2020 RECREATIONAL LANDINGS ESTIMATES PROVE A MIXED BAG: PART II--BLACK SEA BASS, BLUEFISH, SCUP, AND SUMMER FLOUNDER

Back in December 2019, I expressed real concern that the Mid-Atlantic Fishery Management Council adopted recreational management measures for scup and black sea bass that weren’t strict enough to constrain landings to the recreational harvest limit, and might even violate provisions of the Magnuson-Stevens Fishery Conservation and Management Act.

A month earlier, I expressed similar concerns that the Council was not being sufficiently risk averse when it set recreational management measures for the overfished bluefish stock.

Then, just this January, I wrote about how the Mid-Atlantic Council may have compounded those errors when it adopted 2021 recreational management measures for bluefish, summer flounder, scup, and black sea bass that were effectively identical to those it had adopted for 2020, despite the 2020 measures’ flaws, and despite the fact that COVID-19’s impacts on both recreational catch and landings data and on fishery-independent surveys used to evaluate the health of fish stocks meant that managers had little or no information on whether anglers stayed within their harvest limits last season.

2020 recreational catch and landings estimates were released last week, and it appears that all of those concerns were justified. 

It now appears that, in 2020, anglers exceeded the recreational harvest limit for all four Council-managed species, with landings ranging from 130 percent of the harvest limit for summer flounder to nearly 200 percent in the case of scup.   

So what will the National Marine Fisheries Service do now?

The Mid-Atlantic Fishery Management Council has already sent its status quo management recommendation to NMFS for review and, hopefully (from the Council’s point of view), approval.  Now, it appears that anglers have substantially overfished the recreational harvest limit for all four species, and there is a real question as to whether NMFS will—or even, pursuant to Magnuson-Stevens, whether NMFS may—approve the Council’s recommendations.

In the case of summer flounder, NMFS was ready to approve the Council’s actions.  On April 6, it issued a proposed rule that would do so, and justified such proposal by saying

“Preliminary data suggest that effort in 2020 was similar to 2019 effort.  In fishing year 2019, recreational summer flounder landings exceeded the [recreational harvest limit] by only 1 percent.  The 2021 RHL (8.32 million lb, 2,774 [metric tons]) is 8 percent higher than the 2019 and 2020 RHLs.”

Under such circumstances, status quo regulations would make sense.

Unfortunately for NMFS, and for the summer flounder, we now know that 2020 landings were significantly higher than landings in 2019.  At slightly over 10 million pounds, they exceeded the 2020 RHL not by a mere 1 percent, as in 2019, but by a full 30 percent; even though anglers will see a higher RHL this season, if 2021 landings match those of last year, recreational fishermen will still exceed the RHL by over 20 percent.

That’s not a trivial number.  It could spur NMFS to act.

Scup present a more benign set of facts. 

NMFS and the Council have long considered scup to primarily be a commercial fish; the allocation is strongly skewed toward the commercial sector, granting anglers only 22 percent of the overall catch.  While such a lopsided split might have reflected reality during the years 1988-1992, when the scup allocation was set, because scup abundance was so low that the fish didn’t draw too much recreational attention, it doesn’t reflect today’s conditions, when a thriving scup population and limited market demand has created a situation in which commercial fishermen are allowed to catch more fish than they can sell, while anglers want to take home far more fish than they are allowed.

Thus, today we see anglers regularly exceeding their harvest limit, while commercial fishermen never catch their entire quota.

That situation provides some slack managers might work with.  Recreational landings that exceed the RHL don’t necessarily harm either the commercial sector or the scup stock, although they do violate the provisions of the management plan. 

For example, in 2019, the commercial scup fishery was awarded a 23.98 million pound quota, but only landed 13.78 million pounds of fish, while the RHL of 7.37 million pounds was not only exceeded, but nearly doubled, as anglers caught 12.942 million pounds of scup during that year.  Yet, when the two sectors’ allocations and catch are combined, we find that, despite the big recreational overage, the total catch of 28.30 million pounds was only about 90 percent of the overall allocation.

The 2019 recreational overage did no harm.

For 2020 and 2021, the Acceptable Biological Catch for scup was set at 33.22 million pounds.  Commercial landings data for 2020 have not yet been finalized, but assuming that they are about the same as they were in 2019—which is a pretty good assumption, as commercial landings have remained relatively constant since at least 2015—the fact that anglers nearly doubled their RHL again in 2020 does not bode ill for the stock.

Thus, NMFS would do no harm if it approved status quo regulations for 2021, so long as the commercial landings do not increase.

But things are very different when it comes to bluefish and black sea bass.

In the case of black sea bass, the Overfishing Limit for both 2020 and 2021 is 17.68 million pounds.  In 2020, anglers landed an estimated 8.97 million pounds of fish, exceeding their RHL by nearly 55 percent.  In addition to the fish that they landed, they also released an estimated 29.78 million black sea bass.  Scientists estimate that about 15 percent of all released black sea bass subsequently die, so anglers killed almost 4.5 million fish in addition to what they had landed.

If those 4.5 million sea bass averaged a half-pound apiece, total recreational removals in 2020 would have been around 10.22 million pounds; if they averaged a pound, removals would have been somewhere around 12.47 million.  At the same time, the commercial quota for 2020 was set at 5.58 million pounds,  When that commercial quota is added to the recreational removals, the total provides some reason to worry.

If the average size of black sea bass released by anglers was only a half-pound, there is no imminent risk to the stock.  But if the average size of the black sea bass released by anglers in 2020 reached a full pound, and if the commercial fishery caught its full quota, then fishermen would have removed a total of 18.05 million pounds of black sea bass from the population, a figure 307,000 pounds over the Overfishing Limit.

Overfishing would have occurred, and NMFS would be obligated to take action to prevent such overfishing from continuing.

Because of COVID-19, market demand for black sea bass wasn’t very strong for much of 2020, so the full commercial quota probably wasn’t landed, and overfishing probably didn’t occur. 

2021 could see a very different outcome.

COVID-19, while far from defeated, is presenting less of a threat as more and more people receive vaccines.  The restaurant business is slowly opening up and serving more customers, raising demand for seafood.  Commercial black sea bass landings are likely to increase in response. 

If the commercial fishery lands its entire quota in 2021, and angling effort remains constant, there is a very real risk that black sea bass could experience overfishing this year.

Thus, the legal question:  Is NMFS confident that there is at least a 50 percent probability that status quo recreational management measures will prevent overfishing in 2021?  If it lacks such confidence, it must further restrict recreational landings, or risk running afoul of Magnuson-Stevens.

However, despite such risk of overfishing, it is bluefish, not black sea bass, that presents the most compelling case for NMFS to reject the Council’s recommendations for status quo management measures.

Bluefish are already overfished; although they weren’t experiencing overfishing in the terminal year of the last stock assessment update, they were in every year between 1985 and 2017.  

In 2019, the Mid-Atlantic Council took action to reduce 2020 bluefish landings to the target level.  In doing so, it made assumptions that would result in the least restrictive management management measures possible (i.e., that 2019 recreational landings would be the same as landings in 2018, 13.27 million pounds, rather than reflect the three-year average of 23.15 million pounds; and also using a 4.03 million pound estimate for release mortality, rather than the 9.90 million pound estimate used in the benchmark stock assessment).

Based on such assumptions, the Council believed that it would only require a 28.78 percent reduction in landings to keep them within the recreational harvest limit.

The Council was wrong.  2020 recreational data reveals that bluefish landings were 13.58 million pounds, nearly 45 percent above the 9.48 million pound RHL, and just slightly more than landings in 2018.

That creates a particularly uncomfortable situation for NMFS, due to a regulation that it adopted in 2013.  That regulation provides, in the case of bluefish,

“If the fishery-level [annual catch limit] is exceeded and landings from the recreational fishery are determined to be the sole cause of the overage, and no transfer between the commercial and recreational sector was made for the fishing year…then the following procedure will be followed:

“(1) If biomass is below the threshold, the stock is under rebuilding, or biological reference points are unknown.  If the most recent estimate of biomass is below the B_MSY threshold (i.e., B/B_MSY is less than 0.5), the stock is under a rebuilding plan, or the biological reference points (B or B_MSY) are unknown, and the [annual catch limit] has been exceeded, then the exact amount, in pounds, by which the most recent year’s recreational catch estimate exceeded the most recent year’s [annual catch limit] will be deducted from the following year’s recreational [annual catch target], or as soon as possible thereafter, once catch data are available, as a single-year adjustment…  [emphasis added]”

The clear language of that regulation strongly suggests that anglers, who exceeded their RHL by 4.1 million pounds in 2020, can look forward to paying that overage back very soon.  Hopefully, that will occur this season, which will still leave room for a 5.38 million pound RHL; if NMFS doesn’t deem that payback to be “possible” in 2021, it’s going to come in 2022, when the new rebuilding plan will be in effect and the RHL is likely to be even smaller.

Whenever it comes, recreational fishermen can almost certainly kiss the 3-fish bag limit (5 for the for-hires) goodbye, and maybe the year-round season and/or lack of a size limit as well.

Of course, it’s possible that NMFS will try to find a way around its own regulation, but “possible” is a long way from “likely.”  The current administration’s support for conservation seems real, making an attempted workaround that much less likely than it might have been just a year ago.

Thus, the newly-released 2020 recreational numbers could have a real impact on the management of one or more Mid-Atlantic species.