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Seafood FAQ: Understanding the Endangered Species Act

The petition to list the Eastern oyster as endangered may spawn questions from customers

The petition to list Eastern oysters under the ESA has a long way to go. - Virginia Marine Products Board
Steven Hedlund
September 01, 2005

Don’t be alarmed if consumers misuse the word “endangered” when purchasing oysters in the coming months, and don’t be afraid to correct them. The government is in the early stages of considering a petition to list the Eastern oyster under the Endangered Species Act. The process of listing a species as endangered or threatened is a complex and lengthy one, and undoubtedly consumers will misunderstand it when they read or hear about it in the media. So now is an ideal time to brush up on the law and its effect on the seafood industry. Here are the answers to a few common questions you’re bound to encounter:

Q. What’s the Endangered Species Act?

Enacted in 1973, the ESA was designed to protect and revitalize species of animals or plants listed as endangered or threatened and conserve the ecosystems in which they live. If a species is endangered, it’s in danger of becoming extinct. If it’s threatened, it’s at risk of becoming endangered in the near future.

The law is administered by the U.S. Fish and Wildlife Service, which manages terrestrial and freshwater species, and the National Marine Fisheries Service, which handles marine species. In fiscal 2004, the FWS committed $137 million and 533 employees, or 6 percent of its staff, to enforcing the ESA, while NMFS dedicated $101 million and 523 employees, or 20 percent of its staff. State agencies also help enforce the ESA.

The ESA has been reauthorized seven times and was due for reauthorization again in 1993. Congress hasn’t reauthorized the law due to a legislative stalemate but appropriated funds in each subsequent year to keep the program alive.

Q. How is a species placed on the ESA list?
Listings are based solely on a species’ biological status and threats to its existence from such factors as disease, predation, industry and development. Economics are not considered.

Anyone can petition the government to place a species on, or remove a species from, the list. In addition, the FWS maintains a list of “candidate” species and can recommend that a species be listed.

Once a petition is received, the FWS or NMFS has 90 days to determine whether there’s “substantial” evidence to move the petition forward. If there isn’t, the petition is dismissed. If there is, a team of federal and state biologists conducts a status review of the species, which is then independently peer reviewed.

Within a year of moving the petition forward, the FWS or NMFS concludes whether a listing is warranted. If it is, a proposed rule is published in the Federal Register within 30 days (unless there’s a logjam of other species in greater danger of becoming extinct under consideration). Then the public has 60 days to comment. If the FWS or NMFS opts to list a species, a final rule is published and the species is added to the list within 30 days. Otherwise, the listing is rejected.

Q. How many seafood species are on the ESA list?
Of the 1,264 domestic species on the list as of early 2005, there are 114 species of fish, 70 species of mollusks and 21 species of crustaceans. More than three-quarters are endangered, while the rest are threatened. The bulk of the fish and shellfish on the list are freshwater species.

Additionally, there are 562 foreign species on the list, including 14 species of fish and shellfish.

Only 34 domestic species have been taken off the list; nine became extinct, 15 were mistakenly listed because erroneous data was used, and 10 recovered. Seven foreign species have been removed due to erroneous data or recovery.

Q. Why is the Eastern oyster being considered for a listing?
Maryland resident and environmental consultant Wolf-Dieter Busch, who filed the petition to list the Eastern oyster under the ESA in January, says the population in the Chesapeake Bay has been decimated in recent years by overfishing and the diseases MSX and Dermo. Industry members say Busch is trying to block the potential introduction of larger, disease-resistant Asian oysters in the Chesapeake.

In May, NMFS determined that there’s “substantial” evidence to move the petition forward. The results of the status review are due in October, and NMFS should conclude in January whether a listing is warranted.

Q. How does an ESA listing affect a fishery or fish farm?

When a species is listed as endangered, it’s illegal to “take,” or harvest, it. When a species is listed as threatened, it may also be illegal to take.

Eastern oyster harvesters and processors fear a listing will bring the harvest to a virtual standstill from Maine to Texas.

Unlike vertebrates, invertebrates aren’t classified as distinct populations under the ESA. Rather, they’re classified as one species or two or more sub-species, says Kim Damon-Randall, a NMFS fisheries biologist in Gloucester, Mass. So it’s possible that Atlantic and Gulf Eastern oysters will be classified as two sub-species during the status review. Additionally, U.S. Rep. Bobby Jindal (R-La.) introduced legislation in June to amend the ESA to allow the Eastern oyster to be classified regionally, so the Gulf population can be considered separately from the Chesapeake. The Gulf represents about two-thirds of the total U.S. oyster harvest of 750 million pounds (in shell) a year.

In addition to fisheries, aquaculture can also be affected by a listing. For instance, salmon farmers must develop a plan to prevent fish from escaping from pens and mingling with endangered wild Atlantic salmon in eight Maine rivers.

A listing of a mammal can also affect a fishery within the mammal’s “critical habitat,” the geographic area containing the features essential to its survival. For example, Alaska pollock fishing is tightly regulated in endangered Steller sea lion critical habitat to minimize competition between fishermen and sea lions, which eat pollock. And Massachusetts lobstermen must use breakaway buoy lines in endangered northern right whale critical habitat from Jan. 1 to May 15 to prevent the whales from getting tangled in fishing gear.

Q. Is there interest in reforming the ESA?
Yes. In February, four congressmen launched a bipartisan effort to update the ESA. In May, both the House Resources Water and Power Subcommittee and the Senate Environment and Public Works Fisheries, Wildlife and Water Subcommittee held public hearings to solicit improvements to the law.

September 2005 - SeaFood Business 

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