“The best laid schemes o’ mice an’ men
Gang aft a-gley”
It’s a sentiment that applies to many things, certainly including the concept of “conservation
equivalency,” as adopted and applied by the Atlantic States Marine Fisheries
Commission.
Conservation equivalency, as initially conceived by the
ASMFC, seems like a perfectly sensible and very practical idea. As
noted in the Commission publication Conservation Equivalency: Policy and Technical Guidance Document,
“Conservation equivalency allows states/jurisdictions (hereafter
states) flexibility to develop alternative regulations that address specific
state or regional differences while still achieving the goals and objectives of
Interstate Fishery Management Plans (FMPs).
Allowing states to tailor their management programs in this way avoids
the difficult task of developing one-size-fits-all management measures while
still achieving equivalent conservation benefits to the resource.”
Stated that way, it
hardly sounds problematic; an additional description from the ASMFC’s Interstate
Fisheries Management Program Charter, which is quoted in the Technical Guidance
Document, sounds equally benign when it describes conservation equivalency as
“Actions taken by a state which differ from the specific
requirements of the FMP, but which achieve the same quantified level of
conservation for the resource under management.
One example can be, various combinations of size limits, gear
restrictions, and season length can be demonstrated to achieve the same
targeted level of fishing mortality.”
Unfortunately, what sounds good on paper doesn’t always work
out in the real world. The ASMFC
probably had nothing but good intentions when it adopted its conservation
equivalency policy, but as
a French churchman noted back in the Middle Ages,
“L’enfer est plein de bonnes volantes ou desirs,”
which translates to
“Hell is full of good intentions and wishes,”
an observation that is probably the origin of the old English proverb
“The road to Hell is paved with good intentions,”
which pretty much says it all.
Because in practice, conservation equivalency hasn’t worked
out very well.
If you read the Technical Guidance Document, you’ll
learn that
“During the development of a management document the Plan
Development Team (PDT) should recommend if conservation equivalency
should be permitted for that species.
The [relevant species management] board should provide a specific
determination if conservation equivalency is an approved option for the fishery
management plan, since conservation equivalency may not be appropriate or
necessary for all management programs.
The PDT should consider stock status, stock structure,
data availability, range of the species, socio-economic information, and the
potential for more conservative management when stocks are overfished or
overfishing is occurring when making a recommendation on conservation
equivalency. During the approval
of a management document the Board will make the final decision on the approval
of conservation equivalency. [emphasis
added]”
Once again, it all sounds good. But as so often happens at the ASMFC, the
sensible provisions of the Commission’s guiding documents somehow get lost among
the realities of putting together a management plan.
In the real world, there is little discussion as to whether
conservation equivalency is appropriate to a particular management plan;
instead, the various management boards merely assume that conservation
equivalency will be incorporated into any management plan that they adopt. And the states take it a step further, often trying to put together allegedly “conservation equivalent” management proposals that
work well on paper, but are designed to maintain fish landings at the highest possible
level while pushing the conservation burden onto the shoulders of other states.
For an example of why conservation equivalency doesn’t
work, and how it has contributed to the
ASMFC’s dismal record of failure to rebuild and successfully maintain any
stock under its sole jurisdiction, it’s only necessary to turn to striped
bass, a fishery that once stood as the Commissions sole success, and now arguably
represents its greatest example of failure.
Striped bass are overfished and subject to overfishing. The
ASMFC’s Atlantic Striped Bass Management Board met last August, to decide
whether to send the draft Addendum VI to Amendment 6 to the Interstate
Fishery Management Plan for Atlantic Striped Bass, which was intended to
end overfishing and put the stock on a slow road to recovery, out for public
comment.
“The use of management program equivalency (hereafter
referred to as ‘conservation equivalency’) is an integral component of the
Commission’s Interstate Fishery Management Program, particularly for Atlantic
striped bass…”
Except for the specific striped bass reference, such
language was lifted directly out of the Technical Guidance Document, as was
subsequent wording about conservation equivalency allowing the states
flexibility, etc. The draft Addendum VI
went on to say
“Under Amendment 6 to the Striped Bass FMP, a state may
submit a proposal for a change to its regulatory program for any mandatory
compliance measure. It is the
responsibility of the state to demonstrate the proposed management program is
equivalent to the measures selected through this addendum. All conservation equivalency programs are
subject to [Technical Committee] review and Board approval.”
Although states were advised to review the Technical
Guidance Document before submitting their conservation equivalency proposals,
there was no discussion of some of the Guidance Document’s most important
language—whether conservation equivalency was even appropriate for the striped
bass fishery, given its current condition.
Using some of the criteria included in the Technical
Guidance document, it’s not hard to argue that the striped bass stock, being
overfished and subject to overfishing, might well have benefitted from more
conservative management, and not the more liberal landings limits that
conservation equivalency typically allows.
As a coastal migratory stock, it might also benefit from
consistent coastwide regulations. That’s
particularly true in hindsight, for after the Management Board voted to adopt a
slot limit, coastal consistency became even more important. The primary virtue of a slot limit is that it
protects the older, larger, most fecund female fish, and if a state’s
conservation equivalency program allows those fish to be caught, the value of
the slot limit is substantially diminished.
But, although the draft Addendum VI contained default
provisions that would allow the public to comment on status quo measures, which
would have allowed overfishing to continue unabated, it offered the public no
chance to comment on whether conservation equivalency should continue in the
fishery, or whether consistent coastwide regulations would better serve the
striped bass at this time. It merely
assumed that conservation equivalency would be allowed.
That seems to be a very different course from what the Policy
and Technical Guidance Document calls for.
At the Management Board's August meeting, Dennis Abbot, the Legislative Proxy for New Hampshire, tried
to address the situation, moving to put an option in
the draft Addendum VI that would prohibit the use of conservation equivalency
so long as the striped bass stock was overfished and overfishing was
occurring. Capt. John McMurray,
Legislative Proxy from New York, seconded the motion.
In support of that motion, Mr. Abbot said
“Many anglers through the years have expressed to me and
others their strong displeasure with varying regulations.
“Its disparity is generally due to the generous application
of conservation equivalency. I may be
wrong, but I don’t know of any conservation equivalency application that isn’t
really intended to increase mortality of striped bass. In my many years in the State Legislature, I
always held the belief that when one is advantaged someone else is going to be
disadvantaged.
“We're here today in part because some of us have been
advantaged, and we’re all here to pay the piper. I think the public should be given an
opportunity to make their voices heard…”
Soon after, he noted that
“We haven’t even approved [Addendum VI], and I’m sure that
states are figuring out how they’re going to manipulate the Addendum for their own
benefit, as we generally do…
“We really need to tighten up on how we do that.”
Mr. Abbot had just suggested that the Management Board
consider making burgers out of a sacred cow, and a number of other Management
Board members were quick to defend their long-worshipped bovine.
Not surprisingly, Tom Fote, Governor’s Representative from
New Jersey, led the assault. New Jersey
has a long history of manipulating conservation equivalency proposals, to become what Mr. Abbot referred to as an “advantaged” state, and Mr. Fote clearly
had no intention of changing that now.
And he was not alone. Although a
number of other speakers agreed that the ASMFC’s use of conservation
equivalency needs to be reconsidered, in the end the motion failed by a vote of
2 to 12.
But just two months later, Mr. Abbot’s August words proved
prophetic.
By October 30, all of the public comment on Addendum VI had
been made and summarized, and it was time for the Management Board to take
final action. An initial motion, to
require both the commercial and recreational sectors to reduce fishing
mortality by 18 percent, passed fairly easily, after a short discussion.
At that point, it was time to discuss specific management
measures—whether the coastal recreational size limit should be fixed at 35
inches, or whether a slot limit of some sort should be adopted in its
stead.
But
that discussion was quickly interrupted by Adam Nowalsky, Legislative Proxy for
New Jersey, who didn’t want to address specific management measures until the
issue of conservation equivalency was first settled. It was pretty clear that whatever management
measures the Board ultimately decided to adopt, Nowalsky, and the
rest of the New Jersey delegation, intended to reject them in favor of
conservation-equivalent measures that, in Mr. Abbot’s words of two months
before, were “really intended to increase the mortality of striped bass” in the State of New Jersey.
Although most of the other Management Board members wanted
to focus on management measures, Nowalsky was adamant that conservation
equivalency had to be dealt with first. In
the end, he actually went so far as move that the discussion on management
measures be tabled, so that he could focus on conservation equivalency, and so helpt ot assure that New Jersey would be
able to find a way to kill some extra bass.
That motion was ultimately
defeated by the Board, but such defeat was only temporary. After a motion
to adopt a 28 to 35-inch slot limit was made, Nowalsky rose again, to amend such motion to include a conservation equivalency provision that allowed states
to adopt alternative management measures, so long as they achieved an 18 percent
reduction in fishing mortality.
Nowalsky—and New Jersey—won that round after the Management Board approved the amendment. But the striped bass lost, for as soon as the conservation equivalency
amendment passed, the probability of achieving the 18 percent coastwide
reduction needed to reduce fishing mortality to a sustainable level was substantially reduced, and Addendum VI, which initially had a
decent chance of succeeding, was likely doomed to fail.
That’s because the 28 to 35-inch slot limit didn’t impact
every state in the same way. Some would
experience mortality reductions greater than 18 percent; some, because of the
nature of their fisheries, would experience a lesser cut.
New Jersey might have been facing the biggest harvest reduction
of all, perhaps more than 40 percent. And,
based
on 2017 landings, New Jersey contributes more to recreational fishing mortality
than any other state. So when New
Jersey managed to limit its fishing mortality reduction to just 18 percent, instead
of 40 percent or more, it threw a very big monkey wrench into Amendment VI’s
chances of success.
Some members of the Management Board clearly understood the
risk of what New Jersey was doing. Jason
McNamee, a fishery manager from Rhode Island, had the guts to observe that
“You’re either in our you’re out…Conservation equivalency can’t
work like this, because we’re not going to achieve our goals.”
But no one was willing to ask the key question, and get a
Technical Committee representative to opine on how Nowalsky’s conservation equivalency
motion would impact Addendum VI’s chances for success. Everyone probably knew the answer, but apparently no one wanted to be responsible for that answer appearing on the record.
Because they knew that by accepting an across-the-board 18
percent standard for conservation equivalency, the Management Board was
essentially sabotaging Addendum VI's chances for success.
And it gets even worse.
The Technical Guidance Document clearly states that
“If conservation equivalency is determined to be appropriate,
the conservation equivalency process should be clearly defined and
specific guidance should be supplied in the fishery management documents. Each of the new fishery management plans,
amendments, or addenda should include the details of the conservation equivalency
program. The guidance should include, at
a minimum, a list of management measures that can be modified through
conservation equivalency, evaluation criteria, review process, and monitoring
requirements…
“The management programs should place a limit on the
length of time that a conservation equivalency program can remain in place
without re-approval by the Board…Approval of a conservation equivalency program
may be terminated if a state is not completing the necessary monitoring to
evaluate the effects of the program.
[emphasis added]”
Yet Addendum VI fails to meet those requirements. Although the final Addendum
VI to Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped
Bass does make reference to a
memo that outlines the criteria to be used in evaluating conservation equivalency
proposals, such memo does not fulfil the minimum requirements specified in
the Technical Guidance Document, as it does not list the management measures
that can be modified through conservation equivalency, does not set out the
full review process, makes no mention at all of monitoring requirements, and
does not limit the length of time that a conservation equivalency program can
remain in place without re-approval.
Thus, Addendum VI has the potential to repeat the mistakes
of Addendum
IV, which saw a
conservation equivalency proposal calculated to reduce recreational fishing mortality
in Chesapeake Bay by 20.5 percent (compared to 2012) actually increase such
fishing mortality by more than 50 percent, but failed to provide any
mechanism for ending such conservation equivalency measure, or requiring its re-approval, in view of its failure to adequately constrain landings.
Addendum VI allows conservation equivalency,
but provides no mechanism for monitoring conservation equivalency proposals, or
halting the continuation of conservation equivalency proposals that, in
practice, fail to achieve the needed harvest reductions.
Thus, although conservation equivalency may be a desirable
option in theory, in practice it has proven to be an obstacle to ending
overfishing and rebuilding overfished stocks.
“one of the most frustrating aspects of dealing with the
Atlantic States Marine Fisheries Commission,”
and has recently begun offering stickers bearing the simple
legend
“Conservation equivalency sucks.”
When an element of the ASMFC’s fishery management process
has so alienated stakeholders that they feel the need to make such extreme
statements, the ASMFC would be well advised to do some soul searching, and make
an earnest effort to figure out whether those stakeholders are right.
Because right now, particularly with respect to striped
bass, it’s hard to understand or explain why that Rhode Island shop might be
wrong.
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