The Atlantic States Marine Fisheries Commission’s doctrine of “conservation equivalency,” which permits states to implement management measures different from those adopted by a particular species management board, is a vexing concept.
In theory, it may make sense to allow states to tailor
management measures to their particular fisheries, provided that such measures
have the same conservation impact on the stock being managed.
In reality, no two years’ fisheries are the same. Fish abundance varies from year to year. A
big year class of bass entering the fishery will cause a spike in angling
effort; as one Massachusetts fishery manager, Dr. Michael Armstrong, noted in
an American Sportfishing Association webinar about one year ago, when striped
bass become more abundant,
“fishing effort skyrockets…if the stock doubles, fishing
effort doesn’t double, it quadruples.”
On the other hand, when bass become less abundant, particularly
if other species are easier to catch, anglers exit the striped bass fishery and
direct their effort elsewhere.
That makes it difficult to craft regulations, which rely heavily
on past effort, catch, and landings to predict what anglers will do in the
future, when conditions almost certainly will have changed.
Add to that unavoidable uncertainty the behavior of states like
New Jersey, that try to present already uncertain data in a way that minimizes
their harvest reductions, while pushing some portion of their conservation burden
onto the shoulders of other coastal states, and one finds, as a practical
matter, that crafting regulations that are truly “conservation equivalent” is nearly impossible.
The task is difficult enough that one might reasonably ask
whether any imagined benefits of the conservation equivalency process could
justify the level of labor and management uncertainty that such process injects
into the already challenging task of striped bass management.
Such question arose more than once at meetings of the ASMFC’s
Atlantic Striped Bass Management Board, and in comments
submitted by stakeholders in response to the Public Information Document to
Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass.
The Management Board voted to include conservation equivalency as one of the
topics to be examined in the draft Amendment 7 to the management plan, and on
June 24, the ASMFC’s Striped Bass Plan Development Team met to discuss how to do
it.
It was an interesting discussion, that examined conservation
equivalency from a number of angles, and systematically addressed its important
aspects. When it was over, the PDT had
come up with a comprehensive set of options to place before the Management
Board, although some of those options will need Management Board input before
being put into final form in the draft Amendment.
The beginning of the PDT discussion touched on basic issues, such as who should be impacted by changes to conservation equivalency rules.
Should such changes only limit the use of conservation equivalency when applied to the recreational fishery? That makes a sort of sense, given that’s where most of the abuses take place.
Should the limits be expanded just a bit farther, to include “non-quota-managed” fisheries? That would include things like New Jersey’s “bonus” fish program, which transfers part of the state’s unused commercial quota (New Jersey does not permit commercial striped bass fishing) to the recreational fishery, so that anglers may legally harvest striped bass, including immature female striped bass, that fall within a 24 to 28-inch slot.
Or should restrictions on the use of
conservation equivalency apply to everyone, recreational and commercial alike?
That’s something that the Management Board will have to
decide.
The Management Board will also have to decide when conservation equivalency should be allowed.
Should it be prohibited when the stock is overfished, when overfishing
is occurring, or during a rebuilding period?
Should conservation equivalency not be allowed after the Management
Board adopts measures to reduce harvest?
Or should there merely be a delay—say, three years or so—after new
management measures are put in place, before conservation equivalency may be
used, so that scientists can get a better idea of how the new rules will impact
the stock, before allowing states to create their own exceptions to the
Board-approved rules?
One PDT member suggested a more preemptive measure, that would prohibit the use of CE once the Management Board
began work on, but has not yet completed, an addendum to implement harvest
reductions.
There was also an examination of why conservation equivalency should be invoked.
One proposal would limit the use of conservation equivalency to situations
when biological or ecological conditions put a state or a fishery at a
disadvantage compared to the rest of the coast.
For example, rather
than maintain the coastwide 28 to 35-inch slot limit on the Hudson River, the
application of conservation equivalency permitted New York to adopt an 18 to
28-inch slot there, in order to place most of the fishing pressure on male
striped bass, and not on the mature females that ascend the river to spawn.
Another proposal would also permit the use of conservation equivalency
to address socioeconomic issues.
However, as at least one PDT member acknowledged, a socioeconomic argument
could be made to cover just about any situation, so allowing conservation equivalency to be used to address socioeconomic issues would not
constitute any sort of real limitation at all.
Another option would completely bar the use of
conservation equivalency in striped bass management, which would be the easiest
and, to many, the most desirable course, but would also get quite a few folks
upset and leave some real, biologically-based hardships unresolved.
The discussion of when and how conservation equivalency
should be used touched on a number of salient points. There is widespread sentiment, both on the Management Board and among
stakeholders, that the use of conservation equivalency in the striped bass
fishery has strayed a long way from the original intent of easing real hardships,
and that if meaningful limitations were put around its use, most of the other
objections to conservation equivalency would probably go away. I
think that is true.
Another PDT member suggested that it would make sense to
align the use of conservation equivalency with the goals and objectives of the
management plan, which seems completely right—every measure in
the final Amendment 7 should further such goals and objectives; after all, isn’t
that what goals and objectives are for?
Once again, the Management Board will have to consider such
points and decide which, if any, of the limitations will appear in the draft
Amendment 7.
After that, the issues became a bit more nuanced and
technical.
For example, the PDT discussed whether there should be any
limitation on the number of conservation equivalency proposals a single state
might present. The
ASMFC publication, Conservation Equivalency: Policy and Technical Guidance
Document, warns that
”Proposals that include an excessive number of options may
delay timely review by the [Plan Review Team] and other groups and may
ultimately delay the report to the Board.
The states should limit the number of options included in a proposal or
prioritize the options for review.”
However, that warning, like so many other good ideas contained in the ASMFC’s guiding documents, is generally ignored in practice.
Prior
to the Management Board’s February 2020 meeting, when the current regulations
were finalized, various states proposed more than fifty possible
conservation equivalency alternatives.
Although rationality later prevailed, and most
states agreed, at the meeting, to withdraw their proposals, enough bad
ideas survived the process that the probability of reducing fishing mortality to target fell from 50% to a pathetically low 42%.
Ultimately, the PDT decided to refer the question to the
Management Board, where it might or might not be resolved.
There is also the issue of the quality of the data underlying state CE proposals.
While the Marine Recreational Information Program produces
fairly good data, if it is used on a coastwide basis, data quality quickly
declines when it is used at finer scales.
Thus, when it comes to state level data, it isn’t a question of whether
managers are using data that’s truly good—it almost certainly isn’t—but whether
they’re using data that’s at least good enough.
Thus, three options were put on the table. Either, 1) allow ASMFC’s Atlantic Striped
Bass Technical Committee set the standards for data quality on an ad hoc
basis, 2) require a percent standard error of less than 50, or 3) require a PSE
of less than 40. An interesting
discussion ensued.
It turns out that MRIP itself has decided that data with a
PSE greater than 50 is unsuitable for management use, so one PDT member
supported that option. But another
pointed out that MRIP also suggests that data be used only on an annual
coastwide basis, rather than being broken down into state, wave, and/or
mode; if the ASMFC could regularly ignore the latter guidance, why should it
feel bound by MRIP’s cap on PSE? Plus,
putting a hard standard in Amendment 7 would create problems should MRIP decide
to adopt a new maximum PSE standard that is either higher or lower than the 50
currently in place.
It was also noted that setting a hard standard for data
might create hardships for states which, for whatever reason, have particularly
high PSEs, particularly if such states wish to set separate regulations for
wave or mode.
That led to another discussion, of whether states that opt for conservation equivalency ought to be required to incorporate a buffer to account for uncertainty; under such buffer, any reduction would have to be 25% greater, and any landings increase 25% less, than would be required or allowed under coastwide measures. Doing so would make sense, as the state-level numbers are far too imprecise to justify depending on the point estimates to constrain harvest.
While 25% might seem like a very
large buffer to some, everyone should remember that it would not have been
large enough to prevent Maryland’s
massive overages in 2015-2019, when that state not only failed to achieve the
20.5% reduction required, but increased landings more than 50% over what they
had been in 2012, because managers failed to consider, and buffer for, the
impact of the
big 2011 year class entering the fishery when calculating the supposedly “conservation
equivalent” regulations.
Another important provision being proposed would require
that any state that adopts conservation equivalency must, at a minimum, adopt
management measures that would have the same conservation impact, in that
particular state, as the coastwide measures adopted by the Management Board. While such provision makes perfect sense, as any lesser standard would undercut the overall management plan, it’s
sad that it needs to be added to the draft Amendment 7 at all, since the ASMFC’s Interstate
Fishery Management Program Charter already 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]”
Unfortunately, in practice, the clear intent of the Charter
has been subverted by a Management Board that has repeatedly allowed
states to adopt conservation-equivalent measures that clearly did not achieve
the same "quantified level of conservation" as the coastwide measures. The most recent example of that was the above-referenced
adoption of conservation equivalency measures, primarily for New Jersey and
Maryland, in February 2020, which so degraded Addendum
VI to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management
Plan: 18% Reduction in Removals and
Circle Hook Measures that it ended up having a 58% probability of
failing to meet its management goals.
Thus, it’s clear why this proposal would be a boon for
striped bass management.
One thing that I found disappointing was that the Technical
Committee can’t calculate the probability of a state conservation equivalency
measure succeeding, although it can calculate how any such measure will impact
the probable success of coastwide management efforts. It’s not just a question of time or effort;
the analytical tools to do state-level calculations just don’t exist, making it
impossible for the TC to do the analysis, no matter how willing it might be to
do so.
That’s just another reason to be wary of approving CE.
Finally, the Plan Development Team got to one of the most
contentious issues: Whether states
should be held accountable for failed conservation equivalency measures, what
“failure” even means, and what hoops a state should be expected to jump through
to validate its conservation equivalency proposals.
One early suggestion was that states adopting conservation equivalent management measures should also implement data collection programs to supplement the data provided by MRIP.
Given the uncertainty inherent in state-level MRIP data, there would be
a clear benefit in such supplementary data collection, but precisely
when such data would be required, and how much supplemental data would be
required, remain open questions. The draft Amendment 7 might include one toothless
option that merely “encourages” a state to collect more data, a second that
requires supplemental data if the state’s conservation equivalency proposal
exceeds predetermined parameters, and a third that would require supplementary
data collection for all conservation equivalent management measures.
To the question of just how much supplementary data would be
needed, one PDT member responded that such question should be answered on a
case-by-case basis,
“depending on how far they’re stretching the data,”
which should probably raise additional questions as to
whether proposals that require the states to “stretch” available data ought to
be allowed at all.
Yet that still leaves open the question of how to deal with
states when their conservation equivalent measures fail to adequately constrain
landings.
That’s a difficult question, because many factors play into each
season’s landing levels, including angler effort, the availability of the fish
themselves, and the uncertainty inherent in MRIP data. Even in a perfect world, annually shifting
patterns of striped bass abundance, and anglers’ response to those shifts,
would make it nearly impossible to predict future landings based on past
outcomes.
Which is precisely why conservation equivalency should be
regarded with a very jaundiced eye.
Given such difficulties, one suggested approach was to
impose no accountability at all. A
second would require state action if the apparent overage exceeded the percent
standard error in the MRIP estimate—which, given the imprecision in MRIP
estimates, would require catch to exceed predictions by a substantial
amount. A three-year average of state
landings was also suggested, although by the time those three years were up and an accountability measures could be implemented, it is not unlikely that new
management measures would be in the works, rendering any accountability largely
illusory.
The discussion then began to examine concepts of fault and
consequences.
One PDT member asked whether a state should be held
accountable if its original calculations were valid, based on past performance
in the fishery, but later changes in the fishery intervened and so rendered the
conservation equivalent regulations inadequate to constrain harvest. Maryland’s overages in 2015-2019 were held
out as an example.
PDT members seemed sympathetic to that sort of outcome, but I have to admit that I’m not. While I respect the fact that the Technical Committee must deal with hard data and not engage in flights of “what if,”—and, quite honestly, I wouldn’t want it any other way—the Maryland overage was entirely predictable.
Maryland managers knew that the big 2011
year class would be entering into the fishery, beginning in 2015. Maryland managers knew that would make
striped bass far more available to anglers than they were in the base year of
2012. And Maryland managers knew—or,
at least, should have known, if they paid any attention to how the recreational
striped bass fishery works—that such increasing abundance would also result in
sharply increased recreational fishing effort, which would translate into
sharply increased landings.
Granted, those things that managers knew can’t be precisely
quantified into additional restrictions on landings. At the same time, it’s hard to believe that
anyone really thought that bag limits, size limits, and seasons based on 2012
performance, when bass were relatively scarce, would have very much relevance
on 2015 performance, when a very large year class of bass would flood into the
Chesapeake fishery. What that equates to
is pretty close to the definition of “management uncertainty.”
If state fishery managers failed to put a buffer in place in
an effort to at least try to address such uncertainty, the state should,
indeed, be held accountable for such failure.
The other question that was raised is whether a state which
opted for conservation equivalency should and failed to constrain harvest to the intended levels should be given a bye if the coastawide goals werestill met, given that such state's failure didn’t
impair the goals of the management plan. The PDT seemed sympathetic to that sort of outcome, but I see the matter a little differently.
I believe in accountability.
If states adopt the coastwide measures adopted by the Management
Board, as part of a united coastwide effort to conserve and manage the stock, they should be held collectively accountable. That is, if the coastwide measures fail to
achieve their intended goal, I would expect the Management Board to amend such measures
to render them more effective; so long as the coastwide goal is achieved, I’m
not too concerned with individual states’ performance, because each state is
working together for the same end.
But when a state adopts conservation equivalent regulations, it places itself outside the collective effort, and the collective accountability, for the success of the coastwide management plan, and renders itself uniquely responsible for fisheries within its own state.
Depending on how
the CE measures work out, it may find itself compliant with the goals and
objectives of the management plan, but it also may find itself undermining the effectiveness
of such plan if, because of such state’s failed CE measures, the coastwide plan fail to
achieve its goals. Or, more relevant to
the immediate discussion, it may find itself successfully shifting the burden
of conservation onto other states’ shoulders, if its CE measures fail to adequately
constrain harvest but, because of other states’ reductions, the coastwide goal
is still met.
States which would so place the conservation burden on the
shoulders of others should always be held accountable, as a matter of
fundamental fairness.
If states are accountable for failed
conservation equivalent measures, the Management Board must then decide whether
accountability measures are only enforced if the stock is overfished, whether
they’re enforced when the fishing mortality rate is above target and spawning
stock biomass is below the target level, or whether it is enforced regardless
of the status of the stock.
Then there’s the question of when the accountability
measures would be put in place. Doing it
in the year following the overage isn’t practical, as the MRIP data isn’t
finalized until April of that year, when many states’ season are already
underway. Should a state be required to
adopt new measures in the second year after the overage? Or should a phase-in be allowed?
And even with that decided, what should the accountability
measures be? Should as state merely be
required to adopt the coastwide measures?
Or, as one PDT member suggested, should “something extra” be required?
Personally, I think that the latter choice represents the
right way to go. There should be some
disincentive for states to adopt CE measures that they know carry a big risk of
failure.
In the end, the Plan Development Team did a good job of analyzing
a difficult and multi-faceted issue.
Perhaps their conversation could be summed up in one member’s remark
that there should be
“more emphasis on conservation equivalency proposals that work
than on worrying about when they don’t.”
Of course, that assumes that devising CE proposals that work
on a regular basis is something that can be realistically expected. Personally, I’m still unconvinced.
That’s why, at the end of the meeting, when public input was invited, I told the PDT that I believed that crafting effective conservation equivalency
proposals was a highly problematic process, and that Amendment 7 should be
written to discourage conservation equivalency’s use.
But if CE is to be used at all, it should be under the
conditions set forth in the charter—states’ reductions must be the same as they
would have been under coastwide rules—plus a 25% buffer to allow for management
uncertainty should be adopted.
Under such conditions, states would be reluctant to seek
conservation equivalent proposals except for the most compelling reasons, and
most of the problems that CE creates would likely disappear.
Let’s hope that, when time comes for a vote, the majority of
the Management Board agrees.
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