CONSERVATION EQUIVALENCY DOESN'T WORK FOR STRIPED BASS

The Atlantic States Marine Fisheries Commission has long been invested in the concept of conservation equivalency.  Back in 2016, it approved an updated Conservation Equivalency:  Policy and Technical Guidance Document, which states

“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.”

It sounds good on paper.  But in practice, conservation equivalency has had very mixed results.

Conservation equivalency’s greatest success is undoubtedly represented by Addendum XI to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, which was adopted in 2004 and brought real stability to the recreational scup fishery.  Prior to Addendum XI, all states between Massachusetts and North Carolina were governed by the same set of regulations, even though scup are primarily a northern species, and just four states—Massachusetts, Rhode Island, Connecticut, and New York—were responsible for about 97% of all recreational landings.

That was clearly unfair to the states south of New York, which didn’t need to be bound by such restrictive regulations.  There were also problems with data from the Marine Recreational Fishing Statistics Survey, which was then used to estimate anglers’ effort, catch, and landings, and saw such estimates oscillate wildly from year to year.

In response to those issues, the ASMFC’s Summer Flounder, Scup, and Black Sea Bass Management Board adopted Addendum XI, which created a single northern region containing Massachusetts, Rhode Island, Connecticut, and New York, gave those states a single regional recreational quota, and pooled their catch, landings, and effort data; Addendum XI also required such states to adopt regulations that included the same bag limit, size limit, and season length.  States farther south, which accounted for a very small share of the overall landings, were allowed to fish under more liberal, default regulations.

By taking such action, the Summer Flounder, Scup, and Black Sea Bass Management Board improved the accuracy of the recreational data for the four northeastern states, for the old MRFSS data, like that produced by the current Marine Recreational Information Program, becomes more accurate when the number of anglers surveyed increases.

The result was what is undoubtedly the ASMFC’s most stable and successful recreational management plan; while scup limits have changed in response to the changing size of the scup population, they have avoided the sort of annual amendments, and sometimes seemingly irrational changes, that have often plagued the summer flounder and black sea bass fisheries over the past couple of decades.

For a while, it looked like the Summer Flounder, Scup, and Black Sea Bass Management Board was going to score another win with Addendum XXV to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, which established a regional framework for summer flounder management, most significantly placing New Jersey, New York, and Connecticut into a single region with a single bag limit, size limit, and season length, and so ended a big regulatory disparity, and constantly shifting regulations, in that tri-state area.

Addendum XXV stabilized the tri-state fishery and worked very well for a few years, but in 2016, by adopting Addendum XXVII to the Summer Flounder, Scup, and Black Sea Bass Management Plan, the Summer Flounder, Scup, and Black Sea Bass Management Board allowed New Jersey to weasel out of the tri-state region, and become a region of its own, solely because of New Jersey's claimed need to adopt a smaller size limit for anglers in Delaware Bay.

Addendum XXVII set the table for New Jersey to go further in 2017, refuse to conform to the New York/Connecticut regulations for its fishery outside of Delaware Bay, and appeal its case to the new Secretary of Commerce, Wilbur Ross; since then New Jersey Governor Chris Christie had been an early ally of the incoming Trump Administration, New Jersey’s decision to go out of compliance with the ASMFC’s management plan was quickly blessed by the Commerce Department, which didn’t even bother consulting with the Northeast Fisheries Science Center or NMFS’ administrator of the Greater Atlantic Regional Fisheries Office before making what was, at its heart, an arbitrary political decision that again introduced chaos into the summer flounder management program.

At least Addendum XXV worked for a few years, and would have kept on working if only New Jersey had decided to act in good faith.

But bad faith and conservation equivalency often go hand in hand; a lack of good faith is part of the reason that conservation equivalency has never worked, and will never work, in the striped bass fishery.  And striped bass biology makes acting in bad faith particularly easy.

To understand why that is so, first consider summer flounder.  Like any fish, it experiences highs and lows in recruitment.  Average recruitment is about 53 million fish per year, although over the past decade recruitment has ranged as low as 35 million fish and as high as 61 million fish or, to look at it another way, recruitment in any given year has been between 34% below average to 15% above average.  

That’s a relatively narrow range, particularly given that in adjacent years, the difference in recruitment is typically smaller.  Thus, managers can base the upcoming year’s regulations on the previous year’s landings and have reasonable confidence that, while no two years will be exactly the same, conditions will probably be similar enough that the regulations will come reasonably close to the mark.

That’s not the case with striped bass, which can see recruitment swing wildly from year to year.  If we look at the Maryland juvenile abundance index for striped bass, which is the oldest and probably the most reliable indicator of future striped bass abundance, over the past 10 years, we can see how this plays out.

The long-term average for the Maryland JAI is 11.6.  But over the last decade, we saw that index swing from 34.58, or 198% above average, to 0.89, or more than 94% below average, between 2011 and 2020.  Moreover, the decadal high occurred in 2011, and was immediately followed by the decadal low (which was also the lowest annual value ever returned in the 60-plus year history of the Maryland JAI) in 2012.

Given that the effectiveness of regulations is highly dependent on the availability of fish, and so the number of bass recruiting into the fishery, each year, and on the number of angler trips made in pursuit of those fish (with increased abundance normally leading to sharply increased angling effort), it’s pretty clear that basing future conservation equivalent regulations on past effort and landings patterns, in a fishery with such irregular recruitment, quickly becomes a fool’s errand.

Or, it becomes an opportunity for those who, understanding the system’s serious flaws, choose to use those flaws to game the system and escape some of the burden of striped bass conservation.

Consider the recent history of Maryland’s regulations.

Addendum IV to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan, adopted in 2014, required Chesapeake Bay states to achieve a 20.5% reduction in striped bass fishing mortality compared to 2012.  The reductions were originally to be based on fishing mortality in 2013, as was the case with the coastal states, but the Chesapeake jurisdictions requested, and the Atlantic Striped Bass Management Board agreed, that 2012 be used for the Bay.

In 2012, Maryland anglers were allowed to keep 18-inch striped bass, and data from the National Marine Fisheries Service shows that most of the bass landed by Maryland anglers that year were between 19 and 21 inches long, meaning that they came from the very weak 2008 (Maryland JAI=3.20) and well below-average 2009 (Maryland JAI=7.87) year classes.

Thus, on paper, the conservation-equivalent regulations for Maryland, based on 2012 recreational fishing mortality, didn’t have to be particularly restrictive in order to achieve the required 20.5% reduction.  A two-inch increase in the size limit, accompanied by a narrow 36 to 40-inch no-kill slot during the spring “trophy” season, appeared to be sufficient to get the job done.

However, what was happening on the water was very different from what was happening on paper.  Everyone recognized that the 2011 year class (Maryland JAI=34.58) was very large (one of the stated goals of Addendum IV was to conserve the 2011 year class in hopes of rebuilding the spawning stock), yet in constructing its supposedly conservation equivalent regulations, Maryland did not make allowances for either the influx of fish or the increased angling effort that such influx would inspire.

Thus, in 2015, the first year that the Addendum IV regulations were in effect, the number of directed striped bass trips in Maryland’s portion of Chesapeake Bay jumped from about 536,000 to nearly 845,000, a 58% increase, and striped bass fishing mortality in Maryland’s part of the bay rose by 54%, instead of being reduced by Amendment IV’s required 20.5%.

At the October 2016 Atlantic Striped Bass Management Board meeting, Maryland was unrepentant about its overage, with fishery manager Michael Luisi stating

“I wanted to thank the Technical Committee for making sure to stress the point that the emergence of the 2011 year class was kind of a game changer.  We were at the point when we were implementing these new measures, where we were seeing just an enormous biomass growth in the Bay, to the point where it was exploitable.  I have no doubt in my mind, as I know the Technical Committee evaluated whether or not harvest reductions happened, by increasing our minimum size.  I just want to read, just to strengthen the comment on the last bullet that’s on the screen right there.

“The actual written report that we have in our briefing materials speaks to the emergence of the 2011 year class.  It reads that ‘the harvest in the Bay in 2015 was undoubtedly lower than it would have been, had regulations remained status quo.’  I just wanted to make that comment, because I believe it strengthens what was reported as kind of a likely reduction.”

Looking at that statement, which essentially says that “No, Maryland didn’t make its agreed-upon reduction, but you should be happy because we would have caught even more fish should are regulations have remained status quo,” it’s easy to suspect that Maryland didn’t adopt its supposedly conservation equivalent regulations in good faith, but did so as a convenient fiction, which made it appear that the state at least tried to comply with Addendum IV, when it knew all along that it was setting up Maryland anglers for wholesale harvest of the “exploitable” 2011 year class as soon as they reached the 20-inch minimum size.

The sad truth is that such behavior, which gives a wink and a nod to the language of a management document, while adopting regulations that are extremely likely to fail, is not in any way discouraged by the Atlantic Striped Bass Management Board.  Maryland faced no sanctions whatsoever for failing to meet the 20.5% reduction required by Amendment IV. 

Instead, it was rewarded, not only because its anglers were allowed to continue to land excessive numbers of striped bass through 2019, but also because, when Addendum VI to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan:  18% Reduction in Removals & Circle Hook Measures went into effect at the beginning of 2020, Maryland’s required 18% reduction was calculated on its actual catch in 2017, nearly 1,100,000 striped bass, and not on the approximately 572,000 fish that its anglers would have landed in that year, had Maryland lived up to its obligations under Addendum IV.

The benefits of artfully composed conservation equivalent proposals thus continue to pay dividends that extend through time, to the detriment of states that try to play by the rules and adopt coastwide regulations, rather than seek undue advantage for themselves. 

Given that truth, it’s not surprising that in the recent round of public comments on the proposed Amendment 7 to the striped bass management plan, stakeholders roundly criticized the use of conservation equivalency to manage striped bass, saying things such as

“While we are not unconditionally opposed to the notion of conservation equivalency…we also believe that CE can be abused by individual states in a way that jeopardizes the effectiveness of coastwide conservation efforts,”

“Unfortunately, poorly planned conservation equivalency proposals have all too often resulted in less than intended conservation benefit with few consequences for the managers who developed them…The parsing of coastwide data into state- and Wave-specific datasets results in greater risk and uncertainty of achieving conservation goals with little to no accountability possible,”

and

“The fact that…state conservation equivalency provisions have repeatedly been used in ways that appear counter to what is needed to assess and achieve coast-wide fishing mortality and biomass goals [has been]…eroding stakeholder confidence in the ability of the Atlantic States Marine Fisheries Commission to accomplish the intended long-term objectives for striped bass.”

Others, using less formal language, referred to conservation equivalent regulations as “loopholes,” “a way for the states to escape the accountability of conservation minded management plans,” and an approach which has “failed miserably.”

It’s very clear that conservation equivalency isn’t popular with the striped bass-fishing public, who may not understand the calculations used to create conservation equivalent proposals, but do understand, through long observation, that conservation equivalency has rarely, if ever, worked out well in the striped bass.

Instead, the public sees states—and Maryland is only one of them—use conservation equivalency as a means to shirk part of their conservation burden, and shift it onto the shoulders of other states who might, with luck, take up the slack that the supposedly equivalent regulations create.

The Atlantic Striped Bass Management Board will be considering the issue of conservation equivalency when it meets to discuss the proposed Amendment 7 in October.  It is too much to hope that they choose to eliminate conservation equivalency completely, perhaps replacing it with separate sets of management measures for coastal and spawning areas that would remove much or all of the need for conservation equivalent proposals.

But there is still reason to hope that if conservation equivalency is not eliminated, its use carries a price that will make it unattractive to states except under the most compelling circumstances.

The striped bass’ life history, and particular its widely varying recruitment, makes it a poor candidate for conservation equivalent measures.  Add in the bad faith demonstrated by a handful of Management Board members, and it is clear why conservation equivalency doesn’t work for striped bass at all.