EISs, except that scoping is not
required. 40 C.F.R. Sec. 1502.9(c). If a draft EIS must be
supplemented, the agency should prepare a draft supplement analyzing
the specific issue or new information triggering the need for the
supplemental EIS. That information, along with the comments and
responses to comments, would then be incorporated in the final EIS. A
new alternative in a final EIS that is within the range of previously
considered alternatives generally does not require a supplement to an
EIS, but if the agency develops a new alternative that is so different
that the public has not had a fair opportunity to comment on it, a
supplement is required.
Types of actions that individually or cumulatively do not have a
significant effect on the environment, as demonstrated by an agency's
experience with those types of actions, may be categorically excluded.
Categorical exclusions must be published in an agency's NEPA
procedures, and must allow for the possibility that in a particular
circumstance, an action that normally is categorically excluded will
require preparation of an EA or EIS. A categorical exclusion is
available once it has gone through public notice and comment and is
promulgated in final form after consultation with CEQ to confirm that
it conforms to NEPA and the CEQ regulations. No additional paperwork
under NEPA is required in the agency's record accompanying the proposal
to document the use of a categorical exclusion.
For proposed actions that fall into neither an EIS nor categorical
exclusion category, or when an agency is uncertain of the level of
environmental effect, it must prepare an environmental assessment (EA).
An EA is meant to be a concise 8 public document that
briefly provides sufficient evidence and analysis for determining
whether to prepare an EIS, aids in an agency's compliance with NEPA
when no EIS is necessary, and includes a brief discussion of: i) the
need for the proposed action, ii) identification of reasonable
alternatives if there are unresolved conflicts concerning alternative
uses of available resources, iii) the environmental effects of the
various alternatives, and iv) a list of agencies and persons consulted
in the preparation of the EA. 40 C.F.R. 1508.9. If the agency
determines that the proposed action will not have a significant effect
on the human environment and therefore does not require preparation of
an EIS, it signs a ``finding of no significant impact''. 40 C.F.R.
1508.13.
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\8\ CEQ's guidance is that the length of an EA should generally be
10-15 pages. Question 36a, ``NEPA's Forty Most Asked Questions''.
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Agencies enjoy flexibility under CEQ's implementing regulations for
tailoring their compliance in several ways to meet their own needs and
the interests of the affected public. As mentioned earlier, neither
form nor timelines are prescribed for scoping. Agencies may generally
fashion public involvement for EAs in whatever manner they believe will
be effective 9. CEQ encourages agencies to combine or
integrate the NEPA document with plans or other relevant documents. 40
C.F.R. Sec. Sec. 1502.25, 1506.4. They may modify the recommended
format for EISs.
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\9\ See 40 C.F.R. Sec. Sec. 1501.4, 1506.6.
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There are few prescribed time periods associated with the NEPA
process. If a proposed action that requires preparation of an EIS
arises in the context of an emergency, CEQ has the authority to develop
``alternative arrangements'' for compliance with our regulations. CEQ
may also develop and sanction alternative arrangements for supplemental
EISs. And for all EISs, the Environmental Protection Agency may, upon a
showing of compelling reasons of national policy, reduce the 45 day
comment period for draft EISs and/or the 30 day period following the
final EIS.
There are three federal entities involved in overseeing and
assisting in the implementation of NEPA, generally. First, of course,
CEQ interprets NEPA's requirements, promulgates implementing
regulations and engages in both dispute resolution and development of
alternative arrangements for compliance with NEPA in unusual
circumstances. The Supreme Court has stated in several decisions that
CEQ's interpretation of NEPA is owed ``substantial deference''.
10
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\10\ Marsh v. Oregon Natural Resources Council; 490 U.S. 360, 372
(1989) Robertson v. Methow Valley Citizens Council, 490 U.S. 322, 356
(1989); Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
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Second, the Environmental Protection Agency reviews and comments on
EISs under Section 309 of the Clean Air Act. 42 U.S.C. Sec. 7609. If
the Administrator (or by regulation, the head of other federal
agencies) determines that a proposed action is unsatisfactory from the
standpoint of public health or welfare or environmental quality, the
matter must be referred to CEQ. 11
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\11\ To date, no action proposed under the Magnuson-Stevens Fishery
Conservation and Management Act or its predecessor has been the subject
of a referral to CEQ. The process for referrals is laid out at 40
C.F.R. Part 1504.
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Third, in 1998, Congress established the U.S. Institute for
Environmental Conflict resolution as part of the Morris K. Udall
Foundation, an independent federal agency located in Tucson, Arizona.
Its primary purpose is to assist parties in resolving natural resource
and environmental conflicts involving federal agencies. It was also
charged with assisting in achieving the policy goals of NEPA laid out
in Section 101.
Given the focus of this hearing, let me say a few words about our
recent involvement with the National Marine Fisheries Service/NOAA.
First, NOAA last amended its NEPA procedures in 1999. On November 14,
2003, NOAA requested approval of proposed alternative arrangements to
complete a supplemental EIS for federal management of pelagic fishery
resources in U.S. waters and the Exclusive Economic Zone in the Western
Pacific Region. CEQ granted approval on November 20, 2003. On January
29, 2004, NOAA asked for alternative procedures for rulemaking for sea
turtle bycatch and bycatch mortality reduction in the Atlantic Pelagic
Longline Fishery. CEQ approved these alternatives arrangements on
February 4, 2004. On June 3, 2004, NOAA requested a modification of
those alternative procedures; that modification was granted on June 22,
2004. In addition, NOAA's marine protected area program recently asked
us and Duke's Nicholas School of the Environment and Earth Sciences to
develop NEPA training specifically for their staff based on a series of
NEPA courses that we co-sponsor with Duke.
I would be happy to answer any questions you might have.
______
Mr. Gilchrest. Without objection. Thank you very much.
Ms. Bear. Thank you.
Mr. Gilchrest. Dr. Hogarth.
STATEMENT OF WILLIAM T. HOGARTH, PH.D., DIRECTOR, NATIONAL
MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION; ACCOMPANIED BY JAMES R. WALPOLE, GENERAL
COUNSEL, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
Dr. Hogarth. Thank you, Mr. Chairman and members of the
Subcommittee, for the opportunity to testify on the
reauthorization of the Magnuson-Stevens Fishery Conservation
and Management Act; specifically today, on the relationship
between the Magnuson-Stevens Act and the National Environmental
Policy Act. My written testimony has been submitted for the
record.
To understand where we are today, I think we have to take a
look back a little bit at the progress we have made since
implementing the 1996 Sustainable Fisheries Act. This Act
ushered in a major expansion in fishery management policy. It
required us to do things in quite a different manner, and has
led us to try to manage targeted species more carefully.
Since 1996, some of the key accomplishments include
rebuilding plans for nearly all of the over-fished stocks;
addressing the ongoing concern with bycatch by adopting a
national bycatch plan and by reducing capacity in many of our
more important commercial fisheries through a variety of
dedicated access programs.
The SFA presented many challenges, and we have successfully
met most of these challenges. Now it is time to reexamine the
legal mandates and address new issues. We began this process
with the 2003 administrative proposal to reauthorize the
Magnuson-Stevens Act which included about 23 amendments. And
while many of those were technical in nature, others were
pretty significant changes; including distinguishing between
the terms ``over-fishing'' and ``over-fish,'' requiring the
submission of economic data from the processors, and
establishing standards for new IFQ programs.
In light of the President's U.S. Ocean Action Plan, we are
reviewing the Administration's June 2003 proposed Magnuson-
Stevens amendments, and are considering new issues. We will
consider a wide range of possible Magnuson-Stevens Act
proposals, and plan to prepare a formal package for internal
review as soon as possible.
We anticipate the major topics covered to include ecosystem
approaches to management; dedicated access programs; refinement
of the essential fish habitat; discussion of the Magnuson-
Stevens Act and NEPA intersections, particularly in the fact
that we have to, I think, look at the management of this as to
how we can make the process more timely. One of the biggest
criticisms we get from fishermen is what they see today takes
us two years to implement. So I think we have to look at how we
can make this whole process more timely.
A few weeks ago, council members, staff, and public
discussed many of these issues at the Washington, D.C.
conference, ``Managing Our Nation's Fisheries II.'' And we plan
to continue working closely with the councils and our
stakeholders to better understand their views on the matters
that came up.
One issue related to the reauthorization of the Magnuson-
Stevens Act that has prompted considerable discussion and
debate in recent years is the relationship between the
Magnuson-Stevens Act and NEPA. We have always recognized that
NEPA provides a useful framework for the fishery management
process, and we have used NEPA as our main vehicle for
frontloading the process associated with our regulatory
streamlining program. A thorough analysis of the ecosystem
impacts on a reasonable range of alternatives is a key step in
the public process allowing for a more informed public
discussion on the management measures.
In recent years, Congress and the Administration have
committed significant resources to improve our regulatory
process. These efforts have yielded positive results. First,
from 1996 to 2002, NMFS won only about 42 percent of our NEPA
decision court cases. Since 2003, we have prevailed on the NEPA
issues in all eight Magnuson-Stevens cases arising from the
NEPA claims. This track record indicates that we are, by and
large, doing a credible and defensible job in applying NEPA
requirements to our fisheries management actions.
However, I think maybe now, in reaction to making sure that
we win these cases, we are now producing documents that
fishermen feel, and the constituents, are too long and involved
for them to really be able to read and understand. Some of our
documents are up to 7,800 pages, and I think that is something
we have to work with.
And although we are doing a better job in complying with
NEPA requirements, concerns remain regarding NEPA's flexibility
and timeliness. While the two laws are not in conflict in
principle, there are differences in scope, degree of analysis,
and regulatory timeliness.
First, NEPA requires careful consideration of alternatives
and a reasonable analysis of why some are selected and others
are not. The Magnuson-Stevens Act, on the other hand, does not
mandate this assessment.
Second, NEPA mandates the assessment and consideration of
the cumulative effects of management measures. However,
cumulative impacts are not explicitly addressed in the
Magnuson-Stevens Act.
And third, the Magnuson-Stevens Act includes precise time
lines that are not always consistent with compatible time lines
in NEPA. Even though NEPA may not have specifics, there are
timings with how we do the Magnuson-Stevens and then when we
can do NEPA documents. And normally, this requires us to take
more time.
As we heard during last month's conference, these are
complicated policy and regulatory issues, and deserve careful
consideration. I think we need to work together with CEQ and
Congress and others to have a better understanding between the
relationship of these two laws. And if there is the need for
legislative changes, we should make sure that this will
accomplish what we are intending to do.
Mr. Chairman, thank you for the opportunity to discuss the
reauthorization of the Magnuson-Stevens Act and its
relationship with NEPA. I will be happy to answer any questions
you may have.
[The prepared statement of Dr. Hogarth follows:]
Statement of William T. Hogarth, Ph.D., Assistant Administrator for
Fisheries, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce
Thank you, Mr. Chairman and Members of the Committee, for the
opportunity to testify before you regarding the reauthorization of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). I am William T. Hogarth, Assistant Administrator for
Fisheries in the National Oceanic and Atmospheric Administration (NOAA)
within the Department of Commerce. My testimony today will focus on the
Administration's ongoing efforts to implement the 1996 Sustainable
Fisheries Act and to develop a Magnuson-Stevens Act reauthorization
proposal. Per your request, I will also comment on our responsibilities
under the National Environmental Policy Act (NEPA) and on the
relationship between the Magnuson-Stevens Act and NEPA.
The 1996 Sustainable Fisheries Act
To understand where we are today, we need to look at the progress
we have made in implementing the 1996 Sustainable Fisheries Act (SFA).
The SFA ushered in a major expansion in fisheries management policy,
leading all of us--the Regional Fishery Management Councils, commercial
and recreational users, and the National Marine Fisheries Service
(NMFS)--to manage targeted species more carefully.
Most significantly, the SFA contained several key new provisions,
including: managing fisheries to avoid overfishing and, if managed
stocks are overfished, developing rebuilding plans; reducing bycatch;
identifying essential fish habitat (EFH) and mitigating the adverse
effect of fishing operations on these areas; and, taking into account
the importance of fishery resources to fishing communities, providing
for sustained participation of these communities and minimizing adverse
economic impacts on them.
As a result of these new provisions, we pay more attention to the
impacts of fishing operations on non-target species and the marine
environment. In addition, we are more mindful of the effects of
management measures on people, their communities, and their safety. In
the years following passage of the SFA, the Councils and NMFS have made
a major and sustained effort to implement these changes. We have faced
many challenges, but I believe our marine fisheries are healthier and
are managed more effectively than a decade ago.
I would like to outline some of our key accomplishments.
We have developed rebuilding plans for nearly all
overfished stocks, and, as our annual congressionally mandated report
on the status of stocks shows, we are reducing both overfishing and the
number of overfished stocks.
To address the ongoing concern with bycatch, we are
factoring it into our fishery management process and now have a
national bycatch plan that will help us reduce overall bycatch as well
as bycatch mortality.
Through a variety of dedicated access privilege programs,
we are reducing overcapitalization in many of our most important
commercial fisheries in Alaska. These initiatives could serve as models
for dedicated access privilege programs in the rest of the country.
We are assessing and addressing overcapacity in the
harvesting sector through a series of quantitative and qualitative
capacity reports, the U.S. National Plan of Action for the Management
of Fishing Capacity, industry-funded buybacks, and the development and
implementation of individual and community based quotas.
Although we have achieved much, we also face many obstacles. The
SFA presented many challenges on several fronts, and we have gone a
long way toward successfully meeting those challenges. Now, almost a
decade after the enactment of the SFA, it is time to reexamine our
legal mandates and address new issues.
The Administration's U.S. Ocean Action Plan
Our discussions of the Magnuson-Stevens Act are taking place within
a larger debate on ocean policy and governance. On December 17, 2004,
the White House issued the U.S. Ocean Action Plan. I would like to
focus on a few aspects of this plan that have significant implications
for fisheries management.
The U.S. Commission on Ocean Policy, in their Final Report, urged
the United States to move away from the focus on managing single
species and toward a more comprehensive, ecosystems approach. The U.S.
Ocean Action Plan explicitly endorses ecosystems approaches to
management (EAM) and places it in a larger policy framework of working
with regional and local authorities. The plan states:
``The Administration will continue to work toward an ecosystem-
based approach in making decisions relating to water, land, and
resource management in ways that do not erode local and State
authorities and are flexible to address local conditions.''
We now need to focus on how best to achieve this transition in
fisheries management in light of its regulatory complexities and the
need for new and additional science. The 1996 amendments to the
Magnuson-Stevens Act--in particular the provisions relating to bycatch
and essential fish habitat--can support significant progress toward
EAM.
EAM is incremental; we are already doing it to some extent in
several federally managed fisheries, most notably in the Western
Pacific, North Pacific, and South Atlantic. We have a Coral Reef
Ecosystem Fishery Management Plan (FMP) in the Western Pacific, and we
are developing several EAM pilot projects on the East Coast.
Additionally, a number of ``conventional'' FMPs have been substantially
modified and expanded in recent years to incorporate principles of EAM.
The U.S. Ocean Action Plan includes several elements that will
continue to enable us to take further steps toward ecosystems
approaches to management.
1. Regional Fishery Management Councils should continue to make
every effort to base their management proposals on the best available
science, and NMFS--specifically the NMFS Fisheries Science Centers
where stock, economic, and social analyses assessments originate--
should continue to play a key role in providing the best possible
scientific information. In fact, the U.S. Ocean Action Plan, on page
19, commits NOAA to ``establish guidelines and procedures for the
development and application of scientific advice for fisheries
management decisions.'' The Administration supports the use of peer-
reviewed science in resource management decisions.
2. Regional Fishery Management Councils should have more broadly
based membership. The Administration is considering transmitting a
proposal to amend the Magnuson-Stevens Act to require governors to
submit a slate of Council member nominees that represent a balanced
apportionment in marine fisheries in their respective states.
3. Regional Fishery Management Councils and the Administration
should promote greater use of market-based systems for fisheries
management or dedicated access privilege programs, such as individual
fishing quotas (IFQ), as a management measure to mitigate overfishing
and overcapacity, as well as to contribute to the economic well-being
of the marine fishery sector. NOAA has committed to develop, in
consultation with the Regional Fishery Management Councils and
interested parties, national standards and guidelines for the
development and implementation of IFQ allocations. These guidelines
will draw on the 1999 congressionally mandated report Sharing the Fish:
Toward a National Policy on Individual Fishing Quotas, as well as the
ongoing debate on standards and requirements for IFQs, a type of
dedicated access privilege. Dedicated access privilege programs raise
many complex and contentious issues, but the key question centers on
how best to balance the principles of efficiency and equity under these
programs. We have worked closely in the past several years with the
Government Accountability Office in their studies of various IFQ-
related issues, and this collaboration has helped us refine our views
on how to develop and administer these programs.
We have worked with several Regional Fishery Management Councils in
the past few years on dedicated access privilege programs in federally
managed fisheries. For example,
In the North Pacific we are implementing an Alaska crab
rationalization program that includes IFQs, community quotas, and
fishing cooperatives, and we are working on a Gulf of Alaska groundfish
rationalization plan that will also include a number of distinct
dedicated access privilege programs.
In the Pacific, we are developing a groundfish IFQ
program.
In the Gulf of Mexico, we are resuming work on the red
snapper IFQ program.
Reauthorization of the Magnuson-Stevens Act
In light of the current discussions surrounding the U.S. Ocean
Action Plan, last year we decided to review the Administration's June
2003 proposed Magnuson-Stevens Act amendments and consider new issues.
The 2003 Administration proposal to reauthorize the Magnuson-Stevens
Act included 26 proposed amendments. Many of these were technical in
nature but others would make significant substantive or procedural
changes. These include:
distinguishing between the terms ``overfishing'' and
``overfished'';
requiring submission of economic data from processors;
establishing standards for new IFQ programs;
streamlining fishing capacity reduction programs;
increasing maximum fines and penalties; and
authorizing the means to fund observer programs.
NMFS is now considering a wide range of possible Magnuson-Stevens
Act proposals and plans to prepare a formal package of amendments. We
anticipate the major topics covered would include ecosystems approaches
to management; National Standards 1 (overfishing), 2 (best available
science) and 9 (bycatch); Council operations; dedicated access
privilege programs; permits and fees; and essential fish habitat.
A few weeks ago, Regional Fishery Management Council members,
staff, and the public discussed many of these issues at the Washington,
D.C. conference, ``Managing Our Nation's Fisheries II.'' I plan to work
closely with the Councils and other interested parties to better
understand their views on these matters. Magnuson-Stevens Act
reauthorization is a major topic to be addressed at the Council Chairs
and Executive Directors meeting in southern California the last week of
April.
The Magnuson-Stevens Act and NEPA
One issue related to reauthorization of the Magnuson-Stevens Act
that has prompted considerable discussion and debate in recent years is
the relationship between the Magnuson-Stevens Act and the National
Environmental Policy Act (NEPA). NMFS applies NEPA in the Exclusive
Economic Zone as a matter of policy and has always recognized that NEPA
can provide a critical framework for the fisheries management measures
that the Regional Fishery Management Councils develop and we approve.
NEPA can establish the ground rules for public participation in
developing these decisions, the assessment of environmental impacts,
and the consideration of alternatives to the selected measures. The
NEPA analytical and regulatory framework provides important benefits to
the Administration, the Regional Fishery Management Councils, the
fishing industry, and the general public.
In recent years, Congress and the Administration have committed
significant resources to programs to improve our implementation of the
NEPA framework. NMFS has developed and implemented a Regulatory
Streamlining Program that highlights the importance of applying NEPA,
and hired national and regional NEPA coordinators. For the past several
years, with support from Congress, we have worked hard to upgrade the
quality of our NEPA assessments, in particular the Environmental Impact
Statements. In our FY 2005 appropriation, $3 million is dedicated
specifically for NEPA training and other NEPA-related work, and a total
of $8 million is requested for FY 2006.
These efforts have yielded positive results. From 1996 to 2002,
NMFS won only 42% of the NEPA claims in Magnuson-Stevens Act cases.
Since 2003, however, NMFS prevailed on the NEPA issues in all 8
Magnuson-Stevens Act cases raising NEPA claims that resulted in final
decisions in District Courts. This track record indicates that we are
by and large doing a credible and defensible job in applying NEPA
requirements to our fisheries management actions.
Although we are undeniably doing better in applying NEPA
requirements, concerns remain regarding NEPA's impacts on flexibility
and timeliness of fisheries management actions. Past implementation of
some NEPA requirements has duplicated some steps already required by
the Magnuson-Stevens Act. Real time within year management decisions on
fisheries management actions recommended by the Councils particularly
highlight this issue. In other words, while there are obvious and
significant benefits flowing from NEPA and we have improved our
compliance over the past few years, there have been costs in terms of
time spent, resources expended, lack of flexibility and duplicative
reviews in complying with the NEPA process.
In your letter inviting me to present testimony at this hearing,
the House Subcommittee asked that I comment on ``conflicts'' between
our natural resource statutes, in particular the Magnuson-Stevens Act
and NEPA. The two laws are not in conflict in principle, but as there
are certain differences in the scope and degree of analysis and in the
regulatory timelines, I think it is useful to identify the three key
differences.
First, NEPA requires the careful consideration of alternatives and
a reasoned analysis of why some are selected and others are not. The
Magnuson-Stevens Act, on the other hand, does not mandate an assessment
of alternatives. In many cases, the Regional Fishery Management
Councils must make difficult choices among a number of options, each
with its own benefits and costs. Their decision-making process benefits
from careful consideration and assessment of alternatives.
Second, NEPA and, in particular, the Council on Environmental
Quality's (CEQ) regulations for implementing NEPA, mandate the
assessment and consideration of the cumulative effects of management
measures. However, cumulative effects are not explicitly addressed in
the Magnuson-Stevens Act. In a sector in which a series of regulatory
actions can have a significant aggregate effect over time,
consideration of cumulative impacts is worthwhile and necessary.
Third, the Magnuson-Stevens Act includes precise timelines for the
development, consideration, and approval of management measures that
are not always entirely consistent with the NMFS' comparable timelines
for compliance with NEPA. Magnuson-Stevens Act timelines governing the
review and approval of Council actions and their publication in the
Federal Register do not always correspond with NEPA timelines. While
NMFS consults with CEQ on administrative ways to reduce or eliminate
those inconsistencies, application of the two statutes sometimes
results in a disjointed regulatory process with inconsistent deadlines.
As we heard during last month's ``Managing Our Nation's Fisheries''
conference, these are complicated policy and regulatory issues that
deserve careful consideration. I would be happy to work with Congress
to better understand the relationship between these two laws, and the
need, if any, for legislative changes.
Conclusion
Mr. Chairman, thank you for the opportunity to discuss the
reauthorization of the Magnuson-Stevens Act. The scope of issues has
changed significantly in the past several years. Until a few years ago
the major concerns centered on implementing the specific provisions of
the 1996 amendments. In the past few years we have gained a wider
perspective. Today our attention is focused on ecosystems approaches to
fisheries management as opposed to single-species management, dedicated
access privilege programs instead of open access fishing quotas, and
more broadly representative Regional Fishery Management Councils.
Therefore, we have been seriously studying and considering these larger
issues and rethinking our views on important regulatory and procedural
matters.
I look forward to working with you, other members of this
committee, and interested members in both the House and Senate. I would
be happy to answer any questions you have.
______
Mr. Gilchrest. Thank you, Dr. Hogarth.
Mr. Furlong, Dan. Dan, you are up next.
STATEMENT OF DANIEL T. FURLONG, EXECUTIVE DIRECTOR,
MID-ATLANTIC FISHERY MANAGEMENT COUNCIL
Mr. Furlong. Thank you, Mr. Chairman. And good morning. And
I would like to point out that the Mid-Atlantic, as your
servicing council, both you and Mr. Pallone, is the highest-
ranked council of the five East Coast councils by the Ocean
Conservancy, related to preventing over-fishing and rebuilding
stocks. That is just a preamble to my comments that are to
follow.
In your invitation letter, you asked for my views on the
relationship between the Magnuson Act and the National
Environmental Policy Act; particularly, any conflict between
the two acts. In my opinion, there are no technical conflicts
between the two acts. However, I believe there are significant
and genuine problems between the two acts regarding the
duplication of embedded process requirements.
In the Federal budget world, there are two overarching
precepts, or perspectives: budget-driven programs, and program-
driven budgets. The juxtaposition of these two words tells you
which one is the driving force. I think the same can be said
with regards to the Magnuson Act and with regards to the
National Environmental Policy Act.
The Magnuson Act has a process that is designed to achieve
the conservation and management of our fishery resources;
whereas the NEPA process is one that is an environmental
process, but is really a self-fulfilling process that yields
the documentation of the process itself--a very different
outcome.
Better than NEPA, the Magnuson Act, in conjunction with the
Administrative Procedures Act, provides the public timely
notice of its proposed actions, so as to allow for review and
comment by the public, and provides a transparent and open
public process through the council system that allows for
public involvement through the formulation and development of
all fishery management measures.
That is why, I believe, that in the 108th Congress Senator
Collins of Maine and Congressman Young of Alaska introduced
legislation that included the following language: ``that any
fishery management plan, any amendment to such plan, or any
regulation implementing such plan, that is prepared in
accordance with the applicable provisions of Sections 303 and
304 of the Magnuson Act are deemed to have been prepared in
compliance with Section 102, Paragraph 2(c) of the National
Environmental Policy Act.''
Now, there are those who think that that language would be
an exemption from NEPA, much like the exemption that the
councils enjoy under FACA. But to me, nothing could be further
from reality. The proposed language by Senator Collins and
Congressman Young recognized that Sections 303 and 304 of the
Magnuson Act are indeed the functional equivalent of NEPA's
Section 102(c)(2). Their language does not, in effect, create a
FACA-like exemption. Rather, the language unifies and clarifies
the relationship between the two acts, and also meets the
Magnuson Act's National Standard Seven requirement that
conservation and management measures shall minimize costs and
avoid unnecessary duplication. These two acts duplicate each
other.
For the record, I totally support such legislation.
I will skip my commentary about EPA's double-standard and
CEQ's concept of major Federal action. But I would propose and
request that my full written testimony be incorporated as part
of the record.
I would like to offer some examples of how costly the
nature of NEPA is in terms of redundancy to that which is
required by the Magnuson Act. The North Pacific Fishery
Management Council completed action last year on a 7,000-page
programmatic EIS. And Ms. Bear earlier said 150 pages. That is
47 times 150, 7,000 pages.
It covers all of its groundfish fisheries. Because of one
finding related to an unknown effect on the overall habitat
from allowing these fisheries to commence, the council is now
being told that it may have to do an EIS every year to support
its specification process. What we are talking about here is
setting up the total allowable catch.
Now, understand that for the groundfish fisheries in Alaska
the council has a two-million-metric-ton cap on its fisheries,
but it has an allowable biological catch of nearly four million
metric tons. So there is really a lot of play here, but you
would have to develop an EIS every year.
In the Caribbean, to give you another example, it prepared
a Sustainable Fisheries Act comprehensive amendment in 1999
which the National Marine Fisheries Service said they could
easily review and approve in a few months. In the meantime, a
new emphasis on NEPA came into force, owing to a lawsuit
brought by the American Oceans Campaign against the National
Marine Fisheries Service and the councils.
As a consequence, the Caribbean council had to rewrite its
document; include alternatives that did not make any sense, but
were required by NEPA; spend lots of money for additional
meetings, rewriting of various sections; and finally, end up
with a document three times the size of the original one.
Consequently--surprise--now five years later, the council has
reached the same conclusions that it did in 1999 regarding the
management measure that will be submitted for secretarial
review.
During this process, the Caribbean council created a 1,000-
page document. Now, they are pikers compared to the North
Pacific, because that is only six times as big as what Ms. Bear
said it should be. Moreover, the fishermen and general public
are totally confused by the volume of information, and have
accused the council of trying to bury its intentions and agenda
under hundreds of pages of bureaucratic gobbledegook.
I have other examples from the remaining six councils. And
I would point out that at the recent conference on ``Managing
Our Nation's Fisheries'' the following motion was passed and
approved by seven of the eight councils voting: ``Following the
addition of critical NEPA provisions to the Magnuson-Stevens
Act, thereby making Magnuson fully compliant with NEPA's
intent, the panel finds that legislation should be developed
specifying the Magnuson Act as the functional equivalent of
NEPA.''
Seven out of eight should send a clear message to this
Committee that, indeed, there are problems regarding the
integration and obsequious application of NEPA into the
Magnuson Act process.
I thank you for having invited me to this hearing, and I
sincerely appreciate the honor and opportunity to appear before
the Subcommittee.
[The prepared statement of Mr. Furlong follows:]
Statement of Daniel T. Furlong, Executive Director,
Mid-Atlantic Fishery Management Council
Good morning Chairman Gilchrest and members of the Subcommittee. I
am Dan Furlong, Executive Director of the Mid-Atlantic Fishery
Management Council. I am also the former Deputy Regional Administrator
of National Marine Fisheries Service's Southeast Regional Office, a
position I held for over 10 years.
In your March 31 invitation letter, you asked for my views on the
relationship between the Magnuson-Stevens Act (MSA) and the National
Environmental Policy Act (NEPA), particularly any conflict between the
two Acts. In my opinion there are no technical conflicts between the
two Acts. However, I believe there is a genuine problem between the two
Acts regarding duplication of embedded process requirements.
In the federal budget world there are two overarching perspectives
- budget driven programs, and program driven budgets. The juxtaposition
of these two words tells you which one is the driving force. The same
can be said of the MSA and NEPA. Both statutes are process driven, but
their outcomes are very, very different. MSA's process is designed to
achieve conservation and management of our Nation's fishery resources,
whereas NEPA's process is a self-fulfilling one of documenting the
process itself. Better than NEPA, MSA in conjunction with the
Administrative Procedures Act (APA), provides the public timely notice
of its proposed actions so as to allow for review and comment, and
provides a transparent, open public process through the Council system
that allows for pubic involvement throughout the formulation and
development of fishery management actions.
I believe that is why in the 108th Congress Senator Susan Collins
of Maine introduced the ``Fisheries Science and Management Improvement
Act of 2003'' (S 482). And, that is why, in the House, Congressman
Donald Young of Alaska introduced a Bill ``to amend the Magnuson-
Stevens Conservation and Management Act'' (HR 3645). Each piece of
legislation included the following language: ``that any fishery
management plan, any amendment to such plan, or any regulation
implementing such plan, that is prepared in accordance with applicable
provisions of Section 303 and 304 of this Act are deemed to have been
prepared in compliance with the requirement of Section 102 paragraph 2
(c) of the National Environmental Policy Act of 1969''.
Some have interpreted this language to be a Magnuson-Stevens Act
exemption from the National Environmental Policy Act, much like the
exemption that Councils, their Committees, and Advisory Panels enjoy
from the Federal Advisory Committee Act (FACA). To me, nothing could be
further from reality. The language proposed by Senator Collins and
Congressman Young recognizes that Section 303 and 304 of the Magnuson-
Stevens Act are the functional equivalent of Section 102 (c) 2 of the
National Environmental Policy Act. Under MSA, every Fishery Management
Plan must address and contain 14 statutorily required plan provisions.
And, every Fishery Management Plan should consider 12 additional
discretionary plan provisions. Moreover, as provided by Section 301 in
the Act, all Fishery Management Plans must be consistent with the Act's
10 National Standards. Their language does not create a FACA-like
exemption, rather such language unifies and clarifies the relationship
between the two Acts, and also meets National Standard 7's requirement
under MSA that ``conservation and management measures shall minimize
costs and avoid unnecessary duplication''.
For the record, I totally support such legislation.
In preparing for this hearing, I was amazed to find that the
Environmental Protection Agency, an agency I believe to be highly
associated and identified with NEPA, has benefited from legislation
that substantially limits EPA's own impact statement preparation. The
Federal Water Pollution Control Act Amendments of 1972 (P.L. 92-500)
specified that statements would be required only for wastewater
facilities and new source permits. Yet, as the States assumed
responsibilities for water pollution control programs, even these two
actions that were subject to EIS requirements are no longer considered
Federal decisions, and therefore NEPA is no longer applicable. These
1972 amendments also sanctioned the use of EPA's water quality
standards for purposes of compliance with NEPA. Further, the Energy
Supply and Environmental Coordination Act of 1974 (P.L. 93-319)
provided that no impact statements would be required for any actions
taken by the EPA under the Clean Air Act. Courts have also held that
waste clean-up procedures constituted a ``functional equivalent'' of
NEPA compliance. What a deal! It appears that EPA is the poster child
for the expression, ``Do as I say, not as I do''.
Speaking of EPA, I would like to address its guidance regarding the
concept of ``major Federal action''. The term ``major'' applies to the
significance of the impact of the proposed action on the environment.
Impacts to be addressed include impacts on the physical, biological and
human environment. As I believe most things in our capitalistic society
can be reduced to dollar terms, I would like to try to put what the
Councils and NMFS do in that context. Our Nation's Gross Domestic
Production (GDP) is approximately $12 trillion. The value of U.S.
commercial fishing landings is about $3.5 billion. The expenditures by
marine anglers is estimated to be about $30.0 billion. Taken together,
the contribution to our economy by those who are governed by MSA
represents less than 1/2 of 1% of the GDP. Likewise, of the $2.4
trillion Federal budget ear-marked for discretionary programs, NMFS
receives approximately $825 million. Even after reducing Federal
discretionary funding to $818 billion by removing Defense and Homeland
Security, NMFS' share is less than 1/10 of 1% of domestic discretionary
spending. With fewer than 3,000 full time equivalent employees out of a
workforce of 1.9 million Federal civilian employees, NMFS share of
Federal employment is less than 2/10ths of 1%. Given the regulated
sector's place in our economy, and the National Marine Fisheries
Service's place in the Federal Government, what is it that they do that
could rise to NEPA's concept of major Federal action? Think about it.
I would also like to offer some examples of the costly nature of
NEPA in terms of its redundancy to that which is required by the
Magnuson-Stevens Act. The North Pacific Fishery Management Council
completed action last year on a 7,000-page programmatic EIS covering
all of its groundfish fisheries. Because one of the findings contained
in that EIS was that there was an ``unknown'' (and undeterminable)
effect on overall habitat from allowing the fisheries to commence, the
Council is now being told that it may have to do an EIS every year to
support its groundfish specifications process; i.e., setting the total
allowable catch (TAC). Even though the North Pacific Council just did
the overall Essential Fish Habitat (EFH) action, and even though it has
placed a 2 million metric ton cap on its groundfish fisheries which
have an Allowable Biological Catch (ABC) of nearly 4 million metric
tons, the Council - because of the time required to do the EIS - will
now have to set quotas using the previous year's survey information,
rather than using the most recent annual stock assessment survey data.
This NEPA created circumstance requires analyses that are clear
violations of the Magnuson-Stevens Act National Standard 2.
The Caribbean Council prepared a Sustainable Fisheries Act (SFA)
comprehensive amendment in 1999 which the National Marine Fisheries
Service thought could be reviewed and approved in a few months. In the
meantime, a new emphasis on NEPA came into effect owing to the outcome
of a lawsuit brought by American Oceans Campaign against NMFS and the
Councils. As a consequence, the Caribbean Council had to rewrite the
document; include alternatives that did not make any sense, but were
required by NEPA; spend lots more money for additional meetings,
rewriting of sections, etc.; and, finally end up with a document three
times the size of the original one. Consequently - surprise - now 5
years later, the Council has reached the same conclusions as it did in
1999 regarding the management measures that will be submitted for
Secretarial review. During this process, the Caribbean Council created
a document of nearly 1000 pages that is very cumbersome and difficult
to read. Fishermen and the general public are confused by the volume of
information, and have accused the Council of trying to bury its real
intentions under hundreds of pages of bureaucratic gobbledegook.
I have other examples from the Mid-Atlantic, South Atlantic, New
England, Pacific, West Pacific, and Gulf of Mexico Councils that
reinforce the damage NEPA has caused in the conservation and management
of our Nation's marine fishery resources. At the recent ``Managing Our
Nations Fisheries II Conference'', the following motion was passed by
seven of the eight Councils:
``Following the addition of critical NEPA provisions to MSA,
thereby making MSA fully compliant with NEPA's intent, the
panel finds that legislation should be developed specifying MSA
as the functional equivalent of NEPA.''
Seven out of eight - that sends a clear message that something is
indeed problematic regarding the integration and obsequious application
of NEPA into MSA actions.
I thank you for having invited me to provide my views regarding MSA
and NEPA. I sincerely appreciate the honor and opportunity to appear
before the Subcommittee.
______
Mr. Gilchrest. Thank you very much. I know that Dr. Hogarth
has to leave in about ten or 12 minutes. So if we are not done
with the round of questions for this panel, I want to thank Dr.
Hogarth for coming up from Florida. And whenever you feel like
you have to leave, Dr. Hogarth, please feel free to do so.
Dr. Hogarth. Thank you, Mr. Chairman.
Mr. Gilchrest. I am just curious, Ms. Bear. You mention in
your testimony--and I want to make sure that I fully understand
it and what the reasons are for it--EPA. Is EPA exempt from
NEPA? Why? And what does that mean for that agency?
Ms. Bear. Congress in some instances for some statutes, and
the courts for other statutes, in EPA's pollution control
statutes, have found EPA to be exempt from NEPA. The rationale
when you look at a lot of the explanation, both legislative and
judicial decisions, is that EPA's primary mission is
environmental protection.
The arguments that have been made and that were made by EPA
to attain that status have been made by other agencies
occasionally throughout the years, including agencies that
manage public resources. NOAA has never made that argument, but
I believe it was Sea World that once made it for them in court.
And the courts have not agreed with that analysis, because all
of the other agencies they have viewed as having--
Mr. Gilchrest. So--
Ms. Bear. What?
Mr. Gilchrest. So the courts have agreed that EPA is
exempt--
Ms. Bear. Yes.
Mr. Gilchrest.--from NEPA, partly on the grounds of the
Clean Water Act and the Clean Air Act, that they follow those
statutes and acts?
Ms. Bear. That their primary mission is environmental
protection, as opposed to a mixed mission where you are both
permitting the use of the resources as well as conserving over
protecting them. The courts, frankly, have not done a
particularly specific analysis in terms of a sidebar between
the statutes, as to whether or not the process and EPA's
pollution statutes have precisely the same elements as NEPA.
They seem to have enjoyed that primarily because of the sense
that they are an environmental protection agency, as opposed to
a mixed mission agency.
Mr. Gilchrest. So is there any agency in the Federal
Government that is a mixed-mission agency that is exempt from
NEPA?
Ms. Bear. No.
Mr. Gilchrest. Dr. Hogarth, you have the Sustainable
Fisheries Act in 1996, with all its standards and provisions
for conservation, and you have the SSC. I am sort of going to
generalize now, but you have the SSC creating a stock
assessment. You have the councils that produce the allocation
for a fisheries plan. And then you have NEPA in, I guess, a
parallel way, following that process. And those two processes,
I guess, have to come together in the end before a fisheries
management plan is complete. Is that a generally accurate
statement?
Dr. Hogarth. Yes, sir. Basically, you go through the
scoping with the councils and look and work there in the
councils. Once they determine the alternative or what they are
going to put in place, then the NEPA document has to be
produced. Even though the council has gone through a plan
process with their scoping and their analysis and public
hearings, when it comes to us, we have to go through another
public hearing process and to make sure the NEPA documents are
prepared.
Mr. Gilchrest. How do you see that those two parallel
processes, since we are talking about NEPA here, could be
modified so that there is no unnecessary duplication?
Dr. Hogarth. Well, I think we need to discuss this. This is
my personal opinion; not speaking for the Administration or
anything, my personal opinion from five years of dealing with
it. It is that I think if it was clear that the Magnuson had to
look at a series of alternatives. Sometimes, there is not a
good discussion of a series of alternatives; the council
chooses the main indirectly. But to have a series of
alternatives that are fully discussed and rejected, I think, is
the main difference that I see now between the NEPA and the
Magnuson process.
Mr. Gilchrest. So right now, the fisheries part of this
process, whether it is with the SSC or whether it is with the
councils themselves, as a general rule--and Dan, you can jump
in here--they don't come up with an alternative, or
alternatives, as NEPA fundamentally requires?
Dr. Hogarth. The series of alternatives that are being
looked at under the NEPA document, the councils don't have to
do it under Magnuson.
Mr. Gilchrest. Dan, do you want to speak to the specifics?
Ms. Bear said the heart of NEPA is alternatives. Where do you
see that? And I will just finish with this, and I will yield to
the gentleman from New Jersey.
Mr. Furlong. Yes, I believe, in fact, that is where the
problem really lies. I can give you some other examples. In the
South Atlantic Council, snapper-grouper amendment 13, it has
been delayed because there is a debate between the agency and
the council, in terms of what is a reasonable suite of
alternatives.
Mr. Gilchrest. Now, the agency is asking that. Do you
represent the agency?
Dr. Hogarth. That is us.
Mr. Gilchrest. And maybe I will come back to Bill. The
agency is asking for those alternatives in anticipation of what
NEPA requires. Is that why you are asking for the alternatives?
Dr. Hogarth. Yes. Yes, sir. We feel like there is not a
sufficient number of alternatives being discussed by the
council to fulfill the NEPA requirements.
Mr. Gilchrest. Let's say there wasn't any NEPA. And don't
anybody think we want to do away with NEPA in here. But
hypothetically, if there wasn't a NEPA process, would the
agency see the need to ask for those alternatives?
Dr. Hogarth. First of all, let me make it clear that we do
not want to get rid of NEPA, either. We as an agency feel like
the National Environmental Policy Act has served the public
will. I am concerned that we have over-reacted, but we work
with that.
But I think there would be probably less demand on the
council, particularly right now, in that plan, if we did not
have NEPA. We could do what the council is trying to do easier
under Magnuson.
Mr. Gilchrest. Yes. Is there some sense that NEPA is being
strictly complied with by NMFS because of litigation prospects?
Dr. Hogarth. I don't think that is the complete reason. I
think it has driven us to a point, litigation has driven us to
a point, where we are spending a lot more time writing much
longer, detailed documents, and I think we have lost our
constituency. But, yes, I think to try to be litigation-proof
or win the litigation, I think we have taken much longer,
sometimes a period of years I think, to get a NEPA document
done.
And I think part of that is that we want to win. We don't
want to keep losing. We are winning about 80 percent of the
cases now. We were winning about 40 percent. And it is just we
have got to find a way to get out of litigation and to win
litigation.
Mr. Gilchrest. I have a number of other questions, but I am
going to close with this last one which is highly
controversial, but I will ask it anyway. If the Ocean
Commission report recommended that the stock allocation by SSC
be strictly adhered to by the council, and that the council
would just allocate that stock assessment, if that were the
case, would this clear up a number of NEPA problems? Anybody
can answer that.
Dr. Hogarth. In my opinion, no, sir. In my opinion, I don't
think that would clear up any of the NEPA problems. Because you
have still got a group of people who are going to meet and
determine a number.
Mr. Gilchrest. Bill, I don't think your mike is on.
Dr. Hogarth. I said in my opinion, that does not change
that. You just change it to another group of people who will
make a decision. Those people have to be chosen by someone, and
it is just a different process.
And my personal opinion is that the science separation has
really gotten somewhat blown out of proportion. Because we go
through a very thorough, thorough peer review process now on
the stock assessments; and then we go through the SSC; and then
the councils have ten standards that they have to judge their
work by, which requires them to look at things other than just
over-fished. They have to look at communities, economics; even
though courts have ruled that the number one standard is over-
fishing. And then we review it carefully when it comes to the
Secretary.
So I think part of the problem is probably reaction to the
fact that we have not been diligent about making sure when the
councils send something that, if it is not in compliance with
all ten standards, we send it back or reject portions of it.
I think we all do our job. And I think the councils
definitely have a right to look at things other than just a
number. I think they have probabilities they need to look at on
rebuilding, and things like that.
Mr. Gilchrest. I see. Thank you very much. Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman. I just wanted to say
that, based on the panel's testimony and my reading of the
second panel's testimony which is to follow, some of the
witnesses here today are arguing that Congress needs to change
either Magnuson or NEPA so that the statutes are more
consistent or cohesive. And others are arguing that Magnuson
and NEPA are complementary laws; that NEPA is not always
implemented in a manner that aids the councils in meeting their
requirements under Magnuson.
So I basically wanted to ask a series of questions. And in
my mind, the question is: Do we have conflicting laws for
governing fisheries, or do we simply need to encourage and
support councils and the agency as they continue to improve
their implementation process? That is sort of two questions.
But some of the questions I wanted to ask have certainly
been touched upon, but I was trying to get answers in a more
precise way. So I just was going to ask each member of the
panel to quickly answer some of these questions.
First, NEPA requires the full analysis of the environmental
impacts of a proposed action on all facets of the environment,
including non-commercially managed species. So does Magnuson
require this? That NEPA requirement, does Magnuson require that
that be done? If each of you would quickly answer, starting
with Ms. Bear, I guess.
Ms. Bear. Not to my knowledge. But I would, frankly, defer
to my colleague, the General Counsel of NOAA, for that
question, because we don't interpret Magnuson. But not to my
knowledge.
Mr. Pallone. OK.
Mr. Walpole. I listened carefully to the question, and I
couldn't quite get the grasp of it.
Mr. Pallone. Well, NEPA requires a full analysis of the
environmental impacts of a proposed action on all facets of the
environment, including non-commercially managed species. So
does Magnuson require that? Does it include that NEPA
requirement when you proceed?
Mr. Walpole. That specific one?
Mr. Pallone. Yes.
Mr. Walpole. In terms of the alternatives, I guess I am not
focusing on what provision of NEPA you are talking about.
Mr. Pallone. Just in general. In other words, NEPA requires
it in general. I guess what I am trying to say is to what
extent Magnuson is carrying out these NEPA requirements. You
know, you guys are sort of suggesting that maybe we need some
changes in both laws, or maybe we don't, maybe it is just a
question of implementation.
He wants to answer it, so I will go to you. Go ahead.
Mr. Furlong. Yes, I can answer that question. I believe
that a full analysis of environmental impacts isn't
specifically statutorily addressed in the Magnuson Act.
Ms. Bear. Right.
Mr. Furlong. However, there is a national standard,
National Standard Nine that relates to bycatch, that is part of
the environment; is very critical. And in terms of the SFA,
when it introduced essential fish habitat, it was very specific
about minimizing the adverse effect of fishing. But the agency,
in its final rule that focused on that aspect of EFH, goes well
beyond the statutory language. And in fact, the final rule that
implements that encompasses a full suite of environmental
considerations. So the agency's rule really addresses this
question. The statute does not.
Mr. Pallone. OK. Now, NEPA requires the consideration of a
broad range of alternatives. Some of you talked about that,
alternatives to the proposed action; including environmentally
preferred alternatives that minimize significant environment
impact. Does Magnuson require that? Or how does Magnuson go
about dealing with that?
Ms. Bear. No. I think several of us have already said that
Magnuson doesn't require alternatives analysis.
Mr. Pallone. OK. Anybody else? I have got a few more.
[No response.]
Mr. Pallone. If not for NEPA, would the councils be
required to present a range of alternatives for public
consideration and comment? In other words, does Magnuson
require that separate from NEPA? Does this not provide
significant opportunities for the development and consideration
of alternatives that may be viewed more favorably by the
fishing industry?
So, without NEPA, would the councils be required to present
a range of alternatives for public consideration, under
Magnuson?
Ms. Bear. No.
Dr. Hogarth. No. No, sir.
Mr. Pallone. OK.
Mr. Furlong. Well, I would disagree with my colleagues in
the context that when we set specifications specifically--when
we are dealing with summer flounder and you are looking at a
size season bag limit--we present a range of alternatives, as
it relates to the very specific charge under National Standard
One to come up with preventing over-fishing.
So we have a range of them. The perverse thing about it is
that, if the council chooses some combo that we didn't put on
the table, under NEPA we would actually have to go back out on
the street because the public didn't have adequate notice on
that decision, because that wasn't one of the options that we
had put forward at the time of setting specifications.
In terms of the management plan itself, and any amendment
to it, I don't think there are alternatives, per se. It is just
an evolutionary process that gets you to a point where you say,
``Well, this is the best measure.''
Mr. Pallone. OK. Now, NEPA also requires an agency to
respond in writing to public comments regarding various
alternatives, and adjust EIS accordingly. Are the councils
required to do this under Magnuson, or is that just a NEPA
requirement? To respond in writing to public comments regarding
various alternatives and adjust the EIS accordingly, are the
councils required to do that under Magnuson?
Dr. Hogarth. The councils are not required to respond. We
do, under the NEPA process; but the councils are not required
to respond to each comment. No, sir.
Mr. Pallone. OK. And NEPA requires consideration of any
cumulative environmental impact. Is that true under Magnuson,
would you say?
Dr. Hogarth. No. No, sir.
Mr. Pallone. OK.
Dr. Hogarth. Particularly when it is not a fishery
resource.
Mr. Pallone. OK. And then the last one, Mr. Chairman, an
important policy aim of NEPA is to, and this is a quote,
``attain the widest range of beneficial uses of the
environment, without degradation, risk to health or safety, or
other undesirable and unintended consequences.'' Now, does that
appear consistent? I mean, I think it appears consistent with
the Magnuson Act. Do you agree that that is consistent with
Magnuson? Do you want me to go over that again?
NEPA says an important policy aim is to ``attain the widest
range of beneficial uses of the environment, without
degradation, risk to health or safety, or other undesirable and
unintended consequences.'' I think that is consistent with
Magnuson, but I am just asking you if you agree. You say
``Yes,'' Ms. Bear?
Ms. Bear. Yes, I do.
Mr. Pallone. OK. All right, thank you. Thank you, Mr.
Chairman.
Mr. Gilchrest. Thank you, Mr. Pallone.
As a follow-up to the questions from Mr. Pallone, having
gone through Magnuson now for a number of years and all of the
requirements and statutes and standards with the Sustainable
Fisheries Act, if we looked at the ten national standards and
we looked at 14 required provisions in the Act, the ten
national standards, the 14 required provisions, in my mind,
present a fairly strict, but reasonable, environmental
conservation requirement on the Magnuson-Stevens process, both
on the agency, the councils, public input, on all of the
fisheries management plans; which to some extent parallel the
NEPA process.
Now, I understand that the heart of this NEPA is
alternatives. But when you are dealing with a multi-species,
multi-gear fisheries management plan, which is pretty
extraordinary in and of itself, it seems that Magnuson to a
large extent, in the process laid out especially under the
Sustainable Fisheries Act, parallels NEPA in a wide range of
ways.
Dr. Hogarth. Mr. Chairman, I agree. I think that it does.
And I think that the heart of the discussion and the debate
right now is how much does it, and are there just some things
that could be put into Magnuson that would require you not to
be doing somewhat duplicate efforts, and that would be more
timely in the fact that you would finish Magnuson and you
wouldn't then have to do additional NEPA work.
You know, like I say, no one wants to get out of the public
having a good process to go through. What we are trying to do
is make sure that process is timely, such that what the
fisherman sees on the water today is not taking us two years to
implement. And so I think that is the debate: Can Magnuson? And
in my opinion, it can, with the alternatives, in particular,
being added to it. And I think that is what we should work
together on, to see how we can get it done.
Mr. Gilchrest. I don't think any of us up here--myself, or
Mr. Pallone--want to reduce the environmental protection in a
broad way; especially since we are moving now into an ecosystem
process. Thank you, Dr. Hogarth.
Dr. Hogarth. Thank you very much. And I look forward to
working with you on this issue. Anything we can do, we will.
And I think CEQ and our attorneys just need to sit down, and
maybe with your staff, and really take a good look at this.
Mr. Gilchrest. Thank you. We don't want to reduce the
science; we don't want to reduce the public input; we don't
want to reduce alternatives; we don't want to reduce
environmental protection in the big picture. But we don't want
to make this system so cumbersome that the science we use is
outdated by the time the fisheries management plan is
implemented, and that has been the case in a number of
situations. So that is our goal.
Mr. Pallone, do you have any other questions?
Mr. Pallone. I just wanted to ask a budget question, if I
could, of the panel. Because since 2003, the President's
budgets for NMFS have requested on the order of $8 billion for
NEPA compliance--million, I should say. However, in each of the
past two years, Congress has only appropriated $3 million of
the agency's budget for NEPA activities. So obviously, $5
million less.
If any of you, or each of you, could address the issue, to
what degree do you think that inadequate funding is impacting
the ability of NMFS to implement NEPA in the fishery management
context?
Mr. Walpole. Well, I can't speak for the program, since I
am in the general counsel's office, but my sense is that the
President's request was such that it was to assure full funding
for the program, including the NEPA work. When those funds
weren't made available, it probably has had an effect on that.
Mr. Pallone. So it has definitely had an effect, in your
opinion?
Mr. Walpole. I would say that without the full funding
there is an effect there, yes.
Mr. Pallone. OK. I don't know if anybody else wants to
speak. Go ahead.
Mr. Furlong. Can you see that, Mr. Pallone?
Mr. Pallone. I just see a white piece of paper.
Mr. Furlong. Right. Blank piece of paper, exactly right.
Mr. Pallone. Right.
Mr. Furlong. That is where the councils start on an EIS.
When the agency gets it, they get some sort of text. The
agency, together with the councils, developed this document.
The councils have never seen any significant funding from
Congress, in terms of NEPA requirements.
Bill Hogarth, just departed, has provided, if you will,
some supplemental monies to the councils, at about $150,000 per
council, for a couple of years. That has been the extent of it.
And when you talk about pulling together huge documents, that I
think are crazy, you know, their value is really dubious, in my
opinion. You know, it is a problem.
Now, continue with the program, yes or no? It is like a
toggle switch. If you support it, then it should get funded.
Realize that NEPA was Public Law 91, and the Magnuson Act was
Public Law 94. It is almost the same Congress that had the
sensitivity six years later when it made the Magnuson Act to
appreciate what was in NEPA.
To me, the Magnuson Act is a very strong environmental act.
And if we honor what is required in that act, I think the
environment is not disserved by us.
Mr. Pallone. Well, thank you. Ms. Bear?
Ms. Bear. Yes. Just a word going back to your original
question about the budget. I certainly would think that the
money that was requested by the President's budget is needed
and would be well spent, in the context of NMFS' compliance
with NEPA. NMFS should be commended, certainly, for responding
to the various judicial decisions that found that its
compliance was inadequate.
It is very typical, though, for agencies who have gone
through that situation where for a while they were found to be
out of compliance and then start to comply with vigor, at times
to focus on the legal requirements and not on the management of
the process.
I couldn't agree more with Mr. Furlong that a 7,000-page
EIS is crazy. But I do take issue with his characterization of
that as obsequious compliance with NEPA. That, in my view, is
not compliance with NEPA. NEPA is supposed to serve the public
and decisionmakers, and I know of no member of the public or a
decisionmaker that wants to plow through a 7,000-page EIS.
Often, when we dig into the details of these situations--
which I would certainly hope to do in the very near future--we
find that the problems lie not with legal requirements. That is
what lawyers, obviously, usually pay attention to, are the
legal requirements. And courts are looking really at assuring
that citizens have their rights fulfilled in terms of public
involvement, and that the analysis covers the requirements; but
courts aren't looking at how the process is actually managed.
And a lot of times, we find that the kind of horror stories
that you do hear occasionally about the NEPA process--whether
it is length of time, or the 7,000-page EIS--are attributable
to management issues; which in turn often find their root in
lack of resources.
So the answer to your question, I think, would be, yes;
that it would be important for Congress to fulfill the
President's budget request.
Mr. Pallone. OK. Thank you. Thank you, Mr. Chairman.
Mr. Gilchrest. Thank you, Mr. Pallone.
Mrs. Drake?
STATEMENT OF THE HON. THELMA DRAKE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF VIRGINIA
Mrs. Drake. Thank you, Mr. Chairman. I am just going to
make a comment, since I did not hear the testimony of panel
one. And I apologize for that. But I would just like to say,
Mr. Chairman, I agree with your summary you just made. But I
think it is our mission to make sure that we aren't requiring
things to be duplicative; that we aren't requiring things to be
so lengthy that we lose our best science in making decisions;
and that we use our staff time and our resources wisely.
And I am hoping our NEPA task force will dig deeply into
this issue and make the recommendations that have a program in
place that manages this resource, makes the best decisions, and
makes the best use of your time.
So thank you. And I would like to yield my time back to
you, in case you have more questions.
Mr. Gilchrest. Thank you, Mrs. Drake.
I do have a follow-up question. Ms. Bear, in your comments
about EIS and supplemental EIS's when there are proposed
changes, in a number of areas in the fisheries there are
adaptive management procedures that generally are only useful
if they are done in a timely fashion. Where does an EIS fit
into adaptive management?
Ms. Bear. That is a very important issue. And in fact, it
is one of the issues that was highlighted by our NEPA task
force as worthy of some additional guidance from CEQ.
But in general, first of all, let me clarify. The
requirement to supplement EIS's only arises if the new
information rises to the level of significance that triggered
the original EIS. In other words, it is not every piece of new
information that requires you to supplement the EIS. It is only
really big, important, dramatically new, significant
information that was not considered in the original EIS.
In terms of adaptive management, this is one of the issues
I do want to talk to NMFS about in more detail. But generally
speaking, we would be looking for an EIS that covered a range
of alternatives and affects analysis in a way that allowed for
variation in the future, and a variation that was articulated
ultimately in a record of decision with monitoring and
provisions for bringing that monitoring back to the councils
and to the agencies in a way that they would be able to adjust
the management decisions, either without doing any further NEPA
analysis at all or, in unusual cases, perhaps some additional
analysis.
Another way to look at it is one of the agencies we work
with that works in an environment with a lot of changing
circumstances has prepared programmatic EIS, multiple, of
course, alternatives and analysis, and then issued a record of
decision one year on what they are going to do; but then
followed that with subsequent records of decision on the same
EIS, but adjusting their decision as time goes by based on the
information they are getting. And that has been upheld by the
courts. There are several ways to approach it.
Mr. Gilchrest. But do you know how what you just described
to us is working, or would work? In the Gulf of Maine, they had
three rotating closed areas for scallops. And maybe Mr. Walpole
can comment on that. How would what you just described to us,
as far as NEPA is concerned, with an EIS with adaptive
fisheries management, work in that one particular area? We
would like to follow up on that, to see how that process works
in New England.
Ms. Bear. OK.
Mr. Gilchrest. Mr. Walpole?
Mr. Walpole. Thank you. And I certainly agree with the
comments that Ms. Bear made, in terms that you don't do a new
EIS, or a supplemental EIS, unless you get new, significant
information. That is the situation that we deal with pretty
frequently, in terms of getting big, important information that
affects what is going to be allowed in the fisheries each year.
And so this is something that comes up frequently to us.
And she makes a good point, that this is something that
needs to be managed properly. But in terms of the timeframes in
there, it is a challenge for us each year to go through it. I
say ``for us''; I am speaking from what I know about the
program, since I am not in the program. But it is a challenge
to get it done.
Ms. Bear. Mr. Chairman, if I could just add, supplemental
EIS's are an area where CEQ has the authority to develop
alternative arrangements. And the six circumstances I mentioned
earlier where we have approved alternative arrangements for
NMFS, including either on an ad hoc or a permanent basis for a
particular fishery, are in the context of supplemental EIS's.
We will certainly follow up and discuss with NMFS the
situation that you mentioned in the Gulf of Maine, and I will
get back to you with our ideas on that.
Mr. Gilchrest. Thank you. The fishery in Alaska, the
groundfish fishery with the 7,000-page EIS, now, I am not
saying that wasn't necessary, necessarily, because I haven't
read it--I'll have Dave read it here, over the weekend, and
write me a memo.
[Laughter.]
Mr. Gilchrest. Now, CEQ is going through a NEPA analysis
right now? Or who is doing that?
Ms. Bear. The task force that I mentioned?
Mr. Gilchrest. The task force.
Ms. Bear. We had an interagency NEPA task force; not to be
confused with this Committee's NEPA Task Force, although many
people will be confused, no doubt.
Mr. Gilchrest. Members of Congress, most particularly.
Ms. Bear. It was composed of interagency representatives
from a number of agencies that have a lot of experience in
NEPA, and were essentially recommendations to us.
Mr. Gilchrest. Is your task force completed?
Ms. Bear. Yes, it is. And there is a report out, publicly
available, on those recommendations.
Mr. Gilchrest. OK, thank you.
Ms. Bear. And one of those recommendations is for us to
issue guidance across the board on how to better use adaptive
management with the NEPA process.
Mr. Gilchrest. We have it.
Ms. Bear. There you go.
Mr. Gilchrest. Do any of your recommendations take into
consideration the groundfish fishery in Alaska that required a
7,000-page EIS?
Ms. Bear. No. That looks at NEPA compliance across the
board. Again, I want to say that, in my view, NEPA does not
require 7,000-page EIS's. I have not had the pleasure of
reading it, and I hope I don't join Dave this weekend in having
to read it.
Mr. Gilchrest. Mr. Walpole.
Ms. Bear. But in my mind, that is actually quite contrary
to the requirements in our regulations. I am well aware that
agencies at times, because of the information, have to go over
the 150-page page limit. And indeed, our regs provide that for
proposals of extraordinary complexity, usually national
proposals, they can be up to 300 pages.
There are also appendices. We really encourage agencies to
put technical information in appendices, or to incorporate
other documents by reference, as long as they are available to
the public.
But the whole thrust of the process set out in our regs is
to cut down and really eliminate those kinds of EIS's, and make
the process something that the public and decisionmakers can
engage in in a very proactive and easy way.
Mr. Gilchrest. Thank you. Mr. Walpole?
Mr. Walpole. And I can't agree more with her comments. No
one likes to have a huge document, and 7,000 pages is certainly
pretty extraordinary.
I would mention that the basis for this was a programmatic
program so that we wouldn't have to do EIS's every year for the
fishery up there. The earlier environmental impact statement
had been stricken down by the court, and so we had gone back to
make changes that were necessary, and we ended up with this
extraordinary EIS. But as with any agency, that is something
that we try to avoid like the plague.
Mr. Gilchrest. Will you then, as a result, not have to do
an EIS on an annual basis, or a regular basis, with the
groundfish fishery?
Mr. Walpole. We are evaluating that now.
Mr. Gilchrest. I see. Well, any other comments? Dan?
Mr. Furlong. Yes, Mr. Chairman, a couple of things. Don't
forget New England. They had a 1,700-page EIS, plus another 300
pages of appendices. So they had a 2,000-page EIS for New
England groundfish, court ordered.
But let me ask you a question for the Committee. Given that
the councils have been exempted under FACA rules, are you aware
of any abuses, or any, if you will, down side, in terms of
adverse impacts on the public or adverse impacts on the
resource, because we enjoy that exemption?
I don't think you will find that. That is the question:
What is the down-side risk, you know, if NEPA, if you will,
disappears and the Magnuson Act prevails? I think you will find
that there is not a great risk. It is a very environmentally
sensitive act. And I really would suggest that you recognize,
as you have already said, there are ten national standards,
there are 14 mandatory requirements.
It is resource-focused. I know we are a mixed bag. EPA, you
know: Focused on one thing. We have got a conservation duty; we
have got an environmental duty; and here is this process that
overlays it. But if you look at, if you will, the organic act
of Magnuson, you know, it is a good Act, and it gets the job
done.
Mr. Gilchrest. And we want to make it better, Dan.
Mr. Furlong. We all do.
Mr. Gilchrest. Thank you all very much.
Our second panel is with Mr. David Frulla, attorney,
Collier Shannon Scott; and Mr. Eldon Greenberg, attorney with
Garvey Schubert Barer; and Ms. Suzanne Iudicello.
Now, I understand that we are going to have a vote in about
five minutes on the House floor. So what I think we will do, I
think we can get started with your opening statements, then we
will take a break while we vote, and come back and ask
questions.
And I don't know what the standing-room-only situation is
going to be like, but if you are standing in the back of the
hearing room, there are more seats. I don't think we will have
that problem right now. I should have done this before. But if
there aren't enough seats out there, the lower dais is empty,
and you can sit in the lower dais. If you see somebody standing
near you, just tell them to find a seat. Much more comfortable.
We will start with Ms. Iudicello.
STATEMENT OF SUZANNE IUDICELLO,
INDEPENDENT CONSULTANT
Ms. Iudicello. Thank you, Mr. Chairman, for the opportunity
to be here to offer some views on issues related to the
integration of requirements under the National Environmental
Policy Act and the Magnuson-Stevens Fishery Conservation and
Management Act. My observations are my own. I am not
representing anyone or any organization. It is a pleasure once
in a while to be an opinionated woman at large, and I guess
that is what I am doing today.
Mr. Gilchrest. I might have some questions about that later
on.
[Laughter.]
Ms. Iudicello. My message today is that the requirements of
the National Environmental Policy Act and of the Magnuson-
Stevens Act are not in conflict. NEPA is primarily a tool to
help decisionmakers highlight possibilities, look at all the
alternatives they might have before them; to look at the
consequences of what those alternatives would be; to engage the
public; and then to evaluate and make a record of their
decision process, and make that decision process transparent to
the public.
The Magnuson Act, while I would agree with the previous
witnesses that it has a conservation policy element to it, is
principally enabling legislation to allow our managers to
authorize fishing. One is a decision tool; the other is a
resource management tool.
NEPA can, and should, be something the councils use to lay
the groundwork for better informed decisionmaking. And if the
councils and the agency implement it properly in the course of
planning, it can be not only an offensive mechanism, if you
will, a sword, but it can also be a shield. Because you have a
record of decision that lays out what you considered, why you
considered it, how you came to decide what you decided. And as
we have heard from Dr. Hogarth, improved implementation of NEPA
has actually helped them with their won-loss record in court.
In Fiscal Year 2003, Congress authorized additional money
for the agency to hire NEPA coordinators and to work a little
harder and better on producing its documents. And that has had
a good effect, and will continue, I think, to improve their
performance.
This notion of regulatory streamlining has come up in some
of the statements. And I think the idea here is that the NEPA
process enables the agency to front-end-load information
gathering and information consideration. Very often, what
happens in the Magnuson Act is a proposal comes out and the
council is considering it and debating it, but the only way you
get alternatives is that somebody comes in at the back end of
the process and disagrees with what has been proposed and is on
the table. So you have post hoc rationalization about why you
made a decision, or you get information that comes in at the
back end of the process. And that is when things get very
complicated, very confusing, and very costly.
I think the concerns that you have heard about NEPA
implementation, the timing, the length of the documents, the
length of the amount of time that is taken, really lie in this
area of managing the process; rather than the legal
requirements.
Ms. Bear raised several possibilities for how the agency
could speed things up. There is no reason, for example, to
begin your NEPA process coincident with the triggers that start
the Magnuson time lines ticking. I would agree with those who
complain that they don't mesh very well, but that is because
they try to start them at the same time. If you were doing
programmatic EIS's, you could start that at any time before you
actually were doing management plan amendment.
It is true that when folks are talking about NEPA documents
these days they make this gesture, as in chin-high, rather than
even citing the number of pages. But as Ms. Bear said, the law
doesn't require that voluminous amount of material.
One thing I would like to mention that hasn't come up yet
is the notion that NEPA somehow gets in the way of permitting,
especially in cooperative research or experimental fisheries. I
was surprised to see a column in the ``National Fisherman''
magazine by Dr. Hogarth, where he said that it was NEPA's fault
that they weren't getting permits out in time for cooperative
fisheries research in New England.
I served on a panel of the National Research Council a
couple of years ago, exploring for the National Marine
Fisheries Service how better to do cooperative research, and
NEPA wasn't one of the concerns that came up. A lot of the
problem with the delays in the permitting had to do with
standardization of agency procedures and how permits are
granted from one region to another. So I would suggest that
that again is another process management issue, rather than a
legal requirements issue.
I would be happy to answer questions. Thank you.
[The prepared statement of Ms. Iudicello follows:]
Statement of Suzanne Iudicello, Author/Independent Consultant
on Marine Conservation
Good Morning, Mr. Chairman and Members of the Subcommittee. Thank
you for the opportunity to testify at this oversight hearing on the
relationship between the Magnuson-Stevens Fishery Conservation and
Management Act and the National Environmental Policy Act. My name is
Suzanne Iudicello; I offer my remarks today as an independent
consultant in marine conservation. You have asked for views on several
important issues related to the integration of these two statutes. My
observations on NEPA and the Magnuson-Stevens Act are drawn
particularly from work in which I have participated. This includes:
A project conducted for the National Marine Fisheries
Service (NMFS) on requirements under multiple statutory authorities;
Participation on the National Research Council Committee
on Cooperative Research in the National Marine Fisheries Service;
The U.S. Fishery Management Program of the H. John Heinz
III Center for Science, Economics and the Environment that produced the
book Fishing Grounds; and
Six years of service on the Marine Fisheries Federal
Advisory Committee, MAFAC.
My main message today is that NEPA and the Magnuson-Stevens Act are
not in conflict. The former is a tool to help decision-makers engage
the public, consider alternatives, and understand the consequences of
proposed actions. If used effectively by fishery managers, it could be
both a sword and a shield: an offense in the effort to move toward
ecosystem-based approaches to fishery management, and a defense against
challenges to administrative actions.
The latter has as its stated purposes managing fishery resources,
supporting international fishery agreements, promoting fishing, calling
for preparation of management plans, establishing councils, encouraging
development of fisheries, and, as of 1996, protecting essential fish
habitat. Although the Magnuson-Stevens Act has numerous administrative
features, it is essentially a resource management statute. NMFS is no
different than the U.S. Forest Service, National Park Service or the
Federal Aviation Administration in having to follow both programmatic
or enabling legislation as well as administrative laws such as NEPA.
Despite complaints you may hear about so-called conflicts among
statutes, it appears to me that in the past three years since the
Congress last reviewed NMFS compliance with NEPA and other statutory
and administrative requirements, the agency has tremendously improved
its record. In FY 2003, Congress provided additional resources so that
the agency has the capacity in its budget, organization, structure and
management processes to meet requirements under multiple statutory
authorities and national policies.
What are the signs of improvement? Stakeholders may still be filing
lawsuits, but the difference today is that the agency is winning. NMFS
has used the additional resources to improve production of documents
such as Environmental Assessments, Environmental Impact Statements and
Records of Decision. The addition of NEPA coordinators in regions and
councils has helped improved performance. Efforts to streamline the
regulatory process by front-end loading information gathering within
the agency will improve it even more.
Is there room for further improvement? Certainly. It is my view
that the system for effective stewardship and procedural compliance
exists, but isn always implemented well. There are specific ways to
correct problems about which you have heard testimony: the length of
time NEPA compliance requires, the meshing of deadlines under NEPA and
Magnuson-Stevens, the degree of environmental analysis required for
actions such as experimental fishing permits, research, or minor
regulatory change. I like to address each of these issues in turn, and
finally, say a few words about the concern over lawsuits.
NEPA timelines and Fishery Management Plan deadlines can be coordinated
One of the complaints you have heard is that the Magnuson-Stevens
Act contains deadlines and timetables that must be met in the course of
fishery management plan development and amendment, and that NEPA's own
timetable does not coincide with the council calendar.
The difficulty most cited by council and agency staff is that they
cannot mesh the timelines and respective requirements for notice,
scoping and comment periods of NEPA and M-S FCMA. Council and agency
staff will point out that periodic stock assessments are conducted in
the summer, results are available in the fall, council decision
meetings occur in November or December, with decisions on TAC-setting
necessary by the beginning of the year for many fisheries, at latest by
early spring. They state further that this 4-6 month time frame does
not provide sufficient time to conduct the kind of environmental
analysis anticipated by NEPA.
This characterization fails to recognize that there is more than
one alternative to preparation of a full EIS for every annual
adjustment of the catch quota. It does not take into account the
possible use of programmatic EIS's, nor does it clearly grasp what NEPA
is aiming for in analysis of the ``proposed federal action.''
In my view, the ``federal action'' at hand is authorizing fishing,
not bumping a TAC up or down by a few thousand pounds in response to a
new stock assessment every autumn. The decision to authorize fishing--
or not--does not need to be made on an annual basis, and in fact, could
be made relative to a sustainable fisheries program, a stock recovery
policy, a regional or ecosystem program, a capacity reduction program,
or a target range for catch for a period of years. If the agency does a
thorough job of environmental analysis in a set of programmatic or
supplemental EISs on entire fisheries, or overall fishery management
plans--not on an amendment that changes mesh size or ups the catch--
such a document would provide the foundation for subsequent EAs and
FONSIs or for tiering. (See 40 CFR 1502.20,1508.28; Forty Questions
#24(c)).
Both NEPA and M-S FCMA contain sufficient flexibility to be
synchronized and integrated. Councils do not have to wait for the
delivery of a stock assessment to begin a NEPA analysis if they are
analyzing the important action, and putting it in context. Is it a
whole new program or fishery? Then start scoping as soon as possible,
rather than waiting for the stock assessment. If it is an annual or in-
season adjustment to a plan whose alternative measures have already
been analyzed, they should consider whether the level of change really
warrants an EIS or could be discussed in an EA? Could it be done as one
of several tiered decisions that are subsequent to a prior major Record
of Decision? Nowhere in the statute or the CEQ regulations does NEPA
require that the agency go back and start the entire analytical process
over unless the proposed federal action or the new information that
changes alternatives and consequences is significant. Other options
include doing a new Record of Decision or a short Environmental
Assessment to elicit public comment on the new information. The
President's Council on Environmental Quality is open to approaches on
these and other ways to make NEPA compliance fit the timing
requirements of the Magnuson-Stevens Act. Analysis for most of the
annual, in-season and similar adjustments that councils make should
only take a couple months, not years.
NEPA does not require voluminous documents that overwhelm the system
and the public
Irate fishery stakeholders no longer refer to NEPA documents in
words or even numbers of pages. They hold a hand at about chest level
to indicate the size of recent analyses. Such daunting amounts of
material are not required by NEPA. In fact, the law calls for plain
language, and the CEQ regulations actually limit the number of pages of
text in a final EIS to 150 to 300 for very complex proposals (40 C.F.R.
1502).
While it is understandable that documents prepared in the past 5
years or so were overly inclusive as a defensive tactic, it is time for
NMFS and the councils to re-examine the purposes, policies and
potential of NEPA.
The point is not to wall off the public from the decision-maker
with battlements constructed of paper, but to engage the public, to
make the thought process behind decision-making clear, to show a
variety of alternatives and what their consequences might be. Not only
does this process not require thousands of pages, the spirit and letter
of NEPA caution against it. The courts are looking for quality
analysis, not quantity of data. As an example, a recent award-winning
EIS was in the form of a coffee-table book (See National Association of
Environmental Professionals http://www.NAEP.org/COMMITTEES/
awardprogram.html#AWARDEES).
How can we improve our environmental documents? In some cases,
clearer, tighter, shorter writing is the answer. That comes with
training and practice. Although one may jump to the conclusion that it
might be better to farm out such tasks to consultants rather than in-
house scientists and fishery managers, the record shows that EIS's
prepared by consultants are longer than those prepared in-house.
Beyond better writing, the CEQ regulations offer numerous tactics
for reducing the paper volume. Analysis is the key. A page of
thoughtful analysis is worth 60 pages of statistical tables. Tiering is
an approach that begins with a general, programmatic analysis.
Subsequent actions are covered in ``tiers'' that incorporate the prior
discussion by reference, and focus on the issues specific to the action
under consideration. Incorporation by reference allows agencies to
append materials without including them in the text of an EIS. All
these methods of cutting down the paper burden have been approved by
the courts, incorporated in the CEQ regulations, and are available to
the National Marine Fisheries Service.
NEPA is not to blame for every delay in permitting
It came as quite a surprise to read a recent column by Dr. William
Hogarth in National Fisherman magazine wherein he blames NEPA for the
slowness in issuance of experimental fishing permits and similar
permitting required for cooperative research projects between the
agency and the fishing industry.
In 2003, the National Research Council convened a committee on
cooperative research at the request of the National marine Fisheries
Service. This panel reviewed all aspects of cooperative research, from
its history to case studies, to legal and financial impediments.
Nowhere in our entire report did we find that NEPA requirements stood
in the way. The only mention of environmental analysis in the report is
the following:
For some EFP applications, an environmental assessment (EA) may
also be required because the environmental impact of the proposed
fishing activity is believed to be substantial. The preparation of an
EA requires considerable effort and expertise, and the criteria for
when an EA is required vary from region to region.
The section concludes that the delays are caused by overall
confusion about the NMFS application procedure, and the report
recommended that the agency standardize its permitting procedures. No
mention was made of NEPA.
The Mid-Atlantic Fishery Management Council has found a way to
streamline experimental fishing permits for cooperative research. Their
solution was to set aside a portion of the total allowable catch of all
managed species for cooperative research. That means that the
environmental impact of that fishing mortality already has been
analyzed in the course of developing or amending the FMP and annual
catch specifications. There is no unaccounted mortality that might
arise when an experimental project comes up, and that must then get its
own separate analysis before a cooperative research project can be
approved. Why can't all the regions take a similar approach? Why hasn't
the agency demanded a standard, national policy for permitting
cooperative research and expediting experimental fishing permits
related to that activity?
Litigation is part of the system, not an indication that the system is
broken
Finally, a word about lawsuits over NEPA.
Reading fishing industry publications and listening to the
complaints and hand-wringing of officials and commentators over the
past couple years, I get the impression there is a notion afoot in the
land that we have somehow become a government of two functions, not
three, and that the courts are no longer--or shouldn't be--part of the
old ``checks and balances.'' I must respectfully disagree. Litigation,
seeking redress in the courts, is part of our system, not an indication
that the system is broken.
It is true that the system and the rules changed significantly in
1996, and that litigation over compliance with those rules has taken a
heavy toll on the National Marine Fisheries Service. Many of the
changes that were advocated by the conservation community in passage of
the Sustainable Fisheries Act were precisely for the purpose of
providing litigation handles on what previously had been a slippery,
unaccountable and largely discretionary system. The law now includes
specific targets, timetables, and concrete requirements to stop
overfishing, reduce bycatch and protect essential fish habitat. It
should not have come as a big surprise that when the new law's
deadlines and targets were not met, advocates used litigation to hold
the agency accountable, and that environmental groups are responsible
for about a third of the action in the courts.
Recognizing that litigation is part of our system, nevertheless, it
does have the effect of trumping all other activity, not only for the
agency but for stakeholders. Once the agency is in court, it no longer
has the flexibility to try different approaches, convene stakeholders
for negotiation, or work with councils to improve background and
analytical documents. If an organization is not a plaintiff or
intervenor, it doesn't have a seat at the table or a role in crafting
solutions. Once suit is filed, participants are either on the docket or
on the sidelines. Not only does this not elicit diverse ideas, it sucks
up resources that are desperately needed to conduct basic business, let
alone plan ahead or think creatively to find ways to integrate
disciplines and mandates.
What is important to note about environmental group litigation is
that while it may be new for the National Marine Fisheries Service, it
is not new in the history of natural resource management. NMFS is about
10 years behind the U.S. Forest Service, National Park Service and
other resource managers in suffering through litigation, particularly
challenges to its analysis of the impacts of fishery management actions
required in the Magnuson-Stevens Fishery Conservation and Management
Act, National Environmental Policy Act, Regulatory Flexibility Act and
various Executive Orders. The agency finds itself in what one NEPA
expert has described as ``Stage II'' in the evolution toward
compliance, a stage that occurs after numerous court orders and
injunctions, where money is made available for contractors and
consultations, detailed prescriptions emerge from general counsel, and
the agency does enough to demonstrate that it is trying to respond to
litigation. NEPA managers in these other agencies can tell you that
what the Fisheries Service is experiencing now is familiar ground, and
that there are ways to improve performance, comply with the laws, and
get resource management done. We can learn from the experiences and
approaches tried elsewhere, even if it seems the only relevant lesson
is ``you are not alone.''
The good news is that the National Marine Fisheries Service is no
longer in ``Stage I,'' or denial that NEPA applies to fishery
management actions. The agency has undertaken numerous activities to
tap experience of other resource agencies, use the planning and
brainstorming ingenuity of its own and council staff, and employ
resources provided by Congress to expand training in NEPA and other
procedural requirements, improve consistency in document preparation
and get tough on the quality of decision record that will be approved.
This progress should not be thwarted by attempts to exempt the
agency from NEPA or to declare that the Magnuson-Stevens Act public
participation and decision process is equivalent to NEPA. The two laws
are not inconsistent, and in fact are comparable in their policies. But
the fishery management planning process and the environmental impact
assessment process are neither the same nor redundant. The purpose of a
fishery management plan or amendment is, at the most basic level, to
authorize fishing. The purpose of an environmental impact statement is
to provide decision makers and the public with a full exposition of the
alternatives and consequences of authorizing fishing in the manner
proposed in the plan. It does not seem unreasonable that decision
makers at the council and in the agency would want to know the
potential effects of a fishery management proposal on not just the
target stock, but related fish, other animals in the ecosystem, the
market, participating user groups, communities and so forth. And while
fishery management plans do incorporate information about all these
aspects of the human and natural environment, they do not provide the
alternatives analysis that is the heart of a well-prepared EIS. Whether
it is a vote by a council or final approval of a plan by the Department
of Commerce, the fishery management plan process does not, without
NEPA, provide a mechanism whereby the decision maker and the public can
evaluate an array of alternatives and their consequences.
The compilation of information and analysis of alternatives that
take place in an EIS can serve the fishery management process rather
than thwart it. Issues surfaced through NEPA at the end of the planning
process make for inefficient, costly and frustrating outcomes. As first
level decision-makers, councils could benefit from having the full
disclosure of alternatives and consequences before them early, rather
than at the end of their decision process.
It is time they took advantage of the exploratory tools NEPA
provides, so they can use them to make better decisions, document and
defend them.
Thank you for the opportunity to share these views. I will be
pleased to answer any questions.
______
Mr. Gilchrest. Thank you very much.
Mr. Greenberg.
STATEMENT OF ELDON GREENBERG, ATTORNEY,
GARVEY SCHUBERT BARER
Mr. Greenberg. Thank you, Mr. Chairman. My name is Eldon
Greenberg. I am a partner in the Washington law firm of Garvey
Schubert Barer. I want to thank you, Mr. Chairman, and the
Committee for inviting me to testify this morning concerning
the relationship between the Magnuson-Stevens Act and NEPA.
I have long experience with both these statutes. I acted as
general counsel to the National Oceanic and Atmospheric
Administration in the Carter Administration, when we were just
getting started with implementation of the Magnuson-Stevens
Act. And since leaving government some 23 years ago, I have
spent a lot of time representing private parties, both in the
administrative process and in litigation, under the Magnuson-
Stevens Act and NEPA. I thus hope that my perspective will be
useful to the Committee this morning.
I would emphasize that I am not testifying today on behalf
of any company or organization. The views I express are my own,
alone, and I take full responsibility for them. I would ask
that my full statement be submitted for the record.
As many witnesses have said this morning, both these
statutes, the Magnuson-Stevens Act and NEPA, share the laudable
purpose of ensuring that there is a reasoned decisionmaking
process with respect to the management and conservation of our
fishery resources.
The people have also talked about public participation and
openness. And I would underscore that NEPA, on the one hand,
may be a full-disclosure statute, as the courts have sometimes
said; but there is no process that is more open and more
transparent, in my experience, than the fishery management and
conservation process under the Magnuson-Stevens Act.
Whether NEPA is truly necessary is a question that has been
much debated. You have heard that debate this morning; whether
the FMP is a functional equivalent of an environmental impact
statement or not. I think there is a lot of merit to the
argument that it is. But leaving that broader question to one
side, it seems to me to be undeniable that there are some
practical problems in implementing the two statutory mandates.
And that is what I want to focus on this morning, with
reference to three specific problems.
First, there is the problem of who is in charge under NEPA.
Senator Magnuson was fond of saying that the Magnuson-Stevens
Act created a unique system of government where you had to
balance the councils on one hand, and the role of the National
Marine Fisheries Service and the Secretary of Commerce on the
other.
I think there is considerable uncertainty and confusion as
to just who the decisionmaker is under NEPA. In my view,
because it is the council that is responsible for making
fishery management decisions, it must be the council which is
the ultimate policymaker under NEPA. I don't think that the law
is clear with regard to that issue at this point, and I think
it needs to be clarified.
A second problem, which has already been addressed this
morning, relates to the massive and incomprehensible nature of
some of the NEPA documentation that has been produced by the
agency. I think the problem here is particularly the result of
what I call ``unmoored programmatic reviews''; broad
programmatic statements that have been required by the courts
that are, frankly, unrelated to any specific decisionmaking
issues before the councils. And you end up with this process
that just takes years and years to complete.
The 7,000-page EIS for the Bering Sea, Aleutian Islands,
and Gulf of Alaska groundfish fisheries was ordered by the
court in July of 1999. It wasn't completed until June of 2004.
It took five years to do that document, an enormous amount of
resources. And at the end of the day, it was hard to know how
relevant it was to the real decisions that had to be made by
the North Pacific Council.
The third problem, which has also been addressed by other
witnesses, relates to the dynamic nature of fishery management.
There is an overriding imperative in the fishery management
process to use the most current data available. Councils have
to rely on the most recent survey data in making annual
management decisions such as setting tax, establishing bycatch
rates, adjusting allocations among user groups.
If you have to prepare a full EIS on your annual management
decisions, you find yourself in a quandary as a council. You
simply can't accommodate the need to use the most recent data
available, and go through the full process that is required for
an environmental impact statement.
I want to conclude by mentioning the Federal Advisory
Committee Act example, which Dan and Furlong and others have
mentioned. Congress faced a situation in 1982 where the
councils were suffering under the applications of the Federal
Advisory Committee Act. It wasn't that those requirements were
bad. It was that they didn't mesh fully with the management
needs of the councils.
And the solution that Congress hit upon was to take a hard
look at FACA, determine what requirements in FACA made most
sense in the council process and what didn't, and then tailor
those requirements to the specifics of the fishery management
process.
I think it was a very successful effort. And as Mr. Furlong
said, if you look at the 23-plus years of history since the
FACA amendments of 1982, you will see that there just have not
been complaints about the openness and transparency of the
councils and their subsidiary bodies, and their ability at the
same time to meet all of the full requirements for public
disclosure.
That concludes my statement, Mr. Chairman. I would be happy
to answer any questions you might have.
[The prepared statement of Mr. Greenberg follows:]
Statement of Eldon Greenberg, Attorney, Garvey Shubert Barer
Good morning. My name is Eldon Greenberg, and I am a partner in the
Washington, D.C. office of the law firm of Garvey Schubert Barer.
1 I am pleased to be here today to address the relationship
between the Magnuson-Stevens Fishery Conservation and Management Act
(the ``Magnuson-Stevens Act'') and the National Environmental Policy
Act (``NEPA''). I have extensive experience with the application of
both statutes, having worked on their implementation when I was General
Counsel of the National Oceanic and Atmospheric Administration
(``NOAA'') in the Carter Administration, and having represented
numerous private parties in Magnuson-Stevens Act/NEPA administrative
proceedings and litigation. I thus hope that my perspective will be of
use to the Committee. I am not testifying today on behalf of any
company or organization, and the views I express are entirely my own.
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\1\ My firm's address and telephone number are: 1000 Potomac
Street, N.W., Suite 500, Washington, D.C. 20007; (202) 965-7880. I am
reachable at: [email protected].
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Both NEPA and the Magnuson-Stevens Act share the laudable purpose
that Federal agencies should engage in a reasoned decision-making
process when taking actions that may affect public resources. The
Magnuson-Stevens Act contains National Standards, elaborated now over
the course of almost three decades, to ensure the wise conservation and
management of fishery resources. Its procedures for participation by
interested parties and transparency of agency deliberations help
guarantee that the environmental implications of resources decisions
are fully understood by agency decision-makers and private
stakeholders. NEPA, for its part, establishes its own procedural
mechanisms for environmental review that, in the words of the Supreme
Court, ``prohibit[] uninformed...agency action.'' 2
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\2\ See Robertson v. Methow Valley Citizens Association, 490 U.S.
332, 351 (1989).
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Whether NEPA is truly necessary to inform Magnuson-Stevens Act
decision-making, rather than merely redundant, is a question that has
been much debated, especially in recent years. It has been suggested,
for example, that, since fishery management plans might be regarded as
providing the ``functional equivalent'' of an environmental assessment
or environmental impact statement, NEPA's requirements can be dispensed
with altogether, just as such documents are not required for various
regulatory actions of the Environmental Protection Agency under the
Clean Air and Clean Water Acts. In my judgment, there is much merit to
the argument that NEPA adds little to the analytical requirements of
the Magnuson-Stevens Act. Leaving that broader question to one side,
however, it seems to me to be undeniable that there are practical
problems in integrating the two statutory mandates. In such
circumstances, there is an incentive to avoid inconsistencies and
conflicts, eliminate redundancies and overlap and reduce needless
complexity. In my testimony this morning, I would like to focus on
three specific problems and then suggest one possible way of going
about solving those problems.
(1) Deciding Who Is In Charge. The late Senator Magnuson was fond
of remarking that the Magnuson-Stevens Act creates a ``unique system of
government.'' There is no other statute of which I am aware which
utilizes a mechanism quite like the regional fishery management council
or establishes a relationship quite like that between the councils and
the Secretary of Commerce. In this system, the councils are the basic
policy-makers, while the Secretary's responsibility is to ensure that
conservation and management measures conform with the law. 3
To date, however, NEPA has been implemented in a way that doesn't quite
fit this model. In fact, as documented in a 2002 report for the North
Pacific Fishery Management Council, the applicable NOAA Administrative
Order governing NEPA compliance (NAO 216-6) ``provides little guidance
on the role of the regional fishery management councils in implementing
NEPA,'' and ``there is no explanation how the council becomes involved
in the decision making process, or what happens if the council and NMFS
disagree.'' 4 Thus, there is considerable uncertainty, for
example, whether it is the council or the Secretary who should make the
ultimate policy decisions embodied in a NEPA Record of Decision. To my
mind, since the council sets fishery management policy, this should
responsibility plainly lie within the province of the councils.
Unfortunately, I am not sure that current law provides quite so
definitive an answer.
---------------------------------------------------------------------------
\3\ See, e.g., H. Rep. No. 97-438 at 8-9 (1982) (``The Councils,
not the Secretary, are to manage fisheries within their respective
areas''); H. Rep. No. 97-549 at 28 (1982), reprinted in 1982 U.S. Code,
Cong. and Admin. News 4341 (``[T]he Secretary is not to substitute his
judgment for that of the Councils regarding how to manage a fishery'').
\4\ See Walsh, Rieser and Wilson, ``Legal Assessment of the
Council's Role under the Magnuson-Stevens Act, the Endangered Species
Act and the National Environmental Policy Act'' at 34 (Sept. 2002).
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(2) Unmoored Programmatic Reviews. One the most difficult problems
under NEPA has been how to prepare ``programmatic reviews'' of fishery
management plans. In the early years of the Magnuson-Stevens Act, where
fishery management plans were just being approved, a corresponding
programmatic NEPA review was sensible and could be readily integrated
into decision-making about specific management measures. More recently,
however, particularly as the result of orders in litigation,
5 broad-scale programmatic reviews have been undertaken
without reference to specific management proposals before the councils.
The result has been massive documents that have taken years to complete
and that virtually defy comprehension. Moreover, as the National
Academy of Public Administration noted in 2002, such analyses, given
the complexity of the task, often set out a bewildering array of
combinations of alternatives and impacts. 6 Furthermore, the
alternatives presented may bear little relation to real fishery
management choices under the Magnuson-Stevens Act. The usefulness of
this kind of costly and time-consuming review needs to be carefully
assessed.
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\5\ E.g., Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996); Greenpeace
v. NMFS, 55 F. Supp. 2d 1248 (W.D. Wash. 1999).
\6\ See National Academy of Public Administration, ``Congress,
Courts and Constituencies: Managing Fisheries by Default'' at 49 (July
2002).
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(3) Living With The Time Constraints Of The Fishery Management
Process. Fishery management is a highly dynamic process. There is an
overriding imperative to use the most current data available, because
the status of stocks is so variable. In many fisheries, the councils
need to rely on recent survey data in making annual management
decisions, such as setting total allowable catch levels, establishing
by-catch rates and adjusting allocations among user groups. While
environmental assessments, with their more truncated procedures, may
lend themselves to use in this kind of process, the preparation of
environmental impact statements, with the extensive review that
entails, creates a quandary for the councils, since the full-scale NEPA
review often cannot readily be accommodated to the need of the councils
to take timely management action. The councils should not be put in the
untenable position where, to meet NEPA's procedural requirements, they
are forced to abandon reliance on the most current data available and
instead rely on inadequate and out-of-date data, contrary to National
Standard No. 2 of the Magnuson-Stevens Act.
(4) A Possible Solution: The ``FACA Amendments'' Model. Congress
faced similar problems of meshing two statutes with compatible aims but
sometimes conflicting procedures that unduly constrained the fishery
management process when, in 1982, it amended the Magnuson-Stevens Act
to adapt the requirements of the Federal Advisory Committee Act
(``FACA'') to the realities of the Magnuson-Stevens Act decision-making
process. 7 It did so, not by junking the valuable part of
FACA's procedural protections but rather by taking the most meaningful
elements of FACA, and integrating them into the Magnuson-Stevens Act
management system. 8 A similar legislative exercise,
reviewing the requirements of NEPA and their application in detail, and
then, to the extent any such elements are not already effectively
covered by existing provisions of the Magnuson-Stevens Act, adapting
and adopting them as part of the Magnuson-Stevens Act, could well
produce valuable results. Such an approach would, I believe, be
consistent with the recent Main Conference Panel Findings on
``Reconciling Statutes'' at the March 24-26, 2005 Managing Our Nation's
Fisheries II Conference.
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\7\ See Pub. L. No. 97-453, sec. 5 (Jan. 12, 1983).
\8\ See H. Rep. No. 97-549 at 14-17 (1982), reprinted in 1982 U.S.
Code, Cong. and Admin. News 4327-4330.
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Thank you for your consideration. I would be happy to answer any
questions the Committee might have.
______
Mr. Gilchrest. Thank you very much, Mr. Greenberg.
Mr. Frulla.
STATEMENT OF DAVID FRULLA, ATTORNEY,
COLLIER SHANNON SCOTT
Mr. Frulla. Thank you, Mr. Chairman. My name is David
Frulla. I am a member of Collier Shannon Scott, here in
Washington, D.C. I represent commercial fishing industry
associations across the country. I would like to submit my full
statement for the record.
I have a couple of perspectives; one as a litigant, both
against and for the fisheries service. We have supported their
decisionmaking under NEPA processes, and we have been
successful in the cases where we have intervened in that way. I
have also been often an advocate for, and a counselor to,
commercial fishing associations as they try to navigate the
council processes. And I have sat in the council rooms and
listened to the debate about how to comply with NEPA and how to
get fisheries management measures through.
What I would like to offer today, in addition to my
testimony, are just some practical questions that come up that
I hear. The first is: I get a phone call from a scientist we
work with who wants to use a fishing vessel to go out and do
some research. And he says, ``Dave, can you write me an
environment assessment? They say I need one to go out and do
this work, and we need to get it done this summer.''
Another is: Should NMFS hire port samplers, or should they
hire NEPA compliance officers when they get to a budget crunch?
I do work with the scallop industry in the Atlantic. And
Mr. Chairman, you raised a good question. How do you get out in
those areas on George's Bank? How do you decide where to go
fish, and when? Well, what is happening is they are using data
that is sometimes a year or two old, rather than reacting to
resource conditions that we see.
We have a situation this year where with the Nantucket
Light Ship area, which is an area off the cape that has some of
the oldest scallops in the ocean, the management measure to go
out there and fish these areas didn't get done in time. It
wasn't implemented until November. There was only a three-month
season. The quota didn't get caught. And now we can't get back
out there, because of process issues. It is not all NEPA. Part
of it is the council's workload. Part of it is the
Administrative Procedures Act. But there is an issue there that
needs to be considered.
Another issue is, how do you get your new survey
information used, if you do surveys in the summer and then you
need to get that implemented into annual specifications by the
beginning of the year or the springtime?
Again, these are practical issues. How do you make this
work? And do you limit the councils' flexibility through the
alternatives consideration process? Again, no one is going to
say you don't need to consider alternatives. It makes a lot of
sense.
We have been working with the herring fishery up in New
England, and they are starting an amendment process. And with
the most scrupulous observance of NEPA, if you were working on,
say, seven or eight different sets of management measures
within your amendment, and you have alternatives of each, the
most scrupulous NEPA requirement would say every permutation of
possible alternatives needs to be analyzed.
It doesn't happen in practical reality, clearly, but what
we are starting to see now as a result is the council saying,
``Well, early on in the management process we need to package
all of our alternatives together, just so we can do the
analysis.'' If at some point down the road you want to mix and
match, you want to learn a little more, we are running into a
process where we could be hamstrung to try to get constructive
management measures that address the full range of Magnuson-
Stevens Act requirements.
And then, what I have spent my testimony discussing is the
issue of: What do you gain for that? Magnuson, as you have
heard, and the other laws do provide for a wide range of
environmental considerations.
Is NEPA working as an enforcement tool for the
environmental community with the Magnuson-Stevens Act? We took
a look at the case law, and in many instances you find that the
NEPA problem is paired with a substantive problem under the
Magnuson Act, probably more times than not. So NEPA standing
alone isn't the bulwark. There is an issue with the
decisionmaking more generally that needs to be resolved.
And then, the second is, to the extent that that may be
equivocal, are you actually getting a gain in the fisheries
management process from having NEPA? And again, I would say the
experience there, at least as NEPA is being implemented by the
agency at this time, is equivocal.
We think that this is an issue--and I am speaking again
here for myself--that this is an issue that the Committee and
the Subcommittee should consider very fully in the context of
the Magnuson reauthorization. It is a worthy thing to consider.
Thank you.
[The prepared statement of Mr. Frulla follows:]
Statement of David E. Frulla, Attorney,
Collier Shannon Scott, PLLC
Mr. Chairman, and Members of the Subcommittee, thank you for
providing me this opportunity to present my views on the intersection
between federal fisheries management laws and more general
environmental laws, such as the National Environmental Policy Act
(``NEPA'').
I am an attorney in private practice in Washington, D.C. with
Collier Shannon Scott, PLLC. I have represented associations of
commercial fishermen from across the country, including in New England
and the Mid-Atlantic, Alaska, and the Gulf of Mexico and Caribbean,
since the early 1990's. I have litigated cases involving the Magnuson-
Stevens Fishery Conservation and Management Act (``Magnuson-Stevens
Act''), Regulatory Flexibility Act, Endangered Species Act (``ESA''),
and NEPA. In certain of these cases, my clients have opposed NOAA
Fisheries. However, in the NEPA context, we have generally supported
agency decision-making. We have prevailed in the half-dozen-plus NEPA
cases in which we have been involved on NOAA Fisheries' side. I have
also been retained to provide testimony to the North Pacific Fishery
Management Council on NEPA's intersection with the Magnuson-Stevens
Act.
I do not believe that anyone here today disagrees with the general
premise that NOAA Fisheries should, as NEPA requires, take a ``hard
look'' \1\ at the wide range of impacts on the human environment of the
consequences of its fishery management programs. The Magnuson-Stevens
Act itself mandates consideration, via its national standards and other
required and optional provisions for fishery management plans, of a
wide range of environmental factors. \2\ In response to a handful of
court decisions, most occurring at or around 2000, NOAA Fisheries,
guided by its Office of General Counsel, made NEPA compliance, or
perhaps over-compliance, a priority.
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\1\ NRDC v. Hodel, 865 F.2d 288, 294 (D.C. Cir 1988).
\2\ For instance, in a NEPA case, U.S. District Court Judge Gladys
Kessler explained, ``[NOAA Fisheries has] numerous--and oftentimes
competing--statutory objectives to contend with in managing the New
England waters; preservation of essential fish habitat is only one of
many.'' Conservation Law Foundation v. Mineta, 131 F. Supp. 2d 19, 27
(D.D.C. 2001). These measures are also subject to the substantive and
procedural requirements of the ESA, the Marine Mammal Protection Act,
the Coastal Zone Management Act, the Regulatory Flexibility Act, the
Paperwork Reduction Act, and various executive orders governing
rulemaking, in addition to NEPA.
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Meticulous NEPA compliance is no small task. According to the
Commerce Department's latest Semi-annual Regulatory Agenda, NOAA
Fisheries had approximately seventy-five actions from the regional
fishery management councils at the proposed rule stage alone, \3\ not
to mention long-term on-going rulemaking proceedings. The question
presented today, however, is whether NEPA, as NOAA Fisheries is
currently implementing it, fosters or impedes timely, high quality
federal fisheries management. The record is equivocal at best.
---------------------------------------------------------------------------
\3\ 69 Fed. Reg. 72974, 72978-81 (Dec. 13, 2004).
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NEPA is a procedural statute. It imposes no substantive
conservation obligations. \4\ That said, the environmental community
has often used NEPA as a litigation device to attempt to force a
substantive reconsideration of an agency action with which it did not
agree. Accordingly, there are two elements of NEPA that should concern
the Subcommittee: (1) whether it serves as an effective independent
mechanism to ensure quality agency decision-making; and (2) whether it
actually also serves to improve the quality of NOAA Fisheries decision-
making. Regarding the first point, the litigation record shows that
NEPA is, quite simply, over-rated as an enforcement tool. As to the
latter, I submit that a wide array of substantive statutes
independently help to ensure environmentally-aware decision-making. In
fact, NEPA obligations may actually inhibit timely, science-based
management.
---------------------------------------------------------------------------
\4\ Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-
51 (1989).
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I will address these two points in order. There is a more refined
question than NOAA Fisheries' (improving) won-lost record in NEPA cases
that the Subcommittee should consider in determining NEPA's independent
value as an enforcement tool. It is whether these NEPA violations
occurred in the context of agency actions that were flawed under the
substantive environmental laws. If so, then NEPA, as an independent
enforcement tool, is not necessarily adding much to the application of
Administrative Procedure Act decision-making standards to the
substantive fisheries management standards contained in the Magnuson-
Stevens Act.
Environmental plaintiffs have prevailed in recent years on NEPA
claims regarding federal fisheries management in approximately a half-
dozen contexts. \5\ However, our research has identified only one of
these contexts in which an environmental plaintiff prevailed on a NEPA
claim when it did not prevail on a Magnuson-Stevens Act based claim in
the same case: American Oceans Campaign v. Daley (``AOC''). \6\ A
similar perspective obtains in the Endangered Species Act context. \7\
---------------------------------------------------------------------------
\5\ These include the Pacific groundfish fishery, the Alaska
groundfish fishery, the Hawaii longline fishery, the Hawaii lobster
fishery, the Magnuson-Stevens Act's essential fish habitat (``EFH'')
requirements, and the Pacific salmon fishery.
\6\ 183 F. Supp. 2d 1 (D.D.C. 2000).
\7\ For instance in Greenpeace v. NMFS, 55 F. Supp. 2d 1248 (D.
Wash. 1999), the court held that the agency had violated NEPA by not
preparing a programmatic environmental impact statement for the Alaska
groundfish fisheries, but that holding was made in conjunction with a
substantive determination under the ESA that the agency had failed to
consider adequately reasonable and prudent alternatives to protect
Steller sea lions. Two times, a court did conclude the agency had not
violated the Endangered Species Act, but failed to comply with NEPA
because it had not recently prepared an environmental impact statement.
Leatherback Sea Turtle v. NMFS, 1999 U.S. Dist. LEXIS 23317 (D. Haw.
1999); Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996). These types of
issues can be addressed by ensuring that the fishery management process
includes some measure of reflection and does not simply react from year
to year.
---------------------------------------------------------------------------
The AOC case is worthy of review. It addressed NOAA Fisheries'
efforts to comply with the essential fish habitat provisions of the
1996 Sustainable Fisheries Act (``SFA''). \8\ An environmental
plaintiff challenged essentially all the regional fishery management
councils' EFH plans. Most if not all of the plans concluded that,
within the two year time limit the SFA and NOAA Fisheries guidelines
had set to develop a plan, there was not sufficient information to
warrant adopting habitat-specific measures in order to protect EFH from
the adverse impacts of fishing gear in addition to the fishery
management regimes then in place. While the court found the councils'
decisions in this regard were reasonable as a matter of substance (in
the main, because there was little information at that time on which to
act), the court then concluded the councils failed to consider a
sufficient array of alternatives under NEPA because they only
considered their current management measures, versus having done
nothing at all. Since then, all the councils have developed more
comprehensive EFH plans under a circa four-year time table set forth in
a post-judgment settlement agreement entered in that case.
---------------------------------------------------------------------------
\8\ See 16 U.S.C. Sec. Sec. 1853(a)(7) & 1855(b)(1)(A).
---------------------------------------------------------------------------
As it embarks on the re-authorization process, however, the
Subcommittee should consider whether the councils' and NOAA Fisheries'
failure to comply with NEPA in the EFH context was actually the result
of flawed decision-making that requires NEPA as an enforcement
mechanism. Another explanation for the failure in this singular
instance may be that the SFA and NOAA Fisheries in its EFH
implementation guidelines simply did not provide the councils and the
agency itself sufficient time and resources to develop the necessary
range of practicable alternatives that would have complied with the
SFA's EFH mandate. The Magnuson-Stevens Act's practicability
requirement for EFH measures does require reasonable precision in
decision-making. \9\ Congress needs to be careful about mandating any
additional substantive and analytical requirements that it imposes on
NOAA Fisheries in this re-authorization process. Care in legislating
new requirements and their timelines may thus serve a more vital
function in ensuring quality decision-making by NOAA Fisheries than
NEPA.
---------------------------------------------------------------------------
\9\ 16 U.S.C. Sec. 1853(a)(7)(practicability requirement). A
federal court recently explained in upholding the New England Council's
new EFH measures implemented in connection with its groundfish
rebuilding plan amendment:
Similarly, the range of alternatives that the Secretary should have
considered here is not defined solely in terms of percentage of EFH
areas that are closed, but rather must include a variety of forms of
closures in combination with other EFH protection methodologies, as
well. Of course, the range of alternatives warranting consideration is
also defined in terms of the regulatory action's purpose...and
therefore options that are inconsistent with the Magnuson-Stevens Act]
need not be considered.
Oceana v. Evans, Civ. No. 04-811-ESH, slip op. at 63 (D.D.C., Mar.
9, 2005) (citation omitted).
---------------------------------------------------------------------------
The second question is whether NEPA actually improves the quality
of agency decision-making. A major issue here is one of timing. The
Magnuson-Stevens Act imposes its own timelines which ostensibly require
prompt council and agency decision-making. \10\ Often in my experience,
fisheries management decisions are delayed as the councils and NOAA
Fisheries struggle to finalize and implement their rule-making
packages, that now often-times approach or exceed one thousand pages.
The Atlantic scallop fishery in which I am involved represents an
example. In that fishery, despite the resource being rebuilt ahead of
schedule, annual management measures subject to rulemaking are very
often not able to be implemented at the start of the fishing season.
\11\
---------------------------------------------------------------------------
\10\ 16 U.S.C. Sec. 1854 (a)-(b) (imposing detailed procedural
requirements and timelines for development and promulgation of fishery
management council plans, amendments, and implementing regulations).
\11\ For instance, Scallop Framework Adjustment 14 governing the
2001 and 2002 fishing years was not implemented until well into the
fishing season because NFMS decided to undertake an environmental
impact statement-level review for this bi-annual adjustment measure, in
the wake of the NEPA litigation in 2000. 66 Fed. Reg. 24052 (May 11,
2001). In addition, largely due to purported procedural requirements,
NMFS was not able to provide timely access to a highly-abundant scallop
area near Georges Bank, called the Nantucket Lightship Access Area,
until the heavy weather months from November 2004 through January 2005.
69 Fed. Reg. 63460 (Nov. 2, 2004). The truncated season presented a
safety issue and contributed to the limited use of the access program.
---------------------------------------------------------------------------
Moreover, the scallop fishery recently embarked on a new, adaptive
area-based management system, in which the goal is to distribute
scallop fishing across the resource in a way that directs the fleet to
relatively large concentrations of mature scallops, while allowing new
``sets'' of juvenile scallops to grow to maturity. However, scallops
can be fast-growing, and new concentrations of juvenile scallops can
appear unexpectedly in the middle of the fishing year. It is an open
question whether the management process, burdened as it is with
procedural requirements, can be sufficiently nimble to allow for the
effective implementation of adaptive, area-based management. Scallops
are not the only example of fast-growing species that require prompt
management; certain-federally managed squid species found in the Mid-
Atlantic generally live for less than a year.
All fisheries are facing these challenges to some degree. Most NOAA
surveys occur in the temperate months, and it is a challenge--and an
increasingly unmet one, at that--to ensure that the rulemaking process
can happen swiftly enough to allow this new information to govern the
fishery for the next fishing season. More often, fisheries have to be
managed on older survey data. It is an open question whether this
represents the best we can do to ensure that federal fisheries are
managed according to the ``best scientific information available,'' as
Magnuson-Stevens Act National Standard Two provides. \12\
---------------------------------------------------------------------------
\12\ 16 U.S.C. Sec. 1851(a)(2).
---------------------------------------------------------------------------
Finally, it will be worth considering whether NEPA's requirement to
ensure the development and consideration of a wide range of
alternatives promotes flexible fishery management council decision-
making. On the East Coast, many proposed fishery management programs
(whether amendments or framework adjustments) address a wide range of
subjects. If alternatives need to be developed and then analyzed for
each permutation of possible outcomes, the analytical task becomes
insuperable. For its part, the New England Council is seeking to cope
with the analytical burden by artificially limiting its ability to
``mix and match'' the final suite of recommended alternatives. While
that approach may simplify procedural compliance in analyzing
alternatives, it may limit a council's ability to strike the needed
``delicate and nuanced balance--between its duties to maximize OY
[optimum yield] among all managed species while rebuilding overfished
stocks and to concurrently minimize harm to fishing communities.'' \13\
Procedural obstacles should not constrain constructive management
efforts in this way.
---------------------------------------------------------------------------
\13\ Oceana v. Evans, supra, slip op. at 32 (upholding nearly all
elements of New England Fishery Management Council's rebuilding plan
for Northeast multispecies).
---------------------------------------------------------------------------
We look forward to assisting the Subcommittee in addressing these
important issues as the Magnuson-Stevens Act re-authorization process
proceeds.
______
Mr. Gilchrest. Thank you very much, Mr. Frulla. They
haven't called a vote yet, so I guess we will proceed.
On that last comment, Mr. Frulla, the last comment you made
I interpreted as saying: Is fishery conservation improved
because of the NEPA process? Could I ask each of you to just
give me a very short response to that question? Mr. Frulla?
Mr. Frulla. Fishery conservation is improved through a
robust consideration of the range of environmental and human
considerations. Whether that has to be done through NEPA is
another question. Whether NEPA in practice is thwarting that is
yet a second question, if that is a fair answer.
Mr. Gilchrest. Right on the mark, I guess. That was black
and white. Perfectly clear. Unequivocal. Mr. Greenberg?
Mr. Greenberg. You will be surprised that I agree with Mr.
Frulla.
Mr. Gilchrest. OK.
Mr. Greenberg. And I also agree with Mr. Furlong, that when
you look at the ten national standards and the 14 mandatory
elements of fishery management plans, you really cover just
about the full range of issues that are covered in a NEPA
review. So that I don't think NEPA adds very much to that.
Mr. Gilchrest. Thank you.
Ms. Iudicello. And Mr. Chairman, you will probably not be
surprised that I disagree with the previous two statements. You
mentioned earlier that the councils and the agency are trying
to move more toward ecosystem-based management of fisheries.
You are not going to get the kind of consideration of the full
potential of a mix of management tools, that includes closed
areas and consideration of protected resources and a whole
variety of topics, under the Magnuson Act. It is going to keep
you constrained in a single-species management, one stock or,
at best, mixed-stock approach.
Furthermore, you are not going to consider non-fishing
alternatives. A lot of people have made some remarks about the
7,000-page environmental impact statement that had come out of
the North Pacific. And granted, that is a ridiculous size
document. It was in response to litigation. But there were some
substantive issues in that litigation that did not arise simply
from not dotting the ``i's'' and crossing the ``t's'' of NEPA
compliance.
The point in issue was that the council, even though it is
a transparent and public process, did not have any
participation in its decisionmaking function by many
stakeholders and interest groups who were concerned about
components in the ecosystem that were not part of the target
fishery. And it was not until the document was forced by the
courts and by litigation to consider the ecosystem in its
largest functioning way that those issues got on the table.
So I do not think that you get the full consideration of
everything from the seven national standards. I think you need
NEPA,
Mr. Gilchrest. You raised, to some extent, one of the legs
that hold up the table, the crux of the issue. We want to
continue to move and actually begin in a few years to start
implementing an ecosystem fisheries management plan regime. We
want to do that when we reauthorize Magnuson. And when we do
that, like you say, there is an enormous number of variables in
there: seasonal closures, looking at essential fish habitat,
ocean currents, prey-predator relationships, water quality,
human activity, you name it. There is an enormous amount. And I
think the next natural step in conservation is ecosystem
fisheries management plans.
You did talk about up-front discussions, rather than back-
stage discussions to deal with some of the NEPA problems. I
think that absolutely has to be done. One of the reasons we are
holding this hearing is to try to understand the dynamic
between Magnuson, how we are going to improve Magnuson, improve
the standards and improve the processes, improve the
relationship between the science and the councils, get research
vessels out there in a very timely manner, have cooperative
research, all those things. We just don't want NEPA to slow the
conservation process down. We want it to be complementary to
the process. So hence this hearing.
But I want you to be assured that our sense here is that
the more we get exchanges of information, the more open the
public participation process is, the better the ecosystem
approach will be. But we can't have a scientific vessel that
needs to go out to check on the scallops in the Gulf of Maine,
or the Gulf of Alaska for the groundfish, slowed down in that
process unnecessarily. So that is the kind of fine-tuning that
we are taking a look at.
My time has expired, and I will yield to Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman. In her testimony in
the previous panel, Dinah Bear noted CEQ's track record of
openness to new approaches to helping NMFS better implement
NEPA. And similarly, in this panel, Ms. Iudicello in her
testimony noted flexibilities inherent to NEPA itself that
allow councils and the agency room to be creative in
synchronizing and integrating their responsibilities to both
statutes.
But the remaining members on the second panel, both
litigators, appear to disagree, and they state that the NEPA
process is not nimble enough to respond to Magnuson's demands
for annual and seasonal rulemaking. So given this conflict of
opinion, I was going to ask each of the panelists if you would
address the following.
First of all, to what degree can the apparent conflict
between NEPA and Magnuson time lines be addressed by better
training in preparing NEPA documents and more funding for
personnel to do the work?
And then, second, given NMFS' improved track record for
addressing NEPA compliance issues over the past three years,
why would we amend the law now, rather than continue to support
the agency as it improves its process for producing concise and
timely NEPA documents?
I know you have kind of gotten into this to some extent,
but I just wanted to hear each of you directly on those
questions. It doesn't matter the order, but whoever wants to
start.
Ms. Iudicello. On the training and funding issue, I think
perhaps I should disclose that I have worked with the National
Marine Fisheries Service several years ago on an internal
process to improve NEPA compliance; not just NEPA, but the
Endangered Species Act, and the Administrative Procedures Act,
and others.
And the agency came up with quite an innovative and
aggressive action plan for how they were going to do it. And a
lot of it was supported by the NAPA report and an internal
report by Ray Kammer, all of which were delivered to Congress.
And Congress saw fit to respond to that action plan with
increased funding; which the agency has employed, in my view,
very successfully.
And so, in response to your question: Why would you change
things when they see to be moving along? I would say: Well, you
wouldn't. You would continue to support their improved work and
performance. And I think a lot of it need not be as expensive
as $8 million a year. Certainly, now that the litigation burden
has backed off a little bit, some of that might not be as
necessary.
But I think there are some simpler things that we can do.
It is harder to write short than it is to write long. I am a
professional writer. I know this. That is what good editors are
for. A NEPA expert mentioned to me in passing over the course
of years that he or she could take a pencil to these 7,000-page
documents--or maybe not the 7,000-page ones, but the multiple
hundreds of pages--and really reduce it down. So I think
training is a key issue.
But I think what Mr. Greenberg brought up about who is in
charge here is another really important issue. And that is
where you might have to look at some clarification in the
Magnuson Act. The councils kind of have the burden and pay the
consequences of NEPA compliance, but it is the agency which is
at least legally, as the courts construe it now, the
decisionmaker. So some councils prepare the documents
themselves. For other councils, the agency provides the
preparation. It is all mixed up. There is no standardization.
And I think that increases the problem. So clarifying who is
the decisionmaker--I mean, certainly the councils are a first-
phase decisionmaker--that would help.
Mr. Pallone. Thank you. Mr. Greenberg?
Mr. Greenberg. Well, I think the problem in trying to
reconcile the conflicts with the Magnuson-Stevens Act does
relate in part to the need for the councils to move very
quickly when they are acting on an annual basis. Fisheries
management is a highly dynamic business.
And I think it is very difficult to accommodate the
requirements for a full environmental impact statement, if the
courts or the agency should determine that that is what is
required, with the need to act on an annual basis to set total
allowable catch levels, for example, to allocate the resources
among the user groups, to set bycatch limits. I frankly don't
think that that is able to be accomplished consistent with the
level of review that is required for a full EIS.
Mr. Pallone. Mr. Greenberg, why is it necessary to do a
full EIS? Why can't they just do the simpler environmental
assessments?
Mr. Greenberg. Well, that used to be the way, Congressman
Pallone. For many, many years, for example, in the North
Pacific, when the annual catch levels were set, what the North
Pacific Council did was prepare an environmental assessment,
and that was deemed to be adequate. My understanding is that
more recently, as a result of concerns that have been raised,
there is now an issue before the council of whether really they
have to prepare a full environmental impact statement, rather
than the EIS.
Mr. Pallone. In your opinion, they don't, right?
Mr. Greenberg. I don't think they do. But that doesn't mean
that the agency is not going to conclude that a full EIS is
necessary. And that really gets to your second question,
Congressman Pallone; which is, you talk about the record in
litigation. And as Dr. Hogarth said, the record has improved
since 2003. I think one reason the record has improved is that
the agency is throwing paper at NEPA in order to bulletproof
decisions, because there is a risk of litigation and there are
lots of very clever litigators in the world who are very
familiar with NEPA and all the ways to challenge NEPA
compliance.
And my advice to the agency when I was general counsel was:
We can always beat a NEPA claim if we just throw enough paper
at it. And unfortunately, that is the path of least resistance.
And I think one reason that the agency has a better track
record is it is doing a better job with the paperwork. But that
doesn't necessarily translate into a better decisionmaking job.
Mr. Pallone. Mr. Frulla?
Mr. Frulla. Thank you, Mr. Pallone. I think I would first
like to say I am in the process of litigating as a defendant in
the second NEPA case this year. So the litigation burden is
still there for the agency. Again, as Mr. Greenberg said, what
they are doing is throwing voluminous analyses and the lack of
flexibility in terms of deciding how in depth to comply with
NEPA at the litigation problem.
On the funding issue, I think we do need to be clear that
at some point in these days of tight budgets you could either
have NEPA compliance officers or people trying to figure out
how to develop ecosystem management. So you can't just say,
``Fund more for NEPA.'' You may want to use those funds for
another thing.
And then finally, on the point of the time lines, just let
me give you an example of how it works in the New England
Council. You have a council with a limited budget. And you have
a handful of staff persons, each who specialize in a species,
and they can get some help. And that one staff person needs to
essentially chair the scientific plan development team,
coordinate with the advisors, provide assistance to the
species-specific committee, develop the documents, and write
all the analyses.
Mr. Gilchrest. If I could just interrupt, because we have a
vote. Thank you. Mrs. Drake has a question just before we
leave.
Mrs. Drake. Well, and this really may be an over-
simplification of everything I have heard this morning, but I
think we are greatly concerned about these conflicts we are
talking about, about the timeframe and having the most up-to-
date information which we think is required under the Act. And
of course, NEPA is adding the additional timeframe to it, or
even issues of judicial review and time framing in the two
competing acts.
Isn't there a way, Mr. Chairman, for people who have dealt
with this and the agencies to look at: Should there be one more
comprehensive act that addresses the points that you are
talking about that are important, and giving the guidance to
the agencies, to the industry, that this is exactly what we are
working with, and not having a conflict of two? I mean, that is
my question.
Mr. Greenberg. Well, to some extent, that was my
suggestion. What you need to do--and I think this is something
that the Committee is already doing with its task force on
NEPA--is to look at the two statutes and identify those areas
where there are conflicts; identify those areas where NEPA may
provide a useful supplement to the current process that exists
under the Magnuson-Stevens Act; and then integrate those
processes through the reauthorization process for the Magnuson-
Stevens Act.
Mr. Gilchrest. Thank you very much. Thank you, Mrs. Drake.
The gentlelady from Guam.
Ms. Bordallo. Thank you, Mr. Chairman. I know we are in a
real rush here. Misters Frulla and Greenberg, I don't know
which one wants to answer it, but you indicated that the NEPA
provisions that are not currently included in the Magnuson
could easily be added to the law to make it the functional
equivalent of NEPA. Would you please tell us exactly which
provisions of NEPA would need to be incorporated into Magnuson
to do this?
Mr. Frulla. The places in NEPA where you may not get the
holistic treatment that you want in Magnuson would involve
ensuring that a range of alternatives are considered. Although
you do see already in the NMFS guidelines implementing National
Standard Eight a discussion that when you look at alternatives,
if there are equivalent conservation benefits from different
alternatives, you ought to gravitate toward the one that has
the least economic impact on shoreside communities. So that is
in the guidance. It is not necessarily in the law, but it is
something that the agency is essentially doing.
And then I would say--again, speaking for myself here--that
you want to make sure that the Magnuson Act is reflective, as
opposed to just reactive. I don't think a 7,000-page
programmatic EIS fits with ``reasonably reflective.'' But I do
think that you want to make sure that you do that. And I think
that very often the amendment process itself provides for that
level of reflection, whether or not there is NEPA.
Ms. Bordallo. Thank you. Thank you very much, Mr. Chairman.
Mr. Gilchrest. Thank you, Ms. Bordallo. Did someone get a
PhD from that dissertation, 7,000 pages?
Mr. Greenberg. I think there were a lot of individuals with
PhD's who were involved. I am not sure anyone was actually
awarded the degree, Mr. Chairman.
Mr. Gilchrest. Well, we want to protect the fisheries.
Thank you very much. Your testimony has been very helpful
to us as we move through this process. The hearing is
adjourned.
Oh, the hearing has come to order, just for a comment.
[Laughter.]
Mr. Gilchrest. I want to thank Daisy Minter, Water and
Power's clerk, for assisting us with this hearing today. Daisy,
thank you very much.
The hearing is now officially adjourned. The record will
remain open, for a little while anyway. Thank you.
[Whereupon at 11:47 a.m., the Subcommittee was adjourned.]