EXECUTIVE ORDER COULD IMPACT COASTAL FISHERIES, HABITATS: PART I

International Fisheries, International Trade, and Commercial Fishing Regulations

On May 7, 2020, President Donald Trump issued an “Executive Order on Promoting American Seafood Competitiveness and Economic Growth” (Executive Order). Unlike many executive orders, which are relatively brief and limited in scope, the most recent Executive Order is expansive, and covers four very different seafood issues: reducing the regulatory burden on United States fishermen; combatting illegal, unreported, and unregulated (IUU) fishing; facilitating offshore aquaculture; and creating a global seafood trade strategy.

During his Senate confirmation hearing, Commerce Secretary Wilbur Ross said that “Given the enormity of our coastlines, given the enormity of our freshwater, I would like to try to figure out how we can become much more self-sufficient in fishing and perhaps even a net exporter.” He also stated, in his first port-confirmation address to department employees, that he was intent on “obtaining maximum sustainable yield for our fisheries.”

The Executive Order, which among other things seeks to “identify and remove unnecessary regulatory barriers restricting American fishermen and aquaculture producers,” and “facilitate aquaculture projects through regulatory transparency and long-term strategic planning,” is very much in accord with both of those comments. But a bigger question is whether the Executive Order is in accord with the need to maintain healthy fish stocks and a fully functional coastal ecosystem.

That is not an easy question to answer.

International fisheries

IUU fishing takes many forms which, collectively, many pose the largest single threat to international fisheries management programs. Thus, it is heartening that the President directed the Secretary of Commerce to promulgate regulations that will support the United Nations Food and Agriculture Organization’s (FAO) efforts to rein in fishing vessels that operate outside the rules. It is also good to see him instruct agency heads to prioritize training and technical assistance in “key geographic locations” in order to promote sustainable fisheries management, to “strengthen and enhance” law enforcement capabilities to combat IUU fishing, and to promote implementation of the FAO’s anti-IUU fishing measures.

The President’s decision to create an Interagency Seafood Trade Task Force, intended to further “fair and reciprocal trade in seafood products,” is more difficult to evaluate. There’s certainly nothing wrong with helping out U.S. fishermen by developing an international seafood trade strategy “that identifies opportunities to improve access to foreign markets…, resolves technical barriers to United States seafood exports, and otherwise supports fair market access for United States seafood products.”

But the worth of any international trade strategy cannot be separated from its implementation. If the planned seafood trade strategy is coupled with an effective diplomatic campaign that opens more foreign markets to United States seafood and helps United States fishermen compete on a level playing field, both domestic fishermen and their foreign customers should benefit. On the other hand, if diplomatic efforts fall short, the trade strategy could conceivably disrupt patterns of international trade, resulting in United States markets being closed to some seafood imports, some foreign markets being closed to United States exports, and the possible imposition of retaliatory tariffs that, in the end, hurt fishermen and consumers alike.

Only time will reveal what course the seafood trade strategy will take.

Increasing domestic fisheries landings; Magnuson-Stevens still applies

Section 4 of the Executive Order instructs each regional fishery management council (Council) to produce “a prioritized list of recommended actions to reduce burdens on domestic fishing and increase production within sustainable fisheries.” That instruction might have a significant impact on federal fisheries management. Or, it could have almost no impact at all.

The Executive Order explicitly acknowledges that any actions taken thereunder are subject to the provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens). Magnuson-Stevens requires that “Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.” It also states that

The term ‘optimum’, with respect to the yield from a fishery, means the amount of fish which will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems; is prescribed as such on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant economic, social, or ecological factor; and in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield from such fishery. [internal numbering and formatting omitted]

It could thus be argued that, if the Councils are currently executing their responsibilities, and are already managing fisheries for their optimum yield, it will be difficult for them to increase landings much beyond their existing levels. Additional provisions of Magnuson-Stevens may make it difficult for such Councils to make other changes to federal fishery management programs.

For example, fishermen often complain that federal fisheries management measures are “overly precautionary” and lead to the “underfishing” of some fish stocks. Ever since the U.S. Supreme Court decided Natural Resources Defense Council v. Daley twenty years ago, federal fishery managers have been required to adopt management measures that have at least a 50 percent probability of preventing overfishing and timely rebuilding overfished stocks. Immediately after that decision was issued, in order to maintain harvests at the highest levels permitted by law, the Councils began to adopt management measures that were calculated to have a 50 percent—but no more than a 50 percent—probability of succeeding.

Those management measures often didn’t work out very well. Even the best fisheries data includes some level of scientific uncertainty, and there is also uncertainty about recreational and commercial catch levels, illegal landings, and how effective regulations might turn out to be. Because of such unknowns, which can’t be fully incorporated into managers’ calculations, regulations thought to have a bare 50 percent probability of success often end up falling short.

To address such uncertainty, the National Marine Fisheries Service (NMFS) issued fishery management guidelines which instruct the Councils that “When specifying limits and accountability measures, Councils must take an approach that considers uncertainty in scientific information and management controls of a fishery.” The guidelines also direct that “As [maximum sustainable yield] values are estimates or are based on proxies, they will have some level of uncertainty associated with them.  The degree of uncertainty in the estimates should be identified, when practicable, through the stock assessment process and peer review, and should be taken into account when specifying the [Acceptable Biological Catch] Control rule.” The guidelines then go on to define acceptable biological catch (ABC) 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 [Overfishing Limit], any other scientific uncertainty, and the Council’s risk policy.”

If those guidelines are followed, the acceptable biological catch will always be set at some point below maximum sustainable yield (MSY), in order to lessen the likelihood that uncertainty will lead to overfishing. It is that gap between the ABC and MSY, created to buffer the possible effects of uncertainty, that has led fishermen to assert that NMFS is setting “overly precautionary” regulations that burden domestic fishing and hamper Secretary Ross’ goal of “obtaining maximum sustainable yield for our fisheries.”

Yet the Councils would probably find it difficult to significantly reduce such buffers pursuant to the Executive Order, because Magnuson-Stevens directs that each Council shall “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. [emphasis added]” Any Council’s effort to replace such recommended ABC, which includes a buffer to account for uncertainty, with an ABC that simply equals MSY, would stand in clear violation of that provision, and would probably be challenged in court.

Recreational vs. commercial fishing

Yet there are other ways that the Councils could try to eliminate burdens on domestic fishermen. One of those is to shift allocation from the recreational to the commercial sector. While Section 4 of the Executive Order itself makes no distinction between commercial and recreational “production,” and could arguably apply to both sectors, a May 7 news release issued by the National Oceanic and Atmospheric Administration explicitly states that one purpose of the Executive Order was “Regulatory reform to maximize commercial fishing. [emphasis added]”

Thus, some members of the recreational fishing community are expressing concern about the Executive Order. Mike Leonard, government affairs vice president for the American Sportfishing Association, said, “While federal law provides protections against overfishing, we’re still concerned that requiring fisheries managers to ‘increase production’ may come at the expense of conservation and recreational fishing. We would strongly object to any actions that would increase unsustainable commercial fishing practices or reduce recreational fishing access.”

Anglers might also worry that the Executive Order’s emphasis on “production” could have an adverse impact on efforts to manage some primarily recreational species for abundance, rather than for maximum landings, in order to support robust catch-and-release fisheries. That is currently an issue at the Mid-Atlantic Fishery Management Council, which is contemplating a new amendment to its Bluefish Fishery Management Plan. Such Council could easily decide, in light of the Executive Order, to abandon that effort, and instead reallocate unharvested recreational quota to the commercial sector.

But, once again, provisions of Magnuson-Stevens might dictate a different outcome. As noted above, optimum yield shall be calculated “particularly with respect to food production and recreational opportunities, [emphasis added]” giving neither food production nor recreation priority over the other. Another provision states that one purpose of Magnuson-Stevens is to “to promote domestic commercial and recreational fishing under sound conservation and management principles, including the promotion of catch and release programs in recreational fishing. [emphasis added]” Thus, the ability of the Councils to favor commercial over recreational fishing, in order to comply with the Executive Order, is far from clear.

One thing the Councils could not do on their own is reopen commercial fisheries for striped bass, red drum, sailfish and marlin in federal waters, where such commercial harvest is not currently allowed. In the case of striped bass and red drum, such fishing was prohibited by an executive order signed by President George W. Bush on October 20, 2007, and it would take a new executive order to undo such prohibition. The commercial harvest of sailfish and marlin was outlawed by the Billfish Conservation Act of 2012, which would have to be repealed by Congress before such fishing might resume.

Reducing ecosystem-related protections

In their efforts to comply with the Executive Order, Councils might also seek to eliminate restrictions on fishing gear types, restrictions on bycatch, closed areas and other habitat protections, and similar measures that seek to protect one or more fish stocks, but at the same time place regulatory burdens on the commercial fishing industry and result in decreased production.

Ted Venker, conservation director for the Coastal Conservation Association, observed, “There is the potential for NOAA Fisheries to interpret this order as encouraging increased use of commercial fishing gears such as longlines, gill nets and trawls, which would be a tremendous step backwards for marine conservation.” Such an interpretation could result in NMFS rejecting Amendment 8 to the Atlantic Herring Fishery Management Plan, adopted late last year by the New England Fishery Management Council, which would prohibit large mid-water trawlers from targeting herring in nearshore waters, in order to prevent localized depletion and provide sufficient forage for a host of predator species.

Council efforts to reduce regulatory burdens could also lead to the elimination of current bycatch restrictions, which shut down directed fisheries when the incidental catch of other species becomes too great. Such efforts could have a substantial adverse impact on already depleted stocks of shad and river herring, if rules which shut down the directed Atlantic mackerel fishery, and segments of the Atlantic herring fishery, when such caps are exceeded were abolished. They could also lead to the elimination of gear-restricted areas, such as those established in the Mid-Atlantic to prevent the incidental catch of juvenile scup in the small-mesh nets used by squid trawlers.

Councils could seek to reopen areas currently closed to some or all fishing activity. Such areas have been widely employed in New England to facilitate research, preserve fragile habitat, and protect spawning areas. They have also been used in other regions, including the South Atlantic and Gulf of Mexico, to provide protection for deep-water species of snapper and grouper, to prevent fishermen from targeting spawning aggregations of fish, and to conserve important fish habitat.

Yet those restrictions, too, are arguably protected by Magnuson-Stevens, which allows the Councils to “designate zones where, and periods when, fishing shall be limited, or shall not be permitted, or shall be permitted only by specified types of fishing vessels or with specified types and quantities of fishing gear,” “prohibit, limit, condition, or require the use of specified types and quantities of fishing gear, fishing vessels, or equipment for such vessels,” and “include management measures in [a fishery management] plan to conserve target and non-target species and habitats, considering the variety of ecological factors affecting fishery populations.”

Given that Congress specifically authorized the Councils to adopt such measures, it would be very difficult to successfully argue that the Executive Order now required the Councils to abandon them.

Magnuson-Stevens limits Council options

Magnuson-Stevens compels federal fishery managers to end overfishing, rebuild overfished stocks, and maintain fish stocks at levels that are sustainable in the long term, and provides such managers with the legal authority to protect non-target species of fish, marine food webs, and marine ecosystems from the adverse effects of fishing activities. The Executive Order cannot revoke such legal authority, and cannot compel the Councils to reverse any previous action that was authorized by Magnuson-Stevens. In complying with the Executive Order’s edict to remove regulatory barriers to increasing fish production, the Councils must stay within the bounds established by Congress.

Given that most U.S. fisheries are already being prosecuted at or near their maximum sustainable fishing rates, there is a very real possibility that the Executive Order will not materially impact domestic fisheries management. It is also likely that, if any Council seeks to significantly increase the production of any species by ignoring or reinterpreting one or more provisions of Magnuson-Stevens, litigation will ensue.

However, Magnuson-Stevens probably does not grant NMFS the authority to regulate offshore aquaculture, an activity that was extensively discussed in the Executive Order. How the Executive Order might affect offshore fish farms will be addressed in the second half of this post.

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This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at http://conservefish.org/blog/

ADMINISTRATION WOULD DEPRIORITIZE SALMON'S USE OF RIVERS

Mark Twain allegedly observed that “Whiskey is for drinking, water is for fighting!” in reference to the seemingly never-ending battle over who gets the riparian rights to rivers and the dry and water-starved American West.

When Twain made that observation, he was undoubtedly talking about fights between people, each of whom believes that they had the superior claim to a water source.  As noted by the United States Bureau of Reclamation, the federal agency primarily responsible for damming free-flowing rivers and halting their unimpeded access to the sea,

“Water, especially in the West, is our most valuable resource, our lifeblood.  It is used to grow food and to grow cities.  It provides power to run our homes, factories, and businesses.  It sustains our forests and deserts for wildlife and recreation.  It is our most powerful and yet most fragile natural resource.  Asserting and protecting water rights in the West is a time-honored tradition.  Many feel fighting over water is a matter of survival.”

But if you read that paragraph closely, you might note that something is missing.  It talks about all the uses people might have for water, and even talks about forest and desert wildlife, and yet another big user goes unmentioned.

As a federal appeals court observed in the case of San Luis & Delta-Mendota Water Authority v. Locke,

“People need water, but so do fish.”

The Bureau of Reclamation may have left fish out of its recital of water-dependent users, but we shouldn’t forget that access to water is very much a matter of survival for them, as well.  And that’s probably true for no fish as much as it is for salmon, which can’t survive and reproduce without access to both cool, flowing rivers and to the sea.

The problem is that while plenty of people are willing to fight to claim the salmon’s water, and to assert that their rights to power, drinking water, irrigation and such give them a superior claim to that of the fish that have only been running the rivers since the retreat of glaciers filled and, in many cases, created those streams many thousands of years ago, the fish are incapable of fighting back.  So we see rivers once traversed by millions of salmon ascending from the sea to their headwaters spawning grounds blocked by dams, diverted by irrigation districts and running to warm and thin to easily support any native fish at all.

San Luis v. Locke addressed just that problem, upholding a biological opinion issued by the National Marine Fisheries Service, which directed the water district to limit the water removed from California’s Sacramento-San Joaquin River system in order to better protect threatened and endangered runs of Pacific salmon, which were put in jeopardy by existing water diversion projects.

It was a win for the salmon, but the court decision didn’t go over well with the current administration. 

In 2018, President Trump conflated the water diversion debate with the ability to fight wildfires in the region, saying

“California wildfires are being magnified & made so much worse by the bad environmental laws which aren’t allowing massive amounts of readily available water to be properly utilized.  It is being diverted into the Pacific Ocean…  [emphasis added]”

The facts that the rivers are supposed to flow into the Pacific Ocean, have been doing so for millennia, and that the only diversions taking place are those that take water out of the rivers before it can flow to the sea, were apparently lost on the President. 

Shortly after being inaugurated, President Trump appointed David Bernhardt, a former attorney and lobbyist for the Westlands Water District who represented Westlands in the San Luis v. Locke matter, as Deputy Secretary of the Interior.  During his Senate confirmation hearing, Bernhardt, who has since become Secretary of the Interior after has predecessor resigned, said that

“the president’s views, rather than the recommendations of scientists, would guide the Interior Department’s policies whenever possible.”

It is thus hardly surprising that, late last year, under Bernhardt’s aegis, the United States Fish and Wildlife Service issued revised biological opinions that remove many of the restrictions on diverting water from the Sacramento-San Joaquin system, again placing salmon and other fish, including the endangered delta smelt, at risk, or that in February 2020, President Trump signed a memorandum based on such biological opinions that would allow more water to be diverted to California agricultural interests, at the expense of the salmon.

Such actions resulted in lawsuits brought by conservation advocates, fishing organizations and by the State of California.  On May 11, 2020, the Federal District Court for the Eastern District of California entered preliminary injunctions that require the Administration to comply with the requirements of the biological opinion underlying San Luis v. Locke, and to limit pumping from the Sacramento-San Joaquin Delta.

Although the final outcome of the litigation remains to be seent, as of now, the salmon have, at least, not lost the fight.

But up on the Columbia River, another Administration action, this time by the Environmental Protection Agency, also casts doubt on the salmon’s future.

As mentioned before, salmon need cool, flowing rivers and access to and from the sea if they are to be able to successfully feed, mature and spawn.  The Columbia River and its tributary Snake River currently host about two million salmon that head upstream to spawn each year, which is far below the fish’s historical abundance.  One of the big problems on both rivers is dams, which not only block upstream access to spawning areas, and kill many juvenile fish on their way to the sea, but also cause thermal pollution by releasing waters that have been warmed in the reservoirs that back up behind the dams.

It seems that water temperatures above 68 degrees can halt the salmon’s upstream migration, and prolonged water temperatures in the 70s will cause salmon to die.  An article in The [Spokane, Washington] Spokesman-Review noted that

“sources of heating identified by [a recent Environmental Protection Agency] report include water entering from tributaries; regulated discharges, known as point sources, from things like factories and municipal wastewater treatment plants; and from increased air temperatures attributed to climate change.

“But the dams play an outsized role.”

Breaching four dams on the lower Snake River, in order to reduce water temperatures, has long been seen by conservation advocates as the right way to address the problem.  The Columbia Riverkeeper issued a white paper, based on a computer model of water temperatures, which argues that despite all of the other factors impacting water temperatures, if the four lower Snake River dams were removed, the river would remain cool enough to keep salmon alive, even though temperatures might occasionally rise above 68 degrees and halt the upstream migration for a few days.

The United States Environmental Protection Agency recognizes that

“Salmon need cold water to migrate up rivers from the ocean for spawning.  Sometimes water can get too warm and have negative impacts on fish, including physiological stress, increased metabolic and cardiovascular demands, added disease risk, accelerated maturation, migration delays, and even death.”

However, when the EPA recently released its preliminary report, Total Maximum Daily Load (TMDL) for Temperature in the Columbia and Lower Snake Rivers, there was no suggestions that the dams be removed.  Instead, it charged the states with the primary responsibility of keeping water temperatures as low as practicable.  It noted that

“Even if all the allocations in this TDML are implemented and the temperature reductions envisioned are fully realized, it is unlikely that the numeric criteria portion of the water quality standards will be met at all times and in all places.”

It then went so far as to suggest that

“One option for addressing the conflict created by the inability to achieve applicable water quality criteria at all times and in all places is for the States to make changes to their applicable designated uses.  The federal regulation…provides requirements for establishing, modifying, and removing designated uses.  A state may designate a use or remove a use that is not that is not an existing use, if the state conducts a ‘use attainability analysis’ that demonstrates that attaining the use is not feasible…”

Although the EPA didn’t come right out and say so, what it was suggesting was that, if the dams were raising water temperatures too high for the salmon to survive and spawn, the answer wasn’t to remove the dams from the river, but to remove the salmon, or at least to remove the designation of the Columbia and Snake rivers as salmon spawning habitat.

That undoubtedly pleased some dam-dependent industries. 

The Northwest River Partners, an industry group that represents a number of local electric cooperatives, includes organizations such as the Norpac Paper Company, Oregon Wheat Growers League, and Port of The Dalles among its members, and has declared its mission to

“Lead the charge for the Northwest to realize its clean energy potential using hydroelectricity as its cornerstone,”

was quick to jump onto the EPA report’s feasibility comments, with its executive director saying

“The states may have established water quality standards that are unattainable even if the lower Snake and mid-Columbia River dams were not in place.  It would be unfair to penalize the communities that rely on hydropower for river temperatures way beyond their control.”

But it would apparently be completely fair, in the Partnership's view, to penalize—perhaps through extirpation—the salmon for the same river temperatures, and for having no control over that at all.

Thus, on the Columbia River, as on the Sacramento and San Joaquin, we see federal agencies further an administration policy that subordinates the needs, and the very survival, of native salmon runs to the desires of various industries, and by doing so, subordinates the public interest to private financial interests.

It is a troubling trend that has continued, unabated, for the past three years, halted or at least slowed only by public interest litigation and the actions of courts.

Government, and particularly those agencies charged with managing and protecting natural resources and the overall environment, is not supposed to work that way.

FISHERIES MANAGEMENT: FIRST, PREVENT HARM

We spend a lot of time talking about rebuilding overfished stocks, improving the management of forage species, moving to ecosystem-based management models and otherwise trying to improve the health of marine fish stocks, and probably spend too little time doing what, in the end, is the easiest thing of all:  preventing stocks from being harmed in the first place.

Granted, that’s not always easy to do.  No one predicted that, in 2013, the so-called “blob” of warm, nutrient-poor water would move into the North Pacific, stick around for three years, and cause substantial harm to the region’s fish stocks.

  

The original blob caused Pacific cod numbers to drop by about 70 percent, most likely because its warmer waters deprived them of the food they need to survive.  Tens of thousands of sea birds starved to death.  Most of the whales, which normally spend their summers in northern waters to feed on their rich troves of plankton, krill, and small fish, sojourned elsewhere; of those that did return to the seas off Alaska, many died.  Now, scientists warn that more such blobs may form in the future, but there is nothing they can do to prevent that from occurring, and little they can do to offset the damage that will cause.

Other things are much more easily controlled.

Consider striped bass.  I write about them quite a bit, both because they are an iconic sportfish of the East Coast and because they serve as an example of what occurs when fishery managers repeatedly make bad decisions.

The fact that striped bass are currently overfished didn’t come as a surprise to most striped bass anglers, at least if they had any long-term experience in the fishery.  

We could see that crash coming for a decade or more, in part because fishermen, as a whole, were killing too many bass, and in part because the Maryland juvenile striped bass index, which has proven to be the best single indicator of striped bass abundance, was consistently below or barely above the long-term average from 2004 through 2010, often returning young-of-the-year numbers as low as those that occurred during the crash of the late 1970s and early 1980s.

Managers on the Atlantic States Marine Fisheries Commission’s Striped Bass Management Board certainly knew about the sub-par striped bass recruitment, and they were probably very aware of the declining abundance too, as many of those who sit on the Striped Bass Management Board are active fishermen themselves, and the few who aren’t would have been hearing about it from their state’s anglers.  

But management board members are supposed to base their actions on the best available science, and a 2009 stock assessment indicated that overfishing was not occurring, the female spawning stock biomass was 50 percent above the target level, and that the biomass should remain stable in the immediate future.  So they could be excused for thinking that, despite some bad news, there was no reason to y action to maintain the health of the stock.

That all changed in 2011, when a stock assessment update sounded a very different note, saying that while the stock was then neither overfished nor subject to overfishing,

“Projections of ages 3-8 abundance, ages 3-8 exploitable biomass, ages 8+ abundance, ages 8+ exploitable biomass, female spawning stock biomass, and landings from 2011 to 2017 were made for various levels of fishing mortality under low (average 2005-2010 age-1 abundance) and average recruitment (average 1989-2008 age-1 abundance) and 2010 selectivity at age…Abundance and exploitable biomass of ages 8+ are expected to decline regardless of the recruitment scenario.  Female [spawning stock biomass] will fall slightly below the threshold by 2017 under both recruitment scenarios…  [emphasis added]”

And there it was.  The best available science now informed the Atlantic Striped Bass Management Board that the stock was not only declining, but would be overfished by 2017.  By any reasonable management standard, that warning was a call for action to halt the decline, and so improve the health of the stock before it became overfished.

Because it was clear that if management continued on its current course, it would do harm to the striped bass stock.

For a brief while, it appeared that the Atlantic Striped Bass Management Board was going to do its job, and intervene before harm occurred.  At its February 2011 meeting, the Management Board instructed the Striped Bass Plan Development Team

“to begin drafting an addendum to Amendment 6 aimed at reducing striped bass fishing mortality up to 40 percent; and further, protect the spawning stock when it is concentrated and vulnerable…”

It the management board had carried through on that action, it’s very possible that we wouldn’t be worrying about how to rebuild the striped bass today.  Unfortunately, at its November 2011 meeting, the management board decided that acting proactively to prevent harm to the stock, rather than reacting after the stock been hurt, constituted “overmanaging.”

Management board members maintained that, despite biologists’ warnings that the striped bass stock was on the road to becoming overfished, striped bass still should be considered a “green light fishery” and prosecuted at the same levels that were contributing to its demise.

Tom Fote, the Governor’s Appointee from New Jersey, made perhaps the most vehement arguments against proactive conservation measures, saying

“You know, I think a solution to this problem is to release the restraints on summer flounder, scup and black sea bass and stop treating them as overfished stocks when they’re not overfished, except I guess now according to a now revised stock assessment…but that is more of what will happen because as soon as you allow people to go fish for the stocks they really want to take home to eat and get off striped bass, you’re going to release a lot of that pressure on the bigger fish because they’re available there, so you reduce the mortality in the first place.  [sic]

“Also if I’m asking for a relax on regulations like that, and striped bass is in a better situation than those species, how can I be a hypocrite and go out to my public in New Jersey and basically say, oh, by the way, we’ve been doing so great with striped bass and there really is no—we haven’t hit any of the triggers and now I’m going to reduce your catch by 40 percent…  [emphasis added]”

So we had Management Board member arguing that he thinks regulations should be relaxed on summer flounder, scup and black sea bass, because the only people who think that those stocks are overfished are the scientists who conduct the stock assessments, and since he’s willing to relax regulations on those more troubled species, he’d be a hypocrite if he supported increased regulations on striped bass, because even though the scientists warned that they’d be overfished within six years, they weren’t overfished yet.  (The fact that he could have supported effective conservation measures for both summer flounder, scup, and black sea bass and striped bass, and so set any hypocracy concerns aside, apparently never even came up on his radar.)

The saddest part about the whole thing is that, although most management board members didn’t sink to that level of absurdity, they did agree with the basic message that it was premature to take action to prevent overfishing of a stock that wasn’t in trouble yet, and the effort to draft an addendum was shelved.

Eight years later, with a benchmark stock assessment confirming that the striped bass stock has indeed become overfished and is also experiencing overfishing, the Management Board again took no concrete action to rebuild the stock, even though the management plan that such board adopted in 2003 says it “must” do so.

It appears that the “triggers” that Fote referred to in 2011 were finally hit, but resulted in only a misfire.  

Now, because of its chronic inaction, the management board finds itself in a hole, with the stock overfished, but hasn’t yet even tried to find the shovel it needs to dig itself out.

And we are facing other issues that impact our fisheries, where the wrong decision could cause harm to fish stocks, not the least of which relate to COVID-19.

Restrictions put in place to slow the spread of the virus have closed restaurants where most seafood is sold, imposed new work rules on commercial fisheries, and left many party and charter boats tied up on the dock.  There is no question that the economic impacts of such actions have been severe.

Some, including the Jersey Coast Anglers Association, have suggested that easing restrictions on fishing might help alleviate some of the economic pain.  It’s probably no coincidence that Fote advocates that fisheries managers should take that course in the Association’s May 2020 newsletter.

He admits that

“The [Atlantic States Marine Fisheries] Commission and the [regional fishery management] Councils are going to have a hard time with stock assessments because of the cancellation of observer coverage and the cancellation of many independent fisheries surveys.  There will also be a cancellation of [Marine Recreational Information Program angler] intercepts for the recreational sector.  We don’t know when any of these will be resumed but this will be a poor data year.”

So what does JCAA/Fote propose to do in the face of such dearth of data critical to the management process?

“Since we are planning for 2021, we should just go for status quo in 2021 and begin planning for 2022…The regulations currently in place will be more than enough to protect the stocks until we can resolve the data collection process.  We should actually consider relaxing some regulations as a part of a stimulus package for the recreational and commercial industry when the status won’t hurt the stocks.  The current regulations are so restrictive that there is room for some flexibility.  As an ASMFC Commissioner and a [Mid-Atlantic Fishery Management Council] member, I am looking forward to working with the Councils to make this happen.  [emphasis added]” 

So we now have the same person who urged the Atlantic Striped Bass Management Board to ignore biologists’ warning that the striped bass stock would become overfished—which it subsequently did—now wants the ASMFC and the federal fishery management councils to relax science-based regulations, and assures us that it will be fine.

To a rational person, that would seem akin to running a boat down a narrow, twisting channel at full speed in pea-soup fog, with all the electronics shut off, with full confidence that everything will turn out OK, and you won’t end up running aground and taking on water after your rudders and struts are ripped off by a sandbar.

And just as we know that there are a surfeit of sandbars in our coastal bays, we already know that, contrary to Fote’s assertions, there are a number of reasons why current regulations could cause harm to fish stocks if carried over into 2021.

Bluefish provide a case in point.  The stock has been declared overfished, and a rebuilding plan is being drafted.  In the meantime, 2020 regulations were based on the assumption that this year’s landings would be the same as landings in 2018.  Yet 2018 landings were the lowest on record in a time series going back to 1985, and 2019 landings were substantially higher; by October 31, 2019, with two months of the season yet to go, anglers already landed about 2.5 million more pounds of bluefish than they did in all of 2018.  Thus, regulations based on 2018 landings are very likely to lead to overfishing in 2020, which would require both revised regulations, and payback of the overage, in 2021. 

In that scenario, status quo bluefish regulations in 2021 could only do more harm to an already overfished stock, and make rebuilding more difficult.  It would be, in short, a very bad idea—much like maintaining status quo regulations for striped bass was a very bad idea in 2011, and led to a very bad result.

Black sea bass are in a different, but also fraught, situation.  

While black sea bass abundance is still very high due to an unprecedentedly large 2011 year class, it has been steadily declining, and is expected to fall from about 240 percent of target biomass in 2018 to about 160 percent of target in 2021.  The 2017 year class, which when assessed as Year 1 fish in 2018 represented the lowest recruitment level in the entire time series, will enter the fishery this year and become a more important contributor in 2021, when most such fish reach the 15-inch minimum size in place between New York and Massachusetts.  Data released in the second half of 2019 revealed that recreational landings were well above the recreational harvest limit; nonetheless, the Mid-Atlantic Council decided to carry 2019 management measures over into this year, even though such measures will result in the recreational harvest limit to be exceeded by 26 percent, the recreational catch limit to be exceeded by 23 percent, and the acceptable biological catch to be exceeded by 12 percent in 2020.

Maintaining status quo regulations again in 2021, as biomass continues to decline, could well result not just in exceeding the acceptable biological catch, which is bad enough, but in exceeding the overfishing limit as well.

While people could argue that the black sea bass biomass is still well over target, and a year or two of overfishing won’t do real harm, we should always remember that the striped bass biomass was in supposedly good shape in 2011, when status quo rules were maintained, and we all know how that has turned out.

Actions have consequences, and the first obligation of fishery managers ought to be to cause no harm to the stocks under their care.

But we should recognize that inaction has consequences too, and that maintaining the status quo can be far from benign, for doing nothing when action is called for can also hurt fish stocks.

Fishery managers have a moral and, on the federal level, a legal obligation to conserve and manage fish stocks for sustainability in the long term.

Not doing anything to harm those fish stocks is the first step toward meeting that goal

WHAT SHOULD WE MAKE OF THE NEW STRIPED BASS STUDY?

Ever since the Atlantic States Marine Fisheries Commission got serious about striped bass management back in the 1980s, the Chesapeake Bay fisheries have stood apart from those on the rest of the coast. 

Amendment 4 to the striped bass management plan, adopted in 1989, created a dual size-limit management approach, that allowed smaller fish to be killed in Chesapeake than could be landed out on the coast.  In justifying such approach, Amendment 4 stated

“Smaller size limits in ‘producing areas’ are necessary for the maintenance of historical fisheries on native fish which have primarily small fish available to them; in the Chesapeake Bay, most striped bass remain in the Bay for only 2 to 6 years before leaving to take part in coastal migrations; large mature fish return each year for only a brief period to spawn in the Bay, returning to coastal waters after spawning.”

The Amendment applied the same logic to fish in North Carolina’s Albemarle Sound, and in the Hudson River.

That distinction between Chesapeake Bay and the coast has endured ever since.  Amendment 5 to the management plan set a Bay size limit of 20 inches, versus a 28-inch minimum size on the coast.  The minimum size in the Bay was dropped to 18 inches in Amendment 6, and was increased back to 20 inches after Addendum IV to that Amendment reduced Bay harvest by 20.5 percent.  Maryland has since adopted a 19-inch minimum size for most of its Chesapeake Bay season, while Virginia has stuck to the 20-inch minimum on its side of the Bay.

The Chesapeake Bay is the single most important nursery area for striped bass, and comprises the majority of the coastal migratory stock.  Young fish remain in the Bay for a period of time before moving out into coastal waters, but just how long they remain is open for debate.

For a very long time, biologists believed that the fish left the bay when they were relatively young, and that most of the migratory fish were females.  A document included in the University of Maryland’s compilation, Ecosystem Based Fisheries Management for Chesapeake Bay; Striped Bass Species Team Background and Issue Briefs, expressed scientists’ prevailing opinion, saying

“The Chesapeake Bay hosts a year-round adult striped bass population that is predominantly male.  The majority of females age 3+ leave the Bay and become part of the coastal migratory stock.  This emigration may take place as early as three years of age, although there is some indication that the emigration by age is gradual with successively greater numbers of emigrants with each succeeding age…” 

The State of Maryland added some nuance to that general statement, noting that

“The striped bass stock within Chesapeake Bay is composed of pre-migratory fish, primarily ages 10 and younger, and coastal migratory striped bass range in age from age 2 to more than age 30,”

and so recognized that there was considerable age overlap between fish that entered the migratory population and those that remain in the Bay.

That makes sense in the context of striped bass behavior in other nursery areas.  The most recent benchmark stock assessment stated that

“…Results from tagging 6,679 fish from New Brunswick, Canada to the Chesapeake Bay , during 1959-1963, suggest that substantial numbers of striped bass leave their birthplaces when they are three or more years old and thereafter migrate in groups along the open coast.  These fish are often referred to collectively as the ‘coastal migratory stock,’ suggesting that they form one homogeneous group, but this group is probably, in itself, heterogeneous, consisting of many migratory contingents of diverse origin.”

Against that background comes a scientific paper that provides new insights into striped bass migration, and could have significant implications for striped bass management. 

The paper, “Differential Migration in Chesapeake Bay striped bass,” was published in the journal Plos One by a team of scientists led by David H. Secor, a biologist who has a long and very well-respected history in striped bass research.

It describes a study in which 100 striped bass of various sizes, captured in the Chesapeake Bay, were fitted with acoustic tags and tracked for four years, as they migrated within and outside the Bay.  The tagged bass were classified into four size ranges, 18-24 inches, 24-28 inches, 28-32 inches, and larger than 32 inches, with the three larger size classes of fish gill netted and tagged in the middle reaches of the Potomac River between March 30 and April 11, and the smallest pound netted and tagged at the mouth of the Potomac on October 30.

Over the course of four years, the researchers found that almost all of the striped bass larger than 32 inches, regardless of sex, joined in the coastal migration, although a few did remain resident in the Bay, while the smaller fish remained in the Chesapeake Bay throughout the year.  

Notably, the researchers found that

“Our results did not support Kohlenstein’s early hypothesis that there is a large pulse of females emigrating at 3 years of age and males remain resident throughout their lives.”

Both males and females joined the coastal migration at about the same size.  The study also revealed that the mortality rates of bass that remain in the Bay, 70.3 percent per year, was approximately twice the 36.9 percent annual mortality rate of those that leave the Bay to engage in the coastwide migration.

So that leads to the question that’s undoubtedly at the forefront of most anglers’ minds:  What does this study mean for striped bass management?

At this point,that is not completely clear.

The researchers suggest that

“size at emigration for Chesapeake Bay striped bass has been stable in recent decades.  This supports a key assumption of the ASMFC’s spatially explicit stock assessment, one that specifies differential migration and holds considerable advantage in specifying the productivity of estuarine and ocean segments of the fishery to better support regional allocation tactics.”

That sounds like, in the next amendment to the management plan and/or after the next benchmark stock assessment, Maryland may succeed in getting the two-stock model it has been seeking, and isolating its Bay fishery from that of the coast.

The researchers also noted that

“Emigration by striped bass, referenced here as differential migration, represents a type of partial migration, influencing population production, resilience, and stability.  Spatial buffering against regional differences in exploitation, pollution, and food web conditions can occur when contingents within populations vary in their migration patterns as documented here for striped bass…the capacity of differential migration to contribute to stability in the overall population and to convey key trophic roles across its range will have much to do with managing exploitation and other sources of mortality in both the Chesapeake Bay and the shelf regions.”

Thus, the applicability of the study’s findings to all, or at least a substantial majority, of the bass spawned in Chesapeake Bay could make a big difference in how striped bass are managed in the future.

So, do the great majority of striped bass remain in the Chesapeake Bay until they’re 32 inches long?

Call me a skeptic, but I have my doubts.  Very serious doubts.

In the early 1970s, just a couple of years after the big 1970 year class showed up in Maryland's juvenile abundance survey.  Ever since then, I’ve observed swarms of little striped bass enter northeastern waters soon after a big Maryland year class was produced in the Chesapeake Bay.  That pattern has continued right through the present day, as a surge of small fish started appearing in local waters a few years after to good 2015 year class was spawned. 

It has worked the other way, too.  Back in the late 1970s, as recruitment began to fall off in the run up to the striped bass stock’s collapse, we noticed a marked lack of small bass in western Long Island Sound, even though big fish were still very abundant and Hudson River recruitment remained more or less on track.  More recently, we saw the number of school fish in the northeast fall off sharply after recruitment declined in for the period 2004-2010.

And when I was actively involved in the American Littoral Society’s fish tagging program, I tagged a number of sub-32-inch bass in western Long Island Sound that were caught within the next year in the Choptank, Potomac and Rappahannock rivers, which all flow into the Chesapeake Bay, which would seem to show some movement of smaller bass between Bay and southern New England.

While the old saw that “correlation doesn’t necessarily indicate causation,” still holds true, it’s also true that when you see a pattern hold for nearly fifty years, you can probably start believing that some sort of relationship might exist.

The researchers recognize that there are a lot of small bass moving along the coast, and admit that they don’t know where they come from, saying

“Another migration behavior not observed [in the study] but well documented is the occurrence of age 1-3 striped bass in shelf waters.  Recent telemetry work has focused on aggregations of these small fish in the shelf waters off NJ and Southern New England, but because they were not subsequently tracked during spawning tributaries, inferences on where they came from are speculative.  Early research noted high abundances of small striped bass in Southern New England waters and attributed them to strong recruitment years in the Chesapeake Bay.  The provenance of young ocean striped bass—whether regional spill over from natal systems or the result of longer ocean migrations, remains unknown…”

If I were to speculate—a formal way to describe making a wild-ass guess—I’d argue that the results of the survey might have been biased by collecting the smallest size contingent, the 18 to 24-inch fish, in late October, when the fall striped bass migration in the northeast was well underway.  

It is possible—and I’m not arguing that this is true, but merely that it’s possible—that the bass collected and tagged in October were all resident fish, because the striped bass of that size that had already joined the coastwide migration were somewhere between New Jersey and Rhode Island at the time.

And because those migrating bass were still too young to spawn, perhaps they wintered in the ocean, as most striped bass do, and never entered the Bay.  That would explain why small bass acoustically tagged off New Jersey and New England didn't show up in the spawning tributaries of the Chesapeake Bay.

For the same reason, the larger striped bass tagged in the spring in the Potomac River could also have been resident fish, which is why they, too, remained in the Bay until they reached the 32-inch size that triggered migration, while other fish the same size were wintering off the Virginia/North Carolina line and migrating north in the spring.

Right now, that’s just a guess, one that doesn’t even rise to the level of a legitimate hypothesis--though in all honestly, I think that it’s true.

Yet that doesn’t mean that there’s any flaw in the new study, which represents good, peer-reviewed work and makes its own real and significant contribution to the knowledge we have of striped bass.

It’s just that science rarely moves forward in giant steps.  

Every study adds an incremental bit of knowledge, teaching us something that we did not know before.  And when the researchers tell us that the small bass on the coast represent

“a topic that would be well engaged through genetic markers or additional telemetry research,”

they’re telling us something that we should already realize:

We will never know it all.  Science advances by degrees.  More research will always be needed.