ROUND TWO: SOUTH ATLANTIC RED SNAPPER EFPS

 

The National Marine Fisheries Service has just announced that it is again considering applications for exempted fishing permits that will allow anglers in Florida, Georgia, and South Carolina to land red snapper over a longer period—in this case, 31 days, which might later be extended, depending upon how many fish are landed during the initial season—than is permissible under the current fishery management plan.

The first collaboration between the agency and the states of Florida, Georgia, South Carolina, and North Carolina on recreational red snapper EFPs saw exempted fishing permits issued early last May.  However, any fishing under such permits was enjoined by a federal court before it could occur, as the initially issued permits clearly violated multiple provisions of the Magnuson-Stevens Fishery Conservation Act, and would have almost certainly led to gross overfishing of the South Atlantic red snapper resource.

The new permit applications attempt to address the issues raised in the court’s decision, in an effort to ensure that, if new exempted fishing permits are issued, they will survive any new court challenge.  This time around, North Carolina is not participating in the exempted fishing permit process, and has asked NMFS to set the 2026 red snapper season off the North Carolina coast.

In its request for comments on the new applications for exempted fishing permits, NMFS advises that

“The stated primary purposes for these EFPs are to improve data on recreational fishing effort, catch, and discards of red snapper in the South Atlantic, and to inform the development of a long-term state-led management strategy for the recreational harvest of red snapper.  Additional purposes for the EFPs include:  (1) evaluating mandatory electronic reporting programs for monitoring catch; (2) providing recreational fishermen on privately owned vessels (private vessels, private anglers) and the owners or operators of charter vessels or headboats (for-hire fishermen) increased fishing opportunities for red snapper; (3) quantifying angler participation and characterizing angler behavior; and (4) collecting related biological information from the fishery.  The percent standard error estimates for the recreational harvest of red snapper are high, indicating low precision and significant uncertainty that would benefit from improved data collection efforts and approaches.  Better data could reduce the uncertainty around the estimates of harvest and discards from the recreational sector.  These proposed EFPs aim to address these challenges by improving recreational catch estimation and reducing discards so fishing opportunities can increase.”

To achieve those goals, the three states submitting applications

“each requested exemptions to certain Federal regulations for the proposed projects in the South Atlantic.

“1.  50 CFR 622.181(c)(2) limits the harvest and possession of red snapper to the specified season, and applies these limitations to a federally permitted for-hire vessel in both state and Federal waters.

“2.  50 CFR 622.183(b)(5)(i) specifies when the recreational season will occur each year.

“3.  50 CFR 622.193(y)(2) specifies the annual catch limit and accountability measures applicable to the recreational harvest of red snapper."

NMFS must now decide whether those exemptions are appropriate to achieve the purposes of the requested permits.

The first time around, the process was a pure political exercise, with the recreational fishing and boating industry, and the various anglers’ rights groups that carry the industry’s water, using connections within the Republican Party and the Trump Administration to get what they wanted.  Facts were basically irrelevant to the process, with at least one of the states—Florida—ranting MAGA rhetoric about the need to “rein in bureaucracy [underlined and in bold type],” returning “the power of fisheries management and conservation to the states where it belongs [also in bold type, along with some underlining, too],” complaints of “a bureaucratic blockade at the behest of status-quo defending adversarial interests [yes, more schoolgirl-like emphasis added]” and “weaponization of NOAA under President Obama,” and a reference to “God-given rights to recreate, and enjoy, our natural resources,” although no scripture was ever cited to support the suggestion that overfishing had a divine imprimatur.

Trump himself (or, at least, someone acting in his name and stead) went onto Truth Social to celebrate the issuance of the EFPs, suggesting that the industry had friends very high up in the Administration, who were pulling the right strings and doing the expected favors to get the job done.  (Perhaps it even recruited a major contributor to MAGA Inc. or to the now-enjoined East Wing ballroom, and so had made the requisite payment for administration attention.)

The states were so certain that politics would carry the day that they pointedly defied—not ignored, or neglected to follow, but pointedly defied—a regulatory requirement that the

“application package must include…[t]he species (target and incidental) expected to be harvested under the EFP, [and] the amounts of such harvest necessary to conduct the exempted fishing.  [emphasis added]”

Such defiance is clearly apparent in a letter from Roger Young, the executive director of Florida’s Fish and Wildlife Conservation Commission, to Secretary of Commerce Howard Lutnick, in which Young dismisses the need for Florida to comply with federal regulations, writing

“[NOAA] asks for a number of fish to be harvested in the EFP.  And in conversations with NOAA leadership, it was suggested to ‘throw out a number’ for consideration.  The Florida EFP limits harvest by number of fishing days and other fishery management tools, e.g. bag and aggregate bag limits.  The results will inform future management and conservation of the fishery in the region.  The EFP is not predicated on a number of fish, and for NOAA to request a number—even an estimated number—is inappropriate and unnecessary.  The State of Florida uses similar approaches with state-managed fisheries with routine success in conservation outcomes.  NOAA’s request to guess at a number is inconsistent with scientific management standards at the FWC.  [emphasis in original]”

Florida (and the industry organizations that it was supporting) effectively told Lutnick, “F*** you.  We’re doing it our way.  We don’t need to follow your rules.  The fix is already in.”

And that apparently worked with Lutnick, because the EFPs were ultimately issued, but it didn’t do so well once the courts got involved.  In fact, Florida’s (and other states’) failure to play by the rules was one of the reasons that the EFPs issued in May were enjoined.

For while the fix might have been in at the administrative branch, the judicial branch still believed in the law, and required NMFS to comply.

So this time, Florida’s EFP application, which also sets the scene for the other two states, is a little more reserved.  And yes, they estimated the number of red snapper that will be killed if the EFPs are issued.

Although the Florida application is an extensive, multi-page document, it is largely dependent on the argument that the Florida State Reef Fish Survey, a state survey designed to complement and enhance the Federal Marine Recreational Information Program, including its Fishing Effort Survey, is a more precise survey than the Marine Recreational Information Program itself.  That argument is key, as Florida argues that

“MRIP-FES was not designed to collect data for rare-event species, like Atlantic red snapper, or for fisheries that have very short recreational fishing seasons.  Conversely, SRFS was designed to collect data at a more regional level on reef-associated species that are found in deep, offshore waters such as the Atlantic red snapper…SRFS yields more accurate catch, effort, and discard data for the South Atlantic red snapper stock as compared to MRIP-FES.  Specifically, the more precise SRFS estimates of Atlantic red snapper catch, effort, and discards are 4 times smaller, 1.2 times smaller, and 2.1 times smaller than the MRIP-FES, respectively.  [formatting omitted]”

Those lower estimates are important, because if they are accurate, they will create a pool of fish that Florida, Georgia, and South Carolina anglers might exploit, pursuant to the exempted fishing permits, without necessarily overfishing the red snapper stock.

Thus, Florida argued,

“the proportion of landings and releases were determined using MRIP data for each state from 1981 to 2024.  SRFS data (annual estimates of releases and landings) were calibrated to MRIP-FES data using previously certified methods to determine annual South Atlantic total estimates of releases and landings for the private recreational sector.  To determine a specific annual private recreational estimate of releases and landings for each individual South Atlantic state, the annual proportion estimates for each state were multiplied by the total annual South Atlantic releases (or landings) as estimated by MRIP and as estimated by calibrated-SRFS data.  Because SRFS was calibrated to MRIP, the estimates derived can be directly comparable, as they are in a ‘common currency.’

“…[C]alibrated SRFS data results in significantly fewer releases and landings throughout the year than MRIP-FES for all states.  Because SRFS higher precision than MRIP-FES for both releases and landings, SRFS data can be treated with greater confidence than MRIP-FES.  Next, a 3-year average (2021-2024) of releases and landings using MRIP-FES and SRFS data was directly compared to assess the magnitude of differences in estimates of releases and, therefore, dead discards, as well as landings between the two programs…A 25.7 percent discard mortality rate was applied to both MRIP-FES and SRFS release estimates to determine the average annual number of recreational dead discards in each state.  This discard mortality rate was recommended for use in the SEDAR 90 Data Workshop as a ‘general recreational fleet’ discard mortality rate.

“Ultimately, this comparison indicated that the average annual estimate of dead discards (2021-2024) from MRIP-FES is 586,194 fish compared to 272,623 fish estimated by SRFS.  Because MRIP-FES and SRFS are calibrated in this analysis, the 313,571-fish difference is not trivial.  The dead discard calculation determined by NMFS in the SEDAR 73 update used MRIP-FES data and not SRFS data.  This is the stock assessment that informed Secretarial Amendment 59, which established the current catch limits for Atlantic red snapper.  Presently, 93 percent (475,000 fish) of the red snapper annual catch limit (‘ACL’) (509,000 fish) are assumed to be dead discards and are removed from the catch limit before a single hook hits the water.  In Amendment 59, 97.4 percent of dead discards (463,033 fish) are attributed to the recreational sector.  However, the above analysis, which imputes other South Atlantic states to calibrated SRFS data, highlights an estimated average difference of more than 215 percent in the number of dead discards between MRIP-FES and SRFS in the South Atlantic in recent years…Viewing the SRFS data as the [best scientific information available] for Atlantic red snapper (rather than MRIP-FES), a significant portion of the 463,033 dead discards (as assumed under MRIP-FES data) could actually be accounted for as landings with no biological harm to the stock.

“…To ensure continued progress in rebuilding and to prevent overfishing, it is necessary to convert the current catch limits (and dead discard estimates) from their current data currency (MRIP) to an SRFS equivalent.  Based on the previous analysis, the annual estimate of dead discards from MRIP is 584,194 fish, compared to 272,623 fish estimated by SRFS.  The ratio of these two estimates represents a conversion factor of 2.15020009.  To convert the dead discard estimate from MRIP units to an SRFS equivalent, the conversion factor was applied to the MRIP estimate (i.e., 463,033 dead discards) and equated to a 215,344.1 fish dead discard equivalent in SRFS units.  Because SRFS was calibrated to MRIP in the previous analysis, the difference between these two dead discard estimates (i.e., 463,033 fish – 215,344 fish = 247,688 fish) should be available for harvest, and key reference points related to overfishing could still be maintained, albeit in SRFS currency.

“Similarly, an SRFS equivalent to the harvestable recreational ACL (i.e., 22,787 fish in MRIP units) must be determined.  Using the same approach described above for releases, from 2021-2024, the average annual estimate of landings for all South Atlantic states from MRIP is 212,017.91 fish and the SRFS annual average estimate is 26,709.93 fish.  With MRIP nearly an order of magnitude higher than SRFS the conversion factor for landings is 7.937792.  To convert the 22,787 fish ACL from MRIP units into an SRFS equivalent, the landings conversion factor was applied to the MRIP ACL to equate to a 2,870 fish ACL equivalent in SRFS units.  When combined with the dead discard savings that could be transformed into harvest by using SRFS over MRIP, (i.e., 247,688 fish), the new SRFS-equivalent harvestable ACL by the recreational sector would be 250,559 fish (i.e., 247,688 + 2,870 fish) in the South Atlantic.  [emphasis added, references omitted]”

Thus, Florida made its case that issuance of the exempted fishing permits would not lead to legally-prohibited overfishing.

Does its argument make sense?  Quite honestly, I lack the statistical knowledge, as well as the specific knowledge about the State Reef Fish Survey, needed to make that judgement.  However, there are a couple of things that stand out.

In the “Purposes and Goals” section of its application, Florida states that

“The purpose of this EFP is to allow the FWC to conduct a pilot study in 2026 to test two methods for recreational data collection and for catch, effort and discard monitoring.  These methodologies could then be potentially applied by the State of Florida for management of the private recreational and licensed for-hire components (state and federal) within the red snapper fishery off Florida’s Atlantic coast in state and federal waters:  (1) Florida SRFS and (2) a voluntary smartphone web-based application during trips where a red snapper is harvested…  [emphasis added]”

And with that, it suddenly appears that Florida has snared itself in a trap made of circular logic.

One of the primary purposes of the applied-for exempted fishing permit is to “conduct a pilot study to test” Florida SRFS as a method “for recreational data collection and for catch, effort, and discard monitoring.”

The very words “a pilot study in 2026 to test” clearly suggests that, at this point, the efficacy of Florida SRFS as a recreational data collection methodology remains unproven and unknown.

Yet, at the same time, Florida is using SRFS-derived data—or at least data calibrated in “SRFS units”—to explain why both dead discards and landings are lower than MRIP data suggests, and thus why issuing the EFPs and allowing the proposed 31-day fishing season won’t lead to legally prohibited overfishing.

Florida really can’t have it both ways. 

Either the exempted fishing permits are needed to test Florida SRFS as a valid recreational data collection methodology, in which case SRFS data hasn’t yet been established as superior to MRIP, and can’t be used to demonstrate that overfishing will not occur if the EFPs are issued, or Florida SRFS has already proven itself to be reliable, in which case the exempted fishing permits—and the 31 day season—are not needed to establish that survey’s validity.

But to use a methodology that still needs to be tested to “prove” that anglers are killing fewer fish than MRIP suggests, and thus makes a quarter-million red snapper available for fishing under the EFPs—effectively saying that SRFS data proves that testing the SRFS as a data collection methodology won’t lead to overfishing because the methodology still being tested says so—hardly seems like a winning strategy.

Even if the SRFS data is taken at face value, it’s not clear why “When combined with the dead discard savings that could be transformed into harvest by using SRFS over MRIP, (i.e., 247,688 fish), the new SRFS-equivalent harvestable ACL by the recreational sector would be 250,559 fish (i.e., 247,688 + 2,870 fish) in the South Atlantic.

After all, the commentary accompanying the final version of Amendment 59 to the snapper/grouper plan, which sets the current catch limits, states that

“While the total ACL, and ABC, is equal to 509,000 fish, separated into 34,000 fish from the total ACL that is used to apportion each sector based on the current sector allocations is the result of what remains from the total ACL after accounting for the dead discards (509,000 minus 475,000)…Using the current sector allocation ratio of 28.07 percent commercial and 71.93 percent recreational as applied to the 34,000 fish, this final rule specifies a commercial ACL of 102,951 lb (46,698 kg), and a recreational ACL of 22,797 fish.”

The allocation doesn’t take place until after all of the dead discards, generated by both sectors, are subtracted from the ACL.  Given that existing methodology, should Florida’s calculations be correct, and dead discards are really 247,688 fish lower than currently believed, not all of those fish should be allocated to the recreational sector, nor should all of them be used to hopefully prevent overfishing should the requested 31-day recreational season be put into place. 

Instead, the allocation currently in the management plan should be applied, and only 178,162 fish—71.93 percent—of the supposedly available red snapper applied to the EFP, while the remaining 28.07 percent is allocated to increase the commercial quota.

Of course, we shouldn’t let ourselves ever believe that flaws in the EFP applications, whether logical loops or incorrect allocations, are going to have any impact on whether NMFS eventually issues the EFPs.

As was the case in May, the fix is in at the administrative branch, and NMFS is going to issue the permits, regardless of the applications’ merits.  That’s just the plain, if unpleasant, truth.

The question is what happens next.

The permits issued in May were clearly illegal.  As the court noted, NMFS never even tried to address concerns that serious overfishing would occur if the permits were not enjoined; the agency didn’t even require the states submitting applications to comply with the relevant regulations.  While no lawsuit is ever a slam-dunk, NMFS actions last spring were very hard to defend.

This time, it’s a little different.  Florida, and by extension, Georgia and South Carolina, have presented an argument as to why a 31-day season won’t lead to overfishing, based on SRFS data.  The argument might be logically circular, using what Florida admits is an untested system to prove that overfishing won’t occur, but it has nonetheless been made.  Yet after the comment period ends on August 25, NMFS can—and will—find that Florida’s argument was convincing, that overfishing will not occur, and that the exempted fishing permits may be issued.

Given the legal standard for overturning agency decisions—that there only needs to be some evidence on the record that supports the agency action, even if there are far more comments that suggest that the agency action is wrong—such a finding will likely be very difficult to overturn.

In such case, the commercial sector can only hope that they might claim a somewhat larger annual catch limit as a consolation prize.

As to what will happen to the red snapper itself, who can know?

While the stock is no longer overfished or—at least right now—subject to overfishing, the age structure remains slanted toward smaller fish, skewing its spawning potential toward the low side.  It’s not inconceivable that removing larger numbers of those small fish will depress spawning potential in the long term, and impact the sustainability of the red snapper fishery.  Maybe the stock will just muddle along, neither overfished nor fully restored, for years into the future.  Or maybe it will produce a few more strong year classes, and be fully rebuilt, despite the issuance of the EFPs.

Right now, it’s hard to tell.

But one thing is certain:  In moving forward with the applications for exempted fishing permits, NMFS, the states, and the industry organizations behind the effort are emphasizing short-term exploitation over the long-term health of the red snapper stock.

And that’s always the wrong thing to do.