SHIFTING FISH STOCKS GAIN SENATE'S ATTENTION

Over the last decade or two, we’ve seen stocks of fish respond to a warming ocean by shifting toward thepoles.  It is a worldwide phenomenon that is particularly noticeable to those living and fishing along the New England and mid-Atlantic coasts, where important commercial and recreational species are moving northward, shifting their centers of abundance away from traditional fishing grounds.

Such movement has had a big impact on fishermen, fish allocations, and other aspects of fisheries management.  Commercial fishermen in southern states, which were granted the largest allocations based on where fish were during the 1980s, are having to travel much farther to land their quotas, while their counterparts to the north have fish right off their ports, but lack the state quotas that would allow them to take advantage of such local abundance.

We've seen it in recreational fisheries, too.  

Black sea bass may be the best example.  The fish have become much more abundant in more northern waters, where anglers fish under far more restrictive rules than their southern neighbors, merely because some southern states had far larger historical catches which are memorialized in current rules.  Perhaps the worst example of that is the dichotomy between New York and New Jersey where, despite the fact that some of the states’ anglers may fish side-by-side on New York Bight wrecks, New Jersey fishermen are allowed to retain 12 ½-inch fish and have a bag limit of 10 to 15 fish for most of the year (although the bag limit during July and August is just a single fish), while New York’s recreational fishermen must endure a 16 ½-inch minimum size and a bag limit of either three or six fish, depending upon the time of year, even if they’re fishing on the same sub-stock of fish in the same waters.

Viewed objectively, it doesn’t make a lot of sense, but neither the Atlantic States Marine Fisheries Commission nor the federal regional fishery management councils have developed the political will to fully new allocation and management schemes that fully align with current patterns of fish abundance (although the ASMFC has come closer to doing so, particularly in the case of the recreational summer flounder fishery, than any of the regional management councils).  That’s typically the case when politics, rather than science, dictates management measures.

Political problems require political solutions, and in the case of shifting stocks, it appears that three United States senators, Sen. Chris Murphy (D-CT), Sen. Richard Blumenthal (D-CT), and Sen. Elizabeth Warren (D-MA) have introduced legislation that will begin to address the issue.  Titled the “Supporting Healthy Interstate Fisheries in Transition Act,” (“SHIFT Act”), the legislation is intended to

“modernize outdated regulations governing commercial fishing along the Atlantic Coast.”

because

“Restrictions on the species and number of fish that can be caught in Atlantic waters haven’t been updated in decades, even as fish locations have changed dramatically in response to warming ocean temperatures and climate change.  As a result, commercial fishermen are forced to travel significant distances to access these fish populations and are often forced to throw their landings back into the ocean, resulting in high mortality rates.”

The senators intend that

“The SHIFT Act would require the Secretary of Commerce and encourage the Atlantic States Marine Fisheries Commission to account for the impact of climate change on the current distribution of fish populations when deciding fishing quota allocations.” 

The language of the SHIFT Act is similar in effect, in not in precise wording, to shifting stocks language that appeared in Rep. Jared Huffman’s Sustaining America’s Fisheries for the Future Act of 2022, to the extent that it requires a regional fishery management council to request that the Secretary of Commerce determine whether

“a substantial portion of a fishery extends beyond the geographical area of authority of any one Council,”

in which case the relevant regional fishery management councils would have to decide either 1) which of them would be responsible for the fishery management plan, or 2) decide to draft a joint plan.  If such councils could not agree on an alternative within six months, the Secretary would then make the necessary decisions.  In the case of joint fishery management plans,

“No jointly prepared plan or amendment…may be submitted to the Secretary unless it is approved by a majority of the voting members, present and voting, of each Council concerned.”

Such language may be the Achilles’ heel of the SHIFT Act.  To understand why, let’s take a look at how allocation shifts work in the real world, by examining the ASMFC’s Addendum XXXIII to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, adopted in 2021, which addressed the reallocation of commercial black sea bass quota (the Mid-Atlantic Fishery Management Council contemporaneously adopted its Black Sea Bass Commercial State Allocation Amendment, which addresses the same reallocation, but for purposes of this essay, the ASMFC document is easier to work with, as it is not weighted down with the pages of text needed to meet the requirements of the federal Administrative Procedures Act).

Addendum XXXIII explains that

“State-by-state allocations of the commercial black sea bass coastwide quota were originally in 2003 as part of Amendment 13, loosely based on historical landings from 1980-2001.  The state shares in Amendment 13 allocated 67% of the coast-wide commercial quota among the states of New Jersey through North Carolina (north of Cape Hatteras) and 33% among the states of New York through Maine.  These state commercial allocations had been unchanged since they were implemented in 2003.

“Over the last decade, the distribution of the black sea bass stock has changed, abundance and biomass have increased significantly, and there have been corresponding changes in fishing effort and behavior.  According to the most recent black sea bass stock assessment, which modeled fish north and south of Hudson Canyon separately, the majority of the stock occurred in the southern region prior to the mid-2000s.  Since then, the biomass in the northern region has grown considerably.  Although the amount of biomass in the southern region has not declined in recent years, the northern region currently accounts for the majority of spawning stock biomass…

“In some cases, expansion of the black sea bass stock into areas with historically minimal fishing effort has created significant disparities between state allocations and current abundance and resource availability…  [emphasis added, references omitted]”

Addendum XXXIII also notes that

“Connecticut and New York have experienced a substantial increase in abundance of black sea bass in state waters over the last seven years.  [emphasis added]”

So, given that the understanding that the majority of the black sea bass biomass was now in the waters stretching from New York to Maine, and no longer in states between New Jersey and North Carolina, how did Addendum XXXIII reallocate the commercial quota?

First, it created a new baseline allocation that increased New York’s percentage of the coastwide quota from seven to a princely eight percent, while increasing the Connecticut quota from one percent to three, in supposed recognition of the “substantial increase” in black sea bass abundance in those states’ waters.  However, in doing so, Addendum XXXIII also took away quota from the other northern states, slashing Maine and New Hampshire’s already tiny quotas in half, and also taking fish away from Massachusetts and Rhode Island. 

When all was said and done, managers made only a trivial cut in the southern states' share of the baseline quota, reducing it from 67% to 65.2%, while increasing the northern state's share from 33% to a mere 34.8%--even though more than 50% of the fish are now found between New York and Maine.

In the end, the northern states did a little better than that, because in the full allocation scheme, each year,

“75% of the coastwide quota will be distributed to states using the baseline allocations…The remaining 25% of the coastwide quota will first be allocated regionally based on the most recent regional biomass proportions from the stock assessment.  Then, regional quotas will be distributed to the states within each region in proportion to their baseline allocations, with the exception of Maine and New Hampshire.  Maine and New Hampshire will each receive 1% of the northern region quota.”

So managers will now have to distribute some additional black sea bass to states where the fish swim today, but 75% of future allocations will still be based on what was caught in the days when most of the sea bass still swam south of New Jersey, and not where they are swimming right now.

One interesting thing is that in the new allocation, New Jersey is considered a single-state “region,” neither north nor south, supposedly because of

“it’s geographic position straddling the border between the northern and southern spatial sub-units (approximately Hudson Canyon as defined in the stock assessment…)”

and thus gets to both keep its current baseline allocation of 19.42% of the coastwide quota, and also benefit from the movement of fish into the northern region. 

Somehow, the states where the bulk of the fish used to be always seem to come out ahead, while the states where the fish are today…don’t.

That might not change under the SHIFT Act. 

If we imagine the black sea bass reallocation occurring under a SHIFT Act regime, we might see the New England Fishery Management Council petition the Secretary, claiming that “a substantial portion” of the black sea bass fishery now exists in the waters between Connecticut and Maine.

The result of that petition would be one of two things:  

A single regional fishery management council—almost certainly the Mid-Atlantic, which manages black sea bass today, given the size of the fisheries off New York and New Jersey, as well as off the other mid-Atlantic states—might be given sole responsibility for the black sea bass management plan and any amendments, in which case the resulting amendment would look little or no different from Addendum XXXIII.

Or, the plan and amendments would be jointly managed by the New England and Mid-Atlantic fishery management councils, in which case the New England Council would probably try to shift more of the quota to the northern states.  But because a majority of each council would have to approve the resulting management plan, and because the Mid-Atlantic Council would be highly unlikely to shift any significant quantity of sea bass to the New England states, the resulting amendment would still end up looking more-or-less line Addendum XXXIII.

There is some language in the SHIFT Act that might arguably avoid such outcome, as a provision requires that

“when establishing or revising quota allocations between any State, Federal, or other management unit in…a plan or amendment, the Secretary [of Commerce] shall account for, using the best scientific information available, any climate change impact on coastal fishery resources, including any change or shifting trend in fish abundance and distribution; and any potential ecological impact, including food web and habitat impacts, arising from such revised quota allocations.  [formatting omitted]”

Whether the phrase “shall account for” will be interpreted as a requirement that quotas follow fish abundance, or merely directs that the effects of stock shifts be considered as one of any number of factors impacting the allocation process, is something for the Secretary, and undoubtedly the courts, to decide should the SHIFT Act become law.

Of course, the chances of that happening in the current, election-year Congress is not very good.

That’s unfortunate, because the SHIFT Act, while imperfect, represents a good first step toward tackling the intransigent problem of shifting stocks, a problem that will never be adequately addressed unless Congress intervenes.