January 18, 2000

Testimony of
Jack Phelps, Executive Director,
Alaska Forest Association
Essential Fish Habitat Coalition 

Madame Chairman, members of the Committee:

For the record, my name is Jack Phelps and I am the Executive Director of the Alaska Forest Association, Alaska’s statewide trade association for the forest products industry. I appear before you today as both the representative of my own association, which in turn represents nearly 300 member companies, but also as a representative of the nationwide Essential Fish Habitat Coalition. The Essential Fish Habitat Coalition consists of diverse non-fishing business interests from the agriculture, homebuilding, hydro power, mining, oil and gas, real estate, timber and water supply sectors.

The organizations participating in this effort share a common commitment to protecting habitat areas important for fish. Indeed, our activities routinely undergo extensive review under other laws, both state and federal, to ensure such protection. It is for that reason that we are deeply troubled by, and opposed to, the attempt being made by the National Marine Fisheries Service (NMFS) to take a simple, information-gathering tool enacted by Congress in 1996 and turn it into a massive, expensive, inefficient and prescriptive regulatory program. My remarks today reflect our view that it is necessary for Congress to limit dramatically NMFS’ Essential Fish Habitat (EFH) program.

Since this issue first came to the attention of the non-fishing sector in 1997, after the EFH amendment was enacted, we have been concerned that NMFS was setting about to create a program far in excess of what Congress envisioned. Subsequent events have confirmed our concern. Witness the statement made in August of 1998, Mr. Ronald Baird, director of NOAA’s National Sea Grant Program, when he said that EFH is "the most significant piece of environmental legislation since the Clean Water Act of 1972. The full implications of essential fish habitat are not widely appreciated by the public. They will be shortly."

The interim final regulations, as written by NMFS, lead every commentator who has reviewed them to conclude that NMFS has create an extremely broad and inclusive program. Both the industry and the environmental community see a developing regulatory program, fashioned on Section 7 of ESA. Why have the regulations creating this program been written in this way?

The answer is clear. NMFS has seen the 1996 EFH amendment as the opportunity to expand its ability to influence, if not control, a vast array of federal agency decisions involving not only fishing, but also land use and non-marine resource utilization.

The problems with the EFH program can be summed up in four general areas: 1) the overly-expansive definition of what constitutes EFH; 2) the unnecessary complexity of the program; 3) the failure to defer to existing consultation procedures; and 4) the attempt to force non-fishing sector parties to participate in a program developed under a law governing fishing. I will briefly address these issues.

First, the EFH definition. As we commented to NMFS at the outset of its rulemaking process, the agency’s definition is too broad. All water where a Magnuson-Stevens Act species is, could be, or even has been would be designated EFH. We were right. Virtually all water has been, or will be, so designated. Consider Alaska. Here is a map of EFH in Alaska just for salmon – all waters in the U.S. EEZ and every stream, river or other waterbody in the state connected to the ocean. I ask you, was this the intent of Congress?

I agree with Joseph M. Brancaleone, Chairman of the New England Fishery Management Council who alerted this committee to the dangers of an overly broad EFH definition. "If everything is designated as essential then nothing is essential."

When asked why the EFH definition is so broad that it now includes almost the entire coastline of the United States, and substantial upland riverine habitats, NMFS points to the lack of support it receives from Congress. With more funding from Congress, NMFS claims, would come better scientific information. Without that scientific information they "over include" habitat that may not necessarily be essential. The over inclusion of habitat expands the jurisdiction of the agency and positions it to consult on a greater number of federal actions. Obviously, it is necessary for Congress to intervene now and give meaning to the term "essential."

Our second concern is with the complexity of the program. In its EFH final rule, NMFS uses five pages of small type, three columns to a page, to set up its consultation process. Time prevents me from giving specifics. But just going through the agency’s regulations, all of the following components of its consultation process are found: Memoranda of Agreement between NMFS and every Fishery Management Council; Memorandum of Agreement between NMFS and every action agency; programmatic consultations; project-specific consultations; abbreviated consultations; expanded consultations; general concurrence for no further consultation; notification of further consultation; periodic review of general concurrence findings; mandatory preparation of written assessments; consulting agency recommendations; action agency responses; requests to elevate action agency decisions; re-initiation of consultation at Fishery Management Council requests; Memoranda of Agreement with agencies on dispute resolution; and supplemental consultation. Clearly, this is no mere information-gathering process. Why does this process have to be so complex? Cannot NMFS simply share information with action agencies?

NMFS often states that the EFH program is a voluntary information gathering tool, yet it has promulgated a regulation that requires action agencies to prepare EFH assessments and undertake other mandatory measures and meet mandatory deadlines. These are prescriptive provisions, and we fully expect that they will be used in court by opponents of resource development to try to stop agency action. Where did NMFS get such authority? We do not find it in the Magnuson-Stevens Fishery Conservation and Management Act, and it is fundamentally at odds with the notion of the cooperative, information-sharing process NMFS claims is at the heart of its regulations.

The EFH program is growing into an enormously expensive and, to a large extent, redundant program. The NMFS FY2000 budget request was for $13.85 million dollars for EFH consultations. This amount does not include the expense borne by federal agencies to submit projects to NMFS for consultation, to respond to NMFS’s recommendations and to implement those recommendations. And it does not include the increased project costs that the regulated sector will incur through delays inherent in the NMFS EFH process.

In the announcement of the reopening of the comment period in development of the final rule for EFH, on November 8, 1999, NMFS stated, "NMFS and Federal Agencies have begun consulting on actions that may adversely affect EFH. Approximately 2000 EFH consultations have been completed to date."

When we saw that claim we were astounded. It validated our fears about the program. EFH designations have not been in place for even one year, yet there have been 2000 consultations already. Indeed, some of the most controversial EFH designations, such as for salmon on the Pacific Coast, have not even occurred. Thus, the program will become even more expansive. To get a sense of how disproportionate this program is, consider a comparison with the level of consultations performed under the Endangered Species Act. NOAA has stated that ""(a)pproximately 229 formal and 981 informal [ESA] consultations are completed each year." The number of EFH consultations exceeds substantially the number of formal and informal consultations completed yearly under the ESA, and yet the EFH program has been only partially implemented.

When we read the claim in the Federal Register that NMFS had completed 2000 consultations, we filed a FOIA request on November 18, 1999 asking for all documents related to EFH consultations. We still do not have the information, and NMFS has not been forthcoming. Indeed, even though this is the information that NMFS claims to be considering in developing a final rule, it appears that the agency has not yet compiled these documents. And we have been told by NMFS that it will cost $32,000 just to get these documents. NMFS indicates that about 25,000 pages of EFH consultation documents already exit. To us, this does not sound like a reasonable program. And we cannot even get access to the information. As discussed in my written testimony, this Committee should insist that NMFS make this information available.

Our third general problem is the manner in which the EFH program has extended the Magnuson-Stevens Act to non-fishing activities. Needless to say, the timber industry wants no part of the Act’s reauthorization. It is not within the scope of our business and we are not interested in meddling with ocean fisheries. Unfortunately, we have no choice because of the manner in which we are affected by the EFH program. We have enough regulatory programs to contend with without the sudden intrusion by Fishery Management Councils, on which we have no representation, on the basis of a law that was designed and intended to address the effects of fishing on the fisheries.

The key point here is that there is no need to extend EFH consultations to non-fishing activities. Our activities are covered by a host of other laws and regulations that gather precisely the information sought by NMFS under the EFH program. We ask the Committee to exclude non-fishing activities from the EFH program and to specify that the Councils and NMFS incur no deference over non-fishing activities under this law.

Finally, with regard to overlap with other laws, the EFH program does not fit. As noted previously, our activities are already subject to a myriad other laws that generate the desired information and provide a consultation or comment opportunity for NMFS. Laws such as the National Environmental Policy Act, the Endangered Species Act, the Coastal Zone Management Act, the Fish and Wildlife Coordination Act, the Clean Water Act, and others already make this provision. Thus EFH consultation should be preempted by law from applying to any activity subject to a preexisting interagency consultation or comment process.

In conclusion, it is necessary for Congress to intervene now in the EFH program. Absent major modifications by NMFS to this program, the EFH consultation requirement should be repealed, or at least made inapplicable to non-fishing activities. As we have attempted for more than 2 years, we will do our best to work with NMFS to fix the problems I have identified for you today. But wholesale changes are needed, and to date, NMFS has shown no intention to provide the needed reform. It is therefore necessary for Congress to provide this direction. We ask that this be done now, before the EFH program becomes any more intrenched in agency bureaucracy and practice.

Thank you for the opportunity to testify on this important matter.