JT Petty: WMAN 445 Lecture Notes Lecture 5: FISH MANAGEMENT AND THE LAW.

JT Petty: WMAN 445 Lecture NotesJT Petty: WMAN 445 Lecture Notes

Lecture 5:Lecture 5:FISH MANAGEMENT AND FISH MANAGEMENT AND

THE LAWTHE LAW


Lecture 5 ObjectiveLecture 5 Objective

Introduce students to federal and state laws and policy procedures related to the field of fisheries and aquatic sciences.


Fish Management and Fish Management and the Lawthe Law

I.I. Ownership of Natural ResourcesOwnership of Natural ResourcesII.II. Water LawWater LawIII.III. US Federal PolicyUS Federal Policy

A. NEPA and FWCAA. NEPA and FWCA

B. Management of Commercial FisheriesB. Management of Commercial Fisheries

CC. . Endangered Species ActEndangered Species Act

D. Clean Water ActD. Clean Water Act

IV.IV. State RegulationsState Regulations


I. Ownership of Natural I. Ownership of Natural ResourcesResources

State governments have ownership of inland State governments have ownership of inland fisheries.fisheries.

The federal government has ownership of The federal government has ownership of coastal and interstate (i.e., highly migratory) coastal and interstate (i.e., highly migratory) fisheries.fisheries.



Trust ResponsibilityTrust Responsibility

Governments hold fish and wildlife in trust for Governments hold fish and wildlife in trust for the people. Governments can allow use of the people. Governments can allow use of those resources so long as management is those resources so long as management is mindful of their responsibility to protect them mindful of their responsibility to protect them for the people.for the people.



Trust ResponsibilityTrust Responsibility

Can result in:Can result in:

1.1. Curtailing water development (irrigation, Curtailing water development (irrigation, drinking water, industrial use).drinking water, industrial use).

2.2. Limiting fish harvestLimiting fish harvest

3.3. Regulating land useRegulating land use

4.4. Police power (enforcement of regulations)Police power (enforcement of regulations)


II. Water LawII. Water Law

A.A. Water AllocationWater Allocation

B.B. Interstate CompactsInterstate Compacts

Water LawWater Law: policies regarding how access to : policies regarding how access to water is allocated to citizens of the state.water is allocated to citizens of the state.



Water AllocationWater Allocation

Water originating within a state is Water originating within a state is owned by the owned by the



Riparian DoctrineRiparian Doctrine Persons owning land that abuts a surface Persons owning land that abuts a surface

body of water have the right to use that body of water have the right to use that water.water.

Useful in Wet regions (here).Useful in Wet regions (here). Natural Flow RuleNatural Flow Rule Reasonable Use RuleReasonable Use Rule



Appropriation DoctrineAppropriation Doctrine 11stst person to put water to a “beneficial” use person to put water to a “beneficial” use

has the best right to use the water, the 2has the best right to use the water, the 2ndnd person has the second best right…and so on.person has the second best right…and so on.

Typical in Arid Regions (Western US)Typical in Arid Regions (Western US) Beneficial UsesBeneficial Uses Historically, excluded environmental Historically, excluded environmental

protection.protection.

Beneficial Uses of HBeneficial Uses of H2200

Diversion for:Diversion for:

AgricultureAgriculture IndustryIndustry Municipal Water SupplyMunicipal Water Supply MiningMining

““Beneficial Use” must be sustained to retain Beneficial Use” must be sustained to retain your rightsyour rights



Appropriation DoctrineAppropriation DoctrineCurrently, fisheries concerns are accommodated in 3 Currently, fisheries concerns are accommodated in 3

ways:ways:

1.1. Appropriation of water for instream uses (Colorado).Appropriation of water for instream uses (Colorado).

2.2. Water set aside that cannot be used for water rights Water set aside that cannot be used for water rights (Washington State).(Washington State).

3.3. Special requirements placed on diversionary water Special requirements placed on diversionary water rights (California).rights (California).



Water is everything in the west and it dominates Water is everything in the west and it dominates fisheries management issues in that region fisheries management issues in that region (along with cows).(along with cows).

For more information on the topic, see the following web pages:For more information on the topic, see the following web pages:

http://www.klamathbasincrisis.org/http://www.klamathbasincrisis.org/

http://www.whitehouse.gov/news/releases/2002/03/20020301-10.htmlhttp://www.whitehouse.gov/news/releases/2002/03/20020301-10.html

http://www.onrc.org/programs/klamath.htmlhttp://www.onrc.org/programs/klamath.html



And read the books:And read the books:

““Cadillac Desert: History of the West and its Disappearing Water.” Cadillac Desert: History of the West and its Disappearing Water.” 1987. by Paul Reisner. Penguin Books. 582 pages.1987. by Paul Reisner. Penguin Books. 582 pages.

““Last Oasis: Facing Water Scarcity.” 1997. by Sandra Postel. W. W. Last Oasis: Facing Water Scarcity.” 1997. by Sandra Postel. W. W. Norton and Company. 289 pages. Norton and Company. 289 pages.

““Water Wars: Drought, Flood, Folly and the Politics of Thirst.” 2002. Water Wars: Drought, Flood, Folly and the Politics of Thirst.” 2002. by Sandra Postel. W. W. Norton and Company. 289 pages. by Sandra Postel. W. W. Norton and Company. 289 pages.


US Federal PolicyUS Federal Policy

1.1. NEPA and FWCANEPA and FWCA

2.2. Management of Commercial Management of Commercial FisheriesFisheries

3.3. Endangered Species ActEndangered Species Act

4.4. Clean Water ActClean Water Act



National Environmental Protection Act National Environmental Protection Act (NEPA) 1969(NEPA) 1969

AndAnd

Fish and Wildlife Coordination ActFish and Wildlife Coordination Act(FWCA)(FWCA)



NEPA and FWCA both designed to NEPA and FWCA both designed to “regulate” federal agencies, such as…“regulate” federal agencies, such as…



National Environmental Protection ActNational Environmental Protection Act

US statute that seeks to integrate environmental US statute that seeks to integrate environmental protection policies.protection policies.

Requires federal agencies to prepare environmental Requires federal agencies to prepare environmental impact statements for “major federal actions impact statements for “major federal actions significantly affecting the quality of the human significantly affecting the quality of the human environment.”environment.”

Allows individuals to bring lawsuits against federal Allows individuals to bring lawsuits against federal agencies for failing to comply.agencies for failing to comply.



Fish and Wildlife Coordination ActFish and Wildlife Coordination Act

Proposed in response to the general deterioration of Proposed in response to the general deterioration of rivers caused by major urban development.rivers caused by major urban development.

Requires agencies with construction responsibilities to Requires agencies with construction responsibilities to consult with F&W Service to determine how to consult with F&W Service to determine how to compensate or mitigate for losses to fish and wildlife compensate or mitigate for losses to fish and wildlife resources.resources.



Management of Commercial FisheriesManagement of Commercial Fisheries

Department of CommerceDepartment of Commerce

National Oceanic and Atmoshperic National Oceanic and Atmoshperic Administration (NOAA)Administration (NOAA)

National Marine Fisheries Service (NMFS)National Marine Fisheries Service (NMFS)http://www.nmfs.noaa.gov/



Important Laws that NMFS ImplementsImportant Laws that NMFS Implements

• Magnuson Fishery Conservation and Management ActMagnuson Fishery Conservation and Management Act• Endangered Species ActEndangered Species Act• Marine Mammal Protection ActMarine Mammal Protection Act• Fish and Wildlife Coordination ActFish and Wildlife Coordination Act• Federal Power ActFederal Power Act• Anadromous Fish Conservation ActAnadromous Fish Conservation Act• Atlantic Striped Bass Conservation ActAtlantic Striped Bass Conservation Act


US Federal PolicyUS Federal PolicyMagnuson Fishery Conservation and Management ActMagnuson Fishery Conservation and Management Act

1976, revised 1994, 1996 and 1976, revised 1994, 1996 and 2005 Without question the most important federal fisheries lawWithout question the most important federal fisheries law Established 8 Regional Fisheries Management CouncilsEstablished 8 Regional Fisheries Management Councils http://www.noaa.gov/nmfs/councils.html Council membership is a mix of commercial and Council membership is a mix of commercial and

recreational fishermen, marine scientists, and state and recreational fishermen, marine scientists, and state and federal fisheries managers.federal fisheries managers.

Councils prepare Fisheries Management Plans (FMP’s) Councils prepare Fisheries Management Plans (FMP’s) for commercial and recreational fisheries that they for commercial and recreational fisheries that they determine require active federal management.determine require active federal management.


US Federal PolicyUS Federal PolicyMagnuson Fishery Conservation and Management ActMagnuson Fishery Conservation and Management Act

Plans can limit fishing effort, seasons, fishing gear, Plans can limit fishing effort, seasons, fishing gear, fishermen entry, and total catch limitsfishermen entry, and total catch limits

Example plans: Red Drum, Gulf Shrimp, Gulf of Alaska Example plans: Red Drum, Gulf Shrimp, Gulf of Alaska Groundfish, Atlantic WeakfishGroundfish, Atlantic Weakfish

Most recent version has strong focus on: bycatch Most recent version has strong focus on: bycatch reduction, replenishing depleted stocks, and managing reduction, replenishing depleted stocks, and managing for critical habitat requirements for critical habitat requirements

Fish Habitat Initiative


US Federal PolicyUS Federal PolicyMarine Mammal Protection ActMarine Mammal Protection Act

1972, revised 1994, 19991972, revised 1994, 1999 Regulates interactions with marine mammalsRegulates interactions with marine mammals Established moratorium on the “taking” of marine Established moratorium on the “taking” of marine

mammals.mammals. Under the MMPA, the Secretary of Commerce is Under the MMPA, the Secretary of Commerce is

responsible for pinnipeds (other than walruses) and responsible for pinnipeds (other than walruses) and cetaceans. The Secretary of the Interior is responsible cetaceans. The Secretary of the Interior is responsible for walruses, sea and marine otters, polar bears, for walruses, sea and marine otters, polar bears, manatees, and dugongs.manatees, and dugongs.



Anadromous Fish Conservation ActAnadromous Fish Conservation Act

19721972 Authorizes the Secretary of Commerce and Interior to Authorizes the Secretary of Commerce and Interior to

enter into cooperative agreements to protect enter into cooperative agreements to protect anadromous and Great Lakes fishery resources. To anadromous and Great Lakes fishery resources. To conserve, develop, and enhance anadromous fisheries.conserve, develop, and enhance anadromous fisheries.



Atlantic Striped Bass Conservation ActAtlantic Striped Bass Conservation Act

19871987 Took control of Striped Bass from the states.Took control of Striped Bass from the states.



Federal Power ActFederal Power Act

Allows NMFS to minimize the effects of dam operations Allows NMFS to minimize the effects of dam operations on anadromous fish, such as prescribing fish on anadromous fish, such as prescribing fish passageways that bypass dams.passageways that bypass dams.

FERCFERC

Federal Energy Regulatory Commission: Federal Energy Regulatory Commission: Issues licenses to private parties that Issues licenses to private parties that develop hydroelectric facilitiesdevelop hydroelectric facilities

FERC is required to consider the effects of FERC is required to consider the effects of hydro facilities on fish and wildlifehydro facilities on fish and wildlife

Authority provided through FWCA and Authority provided through FWCA and Federal Power ActFederal Power Act

Edwards Dam, Kennebec River, MaineGrand Coulee Dam, Columbia River

Linen Mill Dam, Baraboo River, WI



Endangered Species Act (1973)Endangered Species Act (1973)

A comprehensive attempt to protect all species and to A comprehensive attempt to protect all species and to consider habitat protection as an integral part of that consider habitat protection as an integral part of that effort.effort.

Species of plants and animals may be listed as either Species of plants and animals may be listed as either “endangered” or “threatened” according to assessments “endangered” or “threatened” according to assessments of the risk of their extinction. of the risk of their extinction.



Endangered Species Act (1973)Endangered Species Act (1973)

Distinct population segments of vertebrate species may Distinct population segments of vertebrate species may also be listed as threatened or endangered.also be listed as threatened or endangered.

Examples: chinook, coho, chum, and sockeye salmon in Examples: chinook, coho, chum, and sockeye salmon in Washington, Oregon, Idaho, and California are protected Washington, Oregon, Idaho, and California are protected under ESA, while other healthy populations of these under ESA, while other healthy populations of these species in Alaska are not listed.species in Alaska are not listed.


US Federal PolicyUS Federal PolicyEndangered Species Act (1973)Endangered Species Act (1973)

MAJOR PROVISIONSMAJOR PROVISIONS• Protected SpeciesProtected Species (threatened or endangered) (threatened or endangered)• Prohibited ActsProhibited Acts (“take” = harass, harm, pursue, hunt, (“take” = harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or collect)shoot, wound, kill, trap, capture, or collect)• ManagementManagement (FWS or NMFS) (FWS or NMFS)• ListingListing (may not take into account the economic effects (may not take into account the economic effects

of listing)of listing)• Critical HabitatCritical Habitat• Recovery PlansRecovery Plans• Exemptions (GOD SQUAD)Exemptions (GOD SQUAD) (may consider economic (may consider economic

effects of listing)effects of listing)


Snail DarterSnail Darter



Clean Water Act (1972)

The principal law concerned with polluting activity in the The principal law concerned with polluting activity in the nations streams, lakes, and estuaries.nations streams, lakes, and estuaries.

Current definition of Current definition of water pollutionwater pollution““man-made or man-induced alteration of the chemical, man-made or man-induced alteration of the chemical,

physical, biological, or radiological integrity of physical, biological, or radiological integrity of water.”water.”

Current Goals: Current Goals: Elimination of the discharge of PollutantsElimination of the discharge of PollutantsProtection of Aquatic LifeProtection of Aquatic LifeFinancial Assistance for Construction of Waste Water PlantsFinancial Assistance for Construction of Waste Water Plants



Clean Water Act (1972)Clean Water Act (1972)

Consists of 2 Major parts: Consists of 2 Major parts:

Part 1Part 1: Regulatory provisions that impose : Regulatory provisions that impose progressively more stringent requirements on progressively more stringent requirements on industries and cities to meet pollutant discharge industries and cities to meet pollutant discharge requirements.requirements.

Part 2Part 2: Provisions to authorize federal financial : Provisions to authorize federal financial assistance for municipal wastewater treatment assistance for municipal wastewater treatment construction.construction.


US Federal PolicyUS Federal PolicyMajor Sections of the CWAMajor Sections of the CWA

Section 301Section 301: system of minimum national effluent standards for each : system of minimum national effluent standards for each industry (“tech-based” standards).industry (“tech-based” standards).

Section 302Section 302: water quality standards (limitations on pollutant levels : water quality standards (limitations on pollutant levels that can be discharged)that can be discharged)

Section 303dSection 303d: “Total Maximum Daily Loads”: “Total Maximum Daily Loads”

Section 316Section 316: Thermal Effluent: Thermal Effluent

Section 402Section 402: National Pollution Discharge Elimination System : National Pollution Discharge Elimination System (NPDES permits)(NPDES permits)

Section 404Section 404: Permits for the discharge of dredged of fill materials into : Permits for the discharge of dredged of fill materials into navigable waters.navigable waters.



Total Maximum Daily Load (TMDL)Total Maximum Daily Load (TMDL)

Maximum amount of a pollutant that a waterbody can Maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and an receive and still meet water quality standards, and an allocation of that amount to the pollutant’s sources.allocation of that amount to the pollutant’s sources.

Designed to control non-point source pollutants.Designed to control non-point source pollutants. Very hard to implement.Very hard to implement. But it is happening.But it is happening.

http://www.epa.gov/owow/tmdl/ http://www.epa.gov/owow/tmdl/examples/metals.html



Section 404: Dredge and FillSection 404: Dredge and Fill

Requires developers to obtain a permit from the US Requires developers to obtain a permit from the US Army Corps of Engineers before discharging dredge Army Corps of Engineers before discharging dredge or fill into the “waters of the US.”or fill into the “waters of the US.”

Includes: perennial streams, intermittent streams, Includes: perennial streams, intermittent streams, freshwater wetlands, drainage ditches, and mosquito freshwater wetlands, drainage ditches, and mosquito canals.canals.



Section 404: Dredge and FillSection 404: Dredge and Fill

Current Mountaintop Removal – Valley Fill Controversy



LEGAL?

US Army Corp of Engineers StanceUS Army Corp of Engineers Stance Q2: Will mountaintop mining/valley fills (MTM/VF) continue to be Q2: Will mountaintop mining/valley fills (MTM/VF) continue to be

permitted?permitted? A2: Yes.A2: Yes. Congress enacted the Surface Mining Control and Reclamation Act (SMCRA) Congress enacted the Surface Mining Control and Reclamation Act (SMCRA)

with the intent of balancing the energy needs of the nation with environmental protection. 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 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 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 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 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 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 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 and typically results in excess rock and soil material that may be placed in valleys adjacent to the mine.to the mine. The studies in the draft EIS do not provide sufficient scientific The studies in the draft EIS do not provide sufficient scientific evidence to conclude that these mining methods are unacceptable and as evidence to conclude that these mining methods are unacceptable and as such, the proposed alternatives do not recommend eliminating this type such, the proposed alternatives do not recommend eliminating this type mining.mining. The draft EIS has however, identified a number of ways that the adverse 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 environmental effects of mountaintop mining / valley fills can be lessened. The proposed alternatives include recommendations such as integrated environmental reviews by the alternatives include recommendations such as integrated environmental reviews by the SMCRA and CWA agencies, more complete data collection and analysis, and other SMCRA and CWA agencies, more complete data collection and analysis, and other actions that will result in projects designed with less adverse environmental impacts. 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 Chapter II and Chapter IV of the draft document provide much greater detail on the proposed alternatives and their impacts.proposed alternatives and their impacts.

JT Petty: WMAN 445 Lecture Notes Lecture 5: FISH MANAGEMENT AND THE LAW.

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