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Bush Administration Calls for Ban on High Seas Bottom Trawling

October 18, 2006

Earlier this month, President Bush called for a ban on certain types of unregulated fishing practices, including bottom trawling, in international waters.[1] The President’s statement, which enjoys broad bipartisan domestic support, came just one day before the start of United Nations negotiations concerning ocean fishing practices, and follows recent federal closures of areas off the Pacific coast to bottom trawling, and efforts to implement market-based approaches to protect fisheries and habitat in U.S. waters.

A Signal to the United Nations

Bottom trawling is a method of fishing that involves dragging weighted nets across the seafloor to catch fish and shellfish, including groundfish and shrimp. This fishing practice, which has been criticized as unduly damaging to certain marine fisheries and seafloor habitat,[2] is generally unregulated in international waters.[3] On October 4, 2006, the 192-member United Nations General Assembly began negotiations over a proposed moratorium on unregulated high seas bottom trawling and the regulation of other illegal, unreported, and unregulated high seas fishing practices. Recommendations on the subject by a fisheries working group are expected to come to a vote before the full General Assembly at the beginning of November.[4]

The day before the start of the United Nations’ negotiations, President Bush issued his memorandum expressing the administration’s support for an international moratorium on high seas bottom trawling, directing the Secretaries of State and Commerce to oppose “destructive fishing practices,” including bottom trawling, on the high seas. The memorandum specifically directs the Secretary of State to work with RFMOs to establish rules to “enhance sustainable fishing practices and to end destructive fishing practices, such as unregulated [high seas] bottom trawling.” The President also directed the Secretary of State to collaborate and cooperate with other States “to establish new institutional arrangements, including new RFMOs, to protect ecosystems in high seas areas where no such competent arrangement currently exists.”[5] The President’s position aligns the United States with several other countries, including Australia, New Zealand, the United Kingdom, and Norway, which have expressed support for regulating bottom trawling. Iceland and Spain are among those that oppose the moratorium.[6]

Despite U.S. support for the moratorium, environmentalists and other groups are concerned that the United Nations will not pass a total ban on high seas bottom trawling given the lack of support from Canada and several other key States.[7] The Canadian fisheries minister, for example, announced October 6, 2006, that Canada will not support a total ban on high seas bottom trawling and “hesitations from other nations could make a trawling moratorium more difficult.” [8] European Union (EU) Commissioner Stavors Dimas equivocated that “EU governments favoured banning high seas bottom trawling on a case by case basis.”[9]

Domestically, the proposed international moratorium enjoys strong bipartisan support. Most recently, Senators Ted Stevens (R-Alaska) and Senator Daniel Inouye (D-Hawaii) backed the proposed moratorium, and introduced a resolution (S.RES.610) expressing the “sense of the Senate” that a moratorium on unregulated high seas fishing practices, including bottom trawling, is warranted to protect U.S. fishing interests. In part, the resolution cites the “unfair competitive advantage” of fishermen who engage in unregulated fishing on the high seas over U.S. fishermen “who must comply with the rigorous conservation and management requirements of the Magnuson Stevens Fishery Conservation and Management Act and other laws.”[10] Twenty other Senators, including Senators Boxer (D-CA.) and Cantwell (D-WA), joined the resolution.

Related Domestic Actions

Prior to the President’s call to end unregulated high seas bottom trawling, the National Oceanic and Atmospheric Administration (“NOAA”) issued a May 11, 2006 rule closing more than 130,000 square miles of federal waters off Washington, Oregon, and California to bottom trawling. The closed areas off the Pacific coast, designated as Essential Fish Habitat under the rule, include marine habitat less than 3,500 meters deep,[11]and accounts for over 42% of the U.S. EEZ.[12] The area also includes sites in Washington State’s Olympic Coast National Marine Sanctuary, near the location of a recently discovered community of deepwater corals.[13]

In addition, in an effort to reduce the effects of bottom trawl fishing on fish stocks and habitat, The Nature Conservancy (Conservancy) has begun implementing an innovative market-based pilot program, based in California, to protect fisheries and seafloor habitat, with the cooperation of fishermen and regulators. The Conservancy’s approach involves working with regulators and fishermen to recommend and designate offshore areas off limits to trawling. In exchange, the Conservancy has agreed to buy back “permits and vessels to reduce trawling efforts and help ease the loss of fishing grounds.”[14]

To date, the Conservancy has bought six federal bottom trawling permits and four commercial trawling vessels from fishermen in Morro Bay on California’s central coast. The acquisitions followed the Pacific Fishery Management Council’s designation of areas off the coast of California as “no trawl zones” in June of 2005 and represent the first private buy-outs of fishing vessels and permits, at a cost of approximately $3 million.[15] The Conservancy plans to re-use acquired vessels as ocean research platforms, or for law enforcement or other enterprises, and is banking the fishing harvest rights. In the future, the Conservancy “may request that regulators allow the Conservancy to lease back some permits to fishermen who would use more selective gear and help create a certified market for sustainably harvested groundfish.”[16] The Conservancy is reportedly in negotiations with 17 other fishermen holding bottom trawling permits on the central California Coast.

Public Opinion

Stakeholders continue to debate both the nature and extent of long-term environmental harm caused by bottom-trawling,[17] and the effect that U.S. international policy on this issue may have on domestic fishing interests. Local fishermen, for example, have expressed concern “that President Bush’s call for halting high-seas fishing will lead to further restrictions on boats that trawl” in U.S. waters.[18] “Once you set a precedent, it just goes on and on,” stated Rodney Avila of the New England Fishery Management Council. “The National Fisheries Institute, which represents the $29 billion-a-year seafood industry, shared Mr. Avila’s concern for the future of the U.S. commercial groundfishing industry.” A spokesperson for the Institute Stacey Viera stated “If we call bottom trawling an activity that should not be done in the high seas, then why would it be done anywhere else? That’s the concern here.”[19]

In response, a White House Council for Environmental Quality spokesperson stated that “[a] trawling ban in the high seas would not have a direct effect on … groundfishermen and others who drag their nets in U.S. waters” since fishermen in the U.S. “already adhere to very strict regulations.” [20] A spokeswoman for the Natural Resources Defense Council (NRDC) also clarified that “we’re not saying no bottom trawling ever. We’re saying unregulated bottom trawling ought not to occur.”[21] U.N. General Assembly action on unregulated bottom trawling in international waters is expected in early November.

[1] Press Release, The White House, Statement on Protection of Sustainable Fisheries (October 3, 2006), available at http://www.whitehouse.gov/news/releases/2006/10/20061003-1.html. The high seas, or international waters, are those waters that lie beyond countries’ 200 nautical mile Exclusive Economic Zone (EEZ). The high seas comprise approximately 65% of the world’s oceans, about three-quarters of which is not regulated.

[2] The National Academy of Sciences report is available at http://www.nap.edu/catalog/10323.html.

[3] Two RFMOs, the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and the General Fisheries Council of the Mediterranean (GFCM), have taken steps to regulate high seas bottom trawling. In addition, a few international conventions provide for the general protection of ocean space and resources. For example, the Law of the Sea Convention (UNCLOS) requires State parties to “protect and preserve the marine environment” and to “protect and preserve rare and fragile ecosystems.” UNCLOS, arts. 192 and 194(5). UNCLOS also requires States to cooperate with other States or to unilaterally take “such measures … as may be necessary for the conservation of the living resources of the high seas.” UNCLOS, Part VII, Sec. 2, Article 117. In the U.S., regulated bottom trawl fishing occurs in state and federal waters, primarily on the continental shelf and upper slope.

[4] Allison A. Freeman, Bush calls for global ban on bottom trawling, Greenwire, October 3, 2006.

[5] Press Release, The White House, Statement on Protection of Sustainable Fisheries (October 3, 2006), available at http://www.whitehouse.gov/news/releases/2006/10/20061003-1.html. NOTE: SAME AS FN1

[6] Press Release, United Nations, “Press Conference on High Seas Fishing Practices” (October 3, 2006), available at http://www.un.org/News/briefings/docs/2006/061003_UNEP.doc.htm.

[7] In 2004, the U.N. adopted a resolution urging States to consider a temporary ban on bottom trawling at vulnerable ecosystems on the high seas, including seamounts. U.N. Gen. Ass. Res. on Oceans and the Law of the Sea A/RES/59/25, paragraph 66, 2004.

[8] Allison A. Freeman, “Advocates less hopeful for U.N. trawling moratorium” Greenwire, October 9, 2006.

[9] Anne Chaon, UN ponders ban on bottom trawling, AFP, Sept. 22, 2006.

[10] Id.

[11] The regulation defines Essential Fish Habitat as “those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity.” 71 Fed. Reg. 27,408, 27,416 (May 11, 2006).

[12] 71 Fed. Reg. 27, 408, 27,412 (May 11, 2006).

[13] Allison A. Freeman, Deepwater communities discovered off Wash. coast, E & E News, June 26, 2006.

[14] Press Release, The Nature Conservancy, “Conservancy Purchases Federal Trawling Permits and Vessels to Protect Marine Areas in California” (June 27, 2006).

[15] Greenwire, “Enviro groups buy out commercial permits in Calif.,” June 28, 2006.

[16] Press Release, The Nature Conservancy, “Conservancy purchases federal trawling permits and vessels to protect California’s sensitive marine habitats.”

[17] See, e.g., FishNet USA website, available at http://www.fishingnj.org/netusa1.htm (stating that bottom trawling is less destructive than environmentalists indicate).

[18] John Heilprin, Bush scares fishing industry local fishermen fear further restrictions, SouthCoastToday, October 5, 2006, available at http://www.southcoasttoday.com/daily/10-06/10-04-06/01local.htm.

[19] Id.

[20] Id.

[21] Id.

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