EFPS IN THE GULF

Last Tuesday, Commerce Secretary Wilbur Ross announced that the five states bordering the Gulf of Mexico—Florida, Alabama, Mississippi, Louisiana and Texas—were granted Exempted Fishing Permits fishery, in both state and federal waters, throughout2018 and 2019.

Pursuant to such EFPs, each state will be allowed to set its own red snapper season, which will apply in the waters of such state and to private boats fishing in the federal waters of the Gulf of Mexico, provided that such boats are licensed or otherwise authorized to land their fish in the relevant jurisdiction.  Each state will have to abide by the federal 2-fish bag limit and 16-inch minimum size, and each state will be required to shut down their private boat fishery when anglers land such state’s share of the overall annual catch limit.

Federally-licensed for-hire vessels will not be impacted by the EFPs, and for-hire vessels without a federal license will not be allowed to fish outside of state waters.

On its face, the EFP program looks as if it may offer a step forward in recreational red snapper management; allowing anglers in various states the opportunity to tailor their fishing seasons to meet the needs of the local red snapper fishery, without putting the recovery of the red snapper stock at additional risk.

If that actually happened, it would be a good thing.  However, there are aspects of the EFP program that are worthy of a bit more examination and comment.

The first is the inevitable and misleading spin put on the announcement by those who seek to undermine the federal fishery management system.  A release issued by the Center for Sportfishing Policy, an association of industry and anglers’ rights organizations, is typical:

“…Recreational anglers and industry stakeholders are applauding this decision by NOAA Fisheries within the U.S. Department of Commerce and anticipate the Gulf states will finally be able to prove their effectiveness in managing red snapper off their coasts…

“Under the jurisdiction of the Gulf of Mexico Fishery Management Council and NOAA Fisheries, the Gulf red snapper has become the epitome of difficulty in managing recreational anglers under today’s federal fisheries management system…”

Let’s stop and think about those statements for a minute.

The Center of Sportfishing Policy has a long history of favoring the laxer, less data-driven approaches that characterize state fisheries management programs, which often allow anglers to overfish and fail to rebuild overfished stocks, to the science-driven federal fishery management system, which often imposes more restrictive regulations in order to assure the long-term health of fish populations.  Thus, it is attempting to use the recent approval of Gulf EFPs to promote its regulatory worldview, arguing that the newly issued permits will demonstrate the superiority of the states’ management systems.

But such spin conveniently ignores the fact that all the states are doing is setting the fishing seasons, and attempting to monitor landings.

Federal managers still establish the annual catch limit, at a level intended to prevent overfishing, while allowing the stock to rebuild.

Federal managers still set the bag and size limits.

And, most important of all, federal managers approved the EFPs, which allow the states to set red snapper seasons in federal waters.

Far from proving “the Gulf states…effectiveness in managing red snapper,” what the EFPs really demonstrate is the flexibility and adaptability inherent in the current federal fishery management system, which allows federal managers to work with the states to achieve a desired result, so long as that result doesn’t impair the sustainability of the resource in question.   

That's because the current language of the Magnuson-Stevens Fishery Conservation and Management Act, which governs all fishing in federal waters, allows the sort of adaptive management approach represented by the EFPs.

The only thing Magnuson-Stevens doesn’t allow is overfishing, and leaving overfished stocks to languish instead of recover.

In fact, for those of us who fish on the Mid-Atlantic coast, the sort of federal/state collaboration represented by the Gulf EFPs is nothing new.  Since 2001, states participating in the recreational summer flounder fishery have been able to set not only their own seasons, but their size and bag limits, too, so long as their final set of regulations are restrictive enough to prevent overfishing.

So when we see folks down in the Gulf celebrating the approval of EFPs, which permit an even more modest application of that approach, our first thought is likely to be “What took you so long?” perhaps followed by the admonition that “This just shows what you can do if you try to work within the federal system, instead of spending most of your time trying to subvert it instead.”

It’s pretty clear from the Center for Sportfishing Policy’s statement that the full implications of the EFPs’ approval haven’t yet set in, for on one hand the Center is praising federal managers—“applauding this decision by NOAA Fisheries”—while in the same press release complaining that “Under the jurisdiction of…NOAA Fisheries, the Gulf red snapper has become the epitome of difficulty in managing recreational anglers…” 

Thus, the Center is effectively thanking NOAA Fisheries, operating under today’s federal fishery management system, for helping them secure a victory, in the form of the EFPs, against NOAA Fisheries and today’s federal fishery management system.

No, it doesn’t make very much sense.  But this is, after all, the Center.  And this is not the first time…

For example, up until now, the Center and its component organizations haven’t much liked EFPs.  When Louisiana proposed an EFP last summer to examine new ways that the state could manage red snapper, two of its founding members, the American Sportfishing Association and the Coastal Conservation Association, quickly and aggressively condemned it, as it did not accord with their vision for the Gulf red snapper fishery.

Moreover, the initial text of S. 1520, a bill very strongly endorsed by the Center, would have made timely issuance of the Gulf EFPs nearly impossible.  Although the bill’s language was significantly modified during a committee markup earlier this year, the original, Center-endorsed text would have required that before any EFP could be issued,

“…the Secretary of Commerce shall—

(1) direct a joint peer review of the application for the exempted fishing permit by the appropriate regional fisheries science center and State marine fisheries commission; and

(2) certify that the Council or Federal agency with jurisdiction over the affected fishery has determined that—

(A) the fishery activity to be conducted under the proposed exempted fishery permit would not negatively impact any management measures or conservation objectives included within existing fishery management plans or plan amendments;

(B) the social and economic impacts in both dollar amounts and loss of fishing opportunities on all participants in each sector of the fishery expected to occur as a result of the proposed exempted fishing permit would be minimal;

(C) the information that would be collected through the fishing activity to be conducted under the proposed exempted fishing permit will have a positive and direct impact on the conservation, assessment, or management of the fishery; and

(D) the Governor of each coastal State potentially impacted by the proposed exempted fishing permit, as determined by the Secretary, has been consulted on the fishing activity to be conducted.”

Looking at that list, it’s not at all clear that the Gulf red snapper EFPs would have been issued had such a law been in effect.  And even if a joint peer review, and the other data necessary for NOAA Fisheries to provide the required certifications, had been brought together in time, additional language in the bill would have caused the EFPs to lapse after only one year; for them to apply to the 2019 season as well, NOAA Fisheries would have been required to jump through all the same hoops in order to have them renewed for another season.

It’s always dangerous to presume to speak for someone else, but I somehow doubt that the Center, would have been very happy with that.  

Once again, they seem to be confused about their intentions, supporting the Gulf EFPs on one hand, but trying to thwart EFPs in the more general context of S. 1520. 

But again, it’s not the first time that sort of thing has happened…

Now that the EFPs are in place, the only question remaining is whether they will work.  The biggest obstacle that the states have to overcome will be estimating recreational landings quickly enough, and accurately enough, to avoid overfishing the red snapper stock.

Louisiana and Mississippi seem well-positioned to accomplish that task.  Louisiana’s LA Creel program, which has been certified by NOAA Fisheries, is an example of how good a landings estimates program can be, if decisionmakers are willing to devote enough time and money into designing something that really works.  Mississippi’s “Tales n’ Scales” catch reporting program also appears to be rigorous enough to give good recreational landings estimates in something close to real time.

Elsewhere, there is less reason to be confident of the states’ ability to produce accurate, timely estimates of anglers’ red snapper harvest.

Alabama requires all anglers to report their red snapper fishing activities through the state’s Snapper Check Program.  Unfortunately, angler compliance with such supposedly mandatory reporting system is disappointingly low.  State officials believe that the compliance rate never got much above 30%, and such rate fell as low as just 7% during the 2017 state red snapper season.  Such a low level of compliance places Snapper Check’s reliability into real doubt; the state program consistently provides lower estimates of recreational red snapper harvest than does the federal Marine Recreational Information Program, but whether those low numbers are due to a more accurate state survey or mere underreporting remains an open question.

Florida has eschewed mandatory reporting completely, and instead asks anglers to voluntarily submit red snapper catch cards.  

Although the state hopes that such program will provide the needed information, there is no reason to believe that any voluntary reporting system will see angler participation exceed the low numbers experienced in Alabama’s supposedly mandatory program.  Thus, the likelihood of Florida being able to assess recreational landings in time to avoid overfishing is probably dismal.

Texas will also rely on voluntary reporting, through the so-called “iSnapper” smartphone application.  

However, while Florida at least participates in the federal Marine Recreational Information Program, and will have that program’s estimates available to retrospectively backstop any shortcomings in its red snapper catch cards (MRIP estimates would not be prepared in time to allow an early closure of Florida’s proposed 40-day season, even if overfishing did occur), Texas lacks even that, as it is not an MRIP participant.

As noted by the National Academy of Sciences in their 2017 review of the MRIP process,

“…the Texas Marine Sport Harvest Monitoring Program…year runs in two 6-month seasons from May 15 to May 14, and estimates are also produced for each of the two 6-month periods.  Annual estimates are available 6 months after year end.

“The…survey began 5 years before the MRFSS [survey which MRIP was designed to replace] and was never integrated into the MRFSS/MRIP survey framework…

“A full review of the Texas Marine Sport Harvest Monitoring Program is beyond the scope of this report.  However, based on a presentation to the committee and on discussions with regional partners and stakeholders it is questionable whether the results produced by Texas are comparable to those of MRIP.  At the very least, it is highly advisable that the Texas survey should be reviewed by an independent panel so that its applicability to regional fisheries assessment and management can be objectively assessed.”

In other words, the Texas program is older than even the oft-reviled MRFSS, does not produce timely estimates and is of dubious accuracy.  While Florida is unlikely to estimate red snapper landings promptly enough to avoid overfishing, the possibility of Texas accomplishing that task is far, far worse—although its obsolete methodology may miss so many red snapper landings that overfishing is never detected.

Thus, it is far from certain that the EFPs will achieve their supposed goals of allowing a longer recreational red snapper season while, at the same time, constraining anglers’ actual harvest to or below their annual catch limit.

But even if the EFPs fall short of such goals, the program will not be a failure.  The very purpose of EFPs is to try out new things, to see what does and what doesn’t work.  

Should the Gulf EFPs not work out, managers—and hopefully stakeholders--will realize that they represent a dead end, and that red snapper management needs to take a different route.

And that, in itself, would be progress.