MARINE FISHERIES--WHAT WILL THE NEW YEAR BRING? PART II, A HOST OF ISSUES

 At the beginning of each new year, One Angler’s Voyage typically reviews the fishery management issues that will be in the spotlight over the next twelve months.

Last Sunday, I discussed the upcoming issues likely to impact striped bass.  Today, I cast a broader net, describing matters that will affect stocks as varied as Gulf of Mexico red snapper, forage fish, mid-Atlantic black sea bass, summer flounder, and scup.  I also take a brief look at some other issues that could potentially impact every fishery that exists on every coast of the United States.

Counting red snapper landings in the Gulf of Mexico

Recreational red snapper landings in the Gulf of Mexico have long been a contentious issue, as anglers chronically overfish their annual harvest limits.

After the Gulf of Mexico Fishery Management Council approved Amendment 50 A-F to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico, which allocated a portion of the overall recreational quota to each of the Gulf states and allowed such states to set the seasons and, within strict parameters, the size and bag limits best calculated to allow each state’s anglers to catch, but not exceed, such states’ allocations, it appeared for a while that recreational overharvest was finally brought under control.

However, a new problem soon arose.  Although the data collection programs that each Gulf state (other than Texas) uses to estimate recreational red snapper catch and landings were designed to work with NMFS’ Marine Recreational Information Program, each employs a slightly different methodology.  In order to calibrate all of the state data collection programs, and allow them to feed meaningful data into the federal system, state catch estimates must be converted into a “common currency” that works with MRIP.

When NMFS made a preliminary effort to recalibrate state data, and convert it into such common currency, it found that, although the state data suggested that anglers stayed within their annual quota, recreational fishermen in some states actually exceeded their harvest limit by substantial amounts, and would have to pay back such overages in the following season.  Such revelation upset a number of angling industry and anglers’ rights groups which, stymied by the facts, left them behind and began casting aspersions on the motives of federal fishery managers and the worth of the federal fishery management system.

When the Gulf Council addressed the calibration issue at its August 2021 meeting, it chose to kick the can down the road, deferring recalibration of state data until 2023, and basing 2022 state red snapper regulations on the uncalibrated numbers.  Thus, it tacitly allowed overfishing to continue.

NMFS’ Southeast Regional Fisheries Office deemed such action unacceptable, and

“not based on the best available science,”

and also found that it

“would result in the private angling component exceeding their annual catch limit in 2022.”

Thus, the Council’s action was

“inconsistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act.”

Nevertheless, the Council did not modify its decision, leaving it at loggerheads with the agency.

NMFS has not yet taken formal action with regard to the Council’s decision.  Given the language used in its communications, the agency seems likely to disapprove the Council’s actions.  Should such disapproval occur, time constraints may very well force NMFS to issue emergency regulations to prevent overfishing during the 2022 season.

That’s not the way that things are supposed to work.  It is more than past time for recreational representatives and organizations in the Gulf to stop acting like spoiled children upset that they didn’t get a pony for Christmas, and start working in good faith to constrain recreational harvest to scientifically justifiable levels and so assure the long-term health of the stock.

And we can only hope that NMFS holds their feet to the fire, and doesn’t permit them to backslide.

Forage fish issues

Forage fish—species that generally feed on plankton, and in turn serve as prey for everything from slightly larger fish to seabirds and the great whales—are a critical part of the ocean’s food web.  At the same time, they are some of the least-protected fish species.  Although, along the northeast coast, NMFS does manage Atlantic herring, Atlantic mackerel, chub mackerel, butterfish, and some species of squid, and the ASMFC manages Atlantic menhaden, many other forage fish species, including sand lance (“sand eels”), alewives, threadfin herring, blueback herring, American shad, and hickory shad enjoy little meaningful protection in federal waters.

While an Omnibus Unmanaged Forage Amendment adopted by the Mid-Atlantic Fishery Management Council in 2017 purports to limit the harvest of forage species unless and until any such harvest until there is adequate scientific evidence that such harvest would harm neither the forage species itself nor the species that feed upon it, such protections may prove to be largely illusory.  At the June meeting of the Mid-Atlantic Council, that body was presented with a proposal from Lund’s fisheries, which was seeking to land 6.6 million pounds of threadfin herring, a species included in the unmanaged forage amendment, subject to an “exempted fishing permit.”

The most troubling aspect of the Lund proposal isn’t that it was made—if Lund can demonstrate that threadfin herring can be harvested without weakening the Mid-Atlantic food web, there is no reason why a fishery can’t be prosecuted—but that any application for an exempted fishing permit does not receive the same level of review as even the most routine fishery management measures, which must be approved by a regional fishery management council, after at least some opportunity for public comment, before being passed on to NMFS for review and, in most cases, approval.

According to NMFS, exempted fishing permits are “generally” issued

“for research purposes, seafood product development and/or market research, compensation fishing, and the collection of fish for public display.”

The threadfin herring proposal would certainly qualify as a product development effort.  Should an application be made,

“The Regional Administrator will review [it] and make a preliminary decision on whether the application contains all of the required information and constitutes an activity appropriate for further consideration.  If the Regional Administrator finds that any application does not warrant further consideration, both the applicant and the affected Council(s) will be notified in writing of the reasons for the decision.  If the Regional Administrator determines that the application warrants further consideration, notification of receipt of the application will be published in the Federal Register with a brief description of the proposal.  There will be a 15- to 45-day comment period on the notice of the receipt of the EFP application.

“As soon as practicable after considering comments and conducting required analyses and consultations…the Regional Administrator will make a determination on whether to approve or deny the EFP request…”

Such a process, which provides the affected regional fishery management council or councils no opportunity to veto a proposed exempted fishing permit, and provides only a minimal opportunity for public input (after all, how many people pay attention to what’s published in the Federal Register?), could nonetheless authorize threadfin herring landings to rise from their current annual level of between 11,500 and 30,500 pounds (for the years 2015-2020) to 6,600,000 pounds over the course of a single year.

Although granting the proposed exempted fishing permit might be legally permissible, it would clearly contravene the intent of the Mid-Atlantic Council when it adopted its Omnibus Forage Fish Amendment, which explicitly states that

“This document contains a summary and analysis of management measures considered by the Mid-Atlantic Fishery Management Council to prohibit the development of new and expansion of existing directed commercial fisheries on certain unmanaged forage species in the Mid-Atlantic Federal waters.  The Council intends to prohibit such fisheries until they have had an adequate opportunity to assess the scientific information relating to any new or expanded directed fisheries and consider potential impacts to existing fisheries, fishing communities, and the marine ecosystem.  [emphasis added]”

Unfortunately, such Council intent is does not constitute applicable law, while the regulations permitting the issuance of exempted fishing permits does.  Thus, the exempted fishing permit process provides a way for fishermen to do an end run around the Omnibus Amendment, and allow the harvest of forage fish which are not subject to a fishery management plan.

Federal legislation has now been introduced that would guarantee forage fish the sort of protections that the Mid-Atlantic Council may have believed they were provided in the Omnibus Amendment.  S. 1484, the Forage Fish Conservation Act, introduced by Sen. Richard Blumenthal (D-CT), and its House companion, H.R. 5770, introduced by Rep. Debbie Dingell (D-MI-12), recognize the importance of forage fish to the marine food web, and would prohibit regional fishery management councils from developing any new fisheries for unmanaged forage until a council had considered the relevant scientific information, determined whether the relevant forage fish stock required conservation and management and, if conservation and management were needed, developed a fishery management plan for the stock in question. 

The bill would offer benefits to coastal ecosystems.  However, because of the realities facing the current session of Congress, getting it passed will probably prove very difficult, if not impossible, to do.

Yet folks still ought to try.  The first House hearing addressing the bill, along with a number of others, has already been held.

Reauthorizing Magnuson-Stevens

Forage fish are just one of many issues addressed in H.R. 4690, the Sustaining America’s Fisheries for the Future Act, introduced by Rep. Jared Huffman (D-CA-2^nd).  

H.R. 4690 would reauthorize the Magnuson-Stevens Fishery Conservation and Management Act, and amend that current law in ways intended to address the impacts of a warming ocean, provide broader public representation on regional fishery management councils, improve the likelihood of rebuilding overfished stocks, improve the collection and quality of fisheries data, and otherwise move federal fishery management into the 21^st century.

Rep. Huffman’s bill stands in stark contrast to H.R. 59, the Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act, introduced by Don Young (R-AK).

While H.R. 4690 looks forward, and seeks to prepare the federal fishery management system for its future challenges, H.R. 59 is a retread of legislation that reiterates, nearly word-for-word, language rejected by Congress, in multiple sessions, for the past decade. 

While H.R. 4690 attempts to move federal fishery management deeper into the 21^st century, H.R. 59 seeks to drag the federal fishery management system back into the late 1900s, by weakening the conservation and management provisions that helped to end overfishing and rebuild scores of federally-managed fish stocks, and retreat toward the management paradigm that first subjected such stocks to overfishing and then presided over their decline.

Although H.R. 4690 would offer significant benefits to both fish stocks and fishery managers, the current dysfunction in Congress makes it unlikely that the bill will pass in the current session.  However, the continued existence of H.R. 59 serves as a warning of what fisheries legislation could look like if control of Congress changes after this year’s elections, and should provide some incentive for conservation advocates to get out and vote for candidates who will keep focusing on the future, and not on the past.

“Recreational reform” in the mid-Atlantic

Since passage of the Sustainable Fisheries Act of 1996, which was bolstered by the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, federal fishery managers have fully rebuilt more than 40 once-overfished stocks, and ended overfishing for many more.  That success was largely due to the legal standards for fishery management established in the ’96 Act, and by requirements in the 2006 law that annual catch limits be established for every managed fish stock, and that fishermen be held accountable when those catch limits are exceeded.

Of course, those laws didn’t make everyone happy.  Among the discontented were organizations such as the American Sportfishing Association, Coastal Conservation Association, and Center for Sportfishing Policy, who were upset that anglers could no longer overfish Gulf of Mexico red snapper with impunity.  They were so upset that they pushed Congress to pass the Modernizing Recreational Fishery Management Act of 2017, which as originally written, would have seriously undercut the federal fishery management process, but as passed, ended up being little more than a participation trophy for the people and organizations involved.

Now, the same organizations which have, to date, failed to meaningfully obstruct federal red snapper management in the Gulf have changed venues, and are trying to undercut summer flounder, scup, and black sea bass management in the mid-Atlantic region.  They’re doing so by proposing a so-called “harvest control rule” as part of what has become known as the “recreational reform initiative.”

In some of its iterations, such control rule would decouple recreational management measures from the annual catch limits for the affected species.  Instead of constraining recreational catch to an annual catch limit, and adjusting regulations that are proven inadequate to achieve that end, the control rule would employ a set of fixed management measure tied to factors such as the overall state of the fish stock, trends in abundance and recruitment, etc.

It is not yet clear how such an approach will comply with the management standards established by Magnuson-Stevens.  The American Saltwater Guides Association, which represents charter boat captains, as well as anglers, who understand that healthy and abundant fish stocks are critical to the long-term success of the fishing industry, has expressed concern about such compliance, saying

“our primary concern was that the [harvest control rule] appeared to offer a way for recreational fisheries to sidestep the Magnuson-Stevens Act requirements of Annual Catch Limits (ACL)—bringing back unpleasant memories from the Modern Fish Act debate on Capitol Hill in 2017-2018.  If you’re wondering why that’s a concern, consider that the same groups who initially proposed the [harvest control rule] were also behind the Modern Fish Act.  For months, [Council and ASMFC] staff members grappled with developing [harvest control rule] alternatives without fully sorting out how this system will adhere to ACLs.  We view this as a major issue for two reasons.  One, ACLs work; they have been an integral reason for the Magnuson-Stevens Act’s success in rebuilding overfished stocks.  Second, catch limits are a legal requirement; operating without them or ignoring them can open NOAA Fisheries to legal liability.  Details regarding how managers plan to integrate ACLs—and accountability measures—into [a harvest control rule] system remain to be seen.”

It is possible that, with enough time and effort, a scientifically and legally valid harvest control rule system could be established by the Mid-Atlantic Council and the ASMFC.  However, one of the most troubling aspects of the current recreational reform initiative is that it seems to be moving forward with intemperate haste. 

If adopted, the harvest control rule will bring a radical change to the way NMFS manages the recreational summer flounder, scup, and black sea bass fisheries, completely overturning the approach that has been employed for the past twenty years.  Yet, in addressing a management change of such magnitude, NMFS is proposing to make the change by what is known as a “framework” action, which is the most expedient way to amend fishery regulations, as it requires no public scoping process, no public hearings, and minimal opportunity for public input.

It’s impossible not to ask, “What’s the rush?”

If the harvest control rule truly has merit, that merit could be easily demonstrated by stringent scientific review and ample opportunity for public comment.  On the other hand, if the control rule’s merit is dubious that, too, ought to be revealed by providing an opportunity for rigorous public scrutiny. 

The current effort to push the reform effort though without substantial and meaningful public debate is a tactic that, by itself, casts doubt on the initiative’s worth.

30x30 and angler access

Just a few weeks ago, I mentioned the so-called “30x30” initiative, in which various conservation advocates call for 30% of the nation’s lands and waters to be protected by 2030.

On its face, it seems to be a good idea—development, whether on land or on the water, can only destroy habitat that living resources need to survive—and the Biden administration has taken its first steps toward achieving the 30x30 goal.

Existing national forests, state forests, and national marine sanctuaries are expected to contribute toward the 30x30 goals.

Unfortunately, there are some large national conservation organizations that seem to view the 30x30 process as a way to close off sections of ocean to the angling public, and so are calling for “highly protected” or “fully protected” ocean areas.  While “highly protected” areas might be justified—areas where non-selective, bottom-tending, or other types of harmful fishing gear are prohibited, or which are closed during the spawning periods for certain fish stocks—there has yet to be a cogent argument made for “fully protected” areas, where all fishing is prohibited, even for healthy fish stock that quickly migrate in and out of the protected areas and receive no benefits from a closure.  It is one thing to protect deep-sea corals, or reef fish spawning areas with a prohibition on bottom-tending gear.  It is a very different issue to prohibit anglers from trolling for tuna or billfish hundreds of feet above the resources that require protection.

Thus, the 30x30 process needs to be carefully monitored, to assure that the public is not arbitrarily closed out of public waters.

Get ready to dig in and work

It should be clear from the above-described issues that that much needs to be done to conserve and manage living marine resources, while preserving some level of public access to marine fish stocks.

Few stakeholders will be affected by every outstanding issue, but everyone will be affected by one or more.

Thus, over the next year, everyone concerned with the future of our nation’s fisheries ought to be prepared to get out and comment on the issues important to them.  And to vote in November, because if the wrong folks end up elected, all the comments in the world won’t get the job done.