Thursday, January 21, 2021



About two months ago, I wrote a blog about a conservation movement that’s been nicknamed “30x30,” which seeks to have 30 percent of lands, inland waters, and ocean protected by the year 2030.  From a fisheries perspective, that means an expansion of marine protected areas.

Marine protected areas are always a hot topic, as they restrict access to, and harvest from, waters where fishing had previously occurred.  There is generally substantial outcry and public opposition when an MPA is proposed.  Some of that outcry comes from fishermen who just resist change, and don’t want to see any encroachment on their ability to access the entire expanse of their local waters.  Some comes from the fact that, to many fishermen, the term “Marine Protected Area” means an area of ocean that is completely closed off to commercial and recreational fishing.

But that latter belief isn’t necessarily true.  The National Oceanographic and Atmospheric Administration has adopted the definition of “protected area” used by the International Union for the Conservation of Nature, which merely states that a “protected area” is

“A clearly defined geographical space, recognized, dedicated, and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values.”

Protected areas, including marine protected areas, exist solely to conserve natural resources.  Conservation doesn’t always require complete prohibitions on fishing and/or other outdoor activities.  And the above definition makes it clear that conservation is supposed to be accomplished in “association” with “cultural values,” which in most cases would include the values associated with fishing activities.

That definition of “protected area” would militate against the creation of an MPA that advances conservation but, at least to the extent possible, does not also support the cultural values associated with fishing.  While there may be places where a total prohibition on fishing might be required to achieve a particular conservation goal, properly-designed MPAs should usually be able to promote conservation while allowing some level of fishing activity.  In doing that, they can also provide significant benefits to fishermen.

Right now, such a well thought-out MPA is being developed in the Florida Keys.

The area in question is called the “Western Dry Rocks,” and lies about 10 miles southwest of Key West.  It's small, only about one square mile in size, but is an important spawning site for many different species of snapper and grouper, along with a number of other, unrelated, reef fish.  It is also a popular destination for Key West’s charter fishing fleet, and as both biologists and fishermen have learned to their sorrow, fishing on important spawning aggregations of fish can do a lot of harm, regardless of other management measures that might be put in place to conserve them.

Protecting spawning aggregations, on the other hand, has historically paid benefits, and led to stock rebuilding.

Western Dry Rocks is a particularly important spawning area, not only because of the number of species that aggregate there, but also because the currents that pass through the area pick up fish eggs and larvae and carry them along the Florida Keys and up to the southern Florida mainland, helping to maintain fish populations along the way.

Thus, there is a compelling conservation argument for including the Western Dry Rocks in an MPA.

The State of Florida is proposing to close the one square mile area around Western Dry Rocks to all fishing during the months of May and June, which is the peak spawning season for mutton, gray, and yellowtail snapper, as well as for permit.  Extending the area closure to April and July would protect all four species throughout their entire spawning period, so Florida is seeking stakeholder input on both a two-month and a four-month closure.

Grouper tend to spawn earlier in the year—January through April—when the fishing season for them is already closed, although one species of grouper, the scamp, spawns from January through June, so would also benefit from the closure.

Catch and release fishing isn’t an option during the spawning period.  While most people who fish for snapper and grouper are seeking fish to take home, anglers do pursue permit just for sport.  However, research indicates that 39 percent of the permit hooked at Western Dry Rocks are eaten by sharks, a level of fishing mortality that could do real harm to a spawning aggregation.

Thus, there is a good argument for prohibiting fishing at Western Dry Rocks during the spawn.  The spawning aggregations need to be protected, and due to the abundant sharks, nothing less restrictive than a complete prohibition would provide the aggregations, particularly the aggregations of permit, with adequate protection.

Thus, the proposed Western Dry Rocks closure satisfies the three criteria that ought to be met any time an MPA is considered:  1) There is a clear conservation need that justifies the added protections, 2) the area is only closed when such closures further the conservation goal, and 3) less-restrictive management measures would not lead to the desired result.

The good news is that, with those criteria met, anglers and angling-related businesses are supportive of the proposed closure.

The Bonefish & Tarpon Trust is encouraging people to support the Western Dry Rocks Closure, saying that it is

“calling on the Florida Fish & Wildlife Game Commission to establish a seasonal no-fishing closure at Western Dry Rocks south of Key West.  This would give breeding fish the chance to spawn, resulting in a healthier population, while at the same time preserving the opportunity to fish at Western Dry Rocks in the off-season.”

It further notes that

“Permit, Mutton Snapper, Mangrove Snapper, Grouper and more all spawn at Western Dry Rocks.  And keeping them safe while they do is just one step toward a healthy long-term fishery…Preserving an area of just 1.3 square miles for a handful of months can make an immense difference in keeping this breeding stock healthy, as well as the generation of new fish they spawn.”

A local charterboat operator, Capt. Diego Rouylle, in supporting the closure, said

“It is my wholehearted believe after spending over a quarter century passionately learning about this one species [permit] that STRATEGIC CLOSURES will need to become a significant tool for a productive future in the fishery management of our Florida Keys National Marine Sanctuary.”

The closures have even gained the support of the Coastal Conservation Association, a national “anglers’ rights” organization, and from the American Sportfishing Association, a tackle industry trade group.  Such organizations’ support is notable, for both have traditionally opposed closing waters to recreational fishing.  But this time, the American Sportfishing Association went so far as to urge anglers to support the closure, saying

“Ten miles southwest of Key West, the Western Dry Rocks hosts multiple spawning schools of recreationally important species such as permit, snapper and grouper.  It is also directly adjacent to unique currents that enhance spawning success by distributing eggs and juvenile fish throughout south Florida, ensuring sustainable recreational fisheries.

“After much discussion, [Florida] is currently considering a seasonal closure of one square mile to protect this special area.  The initial proposal included a two-month closure for May and June.  However, multiple fishing and conservation groups agree that the science strongly supports protecting this important area for a longer amount of time.

“Therefore, we are asking fisheries managers to close the area during the four-month peak spawning season (April-July) to give maximum benefits to the multiple fisheries while still allowing fishing access during the rest of the year.”

When you see groups such as CCA and ASA, which have traditionally opposed closing fishing areas, not only support the Western Dry Rocks closure, but even request that the area be closed for longer than the government originally proposed, you can be certain that the people designing the closure are doing everything right.

The discussion surrounding the Western Dry Rocks closure demonstrates that marine protected areas don’t need to be centers of conflict.

If the people designing MPAs take care to explain why closures are needed, limit their duration to times that make biological sense, and take care that restrictions are no more severe than needed to address recognized problems, marine protected areas can be the focus of broad agreement as well.






Sunday, January 17, 2021



I spend a lot of time writing about fisheries management from a legal perspective—that is, about the Magnuson-Stevens Fishery Conservation and Management Act and its positive impacts on the health of fish stocks, and about how the lack of legally-enforceable mandates at the state and regional level has prevented states, and organizations such as the Atlantic States Marine Fisheries Commission, from emulating federal fisheries managers’ success.

But laws and regulations are only a part of the issue.  The ocean is a dynamic place, where fish populations—and those who seek to manage them—must continually respond to changing oceanographic conditions. 

Some of the changes that fish face are ephemeral, such as the warm-core eddies that break off from the Gulf Stream and bring clear blue water, and the fish that prefer it, into the offshore canyons and up onto the continental shelf, concentrating them until such time as the eddy breaks up or reunites with the Gulf Stream farther down the coast.

Some, while short-lived, can last a little longer.  Cold winters and wet springs appear to boost striped bass spawning success, while warm winters and dry springs can lead to below-average recruitment.  It was hardly surprising that the 2011-2012 winter that wasn’t, which saw high temperatures and little snow throughout the Susquehanna River watershed, led to the lowest Maryland striped bass juvenile abundance index ever recorded, in a time series extending back more than sixty years.

It’s also no surprise that the same winter, which saw unusually warm, salty waters flow across the Northeast’s continental shelf, gave rise to the largest year class of black sea bass ever recorded, because such warm, salty water is directly related to good black sea bass recruitment, which hinges on the number of juvenile fish that survive their first winter at sea.

There are also longer-term, but ultimately transient, oceanographic events such as the North Atlantic Decadal Oscillation, a term which describes periodic and somewhat predictable changes in sea surface temperatures, and can have an impact on fish movements and abundance.

And then there are more permanent changes.  I use the word “permanent” with a little hesitancy, as nothing on Earth is truly permanent—even the Atlantic Ocean itself didn’t exist until somewhere between 170 and 200 million years ago, and geologists are already pointing to signs that, as the continents continue their slow and stately dance across the face of the Earth, it may already be starting to close up and will eventually disappear.  But for purposes of fisheries management, changes that spawn centuries, or even human lifetimes, are permanent enough.

And right now, the biggest such “permanent” change that our fisheries face is climate change.

It already seems to be impacting the health of northeastern fisheries. 

Back in 2013, scientists at the National Oceanic and Atmospheric Administration’s Northeast Fisheries Science Center determined that warming waters—and the Gulf of Maine, off northern New England, is one of the most rapidly warming parts of the entire ocean—have led to a marked reduction in the number of planktonic animals that are available as food for larval cod.

That would have been bad enough if cod stocks were healthy; it is likely that a shortage of the zooplankton that larval cod feed on would have caused a decline in recruitment, and affected the long-term productivity of cod stocks.  Such reduced productivity, in turn, might have forced fisheries managers to reduce annual catch limits and adopt more restrictive measures in order to maintain stock health.

But cod stocks were already badly overfished, which made the situation significantly worse.  NOAA Fisheries issued a press release stating that rising water temperatures “profoundly affected” the zooplankton needed by larval cod and by other fish species, and that the decline in zooplankton thus

“may be influencing the recovery of Atlantic cod and other fish stocks in the region.  [emphasis added]”

It’s important to note that the scientists aren’t blaming warming waters for the cod stocks’ collapse.  Years of unabating overfishing did that.  They’re saying that, with cod stocks already in steep decline, the impacts of climate change on the ocean’s food web, managers are probably going to have a much tougher job ahead of them if they want to rebuild the stock.

Climate change, and its impacts on the food web, is just one more reason why fisheries managers need to take a precautionary approach to managing fish stocks.  If they make a mistake now, the impacts of that mistake will hit the stock harder and be more difficult to correct.

And that’s not only the case in the Northeast.

Recently, a study conducted at East Carolina University, in conjunction with NOAA Fisheries, examined the abundance of larval fish of ten different species in the Beaufort, North Carolina area.  The data used for the study extends back to 1986.  An analysis revealed that larval fish now begin entering the estuaries earlier than they did before, and use the estuary habitat over a longer period of time than they formerly did.  Although water temperatures have only risen a modest amount over the years, larval fish species are entering the estuaries as much as two months earlier.

It’s not completely clear what the implications of that finding may be.  As is the case with cod, the impacts of warming water, and larvae entering the estuaries earlier, may all depend on how the warm water affects the food web.

The early presence of larval predators indicates that predatory fish are spawning earlier; if prey species are also reproducing earlier in the year, there may be no problem.  However, if the predator and prey species have not adapted in the same way, and their spawns are now out of synch, the larval fish in North Carolina may, like the larval cod, have difficulty finding enough food.  In that case, recruitment and, ultimately, adult fish abundance, could decline.

Another problem is that when predatory fish are still in their larval stage, they are prey, too.  They don’t only need food; they also need places to hide, to help prevent them from becoming food for bigger fish.  Much submerged aquatic vegetation where larvae might shelter disappears over the winter, and begins to grow back in the spring.  If such vegetation remains sparse when the larval fish arrive in the estuaries, the larvae might find themselves more vulnerable to predators, and experience significantly higher levels of natural mortality. 

Dr. Rebecca Asch, the professor overseeing the North Carolina study, commented that

“with climate change for most species you’re going to have winners and losers,”

and speculated, in an interview with television station WRAL, that tropical fish that previously only visited North Carolina waters, and were unable to survive there during the winter, might number among the “winners” as winter waters warm, while temperate species might find the same waters becoming too warm for their survival, and number among the “losers.”

Summer flounder, which are becoming less abundant in North Carolina waters, may already be firmly set on a losing track.

The fisheries management approach set out in Magnuson-Stevens is largely focused on managing fishing mortality and rebuilding fish stocks, and not on the impacts of climate change.  However, the discussion draft of a Magnuson-Stevens reauthorization bill, being circulated by Representatives Jared Huffman (D-CA) and Ed Case (D-HI) suggests that such oversight may soon be corrected.

Title I of the discussion draft is named “Climate-Ready Fisheries,” and seeks

“to account for the impacts of environmental changes on stocks of fish.”

It notes that

“Environmental changes associated with climate change, including changes in water temperature, ocean acidification, and deoxygenation, are rapidly altering the abundance, productivity, and distribution of fish and are affecting commercial, recreational, and subsistence fisheries,”

and also that

“The impacts of climate change on fish and their habitats are resulting in management and sustainability challenges that threaten to negatively impact marine ecosystems, fishery resources, and coastal communities.”

If the discussion draft’s language is ever made a part of Magnuson-Stevens, regional fishery management councils, as well as NOAA Fisheries, would be required to give more consideration to the impacts of climate change.  When stock assessments are conducted, they would be required to address the impacts of climate change on the stock’s productivity, and examine the vulnerability of each managed fishery to climate change-related issues.

The discussion draft also includes language intended to promote the development of tools and management approaches that would better allow fisheries to adapt to climate change.  In addition, it would establish a procedural framework that would govern how the regional fishery management councils, as well as NOAA Fisheries, should address the problems created by fish stocks shifting into new waters, and abandoning others, as a result of a changing climate.

Anyone who has spent much time on the water has experienced the impacts of climate change.  Here on Long Island, we’ve enjoyed the recently increased abundance of dolphin (mahi-mahi) and black sea bass in local waters.  But we’ve also lost most of our cod and—especially—winter flounder, cold-water species that were badly overfished, but might have been more readily rebuilt if warming waters didn’t compound their troubles.

Looking at the issue through that local lens, the discussion draft is a most welcome approach, that might, Congress willing, force fisheries managers to fully address, and try to adapt to, the climate change issue.


Thursday, January 14, 2021



Since early in 2014, the federal fishery management system has been under attack by a coalition of recreational fishing industry, boating, and anglers’ rights groups which are trying to convince citizens and legislators alike that the Magnuson-Stevens Fishery Conservation and Management Act, which promotes science-based management, prohibits overfishing, and requires the prompt rebuilding of overfished stocks, places unreasonable burdens on recreational fishermen and the recreational fishing industry.

Instead of scientifically rigorous, data-driven management measures, the coalition, arrayed under the banner of the Center for Sportfishing Policy, would prefer to see anglers managed under the less restrictive measures that characterize recreational fisheries management in most coastal states, which can be driven by local politics and short-term business concerns as much as by science, tolerate overfishing and overfished stocks, and rarely, if ever, hold the recreational sector accountable for its overharvest.

That conservation-averse position was first formally articulated in early 2014, when the Theodore Roosevelt Conservation Partnership, acting in conjunction with the member organizations of the Center for Sportfishing Policy (then, the Center for Coastal Conservation) released a manifesto titled “A Vision for Managing America’s Saltwater Recreational Fisheries” which, among other things, stated that

“Many state natural resource agencies, especially those in the South, recognize the benefits of a vibrant recreational fishing community and have managed to promote it while conserving their saltwater resources.  Striped bass, red drum, black drum, summer flounder, sheepshead, snook, spotted seatrout and tarpon are examples of successfully managed state fisheries that sufficiently meet the needs of recreational anglers while providing extensive economic benefits to their state and the national economies.”

The TRCP report fails to provide any data to support the naked assertion that state conservation measures are adequately conserving the fisheries in question.  That’s not particularly surprising, first because that the so-called “report” was designed from the start to be a persuasive piece of industry propaganda, rather than a document with any vestige of academic integrity, but ultimately because the statement itself was, in large part, untrue.

For example, benchmark stock assessments clearly demonstrated that striped bass were already in a downward spiral that began a few years before the report was released, and state managers’ inaction has now caused the stock to become overfished.  

On the East Coast, the Atlantic States Marine Fisheries Commission admits that it just doesn’t know whether the red drum stock is overfished; while in the Gulf of Mexico, spotted seatrout biomass in both Mississippi and Louisiana had already fallen to overfished levels five years ago.  Mississippi finally took action that might fix the problem, but Louisiana is still allowing its fish to languish; proposals to tighten what are now the most liberal speckled trout regulations in the United States have been made, but so far, state managers have not been willing to act in the face of resistance from anglers, or at least from the angling press.

Those are hardly examples of management success.

Some of the other fish mentioned are doing OK, but we can also add another species to the list of state managers' failures.

That species would be southern flounder.

Southern flounder are having trouble in both the South Atlantic and in the Gulf although, in order to limit the length of this piece, I’ll only address the South Atlantic today.  But on either coast, the problem is the same:  State managers were aware of problems with the stock for some time, but they delayed for far too long before trying to fix them.

That is well illustrated by the State of North Carolina, which completed a stock assessment in 2019 that found that southern flounder, across its North Carolina to Florida range, was both badly overfished and still experiencing overfishing.  The assessment notes that the southern flounder stock began to decline in abundance in 2006, and that recruitment has been in a declining trend over that time as well.  On the other hand, fishing mortality increased beginning in 2007, peaked in 2013, and remained relatively high.  

A combination of declining abundance, coupled with increased fishing mortality, could only bode ill for the stock.

That wasn’t North Carolina’s first hint that something was amiss with southern flounder.  The initial fishery management plan, created by biologists at the state’s Division of Marine Fisheries and adopted in 2005, suggested that overfishing might well have been occurring since 1991, and that a 30% reduction in fishing mortality was needed.  At that time, it was thought that more than 85 percent of North Carolina’s southern flounder landings were attributable to the commercial fishery, and less than 15 percent to anglers, which meant that most of the needed reduction would have to come from the commercial fishery.

However, North Carolina’s Marine Fisheries Commission, which was composed of both scientists and recreational and commercial fishermen, didn’t see things that way, and imposed only a 15 percent reduction on the commercial fishery, while seeking to reduce recreational landings by 30.5 percent.  It’s probably not surprising that such decision, which ran contrary to both facts and logic, didn’t end overfishing.

A 2009 stock assessment indicated that the stock was overfished, and overfishing was occurring.  More restrictions were placed on the recreational fishery, but not on the commercial fishery that accounted for most of the landings.  Again, such half-measures were inadequate to end the stock’s problems.

In 2014, North Carolina tried to place more restrictions on the commerfcial fishery, but the commercial fishermen sued, and a judge enjoined the new rules because the stock assessment that they were based on was ultimately deemed to be inadequate for management purposes.

Finally, after completing the 2019 stock assessment, North Carolina realized that very severe restrictions were needed.  As described by the North Carolina Wildlife Federation,

“The spawning stock biomass of southern flounder estimated by the peer-reviewed stock assessment for 2017 was now just 2.3 million pounds while the spawning stock biomass required to achieve the statutory requirement to declare the southern flounder recovered was 12 million pounds within 10 years (by 2028).

“To achieve this goal, the peer-reviewed stock assessment stated that harvest had to be reduced by 72%.  Despite this clear statement in the stock assessment, the [Department of Marine Fisheries]…and the [Marine Fisheries Commission]…only required a 62% reduction in harvest for 2019, further delaying the necessary 72% reduction until 2020…[The] reduction achieved in 2019 was only was only 34%.

“Despite awareness of the 2019 harvest reduction shortfall in 2020, no effort was made…to adjust the 2020 harvest reductions to get back on track.  The 2020 commercial seasons opened during the peak harvest season…therefore the likelihood of achieving the needed 72% reduction in the 2020 harvest is slim.  Importantly, even if a 72% reduction is achieved in 2020, the overharvest in 2019 compromises the overall rebuilding projections.”

That sort of less-than-effective management approach couldn’t happen pursuant to Magnuson-Stevens, which requires fisheries managers to prevent overfishing and adopt regulations that have at least a 50 percent probability of achieving that goal.  And if a sector does overfish, as occurred in North Carolina in 2019, that sector would be held accountable, and probably required to make pound-for-pound paybacks in the following year.

But none of that was required under North Carolina law, so a less effective management approach could be maintained.

It’s easy to understand why state fishery managers aren’t as effective as those operating onh the federal level—their departments report directly to each state’s governor, and so are more vulnerable to the prevailing political winds.  In North Carolina, a lot of those winds are being generated by the commercial fishing sector, which opposed the southern flounder rebuilding program.

As so often happens, they began by attacking the data underlying the stock assessment, despite the long decline in their own southern flounder landings.  One stated that

“If you do simple math, the stock is good, according to my math, and my fifty years on the water.”

A second argued that

“There are plenty of fish in Currituck [Sound].  I fished for twenty-eight days this year and it was as good as ever,”

while a third whined that

“This is the biggest joke: the Marine Fisheries Commission is ultimately going to decide what happens to us?  They have never given a crap about us.”

That sort of language makes it difficult for state fisheries managers to put needed regulations in place, no matter how much they might want to do the right thing, because they’re not the only ones who hear it.  Politicians hear it, too.  And while managers might be adept at counting fish, politicians are even better at counting votes, and aren’t afraid to let managers know when the people who vote are unhappy.

And it doesn’t just happen in North Carolina; state managers are under the same pressures everywhere.  In some cases, they aren’t even empowered to adopt the needed management measures themselves; in South Carolina, for example, changes to fisheries management measures—including those related to southern flounder—are made by the state legislature, and not by state biologists. 

So decisions on flounder management in South Carolina will be based primarily on political, and not scientific, considerations, and political issues tend to take a long time to resolve.  While North Carolina’s response to the latest stock assessment might have been somewhat flawed, at least the state took quick action; South Carolina’s professional fishery managers won’t be able to seek legislative approval of their proposed measures until later this year, giving the stock even more time to decline before action is taken.

Even in states where legislation is not needed to adopt management measures, states often act slowly.  Florida, for example, decided to adopt more restrictive southern flounder regulations just one month ago, even though the state has been aware of the depth of the flounder’s troubles since 2019.

But the organizations who are trying to undercut federal fisheries managers, and praise state approaches, don’t view delay as a bad thing.  In fact, when it comes to rebuilding fisheries, they actually favor a dilatory approach.  The TRCP report argued that

“the 10-year rebuilding provisions [in Magnuson-Stevens] should be revised to provide greater flexibility than is currently allowed,”

and that

“the regional councils and fishery managers set lower harvest rates that would allow fish stocks to recover gradually [rather than within 10 years] while diminishing socioeconomic impacts.”

While drawn-out rebuilding timelines might add uncertainty to the rebuilding process, and perhaps harm fish stocks in the long term, they also preserve higher short-term economic returns, which are important to industry members, who tend to favor them.

To best promote such narrow interests, trade associations—whether representing the commercial or the recreational industry—and anglers’ rights groups typically prefer to see regulations set at the state, rather than the federal level, because it’s far easier to amass the political clout needed to weaken, delay, or completely defeat harvest restrictions at the state level than it is to frustrate federal management efforts.

Because of such political realities, state-managed fisheries often find themselves in much worse shape than to those managed at the federal level.

That’s what happened with striped bass and spotted seatrout, and it’s what happened with southern flounder, too.

Rebuilding the southern flounder stock will be neither a short nor a simple job.  The job would have been far easier if state managers had started it sooner, as they would have had to do if they were bound by the same standards that bind federal managers, which require them to promptly end overfishing and rebuild overfished stocks.

But the states weren’t under such mandates when the problems first arose (and only North Carolina is now), so they are going to have to work that much harder to make up for their delay.  

To their credit, they’re now headed in the right direction, but they still have a lot of catching up to do. 



Sunday, January 10, 2021



The relationship between the Mid-Atlantic Fishery Management Council (Council) and overfishing goes back a long way. In 1999, the Council adopted a summer flounder quota that had just an 18 percent probability of preventing overfishing, an action that led to the landmark court decision in Natural Resources Defense Council v. Daley, which established the principal that, to pass legal muster, a fishery management measure must have at least a 50 percent probability of achieving its conservation goals.


Immediately after the court handed down that decision, the Council divorced itself from any management measure that might condone overfishing, and spent nearly two decades successfully rebuilding and conserving once-overfished stocks. At one point in the early 2010s, it was the only one of the eight regional fishery management councils that had completely ended overfishing, and didn’t preside over any overfished stocks.

Yet, overfishing remained seductive. The Atlantic States Marine Fisheries Commission, which manages some fish stocks in conjunction with the Council, has long been under its spell, and many recreational and commercial fishermen have also fallen for its charms. All have been willing to ignore the long-term consequences that inevitably flow from a few reckless years of excess. Only the Council, chaperoned by the marine conservation community and scrutinized by the courts, resisted overfishing’s blandishments in recent decades.

And yet, the Council was never free from overfishing’s temptations. And when temptation hovers charmingly within reach, it’s hard not to give in.

Thus, the Council dallies with a “control rule” approach to recreational fisheries management, which would set management measures for overfished stocks at “the most restrictive measures which could be tolerated without major loss of businesses such as bait and tackle shops and party/charter businesses,” without regard to whether such measures would permit overfishing or prevent the rebuilding of overfished stocks.


Council staff has acknowledged that key aspects of the proposed control rule approach are “not feasible,” given the standards for conservation and management imposed by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens). Staff also admits that the remaining aspects of the proposal “are conceptual…and have not been fully developed or analyzed.” Yet many Council members remain infatuated with the idea, and have refused to leave it behind.


But the Council’s faithfulness to the principles of Magnuson-Stevens was far more sorely tested when it set recreational harvest limits for the 2020 and 2021 seasons; its first serious fling with possible overfishing occurred at its December 2019 meeting, when it addressed recreational management measures for black sea bass.

At that meeting, Council members were confronted by a 2019 operational stock assessment (operational assessment) which, based on updated recreational catch, landings, and effort data, revealed that recreational landings were much higher than previously believed. It also revealed that the black sea bass spawning stock biomass was considerably larger than managers had realized, which would allow managers to substantially increase the recreational harvest limit (RHL). But the increased RHL was not large enough to completely offset the revised recreational landings estimates.


After evaluating all of the new information, Council staff recommended that the Council, along with the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup and Black Sea Bass Management Board (Sea Bass Board), adopt regulations that would reduce recreational landings by 20%, in order to keep such landings at or below the 2020 RHL.

The Council’s Summer Flounder, Scup and Black Sea Bass Monitoring Committee (Sea Bass Monitoring Committee) disagreed. It recommended that 2019 regulations carry over, unchanged, into the 2020 season, even though doing so would probably cause anglers to exceed the RHL by 26 percent and the recreational annual catch limit (ACL) by 23 percent. Maintaining status quo regulations in 2020 was also likely to cause the combined recreational and commercial landings to exceed the acceptable biological catch (ABC), set by the Council’s Scientific and Statistical Committee (SSC), by 12 percent.


However, such combined landings were expected to fall about 13 percent below the overfishing limit (OFL), so no overfishing was expected to occur.

Still, avoiding overfishing was far from guaranteed. Scientists can easily adopt an OFL that is too high and allows overfishing to occur, simply because they don’t understand every factor that might affect the health of a fish stock. Such incomplete understanding is deemed “scientific uncertainty,” and is addressed in guidelines published by the National Marine Fisheries Service (NMFS), which state that “Acceptable biological catch (ABC) is a level of a stock or stock complex’s annual catch, which is based on an ABC control rule that accounts for the scientific uncertainty in the estimate of OFL, any other scientific uncertainty, and the Council’s risk policy.”


ABCs are an important part of the management process. If no ABC was established, and the ACL was set at or near the OFL, there would be a real risk that overfishing would occur, simply because managers didn’t account for the scientific uncertainty that exists even in the most-studied fisheries. Thus, Magnuson-Stevens prohibits a regional fishery management council from setting an ACL that would “exceed the fishing level recommendations of its scientific and statistical committee,” a mandate echoed in the NMFS’ guidelines, which provide that “Annual catch limit (ACL) is a limit on the total annual catch of a stock or stock complex, which cannot exceed the ABC…”


Yet, despite the risk that overfishing might occur, and the seeming prohibition, in both Magnuson-Stevens and NMFS’ published guidelines, on maintaining an ACL that exceeds the ABC, both the Council and Sea Bass Board approved status quo black sea bass regulations for 2020.


Then, early in 2020, the COVID-19 pandemic struck the United States. As part of the effort to control the virus, NMFS suspended the Northeast Fisheries Science Center trawl surveys, which are used to determine the health of fish stocks. Complimentary state surveys, which sample fish in inshore waters, were also suspended or postponed. Scientific uncertainty increased as a result.


At the same time, state restrictions led to a temporary suspension of the angler intercepts that form the basis of recreational catch and landings estimates. As noted in a 2020 Sea Bass Monitoring Committee report,


due to a lapse in angler intercept sampling due to Covid-19 restrictions, 2020 catch estimates from the Marine Recreational Information Program (MRIP) will not be available prior to the end of 2020…there are significant gaps in intercept data this year…Intercept sampling resumed at different points in the year for different states, but not all to the same level…current conditions have led to some changes in coverage and information gathered. One notable trend is that interviewers are getting fewer length and weight measurements during interviews due to the reluctance of interviewers and anglers to closely interact. Interviewers in some states are being given more discretion in sampling protocols to ensure their safety, which could ultimately create some bias in the data. In addition, at sea sampling for headboats has essentially been suspended everywhere for safety reasons.

Those changes caused another sort of uncertainty—management uncertainty—to rise to unprecedented levels. According to the NMFS guidelines, “Management uncertainty refers to uncertainty in the ability of managers to constrain catch so that the ACL is not exceeded, and the uncertainty in quantifying the true catch amounts (i.e., estimation errors). The sources of management uncertainty could include: Late catch reporting; misreporting; underreporting of catches; lack of sufficient inseason management, including season closure authority; or other factors.”

The guidelines also suggest how regional fishery management councils should address management uncertainty. “[Annual catch targets], or the functional equivalent, are recommended in the system of [accountability measures] so that ACL is not exceeded. An [annual catch target] is an annual amount of catch of a stock or stock complex that is the management target of the fishery, and accounts for management uncertainty in controlling the catch at or below the ACL.”

The guidelines further advise that “If an Annual Catch Target (ACT), or a functional equivalent, is not used, management uncertainty should be accounted for in the ACL.”

The Council lacked reliable recreational catch and landings data for 2020, and so couldn’t know whether existing regulations had kept recreational landings below the RHL, or whether overfishing might have occurred in one or more stocks. Yet the Council failed to account for such management uncertainty in any recreational fishery.

It set no annual catch targets that might buffer against management uncertainty’s effects. Instead, it maintained status quo.


That might work out for summer flounder. The RHL was scheduled to increase in 2021, so maintaining status quo rules provided a buffer of sorts. It might also work out for scup, as commercial landings typically fall well below quota and offset recreational overages.

But by maintaining status quo management measures for black sea bass and bluefish, the Council may have opened the door to overfishing one or both stocks.


The operational assessment projected that, in 2020, the black sea bass spawning stock biomass would be 22,699 metric tons; it also projected that such spawning stock biomass would fall to 20,379 metric tons in 2021–about a 10 percent decline. If the Sea Bass Monitoring Committee determined that, in 2020, overall landings would fall just 13 percent below the OFL, might status quo management measures cause landings to exceed the OFL in 2021, when the spawning stock biomass was 10 percent smaller?


The Sea Bass Monitoring Committee chose not to say.

But status quo regulations would leave no margin for error, despite the acknowledged scientific uncertainty, and the far greater, but unacknowledged, management uncertainty regarding the stock.


Emerson Hasbrouk, a Sea Bass Board member from New York, expressed concern about overfishing in 2021, particularly if commercial fishermen land their full quota, something that, because of COVID-19, did not occur in 2020. He admitted that he was “really concerned about where we’re headed here.”

Another Sea Bass Board member, Eric Reid of Rhode Island, was more vehement, saying, “To look the other way because we have no data…four or five years of [anglers] going over [the RHL], saying this is temporary…that isn’t right.”

But no one on the Council seemed too concerned. Not a single Council member voted against the status quo.


The Sea Bass Monitoring Committee justified its status quo recommendation by saying, in part, that the “Council/[Sea Bass] Board wished to avoid further restricting [recreational] fishery during [MRIP] transition period considering biomass is so high.” The same argument could not be made for status quo bluefish management, as bluefish were already overfished.

The problem with bluefish management, as with black sea bass, dates back to 2019, when the Council and the Atlantic States Marine Fisheries Commission’s Bluefish Management Board (Bluefish Board) rejected the Bluefish Monitoring Committee’s recommendation to base projected 2019 landings (and so 2020 regulations) on an average of landings in the three previous years.


Using such three-year average would have resulted in a 2020 bluefish RHL of 3.62 million pounds, a stark drop from 2019’s 11.62 million pound RHL, and would have led to very restrictive recreational management measures. To avoid such result, both the Council and the Bluefish Board voted to base 2020 regulations just on the 2018 landings, which were the lowest in a time series that dated back to 1985. That allowed them to set a 2020 RHL of 9.48 million pounds, and adopt far less restrictive management measures than they would have adopted otherwise.

2019 recreational bluefish landings ended up to be about 2.3 million pounds, or about 17 percent, higher than they were in 2018, meaning that 2020 management measures, based on an unrealistically low projection of 2019 landings, probably caused anglers to exceed the RHL, perhaps by a significant amount.


Because there is no landings data, no one knows for sure; management uncertainty has completely obscured the path forward.

In the face of such uncertainty, and despite the fact that the bluefish stock was overfished, the Council’s Bluefish Monitoring Committee still recommended status quo rules for 2021. But, perhaps harboring doubts about that recommendation, it also noted that

To project recreational landings, the [Monitoring Committee] typically uses the most recent 3-year average of landings. The 2017-2019 average landings (20.30 M lbs.) with the same 28.56% reduction that was projected to be achieved under the 2020 management measures yields a 2021 landings projection of 14.50 M lbs. This landings projection methodology indicates a potential 73.86% overage of the 2021 RHL of 8.34 M lbs…these analyses indicate a potential range of 2021 landings projection estimates that should be reviewed by the Council and Board. [emphasis added]


But neither the Council nor the Bluefish Board chose to review or debate the landings projections. Instead, without any meaningful discussion, both bodies voted, by overwhelming margins, to adhere to the status quo.


Magnuson-Stevens includes 10 National Standards for Fishery Conservation and Management. First among those is the requirement that “Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. [emphasis added]”


Yet, before casting their votes, not a single Council member asked whether status quo rules, whether for black sea bass or bluefish, met that basic legal requirement.


Somebody ought to start asking such questions soon. Unless they do, the Council’s recent flirtation with overfishing could bloom into a full-fledged affair.


This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at