While concern has been expressed about new essential fish habitat (EFH) requirements in the law, two important points have been overlooked: (1) the National Marine Fisheries Service (NMFS), in interpreting the law, has extended the definition of EFH far beyond what was intended by Congress; and (2) the only group required by law to be regulated is fishermen.

EFH was designed to identify discrete areas that are truly essential for fish, such as spawning and rearing areas. Congress agreed that special attention should be paid to activities that affect those crucial areas. However, in its regulatory zeal, NMFS has declared the entire ocean and most upland watersheds and estuarine areas to be "essential." The effect is to apply the new provisions everywhere that a fish might happen to exist at any point in its life cycle. This has imposed a tremendous regulatory burden on fisheries managers, fishermen, and those whose activities might affect bodies of water. It also dilutes the attention that should be paid to the most crucial areas.

Home builders, farmers, foresters, and others whose actions on land might affect watersheds are now potentially faced with a consultation requirement which inevitably could lead to delays in completing projects and running their businesses. While that headache is bad enough, it is nothing compared to what fishermen face.

All types of fishing - commercial and recreational - have some impact on fisheries habitat through interactions with fishing gear, anchoring of vessels, pollution from small gas-powered engines used in sport boats, lost hooks, etc. The law requires fisheries management to minimize, to the extent practicable, adverse effects of fishing. Since NMFS has declined to define the term "practicable" or how it will be measured, and has listed everything as essential, fishermen are left to wonder whether they will be able to fish. Indeed, some small fishing groups have tried to use this over-regulation as fodder for lawsuits to gain an economic advantage over their competitors. Yes, upland users need to be concerned about how EFH affects them; but fishermen have a whole lot more to be worried about.

The seafood industry cares about habitat; we all do. That's why we support laws banning ocean dumping of plastics and other trash, prohibiting discharge of toxic material into the air, on land, and into the ocean, and support recycling. Yet, telling a farmer he can't grow crops, a property owner that he can't build a home, or a fisherman that he can't fish, all because of regulatory zeal on the part of a federal agency, makes no sense. We need to bring some common sense back into the EFH debate and focus on conserving those areas that truly are essential.