Redistributed as a Service of the National Library for the Environment*
Congressional Research Service
Summaries of Major Laws Implemented
CONSULTATION AND TRUSTEESHIP
A number of laws authorize other Federal agencies to consult with NMFS on various matters relating to marine resources or involve NMFS in a trustee relationship relative to public marine resources.
The Clean Water Act (CWA; 33 U.S.C. 1251-1387; Act of June 30, 1948, as amended) is a very broad statute with the goal of maintaining and restoring waters of the United States. The CWA authorizes water quality and pollution research, provides grants for sewage treatment facilities, sets pollution discharge and water quality standards, addresses oil and hazardous substances liability, and establishes permit programs for water quality, point source pollutant discharges, ocean pollution discharges, and dredging or filling of wetlands. The intent of the CWA's §404 program and it's §404(b)(1) "Guidelines" is to prevent destruction of aquatic ecosystems including wetlands, unless the action will not individually or cumulatively adversely affect the ecosystem. NMFS provides direct consultations to the Environmental Protection Agency and the U.S. Army Corps of Engineers as to the impacts to living marine resources of proposed activities and to methods for avoiding such impacts.
The Coastal Wetlands Planning, Protection, and Restoration Act of 1990 (CWPPRA; 16 U.S.C. 3951-3956; Title III of Pub. L. 101-646, as amended) directed the U.S. Army Corps of Engineers to establish a Task Force composed of representatives of five Federal agencies (14) and the State of Louisiana to develop a comprehensive approach to preventing the loss of and restoring coastal wetlands in Louisiana. The Task Force was required to prepare a comprehensive Coastal Restoration Plan for Louisiana by the end of 1993, which provides the basis for selecting priority projects for implementation. This Task Force must annually prepare and transmit to Congress a priority list of Louisiana wetland restoration projects. The Act created the Coastal Wetlands Trust Fund, which is supported by a tax on small engines and equipment. Of the amount appropriated, 70 percent (not to exceed $70 million annually) is to be available (as 75 percent/25 percent Federal/State matching grants) to fund wetland restoration projects and associated activities in Louisiana. A coastal wetland restoration grant program for other States is funded by 15 percent of the Coastal Wetlands Trust Fund (not to exceed $15 million annually). NMFS has represented NOAA on the CWPPRA Task Force and sponsored individual wetland restoration projects implemented through this program.
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund; 42 U.S.C. 9601-9675; Pub. L. 96-510, as amended) provides authority for NOAA as one of several Federal agencies designated (in addition to State agencies as designated by their respective Governors, and Indian tribes) to act as natural resource trustees for releases of hazardous substances as well as for oil spills occurring prior to enactment of the Oil Pollution Act. As the principal Federal trustee for living and non-living resources in the marine environment, NOAA's primary trustee responsibilities are to assess injury to trust resources, to present damage claims against responsible parties, and to ensure the recovered damages are used to compensate the public thorough restoring, replacing, or acquiring the equivalent of the injured resources. NMFS works with other NOAA offices in the development of claims and restoration of damaged resources. Natural resources are defined broadly to include land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States, any State, or Indian tribe.
The Federal Power Act (FPA; 16 U.S.C. 791a-828c; Act of June 10, 1920, as amended) requires hydropower project owners to obtain a license from the Federal Energy Regulatory Commission (FERC). The FPA provides authority to NMFS to recommend hydropower license conditions to protect, mitigate damages to, and enhance anadromous fish, including related spawning grounds and habitat. The FPA also provides authority for NMFS to issue mandatory fishway prescriptions. Additionally, FERC must ensure that the proposed hydropower project preserves other aspects of environmental quality, and be best adapted to a comprehensive plan for developing the waterway; for providing adequate protection, mitigation, and enhancement of fish and wildlife; and for other public uses.
The Fish and Wildlife Coordination Act (16 U.S.C. 661-666c; Act of March 10, 1934, as amended) requires that wildlife, including fish, receive equal consideration and be coordinated with other aspects of water resource development. This is accomplished by requiring consultation with the FWS and NMFS whenever any body of water is proposed to be modified in any way and a Federal permit or license is required. This consultation determines the possible harm to fish and wildlife resources, and the measures that are needed to both prevent the damage to and loss of these resources, and to develop and improve the resources, in connection with water resource development. NMFS submits comments and recommendations to Federal licensing and permitting agencies and to Federal agencies conducting construction projects on the potential harm to living marine resources caused by the proposed water development project, and submits recommendations to prevent harm.
The National Environmental Policy Act (NEPA; 42 U.S.C. 4321-4347; Pub. L. 91-190, as amended) requires Federal agencies to analyze the potential effects of a proposed Federal action which would significantly affect historical, cultural, or natural aspects of the environment. It specifically requires agencies to use a systematic, interdisciplinary approach in planning and decision-making, to insure that presently unquantified environmental values may be given appropriate consideration, and to provide detailed statements on the environmental impacts of proposed actions including: (1) any adverse impacts; (2) alternatives to the proposed action; and (3) the relationship between short-term uses and long-term productivity. The agencies use the results of this analysis in decision-making. Alternatives analysis allows other options to be considered. NMFS plays a significant role in the implementation of NEPA through its consultative functions relating to conservation of marine resource habitats.
The Oil Pollution Act of 1990 (OPA; 33 U.S.C. 2701-2761; Pub. L. 101-380, as amended) makes parties releasing oil into the environment liable, not only for the cost of cleaning up those releases but also, for monetary compensation for injury (damages) to natural resources caused by the releases. The OPA is an omnibus statute enacted in the wake of the 1989 Exxon Valdez oil spill and a spate of subsequent incidents along the West, Gulf, and East Coasts. This Act sets guidelines for the removal of oil and provides a framework for redressing lost and injured resources that result from the discharge of oil into or upon the navigable waters (coastal and inland) or adjoining shorelines of the EEZ of the United States. NOM is one of several Federal agencies designated (along with State agencies, Indian tribes, and/or any foreign government) as natural resources trustees. NOAA's prime trustee responsibility is for injuries to the living and non-living resources in the marine environment. NMFS works with other NOAA offices in the development of claims and restoration of damaged resources. Trustee agencies are empowered to seek compensation for injury to trust resources from responsible parties. The approach to damage assessment and restoration in OPA is patterned after that articulated in the Comprehensive Environmental Response, Compensation, and Liability Act.
The Outer Continental Shelf Lands Act (43 U.S.C. 1331-1356; Act of August 7, 1953, as amended) gives the Department of the Interior the authority to lease outer continental shelf (OCS) lands for a variety of purposes (e.g., pipelines, oil and gas exploration, geological and geophysical exploration, and mineral mining). The Department of Energy is responsible for submitting an oil and gas leasing program that includes a schedule of proposed lease sales to meet national energy needs for the next five years, and considers the impact of proposed sales on the environment. The Minerals Management Service, within the Department of the Interior, may impose special lease stipulations, including prohibition or cancellation on a tract-by-tract basis, to protect specific geological or biological phenomena. NMFS provides consultations on the impacts of various proposed activities on living marine resources.
Public water systems relying on either surface water or ground water under the influence of surface water must disinfect and filter drinking water. The Safe Drinking Water Act (42 U.S.C. 300f-300j-11; Pub. L. 93-523, as amended) requires EPA to establish national drinking water goals and standards for public safety of water systems for 83 specified contaminants at levels at which no known or anticipated effects on public health will occur. NMFS provides consultations to the Environmental Protection Agency on the impacts of various standards on living marine resources.
The High Seas Driftnet Fisheries Enforcement Act (16 U.S.C. 1826a-1826c; Title I of Pub. L. 102-582, as amended) authorizes the Secretary of Commerce to publish and maintain a list of nations which allow their nationals or vessels to conduct large-scale driftnet fishing beyond their EEZ so that U.S. port privileges can be denied to such nations. Within six months after a nation has been identified pursuant to this Act, the Secretary of Commerce determines whether the loss of port privileges has been sufficient to cause that nation to prohibit large-scale driftnet fishing by its nationals and vessels, and also whether that nation has retaliated against the United States for the denial of port privileges. The Secretary must certify to the President, in accordance with §8(a) of the Fishermen's Protective Act (i.e., the Pelly Amendment) if either of these is true. The denial of port privileges remains in effect until the Secretary of Commerce certifies to the President and Congress that the offending nation no longer allows the use of large-scale driftnets outside its EEZ by either its nationals or its vessels.
The Lacey Act Amendments of 1981 (16 U.S.C. 3371-3378; Pub. L. 97-79, as amended) repealed the Act of May 20, 1926 (Black Bass Act; 16 U.S.C. 851-856), §5 of the Act of May 25, 1900 (16 U.S.C. 667e), and 18 U.S.C. 43-44 (the original Lacey Act). Elements of the repealed Acts addressing illegal trade of fish, wildlife, and plants were consolidated by the 1981 amendments.
The Lacey Act, as amended in 1981, makes it illegal to partake in the trade of fish, wildlife, or plants taken in violation of any U.S. or Indian tribal law, treaty, or regulation as well as the trade of any of these items acquired through violations of foreign law. The Secretary of Commerce is authorized to issue regulations including, but not limited to, cooperating with the Secretary of the Interior for the marking and labeling of packages containing fish or wildlife. This Act does not apply to the interstate shipment, through Indian country or a State, of any fish or wildlife or plant legally taken if the shipment is en route to a State in which the fish or wildlife or plant may be legally possessed.
The Secretary of Commerce is authorized to assess civil penalties not in excess of $10,000 per violation by persons engaging in conduct prohibited by this Act. Civil penalties assessed by the Secretary may be reviewed by the appropriate District Court of the United States within 30 days of the assessment. The Act further provides for criminal action to be taken against persons found to be in violation of this Act. In addition, the Act allows for the seizure of all vessels, vehicles, aircraft, and other equipment used to aid in the criminal violation of this Act. Pursuant to this Act, the Secretary of Commerce may make available rewards for information furthering the intent of this Act.
Activities regulated by the Magnuson Fishery Conservation and Management Act are not within the scope of this Act. Also beyond the intent of this Act are activities regulated by the Tuna Conventions Act, the Atlantic Tunas Convention Act, or any activity involving the harvest of highly migratory species.
NMFS special agents enforce this Act against foreign-flagged vessels that fish illegally in the EEZs of South Pacific island countries and import the fish into Guam and American Samoa. In addition, NMFS enforces this Act against U.S. fishermen who operate illegally in foreign waters, such as the Bahamas. NMFS agents work cooperatively with State natural resource officers to apprehend poachers who take contaminated shellfish from closed State waters and subsequently ship those illegal products in interstate commerce. The NMFS Office of Enforcement made 99 cases under the Lacey Act in 1994. The three most significant cases involved two Japanese and one Taiwanese vessels which fished illegally in the waters of the Federated States of Micronesia and Papua New Guinea and subsequently transshipped their illegal catches through Guam. Significant penalties were assessed against each of these vessels under the Lacey Act. Most other Lacey Act violations involved illegally harvested shellfish, salmon, and other fish resources taken in the United States and transported across State borders.
The Capital Construction Fund (CCF) program, authorized by §607 of the Merchant Marine Act of 1936 (46 U.S.C. 1171-1182; Act of June 29, 1936, as amended), defers Federal taxation of fishing vessel income to allow its use in approved projects for the construction, reconstruction, or refurbishing of fishing vessels. Pre-existing agreements are required and funds can be withdrawn for approved vessel projects. Deferred taxes are recovered by the government through reduction of the vessel's depreciation basis for income tax purposes.
The Fisheries Obligation Guarantee (FOG) program, authorized by Title XI of the Merchant Marine Act of 1936, provides a Federal guarantee of private debt for fishing vessels as well as shoreside and aquacultural facilities. Although the FOG program is totally self-supporting through user fees, the Federal Credit Reform Act of 1990 requires an appropriation of government subsidy costs (basically estimated defaults) and administrative costs plus an annual limitation on guarantee amounts for all government loan or loan guarantee programs.
The Mitchell Act (16 U.S.C. 755-757; Act of May 11, 1938, as amended) authorizes the Secretary of Commerce to conduct activities for the conservation of fishery resources in the Columbia River Basin. This Act specifically direct that salmon hatcheries be established, that engineering and biological surveys and experiments be conducted, and that fish protective devices be installed. It also authorizes agreements with State fishery agencies and the construction of facilities on State-owned lands.
The Fishermen's Contingency Fund, authorized by Title IV of the Outer Continental Shelf Lands Act Amendments of 1978 (43 U.S.C. 1841-1847; Title IV of Pub. L. 95-372, as amended), mitigates conflicts between the fishing and offshore energy industries by compensating fishermen for casualties caused by OCS energy-related debris. Most casualties involve shrimp nets hanging on bottom debris in the Gulf of Mexico. The program is totally self-supporting through assessment of energy companies.
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