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New England’s legendary Atlantic cod fishery is in deep trouble. The cod, along with several additional fish species that make up New England’s groundfish fishery, remain critically depleted, and are at only a small fraction of healthy levels. In 2004, the New England Fishery Management Council (NEFMC or Council) and the National Marine Fishery Service (NMFS) implemented the first comprehensive rebuilding program for groundfish in New England. This plan relies primarily on management measures designed to reduce fishing rates in order to end overfishing and rebuild overfished stocks. The most recent scientific review by the National Oceanic & Atmospheric Administration (NOAA) Fisheries’ Northeast Fisheries Science Center (NEFSC) released in 2005, however, showed that overfishing was still occurring on several groundfish species, including the Georges Bank and Gulf of Maine cod stocks. Their levels had plummeted another twenty-five and twenty-one percent respectively since the last comprehensive NEFSC review in 2001, leaving them at only ten and twenty-three percent of the target levels that scientists consider the minimum for health and sustainability. The continued depletion of New England’s critical groundfish populations is not only bad news for the fish, but also for coastal New England fishermen and their communities, who face economic hardship caused by regulators’ attempts to end overfishing. While ending overfishing is clearly a fundamental first step in addressing our fisheries problems, the healthy growth and development of juvenile fish is essential to rebuilding sustainable commercial fisheries and the healthy ecosystems fish require. Habitat is necessary to fish for food, shelter, and reproduction, and demersal (groundfish) juveniles are particularly dependent upon sea floor structure for predator evasion and energy conservation. Numerous scientific studies have demonstrated that many different types of fishing gear—especially bottom trawls and dredges but also gillnets, traps, longlines and other gear—degrade critical fish habitat which can lead to declines in fish populations. As a result, certain fishing gear should be restricted in sensitive habitat areas to protect juvenile fish habitat and to help ensure that marine fish populations are restored to healthy levels for years to come. Ten years after the Sustainable Fisheries Act was enacted in 1996 to strengthen the conservation provisions of our nation’s fisheries law, protections for Essential Fish Habitat (EFH) from harmful fishing practices remain inadequate. Over this time period, the NEFMC, like most of our nation’s fishery management councils, has demonstrated all the classic failures of protecting habitat by hiding behind scientific uncertainty, maintaining that existing management measures are sufficient, limiting prohibitions of destructive gear to where it currently is not a threat, and providing limited protection for some of the most vulnerable habitat types while ignoring other important areas. The NEFMC itself appears to recognize that it has fallen short in fulfilling the conservation promise offered in the habitat provisions added by the Sustainable Fisheries Act. The NEFMC is currently developing an omnibus habitat amendment designed to review and update its EFH designations and to consider new actions designed to protect habitat. Recently, in response to a request for proposals to identify habitat areas of particular concern in New England waters, the Conservation Law Foundation (CLF) and World Wildlife Fund-Canada (WWF-Canada) developed an innovative new strategy to restore New England’s depleted cod and other groundfish populations. These groups proposed creating a network of Habitat Areas of Particular Concern (HAPC), locations where large concentrations of young fish from eight struggling, overfished species, such as Atlantic cod, hake, and yellowtail flounder live (the Multi-species HAPC proposal). With the aid of a powerful computer modeling tool, the groups generated a unique, objective, and science-based proposal that seeks to restore and protect areas that provide critical habitat for many species at the same time, thus keeping the number of isolated habitat sites to a minimum. If implemented, the result would be an efficient system that conserves critical areas with large numbers of juvenile fish while minimizing the impacts to U.S. and Canadian fishermen. Unfortunately, when called upon to recognize the areas identified in the Multi-species HAPC proposal as HAPCs and to take action to protect them, the NEFMC abruptly set the proposal aside despite the strong support of the leading habitat scientists advising the Council. This rejection by the Council, which is overseeing the demise of one of the world’s legendary fishing grounds, is especially frustrating given modern scientific understanding of the value of habitat protection as the key component of ecological health. This rejection calls into question whether the Magnuson- Stevens Act’s habitat provisions are an adequate tool to help stop the decline of our ocean ecosystems and for restoring such ecosystems to a reasonable approximation of what they once were. This Article looks at the implementation of the Magnuson-Stevens Act’s habitat provisions through the prism of the New England groundfish fishery. The fisheries of the Northwest Atlantic, under the oversight of the NEFMC, have played a pivotal role as case studies for Congress throughout the Magnuson-Stevens Act’s history. Examining the New England fishery allows us to evaluate where managers have delivered on the Act’s habitat conservation promises, where they have fallen short, and where one might look to begin to chart a better course for the health of our oceans. The Council’s failures also help bring into focus the need for new tools for restoring and protecting ecological health, the need for reform of the nation’s fishery management councils, and the need for a broader approach to ocean governance.



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