PCFFA Fishermen’s News April 2007: Beyond Magnuson-Stevens

April, 2007

Beyond Magnuson-Stevens

Utilizing Different Statutes, Forging New Alliances in the Quest for Sustainable Fishing Communities

By Zeke Grader and Linda Sheehan

In its final hours, the 109th Congress passed legislation reauthorizing the Magnuson-Stevens Fishery Conservation & Management Act (MSA). That action in December, 2006 was the first reauthorization of the nation’s primary fishery statute in a decade. The last time was the adoption of the Sustainable Fishery Act in 1996.

The MSA has been extensively reported on here, including some of the key amendments made in this last reauthorization signed by the President in January (see the January 2007 FN, ‘A Quick Fisheries Update,’ at: www.pcffa.org/fn-jan07.htm). To briefly recap, below are some of the key changes made to Magnuson-Stevens:

Stringent Rules Against Overfishing. The 1996 Sustainable Fisheries Act prohibited the regional fishery councils and the National Marine Fisheries Service (NMFS) from allowing overfishing. The 2006 amendments strengthened those provisions in light of continuing overfishing occurring in some of the nation’s fisheries. It also tightened language on stock rebuilding.

Requires Management Decisions to be Science-Based. Here the Congress told the regional councils and NMFS that fishery management decisions had to be based on science. That has not always been the case in the past.

Strengthens the Roles of the Council Scientific & Statistical Committees. The reauthorization provided for a greater role and more autonomy for the SSCs, and provides for the compensation for non-agency SSC members for the first time.

Training of Regional Council Members. The new amendments require training for regional fishery council members for the first time. In the 1986 reauthorization, Congress added language aimed at ‘dabbling dilettantes’ by requiring council members to be experienced or knowledgeable of the fisheries; this new provision requires they also undergo training in conservation and management principles and process. This training provision will be important since Congress also added explicit language to allow for public, non-fishery members to sit on the regional councils. Public or non-fishing members were never prohibited, but NMFS, depending on the nominee, would in the past interpret the law as if there were such a prohibition.

Ecosystem-Based Management. The new amendments nudge the regional councils and NMFS toward ecosystem-based management of fisheries, and away from species-by-species fragmentary approaches. This provision reflects recommendations made by both the U.S. Commission on Ocean Policy (www.oceancommission.gov) and the Pew Oceans Commission (www.pewoceans.org).

Standards for LAPPs. The reauthorization establishes some broad, albeit loose, standards for limited access privilege programs (LAPPs), the name given to individual fishing (IFQ) and community quota programs. Congress had directed NMFS in the 1996 amendments to develop national standards within two years, but the agency flaunted the law by failing to come up with any language and the IFQ moratorium subsequently lapsed. Now Congress has come up with its own.

Miscellaneous Provisions. In this reauthorization, Congress also added language for specific fisheries including a provision requiring NMFS to develop a recovery plan for Klamath Basin coho salmon, which have been listed under the Endangered Species Act for over a decade, within six months of enactment of the new law. NMFS failures to protect Klamath coho led in part to the Pacific Ocean salmon debacle the past two years. The agency, Fishermen’s News readers will remember, overruled its own scientists in 2002 allowing for near-record water diversions from the Klamath River. The subsequent low flows, combined with the dam operations on the river, resulted in deadly river conditions for the fish, including warm, anoxic water that set the stage for parasitic infestations of the river’s juvenile and adult salmon, nearly destroying a whole year class of fall chinook. Now Congress is demanding the agency stop delaying and develop a recovery plan for the Klamath’s ESA-listed coho, which should also help the fall chinook.

What’s Next?

The list of amendments in this last reauthorization round was fairly extensive, and some might assume sufficient to deal with past problems and set the nation on a course to having sustainable fisheries. MSA reauthorization has been occurring about once every 10 years since the act was first passed in 1976, so what’s to worry about now? Plenty! Below are some MSA-related issues that can’t wait another decade for action.

Tougher LAPPs Language. First, there is a need to strengthen the LAPPs language to make sure working fishing men and women are protected. The obvious change that has to be made is to restrict any individual fishing quota ownership to those folks actually on board the boats engaged in fishing (or at least in support of the fishing, if they’re cooks, engineers, etc). Non-fishing, third parties owning individual quota is a parasitic situation, adding no new capital to the industry, but rather draining it. Indeed, third party shoreside ownership has added to the cost of entry for young fishermen. When bankers and fish processors own fishing quotas, fishermen are relegated to the role of ‘seafaring sharecroppers.’

There also needs to be an explicit ban on processor-owned quotas. If there is a need to protect communities, then let’s develop community quota programs where the community itself can protect its fleets, shoreside workforce and processing operations. As we’ve already seen in Alaska, giving processors direct quota shares does not protect jobs, not when processors can simply outsource the jobs to China, or pick up their operations and move, or just sell their quota to a processor in another port. It’s time to quit dancing around LAPPs, and put in place stringent standards to protect fish, fishermen and fishing-dependent communities.

Open Ocean Aquaculture. Second, the Secretary of Commerce released the Bush Administration’s proposed legislation to promote ocean aquaculture this past month at the Boston Seafood Show. The measure is little better than the bill they introduced in the last Congress (see the August, 2005 FN, ‘Analyzing the Administration’s Ocean Fish-Farming Legislation,’ at: www.pcffa.org/fn-aug05.htm) that went nowhere.

Hyped as an answer to the nation’s supposed ‘seafood trade deficit,’ the aquaculture bill sets up Commerce’s National Oceanic & Atmospheric Administration (NOAA) — the agency that has plastered its name all over our fishery, weather, and ocean agencies — as the lead agency in establishing regulations, issuing permits, and promoting marine fish farming.

The proposed open ocean aquaculture (‘OOA’) legislation sets forth no environmental or fishery protection standards, and all the process occurs behind closed doors out of sight of the public. Ocean fish farms threaten wild fish stocks and their fisheries; this legislation could very well undermine fish conservation and management under the MSA. For that reason — to the extent, open ocean aquaculture should even be pursued (fish farming is far safer when done ashore in isolated facilities) — there have to be stringent national standards and the siting and permitting of fish farms has to be brought under the auspices of the MSA, where at least the regional councils could provide for public participation and a transparent process.

Funding. Third, for the MSA to work there have to be funds for the management entities, for research, for annual and comprehensive stock assessments, and for enforcement. Indeed, before we can even begin seriously talking about ecosystem-based management considerably more money will have to be added to the paltry sums the nation has appropriated to date for its fisheries. But instead of adding the additional funds needed for implementation of the MSA, federal fisheries management monies are being cut.

In an earlier Fishermen’s News article, the establishment of a trust fund — an offline funding source, not subject to annual appropriations — to significantly add to Congressional appropriations (see FN for August, 2003, ‘Planning and Paying for Future Fisheries Research,’ at: www.pcffa.org/fn-aug03.htm) was proposed. Both the Ocean Commissions have recommended in their reports the establishment of such a trust fund to support the nation’s oceans programs. Indeed, the reauthorization of the MSA does include language for the establishment of a fishery trust fund.

While the MSA trust fund language is a huge step forward in setting up a separate off-budget trust fund, the funding source it depends on – fishery fines – is small and hardly sufficient to meet the many pressing research and data collection needs. What is ahead then is identifying a better funding source or sources and getting Congress to act on it. In the August 2003 article, a nominal ad valorem fee on all seafood sold in the U.S. (domestically-landed, imported, farmed) was proposed as a fair and equitable means of collecting sufficient funds. At 2½ percent of retail value of seafood sold in the U.S. this would generate approximately $3 billion annually. Whatever the source, however, more money is needed if we ever hope to have sustainable fisheries. This issue cannot wait another 10 years.

Governance. Fourth, we have to find a way to integrate the regional councils and NMFS with other agencies and authorities whose decisions affect our fisheries. This is no small challenge since most agencies jealously guard their turf.

One of the big problems that remains with the MSA is the tendency for the regional councils and NMFS to remain silent in the face of non-fishing threats to fish stocks because they lack direct authority over those impacts (e.g., water allocations, wetland permits, discharges, etc). The Endangered Species Act mandates consultation with NMFS or the U.S. Fish & Wildlife Service (depending on the species) by federal agencies whose actions may affect or impair the survival or recovery of any ESA-listed species. No less authority is needed under the MSA to assure that agencies whose actions may affect the conservation or management of fish stocks also be required to consult and be prohibited from taking actions that in any way diminish the abundance or health of these fish stocks.

Another conflict is now occurring between regional fishery councils and managers of national marine sanctuaries, over how fishing is managed within these sanctuaries. It was always contemplated that some fishing would occur, on a selective and sustainable basis, within these sanctuaries, while other impacts such as offshore oil development would be banned. This is why the fishing industry supported the creation of a national marine sanctuary system to begin with. However, giving sanctuary managers total control over fishing within the sanctuaries just creates gigantic holes in the MSA management scheme as well as conflicts with integrated coastwide management. Sanctuary managers have nowhere near the expertise of the regional councils on fishing matters, and their process is nowhere near as transparent. Sanctuary manager advice is very important, but under the MSA it is the regional councils, and not sanctuary managers, that should have the final say on when and where fishing occurs within national marine sanctuaries, as well as how that is coordinated with management coastwide.

That leads us then to an examination of some of the non-fishing impacts and other statutes available us as we strive to ensure our fisheries are sustainable.

The Non-Fishing Impacts on Our Fisheries: Where Other Laws Will Be Needed and New Alliances Formed

In our MSA-centric world of fisheries management, it is important to remember that there are many factors other than fishing that can adversely affect the abundance and health of our fish stocks. The MSA focus is solely on regulating fishing (i.e., fishermen), and while it does require the designation of essential fish habitat, the regional councils and NMFS are given no actual authority under Magnuson-Stevens to regulate any activity other than fishing adversely affecting essential fish habitat. This is an inherent flaw in the MSA, and a problem that has been raised at the Pacific Council level as early as 1977 and later in the 1986 MSA reauthorization.

Salmon fishermen know well the affect of non-fishing operations on their fisheries. Hydro dam operations, water diversions, logging and urbanization have taken huge tolls on Pacific salmon populations, and many stocks continue to decline even where there is no fishing. But salmon fishermen are not alone. The commercial shad fishermen of the Hudson River watched their fishery disappear because of PCB contamination of the fish. Gulf of Mexico shrimpers are affected by a massive, agricultural runoff-caused Dead Zone, which has diminished the stocks of brown shrimp.

Probably most every other fisherman has been adversely affected in some way by non-fishing impacts on their fisheries. Consider, for example, that 85 percent of the nation’s commercially valuable fish stocks are wetlands-dependent during some part of their life cycle and nearly 90 percent of the nation’s coastal wetlands have been destroyed. Loss of this habitat has meant economic losses to the fishing industry of tens of billions of dollars each year.

It is clear that for many fisheries, fishermen simply cannot rely on the MSA alone to assure sustainable fish populations. The MSA may help assure that fishing itself is carefully limited to what a particular population level can sustainably withstand, but is helpless in the face of non-fishing threats that can gradually destroy whole fish populations by decimating their habitat.

The impacts of global warming on fish stocks are being increasingly felt, and may be the single largest threat to the future of our fisheries (see the March, 2007, FN, ‘Global Climate Change and the Fishing Industry,’ at: www.pcffa.org/fn-mar07.htm). The problem is that there is little fishermen can do about global warming other than try to prepare for it and pressure governments to implement strong measures quickly to reduce greenhouse gas emissions.

There, are however, some immediate non-fishing issues the fishing fleet needs to and can address. These are very real problems, they’re not easy, but they can affect the abundance, health or marketability of our fish stocks. If fishermen, who depend on the catch and sale of fish for their livelihoods, are not speaking out to their government and polluters on these issues, then who will be?

Water Quality: Fish Gotta Swim

Probably the biggest threat facing our fisheries today, outside of the unknowns of climate change, is declining coastal water quality.

The Clean Water Act (CWA), which predates the MSA by four years, set out to make our national waters ‘swimable and fishable’ — lofty goals at the time. Though we have made great strides in the past 35 years, there is still much to be done. Fewer of our rivers catch fire quite so spectacularly as the Cuyahoga River did in 1969, and most point-source dischargers (such as factories) are now regulated. But runoff from city streets, logging, irrigated agriculture (including from crops genetically engineered to need more pesticides), confined animal feedlot facilities such as massive hog farms, and mercury falling into our waters from coal-burning power plants, all continue to overwhelm our struggling waterways and the fish that swim in them.

Progress is being made, albeit slowly, in cleaning up some of our salmon streams, and ‘areas of biological significance’ in our coastal waters are finally being protected under some state clean water laws. Unfortunately, major threats to our waterways remain, and with them, threats to fish populations and the safe consumption of those fish (the ‘edible’ factor).

This is where the voice of fishermen is most needed. It’s no longer enough just to lobby Congress on the MSA or show up at your regional fishery council meeting. Particularly in California, where the state clean water law addresses many sources of pollution that the federal Clean Water Act does not, fishermen’s voices are needed at both state and regional water board meetings, demanding that the state implement its laws.

Fishermen are no strangers to pollution and water quality issues. Over thirty years ago, the old Northwest Trollers Association had their ‘S.T.O.P.’ (Stop This Ocean Pollution) bumper stickers. PCFFA joined forces with the Sierra Club in the late 1970’s trying to stop the spraying of dioxin-laden herbicides over forested salmon streams. West Coast fishermen spearheaded efforts to ban bottom paints containing highly toxic TBT [tributlyltin]. The activism of the Hudson River Fishermen’s Association fighting water pollution on that New York waterway led to the formation of the Hudson Riverkeeper and the various Riverkeeper, Baykeeper, Coastkeeper and other Waterkeeper groups that have sprung up across the nation. But the fishing industry has never consistently been in the fight for clean water for fish, and all too often has been missing in action.

What we’re urging here is for the fishing industry to become much more engaged in water quality issues and work closer with organizations, such as the Waterkeepers, that are fighting for the clean water our fish depend on.

Let’s look at just a few of these threats and why fishermen need to be engaged:

Sediment. Seemingly innocuous, sediment in rivers, bays and estuaries affects the productivity and abundance of many fish species. Salmon fishermen know the impact it can have on spawning redds, but sediment also affects fish habitat by blocking sunlight, changing temperature, smothering plants and structures, etc. For example, sediment impacts the abundance of eelgrass that herring use for spawning habitat.

In the upcoming Farm Bill, the National Farmer’s Union (NFU) is proposing the creation of incentives for farmers to establish streamside buffers that can help reduce sedimentation, as well as provide riparian vegetation to help shade streams, and trap fertilizers and pesticides (discussed below) before they can enter the water. The proposal by the NFU is something fishermen should be supporting, along with paying more attention to other conservation provisions in the Farm Bill that could help fish. The Cape Cod Commercial Hook Fishermen’s Association has already joined up with the NFU and helped form a New England chapter with the cranberry growers. Fishermen should also push for open records on these incentives, to make sure that federal funds are being spent productively to protect water for fish.

Nutrient Loading. Nutrients, particularly from fertilizers but also from confined animal facilities and grazing, have had devastating impacts on our waters. The Massachusetts-sized Dead Zone in the Gulf of Mexico is a direct result of nutrients, mostly farm fertilizers, washing in from the Mississippi. The Chesapeake Bay, too, and its fisheries are affected by nutrients creating anoxic conditions in parts of that estuary. On the Klamath, the nutrient-rich waters from Upper Klamath Lake — mostly a result of agricultural operations and the loss of filtering wetlands — are trapped behind the shallow reservoirs of the hydro dams on the river. In the summer these reservoirs heat up and create massive, toxic algal blooms, which are then discharged into the river below the dams, killing fish and sickening users of the water.

Methods exist to prevent nutrient pollution, which is prohibited (like all pollution from all sources) under California’s Porter-Cologne Water Quality Control Act, and may be prohibited under other state laws. Incentives and enforcement have to be put in place to prevent nutrient discharges in the future.

Pesticides/Herbicides. Like nutrients, the discharge of pesticides and herbicides into waterways continues to be a problem. These, of course, can affect the abundance of fish, and in strong enough concentrations even generate health warnings about consuming the fish.

In Washington State, fishermen and pesticide watchdog groups have recently had two major victories. One was a federal court decision mandating warnings on the use of pesticides near salmon streams and specified no-spray buffers for those streams. The second was an earlier decision to prevent oyster growers from using the pesticide carbaryl on oyster beds to kill a burrowing shrimp, areas which would expose local fish.

The buffer zone and oyster beds decisions have been progress, but a bigger threat is now looming with the push by the U.S. Government, along with Monsanto and other genetic-engineering companies, for the sale and planting of genetically-engineered (‘GE’ or ‘GMO’) crops. There has been some attention paid to GE fish already, with the controversy over Aqua-Bounty’s fast-growing Atlantic salmon for use in aquaculture operations, but fishermen should pay attention to what’s happening on the land side as well. Most of the push for GE crops is not for those promising more nutrition or drought resistance, but for crops that can tolerate higher levels of pesticide or herbicide use, such as Monsanto’s Roundup. Planting of these types of GE crops will result in more pesticides and herbicides entering our waterways and more threats to fish populations.

Fishermen need to work with public health groups, organic farmers and others to assure that strict standards are imposed on all genetically engineered crops to protect water quality. And they can work with their legislators to ensure that strict laws are passed that prohibit further pollution of our waters from GE crops.

Stormwater Discharges. With the growing population along the coast, the problems of stormwater, or street runoff, discharges into our bays and coastal ocean waters will continue to increase. The Pew Oceans Commission in its report found that the equivalent of an Exxon Valdez sized oil spill is entering our waterways every eight months. We all know the damage and long-lasting effects of the 1989 Prince William Sound disaster, but smaller, chronic and less dramatic damage is being done to our coastal waters on a daily basis. Fishermen need to be engaged in the fight to get clear standards in place to reduce these discharges and fight for the funds needed to prevent this insidious source of pollution.

Oil Spills/Clean-up of Old Oil Platforms. While commercial fishermen, in coalition with local governments, coastal Chambers of Commerce and environmental organizations were successful in stopping the spread of oil drilling along most of the nation’s coast, the threat of oil is far from over.

The Bush Administration has now opened up the world’s richest fishing grounds, Alaska’s Bristol Bay, to offshore oil development. In particular, fishermen need to work to support Bristol Bay fishermen to protect their fishing grounds. Much of the Bristol Bay production provides the critical mass of fish that helps sustain markets for fish from the lower 48 (e.g., wild salmon production), so this is an issue that’s important to everyone in the fleet.

Moreover, the unloading of oil from tankers too large to enter U.S. ports, through ocean pipelines to shore and lightering, poses another threat from ship-borne oil spills that existing prevention measures (such as tug boat escorts of tankers when they enter specified ports or waterways) do not cover.

Another issue associated with oil operations is the removal and seabed clean-up from decommissioned oil rigs. Right now the oil companies are attempting to get out from under their cleanup obligations by foisting these abandoned rigs (the undersea parts anyway) on the public as ‘artificial fish reefs,’ and there’s even a push to reclassify them as sites for offshore aquaculture operations or ocean energy production. The trouble is that many of these rigs are sitting on a toxic stew. High levels of mercury, for example, have been found around rigs in the Gulf of Mexico — and in the fish and the anglers that are eating them. The mercury is believed to have come from the drilling muds that were disposed of at or near the rigs.

Mercury. Mercury entering the water and fish occurs naturally from sources such as undersea vents and volcanic eruptions. But much of the mercury found in the environment today is from human sources that are preventable. It comes from atmospheric emissions of coal-fired plants, old mining operations, offshore drilling operations, etc. These are sources that can be controlled and should be stopped. Moreover, mercury clean-up is possible and reduces the amounts of it found in surrounding fish. This fact has been demonstrated in the clean-up in the Everglades.

So while there is encouraging news: health reports that fish is still good for you, despite high levels of mercury in certain species; the recent findings that our smaller Pacific coastal albacore taken by the jig fleet are much lower in mercury than their longline counterparts in the Western Pacific; and that selenium in fish helps to counteract mercury — mercury in fish still scares hell out of a lot of consumers.

The fishing fleet would do well to work with public health organizations, clean water groups and others to control or eliminate human-caused sources of mercury in the environment. Reducing the amount of mercury getting into fish, wherever possible, rather than denying its existence or human health problems, seems like a smart thing for the fleet to do to protect its markets and consumers.

DDT, Dioxin, PCBs, PBDEs, etc. Many of the more toxic substances that entered the markets, and subsequently the environment and human food chains, following World War II have now been banned in the U.S. But many linger in the environment, and some are still being produced in great quantities in other countries.

These legacy toxics pose three types of problems for fishermen. First, they can affect the abundance of fish stocks. Second, if they contaminate fish stocks, they can make them unsafe to eat – which is exactly what happened on the Hudson. Third, they can impair fishing operations. For example, the discovery of toxic sites has affected the ability of ports to conduct needed maintenance dredging or at least made dredging very expensive when onshore disposal sites had to be used. Here fishermen should be working to identify where toxic sources may be putting their fish or operations at risk, rather than wait, and should call on Congress and those responsible to have them cleaned up as soon as possible.

Since these compounds know no national boundaries, and they bioaccumulate within human food chains, the fishing industry should also support all international efforts to ban them everywhere.

Endocrine Disruptor Compounds. Finally, one of the newer and more troubling sources of pollution to come along recently are ‘endocrine-disruptor compounds,’ or EDCs. The primary sources of these compounds are pharmaceuticals (e.g., hormones) and cosmetics, both of which wash into river systems where they affect fish.

EDCs have been found to cause sex changes in fish and changes in behavior that can affect fish survival (e.g., making male fish less aggressive in protecting nests). The problem is most sewage plants do not treat for EDCs, and so they are entering the water from municipal water treatment facilities in increasing quantities. Even very small amounts of these hormone-like compounds may have lasting and long-term effects.

Wetlands have been found to be effective in filtering EDCs, but most of our waste is no longer naturally filtered by what is left of our original wetlands. Adverse effects on fish from EDCs have already been found in Maryland, West Virginia and Oregon. Again, fishermen need to join forces with public health and water quality groups to put in place effective controls to ensure male fish don’t change from Bruce to Betty.


What we’ve given you above is only a partial list of what the fishing fleet needs to consider now beyond just Magnuson-Stevens. No cease-fire has been called in the battle for sustainable fisheries or their fishing-dependent communities just because the MSA was reauthorized in 2006.

New weapons are also going to be needed, including statutes such as the Clean Water Act, bolstering existing state clean water laws, passing new laws and developing and funding stronger implementing regulations. Likewise new alliances will need to be formed, with groups such as the National Farmers Union, the Waterkeepers, and public health and consumer groups, who all share a common interest in our production of healthful seafoods as well as sustaining the communities responsible for this production.

It is also no time for making nice when so many fishermen’s livelihoods are still being threatened by the many non-fishing factors that destroy fish habitat. If anything, it’s time for more fishermen to start getting in the face of governments (both the legislatures and the agencies), and pushing those responsible for the problems much harder to get them fixed. These are threats to your livelihood every bit as serious as threats to take away your fishing grounds or close you down in any other way. And failure to address these threats could be as fatal.

Zeke Grader is Executive Director of the Pacific Coast Federation of Fishermen’s Associations. He grew up in the commercial fishing industry and is also an attorney, and can be reached by email at: zgrader@ifrfish.org.

Linda Sheehan is the Executive Director of the California Coastkeeper Alliance. She is an attorney and engineer. CCKA is a member of the Marine Fish Conservation Network, and she can be reached by email at: LSheehan@cacoastkeeper.org.