STRIPED BASS AMENDMENT 7--CONSIDERING OUR OPTIONS: PART IV, CONSERVATION EQUIVALENCY

Whoever first noted that the road to Hell is paved with good intentions wasn’t thinking about the use of conservation equivalency in the striped bass fishery, but the observation still fits.

In theory, conservation equivalency sounds like a good idea.  It strikes a balance between the need for effective coastwide fisheries regulation with the needs of some states, facing unique circumstances, to craft regulations that don’t do unnecessary harm to their local fisheries, while still providing fish stocks with the protection that they need.

The Atlantic States Marine Fisheries Commission’s Interstate Fishery Management Program Charter defines “conservation equivalency” as

“Actions taken by a state which differ from the specific requirements of the [fishery management plan], but which achieve the same quantified level of conservation for the resource under management.  For example, various combinations of size limits, gear restrictions, and season length can be demonstrated to achieve the same targeted level of fishing mortality…”

Thus, while a state may elect to adopt alternative management measures, such measures should only be put in place if they achieve the same conservation goals as the measures included in the fishery management plan.

Unfortunately, as the ASMFC itself admits, species management boards don’t always adhere to the definition set out in the Charter.

“In practice, the ASMFC frequently uses the term ‘conservation equivalency’ in different ways, depending on the language included in the plan.”

As a result, conservation equivalency proposals which do not meet the standards set out in the charter, which undermine the goals of the management plan, and which allow states to escape their full share of the conservation burden, have frequently been approved by the ASMFC’s Atlantic Striped Bass Management Board.

Such aberrant conservation equivalency measures have been getting more attention from both Management Board members and from the general public.  At the February 2020 Management Board meeting, Ritchie White, the Governor’s Appointee  from New Hampshire, voiced his concerns:

“It seems pretty clear, and my guess is everybody around the table will agree that the conservation equivalency is going off the rails…

“That is not how this Commission does business.  We have to change this process.  I think that that needs to be a part of the Amendment, to rein in conservation equivalency on striped bass, where you obviously have this policy for all our species.  But I think this is not working for striped bass now, and we have to put some very strict sidebars on how we use it in the future.”

A majority of the Management Board agreed, at least to the extent that meaningful changes to the way conservation equivalency is used in the striped bass fishery are contemplated in the Draft Amendment 7 to the Interstate Fishery Management Plan for Atlantic Striped Bass for Public Comment.

The draft amendment also contains Option A, the status quo option.

Pursuant to the ASMFC’s Conservation Equivalency:  Policy and Technical Guidance Document, that means that the Management Board is supposed to consider a host of different factors, including the state of the stock, before deciding on whether conservation equivalency is appropriate. 

But what typically happens in the real world is well illustrated in the transcript of the Board’s February 2020 meeting, when New Jersey whined like a spoiled child, complaining that life was unfair because the coastwide rules adopted pursuant to Addendum VI to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan would have required it to take a much greater reduction in landings than some New England states (left out of New Jersey’s petulant narrative was the fact that, in an earlier management action, it had finessed the numbers enough to convince the Management Board to allow it a two-bass recreational bag limit, with fish of different sizes, when the rest of the coast was limited to a single striped bass—so yes, when your anglers have been allowed to kill two fish, compared to one everywhere else on the coast, you probably ought to take a bigger hit than everyone else when new management measures go into effect, although New Jersey doesn't see things that way).  

The upshot, as too often happens with spoiled children, was that after hours of discussion that ended up leading nowhere, the Management Board caved in and gave New Jersey what it wanted—“conservation-equivalent” management measures that weren’t really “equivalent” at all, but instead allowed the state to escape much of its rightful conservation burden, and only achieved half the reduction that would have been achieved by the coastwide rules.

As a result of that decision, and other allegedly conservation-equivalent measures adopted in other states, particularly Maryland, the probability of Addendum VI achieving its goals fell from a marginal 50% to an unacceptable 42%, rendering the measure more likely to fail than succeed.

Thus, the status quo option is clearly not the right one to choose.

When is conservation equivalency acceptable?

When the stock faces threats?

One of the worst aspects of the Addendum VI conservation equivalency fiasco was that it impacted the management plan's ability to end overfishing on an already overfished stock, a situation when effective regulations are most badly needed.

In order to prevent having management plans undermined by inappropriate conservation equivalency measures in the future, Draft Amendment 7’s Option B would restrict the use of conservation equivalency at times when the stock is threatened.

Sub-option B1 defines the threats that would bar the use of conservation equivalency, with sub-option B1-a prohibiting such use when female spawning stock biomass is below the biomass threshold, and the stock has become overfished, while sub-option B1-b would prohibit conservation-equivalent measures when the spawning stock is below the biomass target.  Sub option B1-c would prohibit the use of conservation equivalency when fishing mortality rises above the fishing mortality threshold, and the stock is experiencing overfishing.

The first thing to note there is that the options are not mutually exclusive; more than one may be adopted by the Management Board.  Since sub-options B1-a and B1-c address crisis situations, where the stock is overfished, experiencing overfishing, or both, they clearly set out situations where the use of conservation equivalency could pose an additional threat to the stock.  Both B1-a and B1-c are worthy of strong support.

On the other hand, I think of sub-option B1-b as a sort of wish-list option.  While it would be nice to prevent the use of conservation equivalency when the stock is below target, the truth is that biomass will probably hover somewhere between threshold and target for much of the time, a fact that will probably make B1-b a politically unappealing choice for the Management Board.  Thus, while I’d like to see it adopted, we should be very happy if we can get both B1-a and B1-c included in Amendment 7.

Should the limitations on conservation equivalency apply to all fishing waters?

The contemplated limitations on the use of conservation equivalency when facing threats to the striped bass stock, as described in sub-option B1, would apply only to the non-quota managed recreational fisheries in the ocean and Chesapeake Bay.  Sub-option B2 contains proposals that would apply them to other fisheries, too.

Sub-option B2-a would extend the restrictions to fisheries in the Hudson River, Delaware River, and Delaware Bay.  Sub-option B2-b would include quota-managed recreational fisheries, while sub-option B2-c would include the commercial fishery, which is entirely quota-managed.  Does limiting the use of conservation equivalency in those fisheries make sense, from a conservation standpoint?

Sub-option B2-a poses a difficult problem, primarily because it includes three different bodies of water in a single proposal. The Hudson River and Delaware River both host spawning populations of striped bass, that ought to be protected; Delaware Bay clearly provides access to such spawning grounds, but is not a spawning area in itself.  

In deciding how the problem should be resolved, the key question ought to be “Is conservation equivalency likely to offer more protection to the female spawning stock than would the coastwide rule?”

That question would be answered differently for different waters.

Spawning females in the Hudson River would benefit if restrictions on conservation equivalency were not extended to that fishery.  According to the 2018 benchmark stock assessment, about 45% of Age 6 females are mature; that number jumps to 84% of Age 7 fish.  Those ages roughly bracket the 28-inch minimum size of the current slot limit.  Thus, the 28- to 35-inch slot causes anglers to target spawning-sized females, along with some larger males.

However, New York has, through conservation equivalency, adopted an 18- to 28-inch slot on the Hudson River.  While some spawning-age females fall into the top end of the slot, and some immature females also fall victim to that limit, the majority of slot-sized bass in the river will be males; thus, the smaller slot helps to protect the female spawning stock by directing angler effort elsewhere.  Particularly at a time when the stock is overfished, it would be poor policy to compel New York to direct recreational fishing effort onto mature females, and so limit the growth of the spawning stock.

However, spawning striped bass in the Delaware River are not so well-protected.  New York, New Jersey, and Delaware all impose their coastal slot limits on anglers in the river, although New Jersey prohibits striped bass harvest during the peak spawning months in spawning areas.  Pennsylvania has adopted a narrow, 21- to 24-inch slot, although with a 2-fish bag, along a section of the Delaware River to protect spawning fish during April and May, but is unfortunately alone in that regard, and unable to protect fish that swim through those sections of the river governed by Delaware or New York.

Delaware does maintain a 20- to 25-inch slot in the Delaware Bay, but it offers no protection to spawning fish.  Instead, it is in place only during July and August, and is intended to allow anglers to kill striped bass smaller than the coastwide slot, which the state argues are largely males, at a time when few larger bass are available to Delaware anglers.

Thus, if the Management Board was willing to split this option into its component waterways, the right thing to do would probably be to exempt the Hudson and Delaware Rivers, where conservation-equivalent regulations provide at least some protection to spawning-age females, but to apply the restrictions to the Delaware Bay, where protecting spawning females is not an issue.

Should limits on conservation equivalency apply to quota-based recreational fisheries?

Sub-option B2-b asks whether restrictions on conservation equivalency should be applied to quota-based recreational fisheries.  In practice, such fisheries are those where commercial quota is repurposed and transferred to the recreational fishery. 

Today, the only such fishery in existence is New Jersey’s “Bonus Fish” program, which allows anglers who obtain the required tags to harvest one 24- to 28-inch bass for each tag held.  The New Jersey program primarily targets male fish, along with many immature females that have not yet had the opportunity to spawn.

Draft Amendment 7 notes that

“Quota-managed fisheries remain accountable to a CE-adjusted quota using census level harvest data,”

which is true.  However, although some states, like New York, permit the commercial harvest of bass less than 28 inches long (New York, for example, has adopted a 26- to 38-inch commercial slot), no coastal state maintains a commercial limit that only targets males and probably immature female bass in the manner of the New Jersey bonus program.  Particularly at a time when recruitment is low, it makes little sense to maintain recreational management programs that focus harvest on immature females which have not yet had an opportunity to contribute to the future of the striped bass stock.

Thus, applying restrictions on conservation equivalency to quota-managed recreational fisheries makes sense.  Sub-option B2-b should be included in Amendment 7.

What about conservation-equivalent commercial fisheries?

Sub-option B2-c would apply conservation equivalency to commercial fisheries.  Given that a state’s commercial quota is adjusted downward if it permits its fishermen to harvest bass less than 28 inches in length, and that no coastal state’s commercial regulations focus harvest on immature bass, even though a number of states permit some such fish to be taken, the need to apply conservation equivalency restrictions to commercial fisheries is questionable.  While arguments could be made for doing so, the stock is unlikely to suffer harm if such restrictions do not apply.

Minimum standards for data

As the National Marine Fisheries Service’s Marine Recreational Information Program Data User Handbook explains,

“sample sizes decrease as estimation periods or areas decrease, resulting in more imprecise estimates…

“the more samples you draw, the more precise your estimate will be.”

Thus, the single-state estimates used to calculate conservation equivalency proposals will always be less precise than the coastwide estimates provided by the Marine Recreational Information Program.

How much more imprecise can such state data be?  

The “percent standard error,” the measure used to determine the precision of MRIP estimates, for striped bass catch during 2017, the base year for the current management measures, was 7.1, the sort of low PSE that might be expected for a frequently-encountered species that is found along a long stretch of coast.

In contrast, the PSE for New Jersey’s 2017 estimate of the striped bass catch, which was used to set its supposedly conservation-equivalent rules, was 18.3, which provides substantially more room for error.  Conservation equivalency proposals that rely on estimates broken down not only by state, but by two-month “wave” and/or sector, and even by catch disposition (harvest or catch-and-release), will often employ data with PSEs that are much higher.

Thus, Option C of Draft Amendment 7 offers some minimum standard for data quality.  Sub-option C1 calls for data with a PSE no higher than 50, sub-option C2 calls for a PSE no higher than 40, while sub-option C3 calls for a PSE no higher than 30.

Since, as the draft amendment notes,

“NMFS is implementing new Recreational Fishing Survey and Data Standards under which estimates will not be published if the PSE is greater than 50 and estimates with a PSE of 30 or greater will be presented with a warning that they ‘are not considered sufficiently reliable for most purposes, and should be treated with caution,’”

sub-option C3, permitting the use of data with a PSE no higher than 30, is the only acceptable choice.  If NMFS advises that data with higher PSEs “are not considered sufficiently reliable for most purposes,” such data should not be considered sufficiently reliable for calculating conservation equivalency.

Buffering for uncertainty in the state data

Even if state data meets the minimum standards established in Option C, it will never be as precise as coastwide data.  To account for such inevitable added uncertainty, Option D contains proposals that would create an “uncertainty buffer” requiring additional precaution when conservation equivalent regulations based on such state data are proposed. 

Sub-option D1 would create a 10% buffer; under such proposal, if a 20% harvest reduction was required, state conservation equivalency proposals would have to achieve a 22% reduction, to account for the uncertainty in the data (if, instead of a reduction, a 20% increase in landings was proposed, the same buffer would limit such increase to 18%).  Sub-option D2 would require a 25% buffer, while D3 would require a buffer of 50%.

The question of which of those sub-options is the right one is answered, in large part, by the choice made with respect to Option C.

Under any Option C scenario, sub-option D1 is the wrong one; a 10% uncertainty buffer provides far too little protection, even if the percent standard error is no higher than 30.  On the other hand, sub-option D2, a 25% buffer, would balance nicely with sub-option C3, which prohibits the use of data with a PSE higher than 30; given such a limit on PSE sub-option D3’s 50% buffer would probably be overkill.  However, should the maximum acceptable PSE be 40 or 50, as contemplated by sub-options C2 and C1, then sub-option D3’s 50% buffer would become the preferable choice.

The Definition of “Equivalency”

Option E asks one of the most important questions related to conservation equivalency:  Just what is a state’s proposal supposed to be equivalent to?

The ASMFC’s Charter, which states that such proposal must “achieve the same quantified level of conservation for the resource under management, [emphasis added]” seems to make that clear:  The Atlantic striped bass stock, as a whole, should receive the same conservation benefit from any conservation-equivalent management measure as it would from the measures contained in the management plan.

The proper standard for any conservation equivalency proposal is its impact on the resource, not its impact on fishermen or on the fishery in any particular state.

Unfortunately, that standard has not been applied in recent management actions.  Both at the November 2014 Management Board meeting, when conservation equivalency proposals were adopted pursuant to Addendum IV to the Atlantic Striped Bass Interstate Management Plan, and at the February 2020 Board meeting, when proposals were adopted pursuant to Addendum VI, the Management Board based its decision on how conservation equivalency would impact striped bass fishermen (in particular, New Jersey striped bass fishermen), and not how supposedly equivalent management measures would impact the striped bass resource.

Such actions were contrary to the ASMFC Charter.

Even so, sub-option E1 would sanction such contrary actions, and only require that states’ “equivalent” proposals achieve the same level of harvest reduction as the reduction contemplated in the coastwide fishery management plan.

Draft Amendment 7 recognizes the folly of such action, noting that

“sub-option E1 may undermine an overall targeted reduction…or lead to exceeding an overall targeted liberalization.”

Given that admission, the clear language of the Charter and, most importantly, the needs of the striped bass resource, it is clear that sub-option E2, which would require that state equivalency proposals have the same conservation impact as the coastwide management measures have within that particular state, and thus on the overall striped bass resource, is worthy of strong support.

Now it’s your turn

Over the last two weeks, One Angler’s Voyage has analyzed all of the management options contained in Amendment 7, and provided advice on which ones folks’ ought to choose.

The ASMFC has now published a schedule of hearings to be held in every striped bass state.  Some will be held in person, others by webinar.  But whatever form such hearings take, anglers concerned with the health of the bass ought to attend and make their wishes known.

For those unable to attend, or who wish to supplement their testimony with written comments, such comments will be accepted by the ASMFC through April 15.

A year ago, stakeholder comments had a very big impact on the first draft of Amendment 7, convincing the Management Board to remove a host of bad proposals, including those posing the greatest threat to the striped bass.  Now only a few bad proposals, along with many good ones remain.

It’s time for one last big push on our part, to help assure that Amendment 7 turns out the right way.