DIFFERENT BUT EQUAL?

As we get closer to the Atlantic States Marine Fisheries Commission’s Striped Bass Management Board meeting on October 29, anglers are understandably anxious about what the Management Board is going to do.

Will it act responsibly and impose a harvest reduction of at least 25% for the 2015 season?  Or will it cave in to the demands of some industry voices, and favor short-term economic interests over the public interest in a healthy stock?

Along with that worry, there’s one more that has come up throughout the debate.  And it’s not going to go away.

Even if the Management Board does the right thing, will states try to game the system and get a leg up on their neighbors by invoking the concept of “conservation equivalency?”

Conservation equivalency is one of those concepts that’s unique to ASMFC.

You don’t generally see it in the federal system.  The Magnuson-Stevens Fishery Conservation and Management Act’s National Standard Three requires that

“To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination.”

That’s usually interpreted to mean that, in federal waters, regulations will be the same throughout the stock’s range.

There are a few exceptions. 

The South Atlantic Fishery Management Council’s Fishery Management Plan for the Dolphin and Wahoo Fishery of the Atlantic does not impose a size limit for dolphin on most states’ anglers.  However, in order to avoid conflict with regulations in Florida, Georgia and South Carolina, anglers landing dolphin in those states must abide by the relevant state’s minimum size limit.

And in the Gulf of Mexico’s troubled red snapper fishery, the Gulf of Mexico Fishery Management Council tried to impose seasons of different lengths on anglers from different Gulf states, in order to compensate for disparate size limits, bag limits and seasons adopted in state waters.  However, that effort was frustrated by a federal court, which found that it violated National Standard Four of the Magnuson Act, because it discriminated between the residents of the affected states.

However, at ASMFC, the idea of states imposing different but supposedly “equivalent” regulations has a long, if somewhat checkered, history.

ASMFC’s Charter specifically permits it, saying that if a management board chooses to permit conservation equivalency to apply to any management plan, such management plan must contain

“procedures under which the states may implement and enforce alternate management measures that achieve conservation equivalency.”

Over the years, that provision has been applied pretty liberally.

The most controversial application of conservation equivalency was undoubtedly in the summer flounder fishery, where each state was given its own share of the recreational allocation and required to come up with some combination of size limit, bag limit and season that—again in theory—kept its anglers from exceeding their quota.

The system didn’t work. 

Neighboring states had wildly different regulations.  Disgust and anger flared when anglers fishing on one side of a state border were forced to release fluke that were undersized for them, but were a couple inches over the limit for anglers in another boat, who were fishing a just a few yards away, but on the other side of the border.

Summer flounder management board meetings became less an exercise in conserving and managing the stock and more an effort by each state’s commissioners to protect their share of the fishery and, if possible, grow that share at the expense of their neighbors.

And the whole thing was pointless, because they were all fishing on the same stock of fish, that swam where they chose without regard for state borders.

That problem was fixed, at least temporarily, by the adoption of regional management in 2014, but there is no guarantee that it won’t rear its head up again next year.

In other fisheries, conservation equivalency didn’t arouse such passions, but it still didn’t always make sense.  

In the scup fishery, for example, the four states that share most of the harvest, New York, Connecticut, Rhode Island and Massachusetts adopt a similar set of regulations.  That is a good thing, because they’re fishing on the same stock of scup, and managing on a regional basis helps smooth out the regulatory swings that seem endemic to state-by-state management.

However, the states from New Jersey south fish by different rules, and that’s where the problems set in.

In New York, for most of the season, anglers may keep 30 scup at least 10 inches long, and the season runs from May 1 through the end of the year.  However, in New Jersey, anglers may keep as many as 50 scup no less than 9 inches long, and the season runs from January 1 through February 28, and from July 1 through December 31.

Boats running south out of Long Island ports, or southeast out of Staten Island or Sheepshead Bay, often fish on the same wrecks as vessels that run east out of New Jersey.  Two boats might be anchored within easy sinker-throwing distance of one another, but the anglers on the New York boat may take only 30 10-inch fish compared to the Jersey boats’ 50 fish at 9 inches.  In January and February, the Jersey boats may still load up while the New York boats can’t retain any scup at all; in May and June, that situation is reversed and the Jersey boats must go empty while the New York boats score.

From a conservation and management perspective, that’s pretty hard to defend.      

So some folks are concerned that we’re going to have a plethora of regulations governing the migratory population of Atlantic striped bass.

To some extent, we already do.

Maine wanted to kill immature fish, and accepted a 1-fish bag limit in order to make its 20 to 26-inch or over 40-inch slot “equivalent” to two at 28 inches.  New York didn’t want its commercial fishermen to put big, PCB-laden fish from the Hudson River into the stream of commerce, and traded a 24 to 36-inch slot for a reduced commercial quota.  And Connecticut and New Jersey, which are “gamefish” states with no legal commercial harvest, translated unused commercial quota into a bigger recreational kill.

But today, with regulations as restrictive as one fish at 32 inches being discussed, I’m hearing a lot of concerned talk about states turning to conservation equivalency to frustrate the spirit, if not the letter, of any harvest reductions.

The concern comes from two camps.  There are the conservation-minded anglers who don’t want to see the spawning stock threatened by “equivalent” regulations that raise the bag limit above a single fish.  Then there are their polar opposites, the for-hire boats who support a big kill, and fear that “equivalent” options might lure meat-hungry customers away.

The concerns are not groundless.

Right now, we’re looking at a striped bass population that features big gaps between dominant—or even average—year classes.  The 2008 and 2009 year classes, which will provide the just-legal fish in 2015, were below average in size; the last dominant year class was 2003, and those fish will be about 40 inches long next season.

It’s not impossible that one or more states will decide that they can achieve conservation equivalency by adopting a 2-fish bag limit, for everyone or perhaps just for their for-hire boats, and a size limit somewhat higher than the one set by the Management Board. 

If the Management Board adopted a 1-fish bag and a 28-inch minimum size, two fish at 33 inches would probably be deemed equivalent. 

That sounds like a big step up, but since there has only been one average year class (2007) between 2005 and 2011, it probably wouldn’t have much effect on harvest, since the 2005s would be about 36 inches long.  On paper, two at 33 inches might look “equivalent” to one at 28, but on the water, taking account of the largely missing year classes, it would probably result in a lot more dead fish.

That would be a bad thing, and would largely frustrate efforts to reduce fishing mortality, which already have a 50% probability of failure.

In New Jersey, giving the unused commercial harvest currently allocated to its “bonus fish” program to the for-hire landings could give its boats a second fish and competitive advantage over boats in neighboring states.  Coupled with an increased size limit, it might be enough to get a second fish for everyone.

Conservation equivalency would probably be less of a problem if the Management Board opts for a 32-inch minimum size, because the size limit associated with a 2-fish bag could become prohibitively large.

Unfortunately, there’s probably little that we can do about the conservation equivalency issue.

In theory, the Management Board could decide that conservation equivalency won’t apply to striped bass.  But you’ll probably see your house get hit by a meteor before you see conservation equivalency banned.  The ASMFC commissioners are just too used to the concept, have all used it when it served their purposes, and would be reluctant to see their discretion to use it taken away.

So the best we can probably do is to admit that we live in an imperfect world, and try to convince our state fisheries managers that the best way to rebuild the striped bass is to manage it under one set of uniform regulations throughout its range, and not permit state-by-state exceptions to undermine the management process.

It’s not a perfect answer, but it’s the best one that we have.

Because conservation equivalency, as flawed as it may be, isn’t going away any time soon.