Transcript Lecture 2: FISH MANAGEMENT AND THE LAW

Lecture 5:
FISH MANAGEMENT AND
THE LAW
JT Petty: WMAN 445 Lecture Notes
Lecture 5 Objective
Introduce students to federal and
state laws and policy procedures
related to the field of fisheries and
aquatic sciences.
JT Petty: WMAN 445 Lecture Notes
Fish Management and
the Law
Ownership of Natural Resources
II. Water Law
III. US Federal Policy
I.
A. NEPA and FWCA
B. Management of Commercial Fisheries
C. Endangered Species Act
D. Clean Water Act
IV.
State Regulations
JT Petty: WMAN 445 Lecture Notes
I. Ownership of Natural
Resources
State governments have ownership of inland
fisheries.
The federal government has ownership of
coastal and interstate (i.e., highly migratory)
fisheries.
JT Petty: WMAN 445 Lecture Notes
I. Ownership of Natural
Resources
Trust Responsibility
Governments hold fish and wildlife in trust for
the people. Governments can allow use of
those resources so long as management is
mindful of their responsibility to protect them
for the people.
JT Petty: WMAN 445 Lecture Notes
I. Ownership of Natural
Resources
Trust Responsibility
Can result in:
1. Curtailing water development (irrigation,
drinking water, industrial use).
2. Limiting fish harvest
3. Regulating land use
4. Police power (enforcement of regulations)
JT Petty: WMAN 445 Lecture Notes
II. Water Law
Water Law: policies regarding how access to
water is allocated to citizens of the state.
A.
B.
Water Allocation
Interstate Compacts
JT Petty: WMAN 445 Lecture Notes
II. Water Law
Water Allocation
Water originating within a state is
owned by the
JT Petty: WMAN 445 Lecture Notes
II. Water Law
Riparian Doctrine
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Persons owning land that abuts a surface
body of water have the right to use that
water.
Useful in Wet regions (here).
Natural Flow Rule
Reasonable Use Rule
JT Petty: WMAN 445 Lecture Notes
II. Water Law
Appropriation Doctrine
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1st person to put water to a “beneficial” use
has the best right to use the water, the 2nd
person has the second best right…and so on.
Typical in Arid Regions (Western US)
Beneficial Uses
Historically, excluded environmental
protection.
JT Petty: WMAN 445 Lecture Notes
Beneficial Uses of H20
Diversion for:
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Agriculture
 Industry
 Municipal Water Supply
 Mining
“Beneficial Use” must be sustained to retain
your rights
II. Water Law
Appropriation Doctrine
Currently, fisheries concerns are accommodated in 3
ways:
1.
2.
3.
Appropriation of water for instream uses (Colorado).
Water set aside that cannot be used for water rights
(Washington State).
Special requirements placed on diversionary water
rights (California).
JT Petty: WMAN 445 Lecture Notes
II. Water Law
Water is everything in the west and it dominates
fisheries management issues in that region
(along with cows).
For more information on the topic, see the following web pages:
http://www.klamathbasincrisis.org/
http://www.whitehouse.gov/news/releases/2002/03/20020301-10.html
http://www.onrc.org/programs/klamath.html
JT Petty: WMAN 445 Lecture Notes
II. Water Law
And read the books:
“Cadillac Desert: History of the West and its Disappearing Water.”
1987. by Paul Reisner. Penguin Books. 582 pages.
“Last Oasis: Facing Water Scarcity.” 1997. by Sandra Postel. W. W.
Norton and Company. 289 pages.
“Water Wars: Drought, Flood, Folly and the Politics of Thirst.” 2002.
by Sandra Postel. W. W. Norton and Company. 289 pages.
JT Petty: WMAN 445 Lecture Notes
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
1.
NEPA and FWCA
2.
Management of Commercial
Fisheries
3.
Endangered Species Act
4.
Clean Water Act
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
National Environmental Protection Act
(NEPA) 1969
And
Fish and Wildlife Coordination Act
(FWCA)
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
NEPA and FWCA both designed to
“regulate” federal agencies, such as…
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
National Environmental Protection Act
 US statute that seeks to integrate environmental
protection policies.
 Requires federal agencies to prepare environmental
impact statements for “major federal actions
significantly affecting the quality of the human
environment.”
 Allows individuals to bring lawsuits against federal
agencies for failing to comply.
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Fish and Wildlife Coordination Act
 Proposed in response to the general deterioration of
rivers caused by major urban development.
 Requires agencies with construction responsibilities to
consult with F&W Service to determine how to
compensate or mitigate for losses to fish and wildlife
resources.
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Management of Commercial Fisheries
Department of Commerce
National Oceanic and Atmoshperic
Administration (NOAA)
National Marine Fisheries Service (NMFS)
http://www.nmfs.noaa.gov/
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Important Laws that NMFS Implements
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Magnuson Fishery Conservation and Management Act
Endangered Species Act
Marine Mammal Protection Act
Fish and Wildlife Coordination Act
Federal Power Act
Anadromous Fish Conservation Act
Atlantic Striped Bass Conservation Act
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Magnuson Fishery Conservation and Management Act
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1976, revised 1994, 1996 and 2005
Without question the most important federal fisheries law
Established 8 Regional Fisheries Management Councils
http://www.noaa.gov/nmfs/councils.html
Council membership is a mix of commercial and
recreational fishermen, marine scientists, and state and
federal fisheries managers.
 Councils prepare Fisheries Management Plans (FMP’s)
for commercial and recreational fisheries that they
determine require active federal management.
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Magnuson Fishery Conservation and Management Act
 Plans can limit fishing effort, seasons, fishing gear,
fishermen entry, and total catch limits
 Example plans: Red Drum, Gulf Shrimp, Gulf of Alaska
Groundfish, Atlantic Weakfish
 Most recent version has strong focus on: bycatch
reduction, replenishing depleted stocks, and managing
for critical habitat requirements
 Fish Habitat Initiative
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Marine Mammal Protection Act
 1972, revised 1994, 1999
 Regulates interactions with marine mammals
 Established moratorium on the “taking” of marine
mammals.
 Under the MMPA, the Secretary of Commerce is
responsible for pinnipeds (other than walruses) and
cetaceans. The Secretary of the Interior is responsible
for walruses, sea and marine otters, polar bears,
manatees, and dugongs.
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Anadromous Fish Conservation Act
 1972
 Authorizes the Secretary of Commerce and Interior to
enter into cooperative agreements to protect
anadromous and Great Lakes fishery resources. To
conserve, develop, and enhance anadromous fisheries.
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Atlantic Striped Bass Conservation Act
 1987
 Took control of Striped Bass from the states.
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Federal Power Act
 Allows NMFS to minimize the effects of dam operations
on anadromous fish, such as prescribing fish
passageways that bypass dams.
JT Petty: WMAN 445 Lecture Notes
FERC
 Federal
Energy Regulatory Commission:
Issues licenses to private parties that
develop hydroelectric facilities
 FERC
is required to consider the effects of
hydro facilities on fish and wildlife
 Authority
provided through FWCA and
Federal Power Act
Grand Coulee Dam, Columbia River
Edwards Dam, Kennebec River, Maine
Linen Mill Dam, Baraboo River, WI
US Federal Policy
Endangered Species Act (1973)
 A comprehensive attempt to protect all species and to
consider habitat protection as an integral part of that
effort.
 Species of plants and animals may be listed as either
“endangered” or “threatened” according to assessments
of the risk of their extinction.
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Endangered Species Act (1973)
 Distinct population segments of vertebrate species may
also be listed as threatened or endangered.
 Examples: chinook, coho, chum, and sockeye salmon in
Washington, Oregon, Idaho, and California are protected
under ESA, while other healthy populations of these
species in Alaska are not listed.
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Endangered Species Act (1973)
MAJOR PROVISIONS
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Protected Species (threatened or endangered)
Prohibited Acts (“take” = harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect)
Management (FWS or NMFS)
Listing (may not take into account the economic effects of
listing)
Critical Habitat
Recovery Plans
Exemptions (GOD SQUAD) (may consider economic
effects of listing)
JT Petty: WMAN 445 Lecture Notes
Snail Darter
JT Petty: WMAN 445 Lecture Notes
Snail Darter
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Clean Water Act (1972)
 The principal law concerned with polluting activity in the
nations streams, lakes, and estuaries.
 Current definition of water pollution
“man-made or man-induced alteration of the chemical,
physical, biological, or radiological integrity of water.”
 Current Goals:
Elimination of the discharge of Pollutants
Protection of Aquatic Life
Financial Assistance for Construction of Waste Water Plants
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Clean Water Act (1972)
Consists of 2 Major parts:
Part 1: Regulatory provisions that impose
progressively more stringent requirements on
industries and cities to meet pollutant discharge
requirements.
Part 2: Provisions to authorize federal financial
assistance for municipal wastewater treatment
construction.
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Major Sections of the CWA
Section 301: system of minimum national effluent standards for each
industry (“tech-based” standards).
Section 302: water quality standards (limitations on pollutant levels
that can be discharged)
Section 303d: “Total Maximum Daily Loads”
Section 316: Thermal Effluent
Section 402: National Pollution Discharge Elimination System
(NPDES permits)
Section 404: Permits for the discharge of dredged of fill materials into
navigable waters.
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Total Maximum Daily Load (TMDL)
 Maximum amount of a pollutant that a waterbody can
receive and still meet water quality standards, and an
allocation of that amount to the pollutant’s sources.
 Designed to control non-point source pollutants.
 Very hard to implement.
 But it is happening.
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http://www.epa.gov/owow/tmdl/
http://www.epa.gov/owow/tmdl/examples/metals.html
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Section 404: Dredge and Fill
 Requires developers to obtain a permit from the US
Army Corps of Engineers before discharging dredge
or fill into the “waters of the US.”
 Includes: perennial streams, intermittent streams,
freshwater wetlands, drainage ditches, and mosquito
canals.
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
Section 404: Dredge and Fill
 Current Mountaintop Removal – Valley Fill
Controversy
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
JT Petty: WMAN 445 Lecture Notes
US Federal Policy
LEGAL?
JT Petty: WMAN 445 Lecture Notes
US Army Corp of Engineers Stance
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Q2: Will mountaintop mining/valley fills (MTM/VF) continue to be
permitted?
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A2: Yes. Congress enacted the Surface Mining Control and Reclamation Act (SMCRA)
with the intent of balancing the energy needs of the nation with environmental protection.
SMCRA allows for surface coal mining and mountaintop mining/valley fills (MTM/VF) was
identified as an acceptable type of mining. Section 404 of the Clean Water Act (CWA) can
allow for valley fills after an environmental review. In the draft EIS, the term “mountaintop
mining” is defined as surface coal mining occurring on mountaintops, ridges, and other
steep slopes (by definition those of 20 degrees or more). It encompasses a variety of
surface mining methods, including: contour, area, auger, and mountaintop removal mining
and typically results in excess rock and soil material that may be placed in valleys adjacent
to the mine. The studies in the draft EIS do not provide sufficient scientific
evidence to conclude that these mining methods are unacceptable and as
such, the proposed alternatives do not recommend eliminating this type
mining. The draft EIS has however, identified a number of ways that the adverse
environmental effects of mountaintop mining / valley fills can be lessened. The proposed
alternatives include recommendations such as integrated environmental reviews by the
SMCRA and CWA agencies, more complete data collection and analysis, and other
actions that will result in projects designed with less adverse environmental impacts.
Chapter II and Chapter IV of the draft document provide much greater detail on the
proposed alternatives and their impacts.