Over the past few weeks, we’ve seen a renewed drive by the
angling and boatbuilding industries, who are urging the Senate to
pass S. 1520, the Modernizing Recreational Fisheries Management Act
(Modern Fish Act), before the 115th Congress comes to an end.
S. 1520, as its proponents continually remind us, would amend
the Magnuson-Stevens Fishery Conservation and Management Act(Magnuson-Stevens),
although such amendments are relatively narrow in scope and would not
materially affect the conservation provisions of federal fisheries law.
There is no active counterpart to S. 1520 in the House of
Representatives. Instead, the House chose to pass H.R. 200, the Strengthening Fishing Communities and Increasing
Flexibility in Fisheries Management Act which, unlike S. 1520, would change key
provisions of Magnuson-Stevens, and represents a full reauthorization of that
law. When H.R. 200 was marked up by the House Natural Resources
Committee, it was amended to include many Modern Fish act provisions, although
they make up only a small percentage of the overall bill.
As a result, S. 1520’s supporters have embraced the much broader, and
potentially much more harmful, H.R. 200, as a vehicle that might allow their
long-desired changes to Magnuson-Stevens to be signed into law. They are willing to ignore all of the House bill’s
destructive provisions, which could permit continued overfishing of certain
fish stocks and indefinitely delay the rebuilding of depleted fish populations,
in order to achieve their own, much more limited, goals.
Thus, there is a real possibility that Magnuson-Stevens could undergo a “stealth” reauthorization,
with S. 1520 being referred to a conference committee along with H.R. 200, and
a small handful of legislators putting together a composite bill without a full
and public Senate debate. While the Senate would ultimately have to approve
whatever legislation emerged from such conference, its involvement in the
process would be far less extensive, and far less detailed, than it would
otherwise be. And that sort of institutional detachment makes it far more
likely that bad provisions from H.R. 200 would, in the end, become law.
Despite that danger, S. 1520’s proponents are aggressively seeking to have the Modern Fish Act passed before
the end of this year.
Observing all of their
breathless haste, it’s hard not to ask, “What’s the rush?”
Magnuson-Stevens still works
very well.
Under its auspices, the National Marine Fisheries Service (NMFS)
has fully rebuilt 44 once-overfished stocks of fish. At the
same time, the number of stocks that remain overfished or are still
experiencing overfishing have hit new lows. Its provisions have allowed the Pacific and Mid-Atlantic fishery
management councils to create new protections for the forage fish that cement
the ocean’s food web. And in the Gulf of Mexico, NMFS has employed provisions
of Magnuson-Stevens to issue exempted fishing permits that allow recreational
fishermen to enjoy a longer red snapper season, and so largely eliminated one
of the issues that gave rise to S. 1520 in the first place.
That doesn’t mean that
Magnuson-Stevens is perfect. It can still benefit from a few tweaks that would
improve both the law and the management process.
Some of those tweaks are
already suggested by S. 1520. While that bill still contains problematic
provisions, it also includes some valuable proposals that would improve the
current law.
The best of those was included during the Senate
Committee on Commerce, Science and Transportation’s mark-up process, when
legislators addressed the problem of failed management plans.
Ever since the matter of Natural Resources Defense Council v. Daley was decided by
a federal appellate court in 2000, the law has required every federal fisheries
management plan, amendment or management measure to have at least a 50% chance
of preventing overfishing and/or rebuilding an overfished stock within a
specified period of time. That’s not a very demanding standard to meet, as it
still means that half of the management measures will probably fail. Under
current law, upon such failure, managers are free to adopt new measures that
have no greater a chance of success.
Under a provision added to S.
1520 during markup, should a fishery management plan fail to rebuild an
overfished stock within the allotted time period, any follow-up rebuilding plan
would have to be more conservative than the plan that failed, and have at least
a 75% chance of success. Insisting on such higher probability of success makes
sense after a rebuilding failure, yet a similar provision, proposed for H.R.
200, was voted down by the House Natural Resources Committee. Thus, if S. 1520
was passed, there is no guarantee that such provision would survive the
conference process.
Fisheries managers also need
more and better data on which to base their decisions. Both S. 1520 and H.R.
200 include provisions intended to increase the quantity of data that could be
included in stock assessments and other technical analyses, but neither
guarantees that the quality of such data will meet scientific standards. There
is little reason to push through a bill that could result in a flood of
low-quality data when, by taking a little more time, both the quantity and the
quality of fisheries information could be improved.
There are also a host of
issues that S.1520 never addressed.
The need to consider the ecosystem impacts of fishing, and
particularly forage fish harvest, may be foremost among them. While some
regional fishery management councils have already given forage fish stocks some
additional protections, most forage fish species, in most U.S. waters, are
still vulnerable to high-volume, low-value fisheries such as
those targeting menhaden and Atlantic herring.
Such fisheries remove many millions of pounds of forage fish
from the ocean, merely to turn them into industrial oils and fish meals, or
bait for use in other fisheries. While they may be “sustainable” by current
single-species standards, with landings well below maximum sustainable yield,
they are a long-term detriment to the ecosystem, causing localized, if not general, depletion of vital forage fish
populations and a weakening of the marine food web.
That’s the sort of issue that
a thoughtful, deliberate Magnuson-Stevens reauthorization could address. And it
wouldn’t be hard to think of quite a few more, such as habitat loss,
federal/state interactions, and the impacts of warming oceans.
That being the case, why rush
the legislative process? Why compete with the mid-term elections, outstanding
budget issues and the other hot-button issues that dominate the current news
cycle? There is no good argument to support a slap-dash effort to amend
Magnuson-Stevens, whether through S. 1520’s piecemeal approach or through the
more comprehensive, and much more damaging, H.R. 200.
Instead, by leaving
Magnuson-Stevens reauthorization up to the next Congress, we can better assure
that the resulting bill will be thoughtful, comprehensive, and a true
reflection of the needs and desires of not just a few special interests, but of
everyone who cares about the long-term health of the nation’s fish stocks.
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This
essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation
Network, which can be found at http://conservefish.org/blog/.
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