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Overview of Federal Statutes

The Magnuson-Stevens Fishery Conservation and Management Act (MSA) is the primary law governing marine fisheries management in Federal waters. The MSA was first enacted in 1976 (amended in 1996 and 2006) and aided in the development of the domestic fishing industry by phasing out foreign fishing. The MSA created eight regional fishery management councils, focuses on rebuilding overfished fisheries, protecting essential fish habitat, reducing bycatch, mandates the use of annual catch limits and accountability measures to end overfishing, provides for widespread market-based fishery management through limited access privilege programs, and calls for increased international cooperation. It also requires that Federal fishery management plans (FMP) contain conservation and management measures that are consistent with the ten National Standards.    

Under the MSA, there is also a requirement to describe and identify Essential Fish habitat (EFH) in each Federal FMP. EFH is defined as “...those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity,” and are further clarified to be defined as: (1) waters - aquatic areas and their associated physical, chemical, and biological properties that are used by fish and may include aquatic areas historically used by fish where appropriate; (2) substrate - sediment, hard bottom, structures underlying the waters, and associated biological communities; (3) necessary - the habitat required to support a sustainable fishery and the managed species’ contribution to a healthy ecosystem; and (4) spawning, breeding, feeding, or growth to maturity - stages representing a species’ full life cycle.  EFH has not been designated for alewife or blueback herring, though EFH has been designated for numerous other species in the Northwest Atlantic, and measures to improve habitats and reduce impacts resulting from those EFH designations (e.g., EFH for Atlantic salmon and Atlantic herring) may directly or indirectly benefit river herring.

Authorized under the terms of the Atlantic States Marine Fisheries Compact, the Atlantic States Marine Fisheries Commission (ASMFC) aims to promote better utilization of the fisheries (marine, shell, and anadromous) of the Atlantic seaboard “by the development of a joint program for the promotion and protection of such fisheries, and by the prevention of the physical waste of the fisheries from any cause.” The ASMFC may issue interstate FMPs that must be administered by state agencies. If the ASMFC believes that a state is not in compliance with a coastal FMP, it must notify the Secretaries of Commerce and Interior.  If the Secretaries find the state not in compliance with the management plan, the Secretaries must declare a moratorium on the fishery in question.  

The Fish and Wildlife Coordination Act and Federal Power Act provide the basic authority for the National Marine Fisheries Service's (NMFS) involvement in evaluating impacts to aquatic resources from proposed development and energy projects.  It requires that river herring and other aquatic resources and wildlife receive equal consideration to other project features. It also requires Federal agencies that construct, license or permit water resource development projects to first consult with NMFS (and the U.S. Fish and Wildlife Service and State fish and wildlife agencies) regarding the impacts on trust resources and consider measures to mitigate potential impacts. The Anadromous Fish Conservation Act authorizes the Secretaries of Interior and Commerce to enter into cost sharing with states and other non-Federal interests for the conservation, development, and enhancement of the nation’s anadromous fish. Investigations, engineering, biological surveys, and research, as well as the construction, maintenance, and operations of hatcheries, are also authorized through this act.  

NMFS manages river herring stocks under the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA), where, in the absence of an approved and implemented FMP under the Magnuson-Stevens Act, and after consultation with the appropriate Fishery Management Council(s), the Secretary of Commerce may implement regulations to govern fishing in the Exclusive Economic Zone (EEZ), from 3 to 200 nautical mi (nm) offshore. The regulations must be: (1) compatible with the effective implementation of an Interstate Fishery Management Plan for American Shad and River Herring (ISFMP) developed by the ASMFC; and (2) consistent with the national standards set forth in section 301 of the MSA. Amendment 2 to the ISFMP was adopted by ASMFC in 2009, establishes a foundation for river herring management, and was developed to address concerns with stock status and the ability to assess status with a lack of fishery independent data.

The Federal Water Pollution Control Act (FWPCA), also called the “Clean Water Act,” mandates Federal protection of water quality. The law also provides for assessment of injury, destruction, or loss of natural resources caused by discharge of pollutants. The FWPCA prohibits the discharge of dredged or fill material into navigable waters without a permit and also authorizes programs to remove or limit the entry of various types of pollutants into the nation’s waters. The FWPCA has played a role in reducing discharges of pollutants, restricting the timing and location of dredge and fill operations, and affected other changes that have improved river herring habitat in many rivers and estuaries over the last several decades. Similarly, the Marine Protection, Research and Sanctuaries Act of 1972 (MPRSA) and the Shore Protection Act of 1988 (SPA) protect fish habitat through establishment and maintenance of marine sanctuaries, and regulate ocean transportation and dumping of dredge materials, sewage sludge, and other materials. The Rivers and Harbors Act of 1899 requires a permit to place structures in navigable waters of the United States or modify a navigable stream by excavation or filling activities.

The National Environmental Policy Act of 1969 (NEPA) requires an environmental review process of all Federal actions. This includes preparation of an environmental impact statement for major Federal actions that may affect the quality of the human environment. Less rigorous environmental assessments are reviewed for most other actions, while some actions are excluded from formal review. These reviews provide an opportunity for the agency and the public to comment on projects that may impact fish and wildlife habitat. Congress passed policy on values of estuaries and coastal areas through the Coastal Zone Management Act (CZMA) and Estuarine Areas Acts. Comprehensive planning programs, to be carried out at the state level, were established to enhance, protect, and utilize coastal resources. Federal activities must comply with the individual state programs. Habitat may be protected by planning and regulating development that could cause damage to sensitive coastal habitats.  

Additionally, protection and good stewardship of lands and waters managed by Federal agencies, such as the Departments of Defense and Energy (as well as state-protected park, wildlife and other natural areas), contributes to the health of nearby aquatic systems that support important river herring spawning and nursery habitats.  

Within the Canadian government, the Department of Fisheries and Oceans Canada (DFO) develops and implements policies and programs that support Canada's interests in lakes, rivers, and ocean waters. The “Fisheries Act” (R.S.C., 1985, c. F-14) was enacted to regulate projects that may cause serious harm to fish.  Any project being conducted in or near waterbodies that support a fishery (commercial, recreational or Aboriginal) that have the potential to cause serious harm to fish cannot be carried out unless authorized by the Minister of Fisheries and Oceans Canada. The purpose of the Act is to protect fish and their habitat by avoiding or minimizing any harm that may come to these resources. The Act also provides new authorities to protect these fisheries (commercial, recreational, or Aboriginal) by addressing threats such as aquatic invasive species.