Sunday, November 24, 2019

CONSERVATION EQUIVALENCY AT THE ASMFC EARNS MORE STAKEHOLDER CRITICS



“The best laid schemes o’ mice an’ men
Gang aft a-gley”
It’s a sentiment that applies to many things, certainly including the concept of “conservation equivalency,” as adopted and applied by the Atlantic States Marine Fisheries Commission.

Conservation equivalency, as initially conceived by the ASMFC, seems like a perfectly sensible and very practical idea.  As noted in the Commission publication Conservation Equivalency:  Policy and Technical Guidance Document,

“Conservation equivalency allows states/jurisdictions (hereafter states) flexibility to develop alternative regulations that address specific state or regional differences while still achieving the goals and objectives of Interstate Fishery Management Plans (FMPs).  Allowing states to tailor their management programs in this way avoids the difficult task of developing one-size-fits-all management measures while still achieving equivalent conservation benefits to the resource.”
Stated that way, it hardly sounds problematic; an additional description from the ASMFC’s Interstate Fisheries Management Program Charter, which is quoted in the Technical Guidance Document, sounds equally benign when it describes conservation equivalency as

“Actions taken by a state which differ from the specific requirements of the FMP, but which achieve the same quantified level of conservation for the resource under management.  One example can be, various combinations of size limits, gear restrictions, and season length can be demonstrated to achieve the same targeted level of fishing mortality.”
Unfortunately, what sounds good on paper doesn’t always work out in the real world.  The ASMFC probably had nothing but good intentions when it adopted its conservation equivalency policy, but as a French churchman noted back in the Middle Ages,

“L’enfer est plein de bonnes volantes ou desirs,”
which translates to

“Hell is full of good intentions and wishes,”
an observation that is probably the origin of the old English proverb

“The road to Hell is paved with good intentions,”
which pretty much says it all.

Because in practice, conservation equivalency hasn’t worked out very well.

If you read the Technical Guidance Document, you’ll learn that

“During the development of a management document the Plan Development Team (PDT) should recommend if conservation equivalency should be permitted for that species.  The [relevant species management] board should provide a specific determination if conservation equivalency is an approved option for the fishery management plan, since conservation equivalency may not be appropriate or necessary for all management programs.  The PDT should consider stock status, stock structure, data availability, range of the species, socio-economic information, and the potential for more conservative management when stocks are overfished or overfishing is occurring when making a recommendation on conservation equivalency.  During the approval of a management document the Board will make the final decision on the approval of conservation equivalency.  [emphasis added]”
Once again, it all sounds good.  But as so often happens at the ASMFC, the sensible provisions of the Commission’s guiding documents somehow get lost among the realities of putting together a management plan.

In the real world, there is little discussion as to whether conservation equivalency is appropriate to a particular management plan; instead, the various management boards merely assume that conservation equivalency will be incorporated into any management plan that they adopt.  And the states take it a step further, often trying to put together allegedly “conservation equivalent” management proposals that work well on paper, but are designed to maintain fish landings at the highest possible level while pushing the conservation burden onto the shoulders of other states.

For an example of why conservation equivalency doesn’t work, and how it has contributed to the ASMFC’s dismal record of failure to rebuild and successfully maintain any stock under its sole jurisdiction, it’s only necessary to turn to striped bass, a fishery that once stood as the Commissions sole success, and now arguably represents its greatest example of failure.



“The use of management program equivalency (hereafter referred to as ‘conservation equivalency’) is an integral component of the Commission’s Interstate Fishery Management Program, particularly for Atlantic striped bass…”
Except for the specific striped bass reference, such language was lifted directly out of the Technical Guidance Document, as was subsequent wording about conservation equivalency allowing the states flexibility, etc.  The draft Addendum VI went on to say

“Under Amendment 6 to the Striped Bass FMP, a state may submit a proposal for a change to its regulatory program for any mandatory compliance measure.  It is the responsibility of the state to demonstrate the proposed management program is equivalent to the measures selected through this addendum.  All conservation equivalency programs are subject to [Technical Committee] review and Board approval.”
Although states were advised to review the Technical Guidance Document before submitting their conservation equivalency proposals, there was no discussion of some of the Guidance Document’s most important language—whether conservation equivalency was even appropriate for the striped bass fishery, given its current condition.

Using some of the criteria included in the Technical Guidance document, it’s not hard to argue that the striped bass stock, being overfished and subject to overfishing, might well have benefitted from more conservative management, and not the more liberal landings limits that conservation equivalency typically allows.

As a coastal migratory stock, it might also benefit from consistent coastwide regulations.  That’s particularly true in hindsight, for after the Management Board voted to adopt a slot limit, coastal consistency became even more important.  The primary virtue of a slot limit is that it protects the older, larger, most fecund female fish, and if a state’s conservation equivalency program allows those fish to be caught, the value of the slot limit is substantially diminished.

But, although the draft Addendum VI contained default provisions that would allow the public to comment on status quo measures, which would have allowed overfishing to continue unabated, it offered the public no chance to comment on whether conservation equivalency should continue in the fishery, or whether consistent coastwide regulations would better serve the striped bass at this time.  It merely assumed that conservation equivalency would be allowed.

That seems to be a very different course from what the Policy and Technical Guidance Document calls for.


At the Management Board's August meeting, Dennis Abbot, the Legislative Proxy for New Hampshire, tried to address the situation, moving to put an option in the draft Addendum VI that would prohibit the use of conservation equivalency so long as the striped bass stock was overfished and overfishing was occurring.  Capt. John McMurray, Legislative Proxy from New York, seconded the motion.

In support of that motion, Mr. Abbot said

“Many anglers through the years have expressed to me and others their strong displeasure with varying regulations.
“Its disparity is generally due to the generous application of conservation equivalency.  I may be wrong, but I don’t know of any conservation equivalency application that isn’t really intended to increase mortality of striped bass.  In my many years in the State Legislature, I always held the belief that when one is advantaged someone else is going to be disadvantaged.
“We're here today in part because some of us have been advantaged, and we’re all here to pay the piper.  I think the public should be given an opportunity to make their voices heard…”
Soon after, he noted that

“We haven’t even approved [Addendum VI], and I’m sure that states are figuring out how they’re going to manipulate the Addendum for their own benefit, as we generally do…
“We really need to tighten up on how we do that.”
Mr. Abbot had just suggested that the Management Board consider making burgers out of a sacred cow, and a number of other Management Board members were quick to defend their long-worshipped bovine.

Not surprisingly, Tom Fote, Governor’s Representative from New Jersey, led the assault.  New Jersey has a long history of manipulating conservation equivalency proposals, to become what Mr. Abbot referred to as an “advantaged” state, and Mr. Fote clearly had no intention of changing that now.  And he was not alone.  Although a number of other speakers agreed that the ASMFC’s use of conservation equivalency needs to be reconsidered, in the end the motion failed by a vote of 2 to 12.

But just two months later, Mr. Abbot’s August words proved prophetic. 

By October 30, all of the public comment on Addendum VI had been made and summarized, and it was time for the Management Board to take final action.  An initial motion, to require both the commercial and recreational sectors to reduce fishing mortality by 18 percent, passed fairly easily, after a short discussion.

At that point, it was time to discuss specific management measures—whether the coastal recreational size limit should be fixed at 35 inches, or whether a slot limit of some sort should be adopted in its stead.  

But that discussion was quickly interrupted by Adam Nowalsky, Legislative Proxy for New Jersey, who didn’t want to address specific management measures until the issue of conservation equivalency was first settled.  It was pretty clear that whatever management measures the Board ultimately decided to adopt, Nowalsky, and the rest of the New Jersey delegation, intended to reject them in favor of conservation-equivalent measures that, in Mr. Abbot’s words of two months before, were “really intended to increase the mortality of striped  bass” in the State of New Jersey.

Although most of the other Management Board members wanted to focus on management measures, Nowalsky was adamant that conservation equivalency had to be dealt with first.  In the end, he actually went so far as move that the discussion on management measures be tabled, so that he could focus on conservation equivalency, and so helpt ot assure that New Jersey would be able to find a way to kill some extra bass.

That motion was ultimately defeated by the Board, but such defeat was only temporary.  After a motion to adopt a 28 to 35-inch slot limit was made, Nowalsky rose again, to amend such motion to include a conservation equivalency provision that allowed states to adopt alternative management measures, so long as they achieved an 18 percent reduction in fishing mortality.

Nowalsky—and New Jersey—won that round after the Management Board approved the amendment.  But the striped bass lost, for as soon as the conservation equivalency amendment passed, the probability of achieving the 18 percent coastwide reduction needed to reduce fishing mortality to a sustainable level was substantially reduced, and Addendum VI, which initially had a decent chance of succeeding, was likely doomed to fail.

That’s because the 28 to 35-inch slot limit didn’t impact every state in the same way.  Some would experience mortality reductions greater than 18 percent; some, because of the nature of their fisheries, would experience a lesser cut. 

New Jersey might have been facing the biggest harvest reduction of all, perhaps more than 40 percent.  And, based on 2017 landings, New Jersey contributes more to recreational fishing mortality than any other state.  So when New Jersey managed to limit its fishing mortality reduction to just 18 percent, instead of 40 percent or more, it threw a very big monkey wrench into Amendment VI’s chances of success.

Some members of the Management Board clearly understood the risk of what New Jersey was doing.  Jason McNamee, a fishery manager from Rhode Island, had the guts to observe that

“You’re either in our you’re out…Conservation equivalency can’t work like this, because we’re not going to achieve our goals.”
But no one was willing to ask the key question, and get a Technical Committee representative to opine on how Nowalsky’s conservation equivalency motion would impact Addendum VI’s chances for success.  Everyone probably knew the answer, but apparently no one wanted to be responsible for that answer appearing on the record.

Because they knew that by accepting an across-the-board 18 percent standard for conservation equivalency, the Management Board was essentially sabotaging Addendum VI's chances for success.

And it gets even worse.  The Technical Guidance Document clearly states that

“If conservation equivalency is determined to be appropriate, the conservation equivalency process should be clearly defined and specific guidance should be supplied in the fishery management documents.  Each of the new fishery management plans, amendments, or addenda should include the details of the conservation equivalency program.  The guidance should include, at a minimum, a list of management measures that can be modified through conservation equivalency, evaluation criteria, review process, and monitoring requirements…
The management programs should place a limit on the length of time that a conservation equivalency program can remain in place without re-approval by the Board…Approval of a conservation equivalency program may be terminated if a state is not completing the necessary monitoring to evaluate the effects of the program.  [emphasis added]” 
Yet Addendum VI fails to meet those requirements.  Although the final Addendum VI to Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass does make reference to a memo that outlines the criteria to be used in evaluating conservation equivalency proposals, such memo does not fulfil the minimum requirements specified in the Technical Guidance Document, as it does not list the management measures that can be modified through conservation equivalency, does not set out the full review process, makes no mention at all of monitoring requirements, and does not limit the length of time that a conservation equivalency program can remain in place without re-approval.

Thus, Addendum VI has the potential to repeat the mistakes of Addendum IV, which saw a conservation equivalency proposal calculated to reduce recreational fishing mortality in Chesapeake Bay by 20.5 percent (compared to 2012) actually increase such fishing mortality by more than 50 percent, but failed to provide any mechanism for ending such conservation equivalency measure, or requiring its re-approval, in view of its failure to adequately constrain landings.  

Addendum VI allows conservation equivalency, but provides no mechanism for monitoring conservation equivalency proposals, or halting the continuation of conservation equivalency proposals that, in practice, fail to achieve the needed harvest reductions.

Thus, although conservation equivalency may be a desirable option in theory, in practice it has proven to be an obstacle to ending overfishing and rebuilding overfished stocks.  


“one of the most frustrating aspects of dealing with the Atlantic States Marine Fisheries Commission,”
and has recently begun offering stickers bearing the simple legend

“Conservation equivalency sucks.”
When an element of the ASMFC’s fishery management process has so alienated stakeholders that they feel the need to make such extreme statements, the ASMFC would be well advised to do some soul searching, and make an earnest effort to figure out whether those stakeholders are right.

Because right now, particularly with respect to striped bass, it’s hard to understand or explain why that Rhode Island shop might be wrong.

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