CONSERVATION EQUIVALENCY: IT'S PAST AND ITS PROBABLE FUTURE IN THE STRIPED BASS FISHERY

It wasn’t surprising that “conservation equivalency” turned out to be one of the hot topics at last week’s meeting of the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board.

The ASMFC’s Interstate Fisheries Management Program Charter defines, “conservation equivalency” as

“Actions taken by a state which differ from the specific requirements of the [fishery management plan], but which achieve the same quantified level of conservation for the resource under management.  For example, various combinations of size limits, gear restrictions, and season length can be demonstrated to achieve the same targeted level of fishing mortality.  The appropriate Management Board/Section will determine conservation equivalency.  [emphasis added]”

It’s important to note that the Charter’s definition focuses on the impacts of conservation equivalency on the fish.  That is, conservation equivalent regulations are fine, so far as they uphold the management plan’s conservation objectives by limiting fishing mortality to the target level.

Unfortunately, somewhere along the way, various ASMFC management boards, most particularly the Atlantic Striped Bass Management Board, stopped focusing on the fish, and began focusing on fishermen, to the ultimate detriment of both.  The ASMFC even acknowledged that loss of focus in its Conservation Equivalency:  Policy and Technical Guidance Document, which noted that

“In practice, the ASMFC frequently uses the term ‘conservation equivalency’ in different ways, depending on the language used in the [particular fishery management] plan.”

The Policy and Technical Guidance Document goes on to set some general standards for conservation equivalency.

“During the development of a management document the Plan Development Team (PDT) should recommend if conservation equivalency should be permitted for that species.  The 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 inclusion of conservation equivalency.

“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.  If possible, tables including the alternate management measures should be developed and included in the management documents.  The development of the specific guidance is critical to the public understanding and the consistency of conservation equivalency implementation.  [emphasis added]”

It all looks good on paper, but when it comes down to real life and striped bass, conservation equivalency has, historically, taken a very different form.

Most critically, in the striped bass fishery, conservation equivalency measures have not been required to “achieve the same quantified level of conservation” or “achieve the same targeted level of fishing mortality” as the management measures included in the fishery management plan.

Instead of states being required to adopt conservation equivalency measures that achieved the same “quantified level of conservation” in that state as the measures in the management plan, the Management Board has allowed states to get away with only achieving the required coastwide reduction in fishing mortality, which in some states—inevitably, in the states most enamored with conservation equivalency—such coastwide reduction is significantly less than the reduction that the measures in the management plan would have imposed.

As a result, the conservation equivalent state regulations undercut the effectiveness of the entire management plan. 

That was most recently seen in Addendum VI to Amendment 6 to the Atlantic Striped Bass Interstate Management Plan, when the Management Board merely required states to achieve an 18% reduction in fishing mortality, equivalent to the 18% coastwide reduction target; in doing so, the Management Board reduced the probability that Addendum VI would successfully reduce fishing mortality to the target level from a marginal 50% to a mere 42%, rendering the addendum more likely to fail than succeed.

A lot of that probable failure could be attributed to New Jersey and Maryland, which made particularly aggressive conservation equivalency proposals.

And no one should doubt that New Jersey, in particular, knew exactly what the effects of its conservation equivalency proposal would be.  That becomes very apparent in the transcript of the October 2019 Management Board meeting, when Addendum VI was adopted.

At that point, the 2018 benchmark assessment had been released, which made it clear that the striped bass stock was both overfished and experiencing overfishing.  Addendum VI was designed to end overfishing and reduce fishing mortality to the target level, although it did not address measures designed to rebuild the overfished stock within the ten-year period set by the management plan.

Early on in the board deliberations, Adam Nowalsky, New Jersey’s Legislative Proxy, commented on one aspect of the Fishery Management Plan Coordinator’s presentation, saying

“…This slide highlights total removals according to the ocean fishery or the Chesapeake Bay fishery, but it doesn’t detail what these removals reductions would mean to each individual state.  Can you talk about what these options would mean, in terms of being disparate with regards to affecting different states differently, and how the justification is for that wide range of difference in impacts?”

Asking for “justification” was a little strange, as most people realize that every state’s striped bass fishery is a little different than the fisheries elsewhere, and that as a result, any coastwide set of management measures will have a varying impact on individual states.  FMP Coordinator Max Appelman tried to explain that

“they were developed on a coastwide level or a Bay wide level.  The intent is that all states would implement the selected [management measures], in order to achieve the projected reduction that is on the screen.  Recognizing that the fisheries in the states contribute different levels towards that total reduction, so some will achieve less, some will achieve more.  But if all states were to implement it, it would project to achieve that percentage [reduction] up on the screen.”

Tom Fote, New Jersey’s Governor’s Appointee, began ranting about past summer flounder management, then said

“I want to know who’s backs we’re riding on, who is going to suffer the pain this time, and what states will suffer the pain?  Because it is very obvious that this is going to happen, and some of the data I’ve heard, it’s dramatically going to happen…”

But the Management Board hadn’t even picked out its preferred management measures by then, so as Max Appelman noted,

“Each of these options is projected to achieve something different, and the impacts on a state-specific level would change, depending on which option you select.  Some states have already done that homework themselves, and may have shared that with Commissioners around the table, but our Technical Committee has not gone down the path to see how that shakes out on a state-by-state level for each of these options.  It’s a coastwide [fishery management plan].  That’s why it proposes coastwide options.  [emphasis added]”

And that’s when New Jersey again started pushing the Management Board to again use conservation equivalency the wrong way, focusing on the impacts to fishermen instead of on fish, and ignoring the charter’s direction that conservation equivalent measures “achieve the same quantified level of conservation” and “achieve the same targeted level fishing mortality.”

Instead of accomplishing those things, New Jersey’s Fote sought management measures that would have the same impact on fishermen in every state, even if those measures allowed states to achieve a lesser level of conservation and lead to a higher level of fishing mortality than contemplated in Addendum VI.

Fote complained

“…What you’re saying is you are not going to look at the states, so each state takes a 25 percent reduction, as a matter of fact some states will take a 40 percent reduction.

“Some states will take an 88 percent reduction, or some states will take an 8 percent reduction.  That’s when the problem comes whether it’s fair and equitable up and down the coast.  You seem to be skirting that issue, and you say you don’t have the information.  Somehow I got some of the information.  I’m just not happy that we’re not putting it out there.”

At that point, it was pretty clear that Fote (and Nowalsky) knew that New Jersey’s reduction under the coastwide measures would be significantly more than 18% (perhaps not surprising, given that, thanks to New Jersey successfully gaming conservation equivalency five years before, its anglers were allowed to keep two striped bass per day, when anglers in most other states could only keep one).  It was also pretty clear that they were more interested in keeping New Jersey’s striped bass landings as high as possible than they were in ending overfishing or returning fishing mortality to the target level.

Board Chairman Michael Armstrong, a Massachusetts fishery manager, then took the time to

“remind the Board that one of the goals that we voted on in Amendment 6 is uniform rules along the coast, and to have each state craft their own rules would go against what we voted for in the last amendment.”

But the New Jersey representatives refused to accept that reminder, and continued to disrupt the order of the meeting by bringing up the issue of conservation equivalency, even though, given that the stock was both overfished and experiencing overfishing, it wasn’t at all clear, under the ASMFC’s applicable policy and technical guidance, that conservation equivalency should be allowed at all.

The issue first came to a head after the Management Board began to decide on the appropriate management options.  As soon as Maine fisheries manager Pat Kelliher put a motion on the table to require equal reductions in the commercial and recreational fisheries, Nowalsky rose to complain that if commercial and recreational fisheries should take equal reductions, than states should take equal reductions as well.  After a bit of discussion, he moved that Mr. Kelliher’s motion be tabled, so that the Board could discuss conservation equivalency instead.

After all, nothing was more important than making sure that New Jersey anglers were able to keep as many striped bass as possible.  At least, nothing was more important to the delegates from New Jersey.

The motion failed.  But after Dr. Justin Davis of Connecticut made a motion to adopt the 28 to 35-inch recreational slot limit, Nowalsky rose again to propose an amendment, which would allow states to adopt alternative management measures that only needed to achieve the 18% coastwide reduction in fishing mortality and, contrary to the clear language of the Charter, not “the same quantified level of conservation” that would have been achieved through the 28 to 35-inch slot.

And that time, New Jersey won, and the Management Board eventually approved an Amendment VI that, once conservation equivalent mesures were approved, had a 58% probability of failing to achieve its goals.

Of course, the striped bass lost, but New Jersey didn’t seem to concerned about that.  They were content that things were now “fair.”

New Jersey’s conservation-equivalent regulations went into effect, for the first time, in 2020, as did the coastwide regulations adopted by almost every other coastal state.  It’s interesting to see the results.

Compared to 2019, the last year anglers fished pursuant to the “old” regulations, Massachusetts’ landings dropped from about 195,000 bass to about 67,000—a drop of 66%.  New York’s landings fell from 498,000 fish to just under 205,000, a reduction of 59%.  Rhode Island’s fell from 104,000 bass to just 37,000—65% less.

And New Jersey?  Under its new conservation equivalent regulations, recreational landings increased from about 413,000 to 520,000, a jump of 26%.

The funny thing is, at the recent Management Board meeting, no one heard a peep from New Jersey about New Jersey’s more liberal regulations not being “fair and equitable.”  And perhaps that’s not surprising.  After all, it allowed New Jersey anglers to kill more bass, and gave them a distinct advantage over their counterparties in neighboring states.

What could be more “fair and equitable” than that?

Apparently, stakeholders believe that just about anything might be a better option.  

In comments received by the ASMFC in connection with the Public Information Document For Amendment 7 to the Interstate Management Plan for Atlantic Striped Bass, both at state webinar/hearings and in writing, only 46 stakeholders supported the current way conservation equivalency was employed by the Management Board, while 650 didn’t believe it should be employed at all.  The ASMFC also received 1,662 comments stating that it was inappropriate to allow conservation equivalency if the stock is overfished or experiencing overfishing, and 1,500 which recommended that states be held accountable if their equivalency proposals don’t achieve the target level of fishing mortality.

Members of the Management Board, many of whom had already expressed doubts about how conservation equivalency was being employed, heard that message loud and clear.  G. Ritchie White, the Governor’s Appointee from New Hampshire, noted that the public was “extremely upset” about how conservation equivalency was being abused, and moved to include the item in the draft Amendment 7, so that limits on its use could be considered.

Dr. Jason McNamee, the Rhode Island fishery manager, stated that

“In the case of striped bass, [conservation equivalency] needs additional sideboards placed on it”

to prevent abuse, a sentiment substantially echoed by Connecticut’s Dr. Justin Davis and Maryland Legislative Proxy David Sikorsky.

Dennis Abbott, New Hampshire’s Legislative Proxy, said that, of all the items discussed at the Management Board’s May meeting, conservation equivalency was the

“first item that gets to the meat and potatoes of why we have Amendment 7 and why we’re not reaching our objectives.”

When the final vote was taken, every member of the Management Board, save one, agreed that the draft Amendment 7 should take a long look at the proper use of conservation equivalency in the striped bass management program.

The lone holdout was, of course, New Jersey.

After Ritchie White suggested that conservation equivalent measures should be held to an high standard—perhaps having to achieve at least a 125% reduction, compared to the Board-approved measures, with no less than a 75% probability of achieving that goal, the New Jersey contingent grew more irate.

Joseph Cimino, the state fisheries manager, complained of being “demonized” over the issue, and also complained that, in adopting conservation equivalent measures, states had a very difficult time calculating the effects of uncertainty in recreational landings and effort data, changes in fish abundance, and similar issues, seemingly unaware that, in citing such problems, he was making a good case against the use of conservation equivalency, and justifying Mr. White’s suggestion that conservation equivalency measures should have to meet very exacting standards in order to be accepted.

Fote rambled about long-ago dealings with summer flounder again, and complained about coastwide measures’ differing impacts on the different states.  But, as I noted before, he had no complaints about conservation equivalent measures that allowed New Jersey’s bass landings to rise, while coastwide measures pushed other states’ landings to lows that haven’t been seen in a couple of decades.

It’s pretty clear that most of the Management Board understands the problems posed with the current use of conservation equivalency, and probably want things to change, just as it’s completely clear that New Jersey wants things to remain as they are.

Unless some event intervenes, which causes the majority of the Management Board to change their views, it’s likely that Amendment 7 will bring some real change in the way conservation equivalency is used by the Management Board.  If they do no more than align such use with the language of the Charter and Policy and Guidance Document, they will have come a long way.

Such change is long overdue.