MARYLAND LEGISLATION CHALLENGES THE ASMFC ON STRIPED BASS

 

On February 6, 2026, two Maryland state senators, C. Anthony Muse and Stephen S. Hershey, Jr., introduced SB 755, designated an “emergency bill” and described as

“AN ACT concerning Natural Resources—Striped Bass Recreational Seasons and Fisheries Regulations for the purpose of prohibiting the Department of Natural Resources from establishing a recreational catch and release season for striped bass; requiring the Department to establish certain recreational and charter boat summer and fall striped bass seasons and a trophy season for striped bass; requiring the Department to complete and submit to certain State entities for review an economic impact statement for any proposed fisheries regulations identified by the Department as having a major impact on interested stakeholders; and generally relating to recreational fishing seasons for striped bass and fisheries regulations.  [formatting omitted]”

Both legislators come from Maryland’s Eastern Shore and, given the content of the bill, it appears that they were acting on behalf of Eastern Shore waterman and, in particular, Maryland charter boat operators, who are seeking a two-striped-bass bag for their customers.

While passage of the bill would undoubtedly please the charter boat community, it would also take Maryland out of compliance with the Atlantic States Marine Fisheries Commission’s fishery management plan for Atlantic striped bass.  As a result, depending on the whims of the Secretary of Commerce and others within the Trump administration, it could thereby result in a complete closure of Maryland’s striped bass fishery.

While the striped bass fishery in Maryland’s portion of the Chesapeake Bay is legally regulated by the State of Maryland, Maryland’s regulatory actions are constrained by the Atlantic Coastal Fisheries Cooperative Management Act, which provides in pertinent part,

“The [Atlantic States Marine Fisheries] Commission shall prepare and adopt coastal fishery management plans to provide for the conservation of coastal fisheries resources…The coastal fishery management plan shall specify the requirements necessary for the States to be in compliance with the plan.  Upon adoption of a coastal fishery management plan, the Commission shall identify each State that is required to implement and enforce that plan…

“Each State identified…with respect to a coastal fishery management plan shall implement and enforce the measures of such plan within the timeframe established in the plan…

“The Commission shall determine that a State in not in compliance with the provision of a coastal fishery management plan if it finds that a State has not implemented and enforced such plan within the timeframes established under the plan…

“Upon making a determination [that a State is out of compliance], the Commission shall within 10 working days notify the Secretaries [of Commerce and the Interior] of such determination.  Such notification shall include the reasons for making the determination and an explicit list of actions that the affected State must take to comply with the coastal fishery management plan…

“Within 30 days after receiving a notification from the Commission [that a state is out of compliance] and after review of the Commission’s determination of noncompliance, the Secretary shall make a finding on whether the State in question has failed to carry out its responsibility [to comply with a coastal fishery management plan]; and, if so, whether the measures that the State has failed to implement and enforce are necessary for the conservation of the fishery in question…

“Upon making a finding…that a State has failed to carry out its responsibility [to comply with the provisions of a coastal fishery management plan] and that the measures it failed to implement and enforce are necessary for conservation, the Secretary [of Commerce] shall declare a moratorium on fishing in the fishery in question within the waters of the noncomplying State…  [formatting and numbering omitted]”

Currently, striped bass are managed pursuant to the ASMFC’s Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass, as well as Addendum II and Addendum III to such Amendment.

Relative to Maryland’s recreational striped bass fishery in the Chesapeake Bay, Addendum II provides that

“Chesapeake Bay recreational fisheries are constrained by a 1-fish bag limit and a slot limit of 19 inches to 24 inches…States are required to maintain the same seasons that were in place in 2022.

“The Chesapeake Bay recreational spring trophy fisheries are managed by the same size and bag limits as the ocean fishery (1 fish at 28 inches to 31 inches) with the 2022 trophy season dates.  [internal reference omitted]”

Addendum III granted Maryland some flexibility in setting its seasons, allowing it to either maintain its 2022 seasons or implement a different set of seasons that the state had previously presented to the board and to the Striped Bass Technical Committee; such alternative regulations were not found to increase Maryland recreational striped bass landings.  However, Maryland was not permitted to adopt any other combination of seasons—only the 2022 seasons or the alternative presented to the board were permissible.

A reading of SB 755, makes it clear that the bill, if passed and signed into law, would take Maryland out of compliance with the ASMFC’s striped bass management plan in multiple respects.

The first section of the bill, which simply states,

“The Department may not establish a catch and release season for striped bass, commonly known as rockfish,”

is fine on its face.  If Maryland chose to replace the current catch-and-release seasons with outright prohibitions on striped bass fishing, it would be free to do so without running afoul of the ASMFC’s management plan.  Problems would only arise should the state replace a current catch-and-release season with one allowing harvest.

But the second section creates all sorts of trouble, and not only with respect to compliance issues.

It begins,

“The Department annually shall establish a recreational and charter boat summer and fall striped bass season beginning May 16 each year and ending December 10 each year.”

The reason for that is pretty clear: The charter boats don’t like the current season, which allows no striped bass fishing at all (including catch-and-release) during the last half of July, and dislike the proposed alternative seasons, which would allow harvest throughout July but outlaw all striped bass fishing for the entire month of August, even more, because the for-hire boats do a lot of business during the summer and summer closures limit their profits. 

The problem is that neither the 2022 seasons, which include no striped bass fishing for half of July, nor the alternative set of seasons approved in Addendum III, contemplate the continuous open season specified in SB 755.  That season, if adopted, would take Maryland out of compliance with the current management plan.

A later subparagraph in the same section establishes a bag limit of two fish per person for anglers fishing from charter boats, which clearly contradicts Addendum II’s one-fish bag limit, and would also take Maryland out of compliance.

So would the bill’s section (C), which would require Maryland to establish a spring trophy fishery.

Such fishery existed in 2022, so if Maryland chose to reestablish it, the state would be free to do so if it kept its current season structure; language in Addendum III suggests that, if the alternative season structure was adopted, a trophy fishery would be prohibited.  However, the 2022 trophy fishery ran from May 1 – May 15, while SB 755 would break the new trophy fishery into three 3-consecutive-day periods in late April and/or early May, a clear violation of Addendum II’s requirement that “States are required to maintain the same seasons that were in place in 2022.”

SB 755 is also flawed in that it specifies that anglers “may not catch or possess [emphasis added]” more than two striped bass per day if fishing from a charter boat, or one fish per day if fishing from any other platform.  The plain meaning of the words “catch or” preceding “possess” suggest that if an angler released a bass, whether voluntarily or because the fish was over- or undersized, the released fish would be counted toward the daily bag limit, and that the angler would be required to stop fishing once the one (or, if fishing from a charter boat, two) fish bag limit was caught, even if the angler hadn’t retained any bass up to that point.

But that is a technical issue.  The primary problem with SB 755 is that, if passed, it would take Maryland out of compliance with the ASMFC’s striped bass management plan, and could result in a federally imposed moratorium shutting down the state’s striped bass fishery until the bill was repealed.

If that happened, the charter boats who are presumably behind SB 755 wouldn’t be able to fish at all, at least for a while.

It seems to be one of those cases where the charter boat folks ought to be careful of what they ask for, because they might get it.

And maybe it’s also one of those cases where legislators ought to be careful to understand all of the implications of a bill before they introduce it, because if SB 755 becomes law, and a moratorium is imposed in response, there are going to be a lot of unhappy people, both in the recreational and in the commercial fishery.

And a lot of those commercial and recreational fishermen live—and vote—on the Eastern Shore.

 

 

WHITHER THE STRIPED BASS?

 

When we hear people talking about striped bass these days, we get a lot of conflicting messages.

Some, citing the recent poor spawns in the Hudson River and the seven years of record low recruitment in the Chesapeake Bay, are filled with despair.

Others, citing the current cold winter and its hoped-for effect on spawning success, are sounding notes of optimism.

Still others choose to deny reality, speak of bass continuing to spawn in unidentified northern rivers, and claim that all is well.

But when we try to take a reasoned look at where the striped bass is headed, we find that the truth is a little more nuanced.

There are things that we know for certain. 

We know that the Maryland Juvenile Abundance Index for the past seven years—2019 through 2025—has never been lower, on average, in any seven-year period dating back to the start of the index in 1957.  We know that the Virginia JAI has also been low in recent years, that New Jersey’s Delaware River JAI was very low in 2022, 2023, and 2024 (I haven’t yet seen the 2025 JAI), and that, for the past three years,  Hudson River spawning success was below the 25^th percentile of all spawns going back to 1985, and probably met the definition of “recruitment failure” (three consecutive spawns in the lower 25% of all spawns between 1985 and 2009).

We also know that the Chesapeake Bay stock (which, from a genetic standpoint, also includes bass spawned in the Delaware River) of striped bass provides at least 80% of all striped bass caught off New England and the mid-Atlantic states, with the Hudson River providing almost all of the rest.  Since 2018 was the last, very modestly above-average spawn in the Chesapeake, and since Age 9 bass will, for the most part, be more than 31 inches long, we know that, beginning in 2027, legal-sized striped bass are going to be very difficult to find in the ocean fishery, and that drought of legal-sized fish is going to last—assuming that the current slot size limit remains in place—until at least 2033, and perhaps a lot longer than that if recruitment doesn’t improve.

What we don’t know is whether recruitment will improve and, if it does, whether it will reach the levels of the late 1990s/early 2000s, or whether, because of changing environmental conditions, it will stall at some level higher than what we’re experiencing today, but lower than what we enjoyed in the past.

Based on those knowns and unknowns, fisheries managers are going to have to figure out how to manage the resource in both the short and intermediate term, and eventually in the long term as well.  That’s essentially what the striped bass “Work Group,” approved last October by the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board, was created to consider, although there is still some work to be done before that Work Group is constituted and gets underway.

So, given the recent history of poor recruitment, can things turn around?  Can we reasonably expect a good spawn this year?

Those are difficult questions to answer.

One research team, led by Julie M. Gross of the Virginia Institute of Marine Science, developed an approach that was dubbed “the poor recruitment paradigm,” which

“hypothesizes that it is easier to predict poor recruitment rather than good recruitment because an environmental variable affects recruitment only when its value is extreme (lethal); otherwise, the variable may be benign and not influence recruitment.  Thus, good recruitment necessitates all environmental conditions not be harmful and for some to be especially favorable; poor recruitment, however, requires only one environmental variable to be extreme.”

Taking that approach to heart, we know that we have most likely escaped the bad impacts created by a warm winter, but we still can’t know whether there will be enough favorable conditions to create a good spawn—or whether just one factor might go far enough in the wrong direction to scuttle the prospects.

The same team of researchers found that, in the case of Chesapeake striped bass,

“Low spring river discharge reliably resulted in poor recruitment of striped bass.”

And once again, we can’t know what water flows are going to look like when the spawn is going on.  Hopefully, the cold winter will lead to some snowmelt increasing river flows, particularly toward the beginning of the spawning period, but it’s far from clear that snowmelt will be enough.  Today (February 12), the Drought Monitor map for Maryland shows most of the state experiencing below-normal precipitation, ranging from “Abnormally Dry” to “Severe Drought,” with the land immediately bordering the Chesapeake Bay deemed to be either “Abnormally Dry” or in “Moderate Drought” while much of the land farther west, where some of the Bay’s tributaries originate, fall into the “Severe Drought” category.

Despite the cold winter and some snowpack, water flows could still prove to be a problem.

Other factors also come into play.  For example, there is the “match-mismatch hypothesis,” which links successful recruitment with suitable prey species being available when and where the juvenile fish need them.  In the case of striped bass, the prey are copepods—tiny crustaceans—that, when available in good numbers, can support a large year class of juvenile fish.  Researchers believe it is likely that

“the best conditions for striped bass recruitment could occur when the peak in [copepod] abundance occurs during late spring in upper Chesapeake Bay.”

High water flows are believed to transport the copepods to where the bass can best take advantage of their abundance, while

“cold winters delay the timing and increase the size of peak [copepod] spring abundance.”

In the coldest winters, copepod abundance peaks around the middle of April. 

Thus, the current cold winter holds out hope that there will be enough food available to support a strong striped bass year class, although the need for high water flows to move that food to places where it is available to the juvenile bass suggests that any optimism based on the cold winter needs to be tempered by the real possibility that current drought conditions will limit water flows.

But there is at least one more parameter to consider, and that is water temperature during the spring.

A paper titled “Climate effects on the timing of Maryland Striped Bass spawning runs,” published in the journal Marine and Coastal Fisheries on November 20, 2023, noted that striped bass spawn when water temperatures are between 12 and 20 degrees Celsius (54.5 to 68 degrees Fahrenheit), and that larval survival is highest in water temperatures between 16^oC and 21^oC (61^oF to 70^oF), although most spawning doesn’t begin until water temperatures reach 14^oC (57^oF), and egg survival decreases once water temperatures exceed 20^oC.  It also noted that female striped bass move onto the spawning grounds about 3 days sooner for every 1^oC (1.8^oF) increase in water temperature.

Looking at spring water temperatures over time, the paper’s author revealed that

“Mean water temperatures on the Upper Bay and Potomac River spawning grounds were lower in the late 1980s and 1990s and have increased since 2000.  Although no significant change was detected over time for when the 14^oC temperature milestone was reached to initiate spawning, a significant change was detected through time with the 20^oC milestone at which Striped Bass egg survival is deemed poor.  These changes suggest that the spawning season has shortened.  All of the spawning milestones…are dependent on water temperatures and occur earlier when mean water temperatures are higher.  [emphasis added]”

That might have a negative impact on striped bass spawning success.

“These shifts and reductions in the spawning window could affect Striped Bass in several ways.  First would be from the direct effects of temperature.  Striped bass eggs and larvae are known to be sensitive to water temperatures, with lethal effects documented at temperatures below 12^oC, and ideal survival over the first 25 days after hatching at temperatures between 16^oC and 21^oC.  If temperatures continue to warm quicker in the latter portion of the spawning season, this could result in a reduced time period during which temperature conditions are ideal for Striped Bass survival.  Second, these temperature changes could affect the timing of larval Striped Bass relative to their zooplankton prey, a concept known as match-mismatch.  Large year-classes of Striped Bass tend to occur after cold and wet winters, and [scientists] showed a potential mechanism for this, with the rate that copepods reach the adult stage over the winter being dependent on winter temperatures.  Climate projections for the Chesapeake Bay suggest that in the future, winter air temperatures and precipitation amounts will likely be higher.  These novel conditions could make it less likely that large copepod abundances will coincide with Striped Bass spawning, but it will depend on the exact rate that fish spawn earlier and how that overlaps with prey availability changes.  [references omitted]”

So, as we slowly approach the spawning season, we have one positive—it has been a cold winter—which might make it more likely that the copepods that the newly-spawned bass rely on for food will be available.

However, while the winter has been cold, it hasn’t been particularly wet, with much of Maryland experiencing some level of drought.  There is no guarantee that, by the time the spawning season comes around, water flows will be high enough to promote a good spawn, and to push whatever copepods there are around to the places that the young bass need them to be.  And if the spring is warm, it is very possible that the spawning season will be curtailed as waters quickly rise above 20^oC, and that in the end, the peak abundance of larval striped bass and the peak abundance of copepods won’t coincide.

If we go back to the idea of the “poor recruitment paradigm,” we have a number of things—water flows, high water temperatures, and a mismatch in the availability of prey, to name three—that might go seriously wrong, and no hint that anything except for a cold winter might go particularly right. 

A recent article that appeared on the website of On the Water magazine probably put everything in the right perspective:

“This winter has been persistently cold across much of the Mid-Atlantic and Northeast.  Snowpack, frozen ground, and extended cold snaps raise the possibility of elevated spring runoff, especially if temperatures warm gradually rather than all at once.  That’s why biologists will be watching Chesapeake conditions closely in March and April.  River flow, water temperature, and plankton development during that window will give them a more complete picture of the likelihood of striper spawning success.  For a stock that has endured years of poor recruitment, even a setup that looks promising is worth noting.”

So, whither the striped bass?

An old adage probably provides the right advice:  “Hope for the best, but prepare for the worst.”

For even if we get a more successful spawn in 2026, we’ll still be a very long way from a healthy striped bass stock that, in the long term, is likely to thrive.

ASMFC DISTRIBUTES BLACK SEA BASS; SOME IN NEW JERSEY ARE NOT AMUSED

 

Last December, I reported that the Mid-Atlantic Fishery Management Council, acting in conjunction with the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup, and Black Sea Bass Management Board, decided to authorize a 20% increase in recreational black sea bass landings.

While I questioned the wisdom of that decision, it was made, and will now govern the recreational black sea bass fishery in the mid-Atlantic and New England through at least 2027.  Last Wednesday afternoon, the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup, and Black Sea Bass Management Board, acting pursuant to explicit language in Addendum XXXII to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, after substantial debate, adopted a motion to distribute the 20% increase among the three black sea bass management regions (Massachusetts-New York, New Jersey, and Delaware-North Carolina north of Cape Hatteras), which read

“Move to approve to distribute the 20% coastwide liberalization as follows:

·       Southern region 16.5%

·       Northern region not to exceed 27%

·       NJ region to receive the remaining liberalization from the Northern and Southern regions.”

The motion passed on a vote of 10 in favor, none opposed, and NOAA Fisheries abstaining.  Surprisingly, New Jersey cast a “null vote” after its two delegates, fisheries manager Joseph Cimino and Legislative Proxy Adam Nowalsky, couldn’t agree on a position, with the former supporting the motion and the latter vehemently opposed.

In fact, Nowalsky was so opposed that he threw a little hissy fit after the vote, lamenting that he had promised his constituents that they would receive at least a 20% black sea bass increase, and was now going to have to go back and tell them that they were going to get a little bit less.

He apparently wasn’t alone in his discontent, which was shared by at least some other members of New Jersey’s recreational fishing community.  Jim Hutchinson, Jr., editor of the New Jersey/Delaware edition of The Fisherman magazine, described the outcome as

“New York and Massachusetts, these states, these fisheries managers, were trying to get their grubby little hands into New Jersey’s pockets in order to grab more black sea bass for their self-serving and arrogant reasons…The anti-New Jersey sentiment once again bubbling over at the ASMFC, with other states, the northern states, believe, well, they’d like to redistribute some of that shared resource because—I don’t know—they think they deserve more, they’re better than we are, and we don’t count…The states to the north decide that it was time for a reallocation battle, because New Jersey has too much…ten other states said ‘Let’s screw New Jersey’…New York and New England, they played dirty pool.”

It was an entertaining diatribe, and undoubtedly appealed to at least some members of the New Jersey fishing community.  Unfortunately, it ignored both history and some very explicit language in the relevant fishery management plan.

A provision of Addendum XXXII clearly states,

“In the event that a region is allowed to liberalize harvest, states will develop their measures in a manner that collectively reduces interregional disparities (e.g., states with relatively restrictive measures, as determined by the [Technical Committee] based on performance, should be allowed a larger liberalization, while states with relatively liberal measures should take a smaller liberalization or remain at status quo)…  [emphasis added]”

Given that language, there was really no reason to expect that all of the regions would receive an equal percentage increase in landings.  In fact, looking at the differing management measures across the states and the regions, it was clear that some states/regions ought to be treated differently than others.

The regulations adopted by the states in the Northern region vary in their details and their complexity, but all are relatively restrictive.  Massachusetts has a 16.5-inch minimum size, 4-fish bag limit, and a season that runs from May 17 through September 1.  Rhode Island’s regulations are a bit more complicated, with a 16.5-inch minimum size for shore-based and private-boat anglers, along with a 2-fish bag limit from May 22 through August 26 and 3-fish bag for the remainder of the year, while anglers fishing from party and charter boats enjoy a 16-inch minimum size, a 2-fish bag from June 18 through August 31, and a 6-fish bag for the remainder of the year.  In Connecticut, there is a 16-inch minimum size for everyone, a 5-five fish bag limit and a season that runs from May 17 through June 23, and again from July 8 through September 25 for shore-based and private-boat anglers, while those fishing on for-hire vessels have a 5-fish bag limit from May 17 through August 31, and a 7-fish bag for the remainder of the year.  New York’s anglers are limited to a 16.5-inch minimum size, a 3-fish bag limit from June 24 through August 31, and a 6-fish bag for the remainder of the year.

In the Southern region, the regulations are much more consistent and far less restrictive, with Delaware, Maryland, Virginia, and North Carolina all having a 13-inch minimum size and 15-fish bag limit and seasons that are nearly, but not completely, identical, running from May 15 through the end of the year, with a 10-day (21 days in Virginia) hiatus sometime in in the middle.

New Jersey anglers, on the other hand, enjoy the smallest size limit on the coast, at 12.5 inches, and a bag limit of 10 fish from May 17 through June 19 and again throughout the month of October, 1 fish in July and August, and 15 fish in November and December.

Thus, based on the language of Addendum XXXII, the Management Board acted properly when it distributed the 20% overall increase as it did.

The history of black sea bass management, and the current physical distribution of the black sea bass resource, further confirms the Management Board’s decision as the right one.

To understand why, it’s necessary to go back to the February 2018 meeting of the Management Board, when Addendum XXX to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, which created the three black sea bass management regions, was adopted.

By 2018, it was very clear that black sea bass were benefitting from a warming ocean, and pushing farther and farther north in response to more favorable conditions.  Prior to 2003, about 80% of recreational black sea bass landings came from states between New Jersey and Virginia, but that soon began to shift.  In 2009, for the first time, the states between Massachusetts and New York landed more black sea bass than the states farther south, and by 2016, the landings pattern had completely reversed, with the four northern states accounting for 83% of recreational black sea bass landings.

It was simply a matter of anglers in the northeast catching more sea bass because that’s where most of the black sea bass were.

But black sea bass management didn’t reflect the changes in black sea bass abundance, inflicting disproportionately high restrictions on the Northern region states (which up until 2018, included New Jersey).  As noted in Addendum XXX,

“The northern region states have been subject to harvest reductions in all years [between 2012 and 2017] except 2012 (liberalization) and 2017 (status quo), while the southern region states have been largely status quo.  Approximately 96% of the coastwide harvest comes from the northern region states…”

Addendum XXX was, in part, intended to provide more parity between the two regions, so that the northern region wasn’t continually subject to ever more restrictive regulations.  At the February 2018 Management Board meeting, Caitlin Starks, the ASMFC’s Fishery Management Plan Coordinator for black sea bass, noted that

“the Addendum was initiated in response to several challenges in recreational black sea bass management over the past several years; related to inequities in harvest reductions and accountability for the effectiveness of regulations…”

When the debate over the final shape of Addendum XXX began, Dr. David Pierce, a Massachusetts fisheries manager, opined,

“I think the regional approach is the way to go.  Along with our having a regional approach, there is a need for us to follow through with what the organization, what the Atlantic States Marine Fisheries Commission has decided to do; not just for black sea bass, but for the whole suite of species along the Atlantic coast, and that is to address changes in distribution, distribution and abundance of these different stocks…

“…I’m influenced by the fact that we have the latest assessment on black sea bass; indicating that about 87 percent of the black sea bass resource is found from New York to Massachusetts, and that’s a change from the way it used to be…”

Dr. Pierce then made a motion to adopt regional management and to base regional allocations on both exploitable biomass—that is, where the fish are today—and historical harvest. 

That motion passed.

Then Eric Reid of Rhode Island moved to base the historical harvest on landings between 2011 and 2015, which more-or-less reflected the current spatial distribution of the stock (recall that northern landings exceeded southern landings for the first time in 2009, and that the states between New York and Massachusetts landed 83% of the fish in 2016). 

Of course, basing the regional allocation on where the fish were in 2018 (and still are today), rather than on were they were a decade or more before, would have resulted in a substantial cut for New Jersey, so before Mr. Reid could even rise to speak in support of his motion, New Jersey’s Nowalsky raised an objection, making the argument that

“what has really driven this fishery in recent years is a 2011 year class; and to go ahead and essentially use this 5-year timeframe to make an allocation decision, based primarily on a single year class…

“To say this is a year class, and we’re going to use that for allocation.  I can’t even fathom that…

“To that end I believe that the 2006 to 2015 10-year option is something that is fair and reasonable; in terms of incorporating what an allocation decision should be based on, a combination of history and current conditions.”

He then moved to substitute the 10-year time period for the 5-year period suggested by Mr, Reid.

Of course, Nowalsky’s argument was completely fatuous.  Mr. Reid suggested that the allocation be based, in part, on historical landings from 2011 to 2015; the 2011 year class, which at best might have been 4 inches long in 2011, wouldn’t have impacted that year’s landings at all.  By 2015, Massachusetts, Rhode Island, Connecticut, and New York all had all adopted a 14-inch minimum size for black sea bass, and since at least one length-at-age chart developed by the State of Connecticut indicated that a 4-year old fish—the age a fish spawned in 2011 would be in 2015—would only be about 13.5 inches long (with some variation, as fish grow at different rates), it wouldn’t appear that the 2011 year class would have much influence on 2015 landings, either.

But Nowalsky’s claim, however inaccurate, was still enough to divert the discussion from Mr. Reid’s motion to his own.

Mr. Reid was eventually given a chance to speak, at which point he noted that the Summer Flounder, Scup, and Black Sea Bass Advisory Panel had supported basing allocation on the 2011-2015 time period by a margin of 8 to 1; he also noted that

“Generally speaking, the biomass is trending north and east; and this timeframe will take that into account.  To me, ignoring those points would cause a bigger disconnect between management and reality, higher angler frustration and higher discards.”

New York fishery manager John Manascalco supported Mr. Reid, and opposed Nowalsky’s substitute motion.

“The 10-year timeframe doesn’t reflect the state of the fishery.  The state of Connecticut in the last two years is the second largest black sea bass harvester in the four-state northern region.  Going back to 2006 up to sometime in the early 2010s, they had no fishery.

“To adopt a time series that completely ignores the fact that the fishery has changed so drastically, that some states that used to harvest fish in the tens of thousands is now harvesting them in the many hundreds of thousands.  It is ignoring the vast impact that would have, and the equity issue that would have to the north, which has over the same time series, while the southern states remained at 12.5 inches, 200 days, a bag limit of 15 to 25 fish, has cut their seasons to no spring season and no fall season, 3-5 fish when the majority of anglers have access to the fishery, and continue to harvest the vast majority of fish on the coast, even at 15 inches.”

Dr. Pierce also opposed Nowalsky’s motion, while rebutting his claim that the 2011 year class was driving the seeming shift to the north.

“As noted already, the Advisory Panel was nearly unanimous in supporting the shorter timeframe.  They said the fishery is changing very fast.  They have said that it’s very different from beyond five years ago.

“Our focus should be on change and distribution of this resource; and the first motion that was adopted got to that particular point.  I’ll emphasize as well that biomass started shifting to the north before the 2011 year class.  We’re not talking just about the 2011 year class; it’s more than that.”

Mark Alexander, a Connecticut fisheries manager, added

“I won’t reiterate what John Manascalco said, but it’s true.  Our harvest has increased dramatically.  The abundance index in our trawl survey has increased dramatically.  But that increase has only been over the past four or five years.  Like John said, we had almost no harvest in Connecticut prior to that.

“The second thing is that in choosing [the five year base period], the Board has wanted to take this in a new direction; so that current abundance is reflected in how we approach management.  I think the shorter time period is more consistent with that approach; and for that reason I will oppose the motion to substitute.”

The southern states, which would end up with higher landings under Nowalsky’s motion, gave it their support, even after Mr. Manascalco put some more facts on the table.

“After bias correction for 2015, the regional [fishing mortality rate] for the north was well below [the fishing mortality rate that would produce maximum sustainable yield].  After bias correction for the south, the regional [fishing mortality rate] was above [the fishing morality rate that would produce maximum sustainable yield].  The north under constant catch was forced to constrain, constrain, constrain, or try to constrain harvest, 15-inch size limits, and things I’ve already spoken to; while the south was allowed to remain at 12.5 inches, 200 plus days, and large bag limits.

“Here we are again; and if I look at these tables, the outcomes of this regional allocation we’re about to make is going to what, if we accept or adopt 2006 to 2015, yet another cut for the northern states, the region that is well below the [fishing mortality rate that would produce maximum sustainable yield]; where at the same time, Delaware through North Carolina will be allowed to liberalize by as much as 36.75 percent.  That doesn’t sound like that is sound management.”

But Nowalsky’s motion wasn’t about the facts, or about fish distribution, or about changing patterns of catch.  It was not about anything resembling objective truth.  It was about landing as many fish as possible in New Jersey and the states to its south, regardless of changing conditions.  So when he saw the arguments arrayed against him, Nowalsky called for a brief recess, and when that recess was over, began blowing smoke.

“…We’ve talked a lot this week.  We’ve heard this word compromise, working together.  We’ve dealt with some recent appeals, and the challenges of those.  I just can’t help but think that if we get out of here with something that is more than a 6-4 decision or something, is better for all of us to take home.  To take something home because I convince one more person to vote for me rather than you did, I just don’t think it reflects well on this body.  I think that this approach of splitting something here down the middle is a reasonable compromise, is within the spirit that the Commission is trying to convey, and I can support this approach moving forward.”

Shortly thereafter, he withdrew his original motion, and put a new motion forward, that more or less averaged out the allocations resulting from the 5-year and 10-year base periods, and would give a 61.35% allocation to the north, and a 38.65% allocation to the south, and give New Jersey more than three-quarters of the southern allocation.

The new motion had the support of New Jersey and the southern states, leading to Mr. Manascalco resignedly admitting that the northern states were backed into a corner.

“…I do have an issue with the fact that we’re in a situation here where there are four northern states.  Essentially, given the current management structure, the way we have chosen to split up regions because of the way fisheries occur.

“Northern states will never have the votes to get fair access to the resource.  I don’t want that to be lost on anyone here.  Four states, for votes.  It’s never going to do it when there are ten people sitting around the table.  We will be talking about [annual catch limits] in a little while.  Northern states are going to take a look at the number of fish that they have to work with; and they’re going to be forced to make decisions about it.  Oh, do I need to consider going up in size again, going to 16 inches?  We’re talking about increasing discards just to maintain the fishery we currently have.

“I’ll remind you New York has no spring, Massachusetts has no fall, 3 fish, 5 fish, and we’re going to be further restricting these fisheries.  In order to maintain just what we have, consider we’ll have to be entertaining an increase in size limit and more discards.”

That was the unvarnished truth, but neither biological nor management truths had much to do with how the issue would be decided.  As Rhode Island’s Mr. Reid observed,

“I don’t need to go to two decimal points to count 6 to 4.  That is my problem.  I do appreciate the fact that we just spent a lot of time trying to cooperate.  When you’re bargaining from a losing position to start with, it really doesn’t make you all that comfortable.  What is going to happen in the north is going to be the discard rate is going to be so high that the payback for us is going to make it more foolish than it is now.

“This is where we’re going; and that’s where we’re going to say we’re going to do.  We all know.  We all know what happens.  Those fish are going to go over the side, we’re going to have to pay them back, and we’re going to go down again…

“…this is going to create waste that is going to be insurmountable for the northern states; until we redo all this again…In our first action today the northern region already lost 100,000 fish.  That’s what we lost already.  We started out the day we’re down 100,000 fish.

“…That doesn’t work for me.  That’s not what it’s about.  Cooperation is great; and I really do appreciate that.  But we’re not going to get anything that’s close to being acceptable to us.

“I understand that it is allocation; and my partners to the south, God bless you, you’re going to get fish that you probably don’t need…

“Just be aware that if we go down even this road here, I mean okay we lose, but we don’t lose that much at 6 to 4, because that’s where we’re at…Today all we’re going to do is create waste.  I’m glad we all had a nice kumbaya moment yesterday, but we’re not having it today.”

And he was right.  Nowalsky’s motion passed 6 to 4, with 2 abstentions, as New Jersey and the southern states clung on to all the fish that they could, despite the fact that the center of black sea bass abundance had moved to the north.  And the northern states remained subject to unduly restrictive management measures for another decade, even though they had a plethora of black sea bass residing right off their shores.

Last Wednesday, the Management Board recognized the inequities that resulted from their previous action, and not only all of the southern states, but even New Jersey’s primary marine fisheries manager, voted to provide some relief for the northern states.

So no, the northern states didn’t “grab more black sea bass for their self-serving and arrogant reasons,” as The Fisherman’s Hutchinson has claimed.  They didn’t “think…they’re better than” New Jersey.  They didn’t say “Let’s screw New Jersey” or plan “dirty pool.”

They just sought a little justice in resource allocation, and finally collected on a debt that the Management Board incurred a full decade ago, although what they received won’t undo the hardships suffered by black sea bass anglers in the northeast over the past decade.

But it is still more than they had ever gotten before.

 

 

 

A BUSINESS CALLED COMMERCIAL FISHING

 

Commercial fishing is undoubtedly one of the oldest businesses still pursued by mankind.  Nonetheless, it is a business, although in some ways, it isn’t always treated as one.

I was reminded of that a few days ago, when I was wasting time perusing the Internet, and came across a post directing me to the online petition site Change.org, and a petitioner’s plea to

“Allow transfer of commercial fishing licenses beyond family in New York.”

The petitioner seeking such change argued, in part, that

“The closure of the Horseshoe crab fishery has personally impacted me and many others in New York State who rely on commercial fishing for their livelihood.  This sudden change has limited our ability to source bait, creating a significant economic strain on us and our families.  With the current regulations, commercial fishing licenses can only be transferred within a direct family lineage, which further restricts opportunities for those needing an alternative or additional income stream…

“…the restrictive nature of transferrable fishing licenses limits entry into the industry and makes it difficult for lifelong and aspiring fishermen to sustain their livelihoods…

“The amendment to allow transferability of fishing licenses beyond direct family members is a crucial step towards economic resilience.  By introducing a more flexible license transfer policy, we can ensure that those impacted by changes or closures in specific fisheries, like the Horseshoe crab, have viable alternatives to earn a living.

“…other states have successfully implemented similar policies, strengthening their fishing sectors while promoting fair access and encouraging growth.  New York can follow a similar model that respects family heritage while recognizing the practical needs of the industry to adapt to evolving environmental and economic challenges…”

I don’t know the petitioner, but from what he wrote, it sounds like he has been commercially fishing for either eels or whelks, or maybe for both, he is worried that New York’s recent ban on horseshoe crab harvest, which will be phased in over the next four years, is going to make it impossible for him to get bait for his traps, and he sees his commercial fishing business headed for economic ruin.  (Egg-bearing, female horseshoe crabs have long been the preferred bait for both whelks and eels.  Fishermen claim that no other bait is even remotely as effective, and one eel potter recently told me that, once the full ban on horseshoe crab harvest goes into effect, he might as well sell his pots, because the lack of good bait will put him out of business.)

It's not clear what license he is seeking to transfer, but he’s probably either trying to sell his license to fish for whelks while it still might be worth something to someone, or trying to purchase a license to fish for other things in order to maintain his commercial fishing lifestyle.

It doesn’t seem like an unreasonable thing to do.  The problem is that New York law doesn’t permit those sorts of transfers.  Section 13-0335 of the state’s Environmental Conservation Law explicitly states that

“Licenses…shall be non-transferable and shall expire on the last day of December of each year,”

although a license holder has the right to renew their license each year.

Yet, when one looks a little deeper, it seems that “non-transferrable” doesn’t mean that a fishermen can’t transfer a license to anyone, for section 13-0328 of the Environmental Conservation Law provides that

“the department [of Environmental Conservation] may permit reissuance of a license or permit to a member of the immediate family of the prior holder of such license or permit, provided that the individual to whom the license or permit is being issued is at least sixteen years of age.  The department may permit a license or permit holder to designate in writing a member of his or her immediate family to whom the license or permit shall be reissued in the event that the license or permit holder dies prior to surrendering his or her license to the department.”

So, even in New York, a commercial fishing license is transferrable, presumably for no charge (although that’s not necessarily true), to a member of one’s immediate family, which is broadly defined as a

“spouse, sibling, parent, child, grandparent, grandchild, and, in addition, all persons who are related by blood, marriage, or adoption to the permit holder and domiciled in the house of the licensee or permit holder,”

but not to a member of the general public. 

Except, even that isn’t completely true, because another paragraph of 13-0328 provides that

“In the event that a designated immediate family member does not wish to engage in the commercial fishing activities authorized by such license or permit, the department may permit such person to identify an alternate person to whom the license or permit shall be reissued…”

In essence, what the state has effectively done is prevent a fisherman from selling their license or permit, and perhaps from selling their business as a going concern by packaging their boat, traps, nets, and/or other gear used to prosecute the fishery along with that license or permit, while they’re alive, and perhaps providing themselves with some retirement money by doing so, while allowing such fisherman’s heir (provided the “immediate family” qualification is met) to sell the same license to an unrelated third party, and enjoy the proceeds of that sale, once the fisherman is dead.

Somehow, that seems a little unfair.

Of course, there is also the question of who qualifies for a commercial fishing license in the first place.  Section 13-0328 also provides that

“licenses shall be issued only to persons who demonstrate in a manner acceptable to the department that they received an average of at least fifteen thousand dollars of income over three consecutive years from commercial fishing or fishing, or who successfully complete a commercial food fish apprenticeship…”

which narrows down the pool of potential commercial fishermen considerably, but doesn’t seem to make to much sense from a business perspective.

After all, as noted at the very beginning of this post, commercial fishing is a business.  And it is a very technically and physically demanding business, particularly when prosecuted at a small scale, where fishermen typically need to have a working knowledge of navigation, mechanics, vessel maintenance, weather, oceanographic conditions, fish movements and behavior, how do deploy and maintain fishing gear, first aid, and at least the rudiments of fiscal planning and marketing, to even have a prayer of running an economically successful operation, while at the same time putting up with the physical discomforts, injuries, and dangers inherent in running a boat at sea under often hostile conditions.

So why limit the transferability of licenses/permits—effectively, the transfer of a fisherman’s business—to a fishermen’s immediate family during a fisherman’s life, but allow the transfer to anyone—or, at least, to anyone who meets the qualifications to hold a commercial license—after that fisherman’s death?

If a fisherman’s heir can benefit by selling the deceased fisherman’s permit, why shouldn’t the fisherman be able to enjoy the same benefit while he/she is still alive? 

Some might argue that, while the permits are generally non-transferrable, the state has carved out a special exemption that allows a fishing-related business to stay in the family if a fisherman retires or dies.  But if that is the case, why allow a fisherman’s heir to sell the permit, if the fisherman couldn’t do the same? 

Wouldn’t it make more sense to allow the fisherman to transfer the license/permit to a family member if he/she chose to do so, but to sell it to an unrelated person if the fisherman thought that was the better thing to do?  Whether a permit was sold by a fisherman before his/her death, or by the fisherman’s heir after death, it will go to an unrelated third party either way, so it’s hard to see what state policy is better served by prohibiting fishermen from making such transfers.

The requirement that a commercial fishing license can only be issued to someone with previous fishing experience also seems difficult to defend.

Certainly, commercial fishing requires certain knowledge, skills, and abilities, and a person would be foolish to invest capital in a license and equipment unless they knew that they had the requisite abilities to be successful.  But the same can be said of many businesses.  It’s certainly true of restaurants, but no law in the State of New York requires someone to spend three years as a line cook before opening up a café.  Landscaping requires certain knowledge and skills, but anyone with a truck, some tools and the requisite insurance (and a pesticide certification if that service is offered) can get into the business without any prior experience trimming shrubs or cutting lawns. 

Why should commercial fishing be any different?

Is it merely because fishing communities want to take care of their own, and provide a pathway for deck crew to move into the wheelhouse?  While that sort of sentiment is understandable at some level, it shouldn’t be memorialized in state law, which serves best when it provides the greatest economic opportunities for everyone, regardless of their background.

A fisherman—or, as the law currently stands, a fisherman’s heir—should be able to sell a commercial license to whoever offers the best price, regardless of previous experience or the likelihood of commercial success.  Selling for the highest price that the market will bear is, after all, the goal of free enterprise.  Limiting potential buyers by requiring prior fishing experience virtually guarantees that the highest possible price for the license will not be realized.

It would seem that if someone may buy a gas station, delicatessen, dairy farm, or meat packing plant—all of which come with their own environmental, licensing, and/or food safety considerations—without having to demonstrate previous experience in the field, it’s difficult to make a business or policy argument for placing the current restrictions on buying a commercial fishing business, restrictions that can prevent the seller from maximizing the proceeds of the sale.

Yet those restrictions are there, largely because the commercial fishing business, like ranching, logging, and the family farm, have been romanticized in popular culture, which leads to them being viewed differently in the law.

But that is all an illusion.

A commercial fishing business is no less a business than a tire shop, hardware store, or the local gym.  It should be regulated only as much as necessary to conserve fish stocks and keep them  sustainable in the long term, protect the lives and the health of fishermen, and protect the health of those who purchase the fishermen’s products.

Economic issues are something that only the fishermen and the marketplace should decide.

 

 

 

UPDATING MRIP IN 2026: IMPLICATIONS FOR SECTOR ALLOCATIONS

 

A few days ago, I happened upon an article in The Outdoor Wire which noted that the Gulf Fishery Management Council delayed fishery management actions for scamp and yellowmouth grouper

“based on uncertainty associated with private recreational landings estimates generated by the federal recreational data collection program, the Marine Resource [sic] Information Program’s Fishing Effort Survey (MRIP-FES).  The Council is hesitant to base sector allocation for the Scamp Complex (scamp and yellowmouth grouper) on MRIP-FES estimates before its Scientific and Statistical Committee can review the results of a pilot study being conducted to address MRIP-FES overestimation issues.”

For those not familiar with the “overestimation issues,” in 2023, the National Marine Fisheries Service discovered that it’s Marine Recreational Information Program was overestimating recreational fishing effort, which in turn inflated recreational catch and landings estimates.  Apparently, due to the order of questions presented in the Fishing Effort Survey, anglers were reporting that they took more fishing trips than they actually did, skewing the survey results.

In response, NMFS engaged in a multi-year process to revise the Fishing Effort Survey.  That process is now at, or very close to, completion, and revised recreational effort, catch, and landings data should be available this spring, although the rollout might be delayed by last year’s government shutdown.  The revised effort—and so catch and landings—estimates are expected to be lower than those developed prior to the survey revisions.  It appears that private-boat data will be impacted more than the data for shore-based anglers, and that data for the periods when fewer anglers fished (expressed in two-month “waves”) will face greater revisions than data from periods with higher angling activity.  The extent of the revisions will also vary from state to state.

Assuming that everything is rolled out on, or at least somewhat close to, schedule, the next question is how the new data will impact fishery management measures, possibly including the allocation of the allowable catch between the commercial and recreational sectors.

When the Marine Recreational Information Program was initially adopted, it indicated that recreational fishing effort was higher than previously believed.  NMFS stated that

“For stocks assessed to date, this increase in effort from the [Fishing Effort Survey] in historical catch estimates has generally resulted in a retrospective increase in estimates of fish stock abundance, especially for those fisheries with large recreational components.”

It almost certainly follows that, when stock assessments are conducted after the downward-revised effort data becomes available—the 2027 benchmark stock assessment for striped bass comes to mind—the estimate of stock abundance will be revised downward in response to that data.

In most fisheries, that might not have a direct effect on recreational management measures; while the spawning stock biomass of a given fish stock might be lower than previously believed, the recreational removals of fish from that stock will also be lower than previously estimated.  As long as both the estimate of biomass and the estimate of recreational removals decline by about the same percentage, the current management measures might well remain unchanged.

However, that won’t be the case in commercial fisheries, which fish on a hard-poundage quota that is based on fish abundance.  (To oversimplify the quota-setting process, managers go through a series of steps to determine how many fish, measured in pounds/metric tons, can be safely removed from a population each year.  That becomes the annual catch limit, which is divided between the commercial and recreational sectors based on predetermined allocation percentages.  The commercial allocation, as modified for management uncertainty, becomes the commercial quota.)

If the spawning stock biomass was overestimated, the commercial quota based on that overestimate was probably too large.  Some fish stocks might have been harmed as a result.  Should that prove to be the case, and a stock is found to be significantly below its biomass target, and perhaps even overfished, recreational management measures might be indirectly affected, as both commercial and recreational landings are reduced in order to rebuild that stock to its biomass target.

But it’s not only management measures—size limits, bag limits, and seasons—that might be affected by the revised estimates of recreational effort, catch, and landings.  Allocations between the commercial and recreational sectors might be revised as well.

In 2022, after the Marine Recreational Information Program showed that historical recreational landings for summer flounder, scup, and black sea bass were higher than previously believed, the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup, and Black Sea Bass Management Board adopted the Summer Flounder, Scup, and Black Sea Bass Commercial/Recreational Allocation Amendment.

One of the stated reasons for the amendment was that

“The commercial and recreational allocations for all three species are currently based on historical proportions of landings (for summer flounder and black sea bass) or catch (for scup) from each sector.  These allocations were set in the mid-1990s and have not been revised since that time.  Recent changes in how catch is estimated has resulted in a discrepancy between the current levels of estimated sector-specific catch and harvest and these allocations.”

In response to that discrepancy,

“For all three species, the preferred alternatives would revise the allocations using the same base years as the current allocations, updated with recent data on catch and landings in those years.  For all three species, the revised allocations would be catch-based and there would be no phase-in period.”

Thus, the amendment shifted the summer flounder allocation from 60% (of landings) commercial/40% recreational to 55% (of catch) commercial/45% recreational, shifted the black sea bass allocation from 49% (of landings) commercial/51% recreational to 45% (of catch) commercial/55% recreational, and shifted the scup allocation from 78% (of catch) commercial/22% recreational to 65% commercial/35% recreational, all based on the then-new Marine Recreational Information Program data.

Summer flounder, scup, and black sea bass were not the only species affected.  For example, also in 2022, the Gulf of Mexico Fishery Management Council revised the red grouper allocation from 76% commercial/24% recreational to 59.3% commercial/40.7% recreational, doing so

“Because the recreational landings estimates are greater using the new survey than the previous estimates of recreational landings, the commercial-recreational allocation would shift from 76 percent and 24 percent, respectively, to 59.3% and 40.7% respectively.”

One year later, in 2023, the same council shifted the commercial/recreational allocation for greater amberjack from 27% commercial/73% recreational to 20% commercial/80% recreational, again because the new Marine Recreational Information Program Fishing Effort Survey data indicated that anglers made more trips, and caught and landed more amberjack, in the years used to determine the allocation than managers previously believed.

That leads to the obvious question:  If the revised Fishing Effort Survey data leads to estimates of anglers’ catch being reduced in the base years used to calculate allocations, will the regional fishery management councils, consistent with their actions when recreational landings were revised upward, now revisit allocations to reflect the new understanding of recreational removals during the designated base years?

While going through such an exercise might not seem worthwhile for some species, where the shift might only be a percentage point or two, in other cases, a reallocation based on lower recreational catch and harvest might bring a real benefit to the commercial sector, particularly if the estimate of spawning stock biomass, and so commercial quota under current allocations, is reduced in response to the new recreational estimates.  Under such circumstances, a reallocation based on the revised numbers might keep some commercial quotas closer to the status quo.

That doesn’t mean that reallocation will necessarily happen; regional fishery management councils aren’t required to tie allocation to historical landings, and are free to leave things as they are.

Thus, when I look at the article that gave rise to this post, I have to admit that I’m a little surprised that the Gulf Council delayed its decision on scamp and yellowmouth grouper allocation.  While waiting for the Science and Statistical Committee’s analysis was the right thing to do—fisheries decisions should always be based on the best scientific information available—the Gulf Council, at least in recent years, has demonstrated a definite slant toward the recreational sector, and it’s pretty likely that delaying action on allocation won’t benefit the recreational side at all.

So, it will be interesting to see whether the other regional fishery management councils will revisit allocations, once the revised recreational catch and landings data is released.