SHARKS OF THE CONNECTICUT SHORE

 

August was almost over.

We were trolling sandworms along the Connecticut shore, ‘way down in the state’s southwest corner, between the mouth of the Mianus River and Greenwich Harbor.  It was one of those still, steamy mornings that had you starting to sweat even before the sun was fully above the horizon, when Long Island Sound was perfectly still, and not a breath of wind stirred.

We had enjoyed some pretty good striped bass fishing for just about all of the month, but that morning, our luck seemed to change, with not a single bass deigning to strike the spinner and worm combination that we slowly dragged through the water, just off the rockpiles that stretched out from what, in that part of the world, passed for a sandy beach.

It was getting kind of tedious when a big fish rolled on the surface, just ahead of the boat.

A big fish. 

Our first thought was a fifty-pound bass, although the swirling eddy it left on the surface almost seemed too big for that, and we held onto our rods just a little bit tighter waiting for the strike that never came.  After a while, we made it all the way west to Tweed Island (named after the infamous “Boss” Tweed of New York City’s Tammany Hall), that marks the turn into Greenwich Harbor, pulled in the lines and tried to figure out where to go next.

We noticed a little cluster of boats a few hundred yards offshore.  They were in open water, and so probably not catching bass, but hoping that they might at least be on bluefish, we took a ride out to see what was going on.

We found something completely unexpected.

A fisherman in the stern of the boat was hooked up to something that was much bigger than a blue.  He was hanging on to what was a typical bait fishing setup—a heavy boat rod, a substantial reel (back then, either Penn 500 “Jigmasters” or 3/0 “Special Senators” were commonly used), and probably 30 or 40 pound line.  Whatever he had hooked was completely unimpressed by the gear, and was going wherever it wanted, as a second person at the controls waved nearby boats away if they got too close to the hooked fish.

We stopped to watch the fight, expecting to see an extremely large striped bass eventually brought to gaff, but the battle just kept going on.  Stranger still, maybe about 10 minutes after we got there, a Greenwich Police boat came out of the harbor, pulled alongside the anglers’ boat, and two patrolmen climbed aboard.

A few minutes after that, as the hooked-up angler pumped and reeled, a dark triangular fin broke the surface perhaps 50 feet out from his boat.  At that point, the patrolmen pulled their revolvers, and started throwing shots in the general direction of the fin, perhaps not the smartest decision given that it was a Saturday morning, there were boats scattered across that part of the Sound—although none directly downrange—and bullets have a nasty habit of ricocheting when they hit flat water at shallow angles.

So at that point we figured that we had hung around long enough, and headed back toward the Mianus River while the shots were still being directed the other way.

Near the mouth of the river, just off a big rockpile southwest of Bluff Island, another angler fought what appeared to be a very big fish—at least for the western Sound.  This time, we didn’t stick around to watch the fight and, with the bass fishing not getting any better, headed back to the dock.

The next Monday, the front page of The Greenwich Time featured a photo of two dead sandbar (“brown”) sharks, alleged to be about seven feet long and weighing close to 200 pounds, hanging from a beam above the ramp at the police boat dock.

I, and one of my equally adventurous friends, tried to catch a shark of our own from his 10 ½-foot plywood skiff, but couldn’t manage to get the job done, which was disappointing, as we would have loved to start our first year of 9^th grade with that sort of fish—and hopefully our own picture in The Greenwich Time—on our resumes.

But even though we failed, the August of 1968 certainly ended on an interesting note.

Which is why I now have to laugh when I hear people treat sharks—particularly sandbar sharks—in the Connecticut section of Long Island Sound as something troubling and new.

Historically, sharks have always been a part of the Long Island Sound ecosystem.  Published reports from the late 1800s and early 1900s tell of sailors seeing sharks in the shallows of Long Island’s North Shore bays—not Connecticut, but directly across the Sound from the Connecticut shore.  The species of shark weren’t reported, but they could have been sandbars or, perhaps more likely, sand tigers, a large but somewhat sluggish inshore species that is seen in the Sound today.

Up through the 1960s and early ‘70s, there were occasional stories of striped bass fishermen who had a “huge bass” pick up their bait and strip all the line from their reels before they could pull the anchor and follow.  The problem is, striped bass weren’t really capable of doing that, given the heavy tackle most anglers used back then.  Sharks were.

And there were enough sharks around back in the ‘50s and ‘60s that, every summer, The Greenwich Time would feature a photo on its front page of a couple of marine policemen brandishing rifles or shotguns—I was young back then, and don’t recall which—as they sat in the cockpit of one of their boats, on “shark patrol” off local beaches.  The odds that they ever actually shot at a free-swimming shark are probably surpassingly low, but the fact that they were out there at all meant that sharks were on people’s minds.

And that was off the quiet, western corner of the Connecticut coast, many score of miles from the sea.  So it’s logical to believe that closer to Block Island Sound—say, anywhere east of New Haven—the shark population was a little higher than it was off the Fairfield County coast.

So, again, the fact that people are making such a fuss because they’re seeing sharks today doesn’t make much historical sense.

Unless, of course, those people haven’t lived long enough to understand what a normal shark population looks like.  And that may well be the case.

From the late 1970s through the mid-1990s, an active commercial shark fishery, driven largely by bottom longliners in the South Atlantic, depleted the populations of large coastal sharks, including sandbars, and drove the population to very low levels.  Most people fishing today don’t remember a time when sandbar sharks abundance was close to historical norms; instead, they have only fished during the past 50 years, when the stock was overfished and the population depleted, and so came to believe that the relative absence of sharks was “normal.”

Dr. Marcus Drymon, a biologist from Mississippi who often works on shark depredation issues, used the term “lifting baseline” to describe how that impacts fishermen’s perceptions:

“Experts agree that there are more sharks…today than there were 30 years ago.  But how do these levels compare with levels before 1989, when commercial shark fishing spiked?

“Over time, this question becomes more difficult to answer as people gradually accept environmental decline.  Marine biologist Daniel Pauley calls this habituation ‘shifting baseline syndrome.’  For fisheries, each new generation of fishermen accept the current, often reduced, status of a fish population as the baseline and forgets that there was a time when these species were much more abundant.

“In this case, modern anglers are comparing increased numbers of sharks…to the past 30 years—a time when many shark populations were overfished.

“The recovery of populations that were once overfished can create an opposite situation, known as lifting baselines, with conservation and management efforts leading to population increases.

“Instances where populations have been overfished and then rebuilt can create perceptions of overabundance.  When the species that’s recovering is a predator, that can lead to human-wildlife conflict.”

That seems to be what’s happening off eastern Connecticut, as well as off Rhode Island and parts of eastern Long Island.  So now we hear Connecticut charter boat operators complaining that

“They are everywhere—from Westbrook to Watch Hill.  Thousands of them, not hundreds…

“We have seen over 15 sharks today in two hours…

“We’re not going to be able to fish for stripers the way it’s going.”

The fact that the sharks sometimes steal striped bass, fluke, and other fish off anglers’ lines isn’t endearing them to the captains, nor to some Connecticut anglers.  Thus, we saw one disgruntled angler post on a popular fishing forum that

“At the very least, the anglers that are impacted by their depredation will be allowed to kill them [if NMFS again allows recreational sandbar shark landings], myself and the rest of the rec/charter fleet will certainly kill their limit, whether they’re being eaten or not.  I could care less about eating one.  I just want to be able to kill them without fear of steep fines from the feds.  Already it feels so wrong to do nothing about it.  I feel like I’m being forced by the government to do the wrong thing, which is release sandbars unharmed, knowing full well these sharks are destroying the future fishery and the charter business throughout southern New England.  They have already destroyed the summer bass fishery in a number of places, and for the first time this year I lost a Fluke to a Sandbar shark.  The trend is very concerning.  As time goes on this issue will expand to bottomfish and Tuna, when there’s no Bass left, certainly no Menhaden left, and more sharks than there is now.”

It’s somewhat startling to believe that people still think that way—the sentiment seems to belong back in the 1930s, when hunters convinced state game departments to designate predatory mammals and birds as “varmints” and allowed them to be shot year-round, with some states even paying bounties to hunters who brought in evidence that they had killed a wolf, coyote, fox, bobcat, seal, etc.—but it does exemplify just how upset the sharks are getting some Connecticut anglers.

Back in the 1960s, although sandbar sharks were in the Sound, we never heard much about them stealing a fish from anglers, something that occurs far more often today.  But there might be a good reason for that.

Last April, a paper titled “Characterizing a century of shark depredation in US Atlantic recreational fisheries” was published in the ICES Journal of Marine Science.  It made the case that

“At its essence, shark depredation is the result of human-wildlife overlap, in this case, spatially and temporally dynamic overlap between recreational anglers and sharks competing for a shared resource.”

The paper broke the past century down into four 25-year periods, examined the characteristics of the angling, shark, and prey populations for each period, and tried to explain how those characteristics impacted the predation issue.  For the most recent period, 2001-2025, the authors wrote:

“The new millennium ushered in the birth of the shark conservation movement, characterized by the public’s growing understanding of the importance of sharks to marine ecosystems.  During this time, management restrictions led to decreases in US shark landings while recreational fishing effort continued to intensify.  Concurrently, many studies noted the prevalence of positive attitudes from the general public toward sharks.  Yet, a growing body of recreational anglers were expressing concern that proliferating shark populations were causing increases in depredation.  Collectively, these anglers were vocalizing a change in attitude from ‘sharks threaten our safety’ in the 1990s to ‘sharks threaten our recreational fishing opportunities.’  This led recreational anglers to associate rising depredation with management measures that protect sharks.  These frustrations are presently reflected in the SHARKED Act, legislation introduced into the US Congress (2025) to ‘…address problems posed by increased depredation…’  Today, there are more anglers than ever before, shark populations are rebuilding following three decades of management, and many target fishery species are recovering from overfishing.  Thus, overlap between these three groups is likely at an all-time high.  [emphasis added, citations omitted]”

While that formula might not quite fit what we’re seeing off Connecticut—there are plenty of anglers and sandbar sharks, but perhaps not as many target species as there are elsewhere—the overlap between anglers and sharks is certainly substantial.  And given that sandbar sharks typically eat small bony fish, smaller sharks, rays, and invertebrates such as cephalopods, shrimp, and crabs, it may well be that the lack of menhaden and other small schooling fish off the Connecticut coast in recent years has caused the sharks to move closer to shore in search of prey, putting them in a position where they are more likely to compete with anglers for whatever fish are available.

What may be making things worse is that it appears that the sandbar sharks may have learned that fishing boats can provide an easy meal.  One Connecticut charter boat captain complained that

“They follow fishing boats around; they wait for us to hook a fish and then they bite our fish in half.”

NMFS has said that

“Emerging evidence indicates that individual sharks may learn from repeated encounters with fishing activity and associate the sound of vessel engines, the hauling of gear, or the discarding of undersized [or, in the case of striped bass, perhaps oversized] fish with feeding opportunities.”

So, if we add an increasing number of anglers with an increasing number of sharks capable of learning that fishermen provide easy meals, it is natural that depredation incidents will increase.  Unfortunately, too many anglers want to blame the depredation problem entirely on an increase in sharks, conveniently forgetting that an increase in anglers is probably as much to blame.

Thus, we hear anglers say things like,

“We need a balance back and we need to manage the sharks like we manage other species and allow a season for them,”

which is perfectly fine if the best available science indicates that the sharks could sustain the fishing pressure, but does seem a little inequitable, given that there’s no talk about needing to manage the anglers who are targeting what remains of the overfished striped bass population, and generating release mortality from an already stressed spawning stock in order to bring things back into balance.

Perhaps it is the State of Connecticut that comes closest to getting it right:

“Sharks play a vital role in keeping our ocean healthy by maintaining the balance of natural marine ecosystems.

“Sharks have existed in Connecticut’s marine waters for millions of years.  They are apex predators, which means they are at the top of the food chain and have few natural predators.

“Sharks remove sick and weak individuals from prey populations, they influence prey distribution and behavior, and prevent other species from monopolizing limited natural resources and degrading the marine environment.  The presence of sharks is a positive sign of a healthy marine ecosystem.”

Even if it doesn’t feel quite that way when one swims off with your five-pound fluke.

 

 

 

APPELLATE COURT UPHOLDS SOUTH ATLANTIC RED SNAPPER MANAGEMENT PLAN

 

On Tuesday, the United States Court of Appeals for the District of Columbia Circuit confirmed a lower court’s ruling that the National Marine Fisheries Service’s fishery management plan for South Atlantic red snapper did not violate the provisions of the Magnuson-Stevens Fishery Conservation and Management Act.

In doing so, the Court relieved NMFS of any duty to address the extremely high level of dead discards in the recreational fishery.

The lawsuit in question, Slash Creek Waterworks v. Raimondo, sought review of a regulation implementing Amendment 43 to the Fishery Management Plan for the Snapper Grouper Fishery of the South Atlantic Region, which was finalized on July 26, 2018.  Background information provided by NMFS, which accompanied the final rule, noted that

“Though limited red snapper harvest was allowed in 2012-2014, a large majority of the estimated fishing mortality was attributed to very large and uncertain dead discard estimates where fishermen were targeting red snapper and species that co-occur with red snapper, such as vermillion snapper, gag, red grouper, black sea bass, gray triggerfish, greater amberjack, and scamp.  The [South Atlantic Fishery Management] Council’s Scientific and Statistical Committee (SSC) reviewed the SEDAR 41 (2017) stock assessment and indicated the estimate of recreational discards was the greatest source of uncertainty in the stock assessment…Most of the catch is now discarded, the number of discards is dependent on fisher recall, and these estimates are expanded based on small sample size; thus, the quality of total fishery removals estimates are poor and uncertain, which will impact estimation of stock size and fishing mortality.  [emphasis added]”

The high level of uncertainty made it difficult for the SSC to set an Acceptable Biological Catch (ABC), which is defined as

“a level of a stock or stock complex’s annual catch, which is based on an ABC control rule that accounts for the scientific uncertainty in the estimate of [the Overfishing Limit], any other scientific uncertainty, and the Council’s risk policy.”

That created a problem, as the ABC is needed to set the upper bound for the Annual Catch Limit,  and as NMFS reported,

“The SSC stated that the assessment was based on the best scientific information available, but noted the assessment findings were highly uncertain regarding to what extent overfishing was occurring (i.e., the actual numerical value of the current fishing mortality estimate), and regarding the measures of discards…The SSC developed its ABC recommendations based on SEDAR 41, and the total ABC recommendation for 2018 is 53,000 red snapper.

“The projections of yield streams used in SEDAR 41 (2017) included both landings and dead discards, which were added to obtain an estimate of total removals.  The SSC’s 53,000 fish ABC recommendation is based on the sum of landed fish (18,000) and dead discarded fish (35,000)…

“…NMFS has determined that allowing the same amount of harvest as harvest that occurred in 2014 is unlikely to result in overfishing or to change the red snapper rebuilding time period…”

Based on the SSC’s ABC recommendation, NMFS announced that

“Limited commercial and recreational harvest of red snapper would be allowed by implementing a total [Annual Catch Limit] of 42,510 fish, based on the landings observed during the limited red snapper season in 2014.  This ACL is less than the SSC’s most recent total ABC recommendation for 2018 of 53,000 red snapper…”

While that latter statement was true, it ignored the NMFS’ guidelines that say

“Annual catch limit (ACL) is a limit on the total annual catch of a stock or stock complex, which cannot exceed the ABC…”

and

“Catch is the total quantity of fish, measured in weight or numbers of fish, taken in commercial, recreational, subsistence, tribal, and other fisheries.  Catch includes fish that are retained for any purpose, as well as mortality of fish that are discarded.  [emphasis added]”

Thus, if the NMFS guidelines are followed, the ACL must set an upper limit on both landings and dead discards, in combination, and accountability measures would be triggered if any combination of landings and dead discards exceeded the ACL.

But that’s not what NMFS did in the case of the Amendment 43 regulations.  Instead, it increased possible landings from 18,000 red snapper in 2014 to 42,510 in 2018, and made no allowance at all for dead discards, which totaled 35,000 in 2014, accounted for the majority of South Atlantic red snapper fishing mortality in the recent past, and could be expected to continue at levels at least as high as those experienced in 2014.

That struck Slash Creek Waterworks, some other commercial fishermen, and some attorneys willing to represent them, as illegal, and so a lawsuit was brought.

The plaintiffs alleged that, in adopting the Amendment 43 regulation, NMFS set an annual catch limit that only addressed one aspect of “catch”—commercial and recreational landings—and completely ignored dead discards, even though they accounted for the lion’s share of South Atlantic red snapper fishing mortality.

It seemed like a very viable argument, but the trial court disagreed, upholding the Amendment 43 regulation.  The plaintiffs appealed to the D.C. Circuit, and last Tuesday, that court, too, ruled against them.

One of the problems is that the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, which introduced the idea of Annual Catch Limits to Magnuson-Stevens, didn’t do a particularly good job of defining what ACLs are.  So current law just says that regional fishery management councils must

“develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process established [elsewhere in the law],”

and that fishery management plans must

“establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.”

 That’s it.  Nowhere in Magnuson-Stevens are Annual Catch Limits defined.  Nowhere does the law state just how NMFS is expected to deal with ACLs nor, more importantly, what NMFS must do when an ACL is exceeded, or is likely to be exceeded, in any fishing year.  That sort of guidance is provided in the National Standard Guidelines that NMFS is required to publish in the Federal Register, and thence in the Code of Federal Regulations.  The only problem with that is, while Magnuson-Stevens requires such publication, it also clearly states that the Guidelines don’t have the force of law, meaning that NMFS may ignore its own Guidelines at will.

That has led to some fumbling by courts who have had to deal with the Annual Catch Limit concept.  In Natural Resources Defense Council v. Raimondo, a matter brought in the United States District Court for the District of Columbia, we saw the Court find that Annual Catch Limits were not necessarily a “limit,” as that term is commonly understood, on catch at all.

Instead, the Court in that matter said,

“Plaintiff’s principal argument is that the MSA’s section 1833 means what it says: providing for ‘annual catch limits’ means setting ‘caps not to be exceeded.’  By focusing primarily on the definition of ‘annual catch limit,’ plaintiff ignores that the question in dispute concerns not the ACL itself, but the means that NMFS and the Mid-Atlantic Council must adopt to achieve the ACL; specifically, whether recreational management measures must be calibrated exclusively to the ACL.  The three words ‘annual catch limits’ do not answer this question.

“Section 1853(a)(15) requires fishery management plans, or FMPs, to ‘establish a mechanism for specifying annual catch limits…at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.’  This text is unambiguous.  Section 1853(a)(15) mandates a mechanism for specifying ACLs at a level such that overfishing does not occur.  That the Summer Flounder, Scup, and Black Sea Bass FMP has satisfied this requirement is undisputed…

“Section 1853(a)(15) also mandates that ‘measures’ be enacted ‘to ensure accountability.’  No further specificity is provided on how ‘accountability’ must be ‘ensure[d].’

“Given the text of statute, having concluded that defendants have established a mechanism for specifying ACLs and have enacted measures to ensure accountability, the analysis of whether defendants have satisfied section 1853(a)(15) should end here.  Plaintiff, however, tries to take section 1853(a)(15) a step further, seizing on the three words, ‘annual catch limit,’ as the lynchpin to argue, based purportedly on the phrase’s plain meaning and legislative history, that every fishery management tool must set the ACL as its ‘north star,’ such that every fishery management tool must set the ACL as its one and only goal.  The phrase ‘annual catch limit’ is not defined, and plaintiff is certainly correct that when a term is not defined, the plain meaning controls.  Discerning the plain meaning of ‘annual catch limit,’ however, does not end this instant dispute, where the question is not how to define ACL, but what relationship, if any, the MSA requires between the ACL and season-specific recreational management measures…

“National Standard 1 is the only MSA provision cited by the parties that addresses management measures and provides that ‘[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.’  By its terms, rather than mandate that management measures exclusively target the ACL, NS1 sets different targets for management measures: (1) to prevent overfishing, and (2) to achieve optimum yield (or OY), on a continuing basis.  While the ACL serves as a proxy for preventing overfishing, NS1 requires more than simply achieving that goal and, thus, the ACL is not the exclusive guidepost in assessing the adequacy of management measures.  [citations omitted]”

So while the court in Natural Resources Defense Council v. Raimondo found that the Annual Catch Limit wasn’t really a hard limit on catch, the court in Slash Creek Waterworks v. Raimondo found that the Annual Catch Limit didn’t have to expressly limit all forms of catch.

It should be noted, before beginning the discussion, that by the time the appellate court got around to hearing arguments in Slash Creek, the Amendment 43 regulations had been replaced by a new regulation implementing the provisions of Amendment 59, which was adopted in June 2025.  And Amendment 59 wasn’t quite as dismissive of dead discards as its predecessor, as it did set a overall ACL of 509,000 red snapper, and set aside 475,000 of that total as a dead discard allowance, although the actual number of recreational dead discards may well have exceeded that figure by a substantial amount.

However, the issue of an annual catch limit that didn’t adequately address dead discards was common enough to both sets of regulations that the Court allowed the original appeal to cover Amendment 59’s management measures as well.  The Court noted that

“While the preamble describes the annual catch limit is derived from total figures that account for dead discards, the resulting annual catch limit continues to be measured and enforced based solely on landings, without, restricting dead discards.”

The Court later went on to say that

“To the extent the Service may have given some sort of consideration to the effect of dead discards in calculating the annual catch limits, that has no bearing on whether the result of its analysis—a regulation again establishing a landings-only limit—contravenes [section] 1853(s)(15) in the alleged ways.  Even if Amendment 59’s preamble purports to consider a ‘total ACL [i.e., annual catch limit]’ that includes both landings and dead discards, only the regulatory text is binding on regulated parties and enforced by the Service—so, only the regulatory text carries the force of law.  And the regulatory text makes no mention of a ‘total ACL,’ instead containing only the landings-only annual catch limits applicable to the commercial and recreational sectors.  In fact, the regulatory text under Amendment 59 is identical to the text under Amendment 43, except that the annual catch limits have been updated with new numerical values.  [citations omitted]”

And the Court recognized that the number of red snapper that are discarded dead by the recreational fishery is substantial, noting that

“Estimates suggest that dead discards comprise approximately 90% of the catch of red snapper, likely because they are incidentally caught when fishermen target other species in the same area.  Those estimates are somewhat uncertain because they rely on fishermen’s recall and are extrapolated from a small sample size, but the number of red-snapper dead discards appears significant and growing.”

However, the Court also noted that

“In setting the annual catch limit, the [National Marine Fisheries] Service acknowledged it had been unable to calculate an acceptable biological catch due to uncertainty about dead-discard estimates.  The annual catch limit was instead based on the number of observed landings inn 2014, and was set below the most recent acceptable biological catch.  That annual catch limit, the Service determined, would not lead to overfishing because the red-snapper stock had increased in 2014.  From 2019 to 2024, the Service published temporary rules setting the landings-based annual catch limit for red snapper.”

In making its decision, the Court observed that the plaintiffs challenged the red snapper management measures

“for two reasons:  first, that the rules have ‘failed to establish a limit on the annual catch of South Atlantic red snapper,’ because they restrict only landings, and not dead discards; and second, that the rules more generally ‘have failed to establish a mechanism for specifying annual catch limits for South Atlantic red snapper that prevents overfishing.”

The Court then noted that its decision was dictated by existing precedent, in the form of its earlier, 2023 decision in A.P. Bell Fish Company v. Raimondo, which addressed similar issues arising out of the red grouper fishery in the Gulf of Mexico.  The Court in that case found that an Overfishing Limit based solely on landings, and not dead discards, still complied with the mandates of Magnuson-Stevens, because

“The overfishing limit recommended by the Council ‘accounts for all sources of mortality, including bycatch, because the stock assessment factors in that mortality.  Because the annual catch limits are based on the overfishing limit, the annual catch limits account for bycatch in the same fashion.  Section 1853(a)(15) requires ‘only the establishment of [annual catch limits and accountability measures] such that overfishing does not occur,’ and does not require ‘the further step of setting an overfishing limit…that more directly accounts for bycatch.  [citations omitted]”

It was not, perhaps, the most strongly reasoned decision, and it disposed of the issue in a single short paragraph, but it nonetheless compelled the Court in Slash Creek to decide that

“the Service could permissibly set the overfishing limit [and thus the acceptable biological catch and the annual catch limit] in terms of landings without directly restricting bycatch (of which dead discards are a subset).  With respect to whether Amendment 43’s landings-only approach is conceptually incapable of preventing overfishing, the court found ‘no reason’ to believe that it is impossible to address overfishing if dead discards are excluded from the annual catch limit.”

Thus, the decision in Slash Creek, although perhaps inevitable given the A.P. Bell precedent, perpetuates the problems created by the vast numbers of dead discards generated by the recreational red snapper fishery, which not only have the potential to delay, if not prevent, the full recovery of the red snapper stock, but also unfairly limit the commercial fishery’s access to the South Atlantic red snapper resource.

After all, if the 28.07% commercial/71.93% recreational allocation was applied to the 509,000 fish annual catch limit before the 475,000 dead discard allowance was subtracted from that amount, the commercial catch limit would be just over 140,000 fish—about 1.3 million pounds—instead of the mere 102,951 pounds that they may land today, and the recreational sector would be held fully responsible for the hundreds of thousands of red snapper that they kill, but fail to utilize, due to discard mortality.

Instead, under today’s management approach, the commercial sector is forced to pay a large share of the price for the recreational sector’s improvidence, and its refusal to take even the smallest and most obvious steps to reduce the number of red snapper that anglers waste every year.

It’s a situation that, in the name of basic justice, cries out for some sort of fix, but given the recreational fishing industry’s dominance on the South Atlantic Fishery Management Council, and given the decision in Slash Creek Waterworks v. Raimondo, that fix isn’t coming any time soon.

 

 

OFFSHORE AQUACULTURE: A LOOMING THREAT TO STRIPED BASS

 

Over the past year or so, striped bass fishermen have been focused on efforts to rebuild the currently overfished striped bass spawning stock biomass back to its target level by the 2029 deadline specified in the fishery management plan; on the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board’s failure to adopt a 12% harvest reduction, to make such rebuilding more likely, last October, and on the past seven years of record-low striped bass recruitment in the Chesapeake Bay, as well as the possibility that 2026 will become the eighth straight year of poor spawns.

Thus, they might be excused if they failed to notice another, stealthier threat to the health of the Atlantic migratory stock of striped bass, and that is the federal government’s efforts to initiate striped bass aquaculture in federal waters more than three miles from shore.

The issue has been rattling around the Commerce Department, and the National Marine Fisheries Service, for a few years, but it finally entered the public consciousness at the February meeting of the Management Board, where Danielle Blacklock of NOAA Fisheries Office of Aquaculture explained the administration’s interest in farming striped bass offshore:

“…we know we have a marketplace that is needing more seafood.  This has been acknowledged by the Trump administration in two executive orders.  On the right-hard side, we have Executive Order 1391…

“This came out in 2020, it called for a whole host of aquaculture-related activities, and we have done them.  There is one that is still underway, which is identification of aquaculture opportunity areas…

“We anticipate that we will continue to move around the country.  The Executive Order on the left, Executive Order 14276 calls for restoring America’s seafood competitiveness.  This has a lot of wild harvest drivers in it, but it also calls for an America First seafood strategy, which asks us to increase domestic aquaculture production and create more marketing and export opportunities.

“Those are backdrop drivers that bring us to today.  Why striped bass?  Well, there are a number of reasons.  One is that we know a lot about striped bass…It is a species that has been farmed for a long time, and we have great information feeding into the knowledge base.  We also at NOAA have been doing over the past eight years a process of identifying top marine candidate species…

“…Through voting and process of prioritizing all of those species, Atlantic striped bass has consistently risen to the top as a candidate species of interest…

“We are now in generation 8 of selective breeding, and it grows significantly faster than hybrid [with white bass] striped bass…Well, Atlantic striped bass has a higher price point.  It has a different marketplace, because hybrid striped bass is typically sold as a whole fish, and Atlantic striped bass farmed or wild is typically sold as a fillet.

“But the market value is so much higher that we are watching hybrid striped bass farms switch to Atlantic striped bass…What I flagged in 2024 is still true, that Atlantic striped bass is being farmed and it’s entering our markets today.  It’s just not coming from the Atlantic seaboard, it’s not coming from the federal waters along the Atlantic, or course, because of the moratorium on possession.”

So up to that point, Ms. Blacklock made a purely economic argument for farming striped bass, which was fine, particularly if folks who are currently farming hybrid striped bass on their inland ponds and aquaculture facilities think that they can make some more money by raising pure-strain striped bass instead.

But what Ms. Blacklock didn’t demonstrate is why striped bass ought to be farmed in the federal waters of the Exclusive Economic Zone.  After all, if folks can grow them out inland, or in the Gulf of Mexico, there’s no need to start introducing some sort of genetically manipulated “generation 8” fish into the striped bass’ natural range, where those fish could—and almost certainly would—escape and threaten the genome of the native population.

But then, Ms. Blacklock uttered the words that ought to put everyone on high alert, and make them understand that aquaculture’s threat to native fish is very, very real:

“The goal here is to balance aquaculture development with protection of wild striped bass populations and the fisheries they support.  [emphasis added]”

Because as soon as the aquaculture promoters start talking about “balance,” it’s a clear signal that they’re planning to increase the risk to the wild striped bass population, removing some existing protections in order to make it easier to successfully develop striped bass farms,

What sort of risks might the striped bass face? 

Ms. Blacklock herself mentions

“concerns about illegal harvest and enforcement; Ocean use conflicts, economic feasibility, market competition, aquatic animal health and disease, environmental impacts and escapement and genetics.”

She was quick to offer solutions for the some of the first issues on that list, but when it came to disease, escapement,  and genetics, the conversation as to why they weren’t a problem began to become far more hypothetical than concrete.

“Disease, when it comes to disease in fish nobody wants it.  It is the nightmare of the farmer, it is the nightmare of the regulator, it is very scary to everyone involved.  The way that in the United States typically we deal with disease is prevention.  We have a lot of rules and regulations about stocking density, overcrowding, water flow.

“All of these things are managed to make sure that the fish have the highest level of ability to stay healthy.  In addition, we create vaccines…We are an agency of prevention and that is where I would anticipate anything goes with Atlantic striped bass. 

“There are very few therapeutants available…It is extremely rare to use antibiotics.  But it is still something that we would have to work on for Atlantic striped bass.  [emphasis added]”

So from a disease perspective, offshore striped bass farms remain a work in progress.

The same seems to hold true about genetic concerns.

“A lot of farms currently are applying, not for striped bass but in other species, are applying for just F-1s, right having wild broodstock.”

That doesn’t seem to be the case with striped bass, where specially-bred strains of fish are being used to populate the farms.  As Ms. Blacklock noted,

“selective breeding is critical to be able to grow fish faster, having them be meatier, lighter skeletons, all of that, lower food intake.”

But those sort of custom-designed fish aren’t necessarily fish fit to survive in the wild, which can be a problem should farmed striped bass escape and their artificially selected genes enter the genome of the wild population. 

“The way that we can protect the wild population, there is a whole host of tools in the toolbox.  We have everything from many salmon farms are female only.  That is not 100% right, females can still put off eggs.  There are tools like triploidy, where you make a fish have three chromosomes so that they are sterile.

“That has a 99% effectiveness rate.  It’s not 100.  But now there is new technology that has come online that we are using with other species.  It has not been applied to striped bass yet, which is 100% effective.  Through genetic knockdown G-knockdown technologies, we have the ability to just make them not grow gonads, 100% effectiveness.

“Now again, we have not done that for Atlantic striped bass yet.  That research would take 4 to 7 years maybe, but the tool is there.  Another tool that we have is better understanding of what the potential impact would be through genetic risk assessments.

“…We again can put a farm in the water, know what kjnd of species it is, you need to know what the population outside is.  Is it a big population, a small population?  It’s actually arithmetic, not just big or small that we use.  You can model how much risk there is…

“If you have a small population and a net, and a huge population outside, the risk is probably not very high of there being any challenges or changes in the external population.  On the converse of that, if you have a big farm and a small wild population, the genetic risk becomes much higher, if you’re not putting in sterile fish…

“In the final piece on genetics is, genetics become a risk not only from gametes, potentially, but also from escapes, right?  We don’t want any escapes.  We don’t want spillage, which is just a couple of fish every time you are feeding or treating or anything like that.  You also don’t want a catastrophic event where the whole population is released at once.

“We have also heavily invested in, as has the industry, in engineering for offshore, to make sure that you are building things in a robust nature, so that they can handle extreme weather.  We’re seeing sinking cages as becoming more of the norm.  Things aren’t staying on the surface the way they used to, so that you can get under the waves and under the swell…

“Finally, a lot of that backdrop of the science tools was not striped bass specific.  But it started with, we know a lot about Atlantic striped bass…  [emphasis added]”

So yes, the risks offshore striped bass farming poses to the wild population are very real, and come in many different forms.  Ms. Blacklock admitted that

“There are applications in the Gulf of [Mexico] for Atlantic striped bass that will use their eighth generation, ninth generation by the time they get there.  There is also a number of farms on land that are farming Atlantic stripe [sic] bass….   

“A number of farms in Texas that farm red drum are seeing mortalities, because it is so cold.  But a number of them have already switched to farming Atlantic striped bass, and the stripers are surviving.”

The fact that bass can be and are being farmed in existing on-shore facilities, and in farms located outside the range of the coastal migratory stock, raise questions about why it is necessary to consider farms on the Atlantic coast, which could cause some level of harm to the wild population.  That’s particularly true when one considers Ms. Blacklock’s comments that few farms would likely be located north of North Carolina, because water temperatures would probably be too low to support robust year-round growth.

Yet such Atlantic coast farms in federal waters are being considered, despite the fact that a technical memorandum created by NOAA advises

“For offshore operations, it is useful to distinguish between chronic, low-level seepage of escapees and rare, high magnitude catastrophic releases, because these pathways differ in detectability, dispersal potential, and the timing of exposure that drives genetic risk.  Seepage most often results from small holes, net abrasion, predator related tearing, and routine activities such as handling and lifting, creating a persistent trickle of escapees that can be difficult to detect directly yet still sustain contact with wild conspecifics.  Catastrophic events are more commonly linked to structural failure or mooring failure, collisions, and extreme weather, and they can release large numbers of fish over short periods, overwhelming recapture capacity and increasing the likelihood that mature escapees enter migratory corridors or spawning habitats during sensitive windows. 

“Escape events are among the most widely recognized ecological risks associated with marine finfish aquaculture, with outcomes shaped by species behavior, farm design and durability, siting and hydrodynamic conditions, operational practices, and interactions with predators such as sharks, marine mammals, and seabirds.  Ecological consequences have been well documented across freshwater, estuarine, and marine systems, including competition with conspecifics, habitat displacement, disease and parasite transmission, and genetic introgression.  Although domesticated fish often show reduced individual fitness and survival compared to wild stocks, even limited interbreeding can erode local adaption, homogenize genetic structure, and reduce the long-term resilience of wild populations.

“For offshore aquaculture of native striped bass, these risks warrant particular attention.  Striped bass are highly mobile and migratory, with populations ranging from the Gulf of St. Lawrence (Canada) to the St. John’s River (Florida).  Resident populations occur in southern systems such as Albemarle Sound, North Carolina, while northern populations migrate extensively along the Atlantic coast.  Escaped individuals could therefore disperse widely, interact with multiple genetically distinct subpopulations, and introduce risks of maladaptation or loss of genetic structure…  [emphasis added, references omitted]”

Given those very real and very significant risks, and give the fact that alternative siting of striped bass farms is available on land and in the Gulf of Mexico, far from the Atlantic coastal migratory stock, the administration’s efforts to establish striped bass farms in federal waters off the East Coast seem to make very little sense.

Certainly, members of the Management Board expressed some concerns about the proposal.

For Virginia fisheries manager Joeseph Grist, it was a matter of fish farms potentially squeezing out traditional commercial fishermen.  He expressed concern that

“this almost sounds like we’re popping up the next Walmart in the ocean versus all of our generational traditional inland fisheries and families, the mom and pops that depend on striped bass harvest and the price point they get to survive through the year.

“…This could be a huge risk to the individual watermen that are out here in the various states that depend on this as part of their business plan during the year…once one of these gets up and running and they start making the profit, I can see the price of striped bass going down at a point they could take it out to compete [sic] everybody else.”

Ms. Blacklock assured Mr. Grist that NOAA doesn’t plan on that sort of thing happening, but never suggested that it wouldn’t.  And reality doesn’t always stick to the plan.

Dr. Jason McNamee, the Rhode Island fishery manager, made a supposedly tongue-in-cheek comment, saying

“I had a thought.  It’s funny to me, I don’t know if it’s going to be funny to anyone else.  But when you offered a comment about 100% effectiveness of some of the genetic, you know manipulation that you can do on these animals, I was just wondering if you saw Jurassic Park.  It’s a joke, sorry.”

And maybe it was a joke, but in the movie Jurassic Park, the “100% effective” genetic safeguards weren’t 100% effective, and that led to all sorts of problems.  I suspect that Dr. McNamee’s “joke” contained a deeper message.

Emerson Hasbrouck, Governor’s Appointee from New York, was also a skeptic of offshore striped bass aquaculture, saying,

“My concerns are very similar to what Joe and Jay just voiced.  You know all morning here we’ve been talking about rebuilding a wild stock of striped bass.  It may not be officially the intent of NOAA to compete with wild harvest.

“But the reality is that once all these additional striped bass, if they come into the market or when they come into the market, they are going to compete with wild harvest striped bass, and they are going to compete with our commercial fishing industry…There is going to be a market impact here.

“Is there kind of a hidden message here that we don’t need to rebuild striped bass wild stock for commercial harvest, because we’re queuing up aquaculture to replace wild harvest in the marketplace.  That doesn’t sit very good with me.  The offshore culture that we’re talking about here is going to have an impact on markets and market conditions…”

Again, Ms. Blacklock denied any hidden messages, and denied any intention to undercut the commercial fishery in the marketplace.  But as the old saying goes,

“The road to Hell is paved with good intentions.”

Other Management Board members raised other concerns, but the discussion soon reached its end, only to be continued at the May Management Board meeting, where some sort of response to NOAA’s presentation and technical memo was contemplated.  The discussion began with Toni Kerns, the ASMFC’s Fisheries Policy Director, making some suggestions for items that the Management Board might want to include in a comment letter.

“I just want to point out a couple of areas where I think the Board may want to go back and reread the memo and focus potential comments on…

“Then I’ll propose a timeline for receiving those comments.  In terms of economic analysis, the Board did request an economic analysis from NOAA.  I’m not sure at this time they’re prepared to do an economic analysis, unless they know they are going to be moving forward with some sort of plan.

“But the report doesn’t have any published U.S. production costs and economic analysis that they do have in there relies on cost estimates that have been extrapolated from other species like red drum, greater amberjack and salmon operations.  But we don’t have any cost study for striped bass.

“The report talks about using sterilization technologies, in order to make sure the popuations that are in the net pens aren’t breeding with wild fish, but the report also states that the technologies have not been tested…If those technologies haven’t been tested then what types of risk does that put on the wild stock with possible escapement?

“The report looks at thermal modeling, but it only uses data from 2020 to 2023, so four years of ocean temperature data is a pretty short baseline for a long-term [siting] decision, especially given our known uncertainty with climate…especially when those [siting] areas are mostly off our southern states.

“…Some of the disease therapy information that is being suggested, in terms of what would be put into the water has not been tested by the FDA in marine striped bass…

“Then lastly is the habitat and protected species.  For some of the areas that are being suggested for [siting], it is critical right whale habitat that overlaps along the Atlantic coast, so offshore permitting processes may face a lot of scrutiny under Section 7 consultations, as well as containment risks…  [emphasis added]”

The comment letter, addressed to Ms. Blacklock, was ultimately drafted, and approved by the Management Board at its August meeting.  It cited several important concerns, including

“Enforcement Concerns

“Enforcement capacity in the EEZ is currently limited, and aquaculture sites would create additional enforcement responsibilities, either increasing costs or diverting resources from other enforcement priorities.  Since the EEZ is currently closed to striped bass fishing, there is potential for offshore aquaculture to be used as cover for some illegal fishing.  The memorandum’s discussion of traceability, monitoring, compliance, and enforceability lacks sufficient detail to evaluate whether these programs would be practical or effective…

“The memorandum does not clearly identify which agencies would be responsible for carrying out these monitoring and enforcement activities or how they would be funded.  Historically, federally permitted activities often result in states and interstate commissions assuming substantial administrative, regulatory, enforcement, and financial responsibilities without corresponding federal resources.  Additionally, there is the question of whether all states on the Atlantic coast have the authority to enforce and monitor striped bass aquaculture operations…Many states’ enforcement capabilities are already stretched very thin with limited resources.  These implementation burdens must be fully evaluated before advancing any offshore striped bass aquaculture program…

“Economic Concerns

“The memorandum does not adequately address or consider the economic consequences of potential offshore aquaculture on the wild fishery.  Increased production of aquaculture-raised striped bass has the potential to flood seafood markets, reducing the value of wild-caught striped bass—a premium product that supports commercial fishermen throughout the Atlantic coast—and directly impacting the wild-caught striped bass harvest fisheries (the mom-and-pop businesses)…

“Rather than creating new economic opportunities, offshore striped bass aquaculture may shift economic benefits from traditional fishing communities to private aquaculture operations… 

“User Conflicts

“User conflicts must be addressed in greater detail.  The memorandum downplays user conflicts that offshore aquaculture for striped bass would present, especially at a time when user conflicts due to other ocean uses (e.g., offshore wind) are at the forefront.  Access to traditional fishing grounds would be reduced for commercial and recreational fisheries, particularly for mobile gear users and for year-round fisheries in warmer waters…

“To inform this issue, more details are needed regarding what offshore farms would look like in practice, and which uses would be allowed or restricted within these shared-use areas.  NOAA should clarify whether exclusion zones would be established around farm infrastructure, and if farms are expected to aggregate pelagic finfish species, whether recreational or commercial fishing would be prohibited in the surrounding area.  Regarding vessels, available data on the frequency or risk of vessel collisions with offshore aquaculture infrastructure should be considered…

“Project Siting

“The current description provides limited detail beyond general, high-level considerations, and appears to underestimate the engineering and operational challenges associated with locating striped bass net pens in offshore environment…

“The areas identified are also highly susceptible to severe weather events, including hurricanes and winter storms.  Notably, the strongest hurricanes often stay offshore, which could result in aquaculture facilities taking a direct hit.  NOAA should evaluate and describe the expected resilience of offshore aquaculture operations under extreme storm conditions, including the measures that would be implemented to minimize infrastructure damage, fish escapes, and environmental impacts.

“Aquaculture Industry Specifics

“Additional information is needed regarding the level of industry interest in offshore striped bass aquaculture and the basis for pursuing this initiative.  It is unclear whether there is currently an interested party seeking to develop an offshore striped bass aquaculture operation, or whether the interest is to establish a regulatory framework for potential future applicants…

“Ecological Concerns

“The memorandum does not address one of the longstanding concerns associated with farming high-value carnivorous marine fish species:  dependence on fish-based feeds.  Although feed technology continues to evolve, forage fish remain an important component of diets used to optimize growth and product quality.  The ecological tradeoffs associated with diverting forage resources into aquaculture deserve careful consideration.  Maintaining healthy forage fish populations benefits not only wild striped bass but also numerous marine mammals, seabirds, and other ecologically and economically important species.

“Regarding habitat, offshore units/structures tend to act as fish ‘attractor’ devices through complex structure, food availability or prey availability and could have unforeseen effects on essential fish habitat (EFH) in close proximity to other bottom structure or pelagic species…Management plans for any offshore facility should require permittees to have adequate funds (e.g., assurance bond) committed to ensure removal of fish and decommissioning of the facilities that are abandoned, obsolete, or storm-damaged or had their permits revoked…

“Protected Species

“Offshore aquaculture operations create the potential for entanglement and other interactions with species protected under the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA).  The current information in the memorandum is limited on this issue and remains a potentially significant ongoing concern…

“Biological Risks:  Escapement, Genetic Concerns, and Disease

“Significant biological risks remain unresolved.  Disease transmission, parasite transfer, escape of cultured fish, and genetic interactions with wild striped bass populations continue to present legitimate concerns.  Likewise, questions remain regarding the adequacy and consistency of federal oversight related to therapeutants, antibiotics, and other chemicals that may be used in commercial aquaculture operations.  Wild fish in close proximity to facilities could be exposed to therapeutics environmentally or through excess feed escapement and potential parasitic infection with unknown effects.  This also applies to therapeutics used to prevent parasitic infections, which can be a problem in culture facilities.  These issues warrant additional scientific evaluation before large-scale offshore production is considered.

“The memorandum should explain how genetic tracking would be implemented in practice.  If ‘pure-strain’ stocks are non-interbreeding (e.g., sterile), NOAA should evaluate whether this would affect the economic viability of production, particularly if such fish are considered genetically modified…If pure-strain stocks are not sterile, there are concerns regarding the risk of escapement and potential impacts on wild striped bass populations and information is needed on average escapement rates from similar net-pen aquaculture systems…

“Information should also be provided regarding how disease events would be managed given the apparent lack of approved antibiotics for striped bass…

“The memorandum notes that there may be some small losses (escapements) that may mingle with the wild population, but that risk should be given more weight and consideration, as well as the risk of a catastrophic failure (which would be a real risk considering weather events and potential vessel interactions).  There is no way to guarantee that aquaculture striped bass would not mix with the wild population, and these risks are much greater in open water systems.  Containment rules as well as genetic modification of cultured fish (triploids and diploids) or potential sterilization techniques are not necessarily validated for striped bass in large-scale production culture situations.

“Policy and Regulatory Roles

“Strong regulatory barriers for starting these types of operations exist, as they should if they are to be done properly.  Many of the regulatory concepts presented in the memorandum remain vague with respect to implementation.  There appears to be limited direct regulatory authority by NOAA or the Commission over offshore aquaculture operations…

“The memorandum notes that the Commission may wish to consider whether existing authorities could be used to develop monitoring and enforcement programs specific to striped bass aquaculture.  However, it is indicated that such actions would serve primarily to ‘influence’ federal partners rather than to establish mandatory requirements…

“Conclusion

“In summary, offshore net pen aquaculture of striped bass has a very limited operational history and no demonstrable record of large-scale, long-term success in the United States.  The Commission has substantial concerns including risks to wild striped bass populations, commercial fisheries, seafood markets, marine ecosystems, and protected species, enforcement concerns, as well as the potential for significant regulatory and financial obligations for states.  Based on the information currently available, those risks are not adequately balanced by the potential public benefits described in the memorandum.  Given these risks and unresolved issues described above, the Commission does not support moving forward with consideration of offshore striped bass aquaculture at this time…  [emphasis in original sector headings, added to text]”

NOAA and the current administration clearly want to move forward with offshore striped bass aquaculture, although it is not clear that anyone has yet applied for permission to engage in such activities off the U.S. Atlantic coast.  The ASMFC has responded with appropriate caution, acting as a responsible steward for the striped bass resource, and as a responsible representative for existing striped bass fisheries.

It is not at all clear how NOAA will respond to the ASMFC’s letter to Ms. Blacklock.  However, we can only hope that the ASMFC will continue its present, risk-averse approach to offshore striped bass aquaculture, and continue to protect the interests of the striped bass and striped bass fishermen, whether commercial or recreational.