EXECUTIVE ORDER COULD IMPACT COASTAL FISHERIES, HABITATS: PART II

Aquaculture

Read the first installment of this two-part series, which covered International Fisheries, International Trade, and Commercial Fishing Regulations.

President Trump’s “Executive Order on Promoting American Seafood Competitiveness and Economic Growth” (Executive Order) touched on a number of seafood-related topics, but the greatest part of the document was focused on offshore aquaculture.

It’s easy to understand why the president might believe that such Executive Order was needed. Although various states have been regulating aquaculture in their own waters for many years, there is no federal law governing the permitting and/or regulation of aquaculture in the nation’s exclusive economic zone (EEZ), which generally includes marine waters between 3 and 200 miles from shore.

May NMFS regulate offshore aquaculture?

In 2016, the National Marine Fisheries Service (NMFS) attempted to fill that void, issuing regulations for permitting and managing aquaculture operations the EEZ within of the Gulf of Mexico. Such regulations were challenged in Gulf Fishermen’s Association v. National Marine Fisheries Service, a legal action brought by a coalition of conservation, commercial fishing, recreational fishing and food-safety groups in a federal district court in Louisiana. The plaintiffs argued that NMFS had no statutory authority to issue such regulations, countering NMFS’ claim that the Magnuson-Stevens Fishery Conservation and Management Act’s (Magnuson-Stevens) definition of “fishing,” which included the “harvest” of fish, granted NMFS the authority to regulate aquaculture.

On September 25, 2018, the trial court issued its decision. It agreed with the plaintiffs, finding that the purpose of Magnuson-Stevens was to conserve natural resources, not to regulate aquaculture, and that any reference to “harvesting” that appears in the law is intended to address the capture of wild fish, and not the mere gathering of farmed animals.

NMFS has appealed the trial court’s decision. Oral arguments were heard on January 6 of this year, when NMFS renewed its claim that Congress intended to give it the authority to regulate aquaculture when it passed Magnuson-Stevens. The appeals court panel was reportedly doubtful. One observer noted that “All three judges expressed skepticism almost immediately, wondering aloud if NMFS’s sudden pivot fundamentally enlarged both the statute’s scope and its underlying authority without underlying support from Congress or the MSA’s text.”

It’s always dangerous to try to predict what an appellate court will decide, but it is safe to say that unless the trial court’s decision is overturned, Congress has not yet authorized NMFS to regulate aquaculture in the EEZ.

Bills have been introduced to fill the regulatory void. H.R. 6191, titled the “Advancing the Quality and Understanding of American Aquaculture Act,” (AQUAA Act) was introduced by Rep. Colin Peterson (D-MN) and Rep. Steven Pallazzo (R-MS). Similar to bills that failed to gain traction in previous sessions of Congress, the AQUAA Act would create a regulatory framework for permitting and maintaining aquaculture operations in the EEZ, and vest regulatory authority in the National Oceanic and Atmospheric Administration (NOAA). However, the AQUAA Act remains in the earliest stages of the legislative process; while it has been referred to committee, it has not yet been scheduled for the committee markup process.

What the Executive Order says about aquaculture

The Executive Order provides a framework for regulating offshore aquaculture that must be viewed against that background of Congressional inaction. Pursuant to the Executive Order, NOAA would become the lead agency charged with preparing and issuing any environmental impact statements (EIS) required pursuant to the National Environmental Policy Act (NEPA), and would be required to complete any such EIS within two years after beginning the assessment process.

The Department of Commerce, NOAA’s parent agency, was also instructed to, “within 1 year of the date of this order, identify at least two geographic areas containing locations suitable for commercial aquaculture and, within 2 years of identifying each area, create a programmatic EIS for each area to assess the impact of siting aquaculture facilities there.” Two additional areas suitable for aquaculture were to be identified in each of the following four years.

The Army Corps of Engineers, which must approve all projects that may impact the use of navigable waters, was also authorized to take a broad-scale approach to the approval process, with the Executive Order granting it the authority to issue a “nationwide permit authorizing finfish aquaculture activities in marine and coastal waters out to the limit of the territorial sea and in ocean waters beyond the territorial sea within the exclusive economic zone of the United States.”

In addition, the Executive Order gave NOAA just 240 days to create an aquaculture web page that describes the federal regulations (which, with respect to aquaculture projects in the EEZ, have not yet even been drafted) affecting aquaculture, lists the state and federal agencies that play a role in the aquaculture permitting process, and identifies grants available to aquaculture operators.

May the administration regulate offshore aquaculture?

The first question that arises is whether, in the absence of a clear delegation of Congressional authority, the president may legally grant NOAA the power to regulate offshore aquaculture.

Under the United States Constitution, which separates and defines the powers and duties of the administrative, legislative and judicial branches of the federal government, the president has no regulatory authority at all. Instead, Article I, Section 1 of the Constitution explicitly states that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”

Section 8 of Article I grants Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Those passages make it absolutely clear that the initial power to regulate offshore aquaculture lies solely with the Congress, and not the president. However, Section 8 of Article I grants Congress the authority to make “all Laws” that are needed to allow “any Department or Officer” of the United States to execute the powers granted to Congress under the Constitution. That would include the regulation of interstate and international commerce and, by extension, aquaculture.

So to answer the first question, it’s necessary to ask another: Has Congress validly delegated its power to regulate offshore aquaculture to the president and administrative branch? If so, the Executive Order would represent a valid exercise of such delegated authority.

That’s a harder question to answer. The Supreme Court recognized Congress’ power to delegate regulatory authority as early as 1825 when, in the matter of Wayman v. Southard, it stated that “Congress may certainly delegate to others, powers which the legislature may rightly exercise itself.”

Since then, the scope of any such delegation has frequently been litigated. As a rule, courts have been reluctant to overturn a Congressional delegation of power, and have adhered to the guidance provided in the Wayman decision, which noted that “the precise boundary of [the delegation] power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.” Thus, more recent litigation has generally focused on whether a delegation must be specific and explicit, or whether implicit authority may be found in a general grant of regulatory powers.

In the matter of Yakus v. United States, the Supreme Court set a very low bar, requiring only that a delegation of power “sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.”

But even that low bar doesn’t necessarily give the president the power to regulate offshore aquaculture. In Gulf Fishermen’s Association, the trial court has already decided that Magnuson-Stevens does not give NMFS jurisdiction over offshore aquaculture; if that decision is upheld on appeal, then the president’s authority to regulate such activity will have to be found elsewhere (although a factsheet available through the NOAA website still claims that “NOAA may issue permits authorizing aquaculture activities under the Magnuson-Stevens Fishery Conservation and Management Act”).

The National Aquaculture Act of 1980 (Aquaculture Act) might provide such authority. It vests the primary authority for creating a National Aquaculture Development Plan (Plan) in the Secretary of Agriculture, but also creates roles for both the Secretary of Commerce and Secretary of the Interior, empowering all three officials to “prescribe such regulations as may be necessary to carry out the Plan,” which was first completed in 1983.

But even that language isn’t definitive. It could easily be argued that the Plan only authorizes administrative agencies to assist in the development of aquaculture operations, not to issue permits or regulate them. At least some members of Congress seem to believe that’s the case, for if NOAA already had the authority to regulate aquaculture, the AQUAA Act wouldn’t be needed.

The Executive Order’s potential impact on fish and fish habitat

But assuming that the Aquaculture Act does represent a valid delegation of Congressional authority and empowers the Administration to act, the next question is how the Executive Order might impact the nation’s marine resources.

The answer to that question lies in the old adage that “haste makes waste,” for the primary effect of the Executive Order would be to hasten the permitting process.

Coastal aquaculture operations have shown that fish farming can have negative impacts on fish and their habitats. By giving NOAA only two years to prepare an EIS related to an aquaculture permit, the Executive Order may make it very difficult, or perhaps impossible, for the agency to take the required “hard look” at whether offshore aquaculture poses similar threats and determine just what the impacts might be.

Offshore aquaculture proponents argue that the negative impacts associated with inshore aquaculture, which include releasing fish wastes that damage nearby habitat, concentrating parasites that then infect native fish, and introducing diseases into wild populations, would not occur in the expanses of the EEZ. However, there is also some evidence to rebut such claims. In Australia, imported sardines, fed to caged tuna, introduced an exotic disease to the local sardine population, which suffered high levels of mortality as a result.

Escapes are also an issue. Whether due to severe storms, maintenance issues or merely mishandling, some aquacultured fish will inevitably escape from their pens and enter the marine environment. Should those fish belong to non-native species, and should there be no native predators able to keep their numbers in check, such escapes could have a devastating impact on native fish and their habitat. The rapid expansion of lionfish,, introduced by the aquarium trade into the waters of the southeastern United States, is a cautionary example of what can occur when non-native species invade a local ecosystem.

Because offshore aquaculture is a new industry, it will take regulators time just to identify the relevant issues, much less to determine the potential harm and how it can be avoided. Compelling them to complete the EIS process within two years makes it more likely that important threats will neither be recognized nor addressed.

That danger is exacerbated by the Executive Order’s insistence that EIS for “aquaculture opportunity areas” be completed on a “programmatic” basis, with a single EIS covering all current and future development within the specified geographical area, rather than completing a unique EIS for each new permit issued. The ocean bottom is not uniform. In some places, it is composed by sand; in others it may be composed of rock, support extensive kelp beds, or host living coral reefs. The impact of an aquaculture project will differ depending on bottom type, by the plants or animals being cultured, by the size of the facility and by the density of the penned animals.

While small facilities might not have a significant impact on bottom sediments, organic wastes released by a larger aquaculture facility located in the ocean off Hawaii created a hypoxic zone on the sea floor that extended for more than 250 feet from the fish cages. The release of such wastes can cause even greater damage to high-profile live bottom and coral reefs, where corals can be killed; even those that survive in locations where the pollutants have become more diluted suffer a loss of reproductive capacity.

While such site-specific issues would probably be identified and addressed in an EIS related to a single permit, they are very likely to be missed when EIS are prepared programmatically. Both the time limit for producing an EIS, and the requirement that, in specified geographic areas, any such EIS will be issued at a programmatic level, subordinates the protection of marine environments to an unseemly haste to get projects underway.

The bottom line

Ultimately, it’s up to the courts to decide whether Congress has given the president the authority to take such hasty action. The Executive Order may provide only the illusion of an efficient permitting process, as actions taken thereunder will almost certainly draw a legal challenge, and result in extended litigation. The Gulf Fishermen’s Association lawsuit was filed in 2016, and is not yet resolved.

That being the case, it would probably be better for the long-term health of fish stocks, fish habitat and the aquaculture industry itself for Congress to take a considered look at the topic and, whether through the AQUAA Act or some other comprehensive legislation, take steps to assure that the marine ecosystem, the aquaculture industry, and other ocean stakeholders are all given the protections that they both need and deserve.

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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/

RECRUITMENT MATTERS: YOU CAN'T CATCH STRIPED BASS THAT AREN'T THERE

“It’s a big ocean.”

“Fish have tails, and they use them.”

“There are plenty of fish, they just went somewhere else.”

I’ve heard it said so many times, in so many ways, but it always boils down to the same thing:  When fish aren’t around, people often want to believe that stocks are still healthy, and the fish have merely abandoned some spots on the coast.

Sometimes, that happens. 

But if you’ve got the right water temperature, bait is reasonably abundant, and you’re fishing at the time of year when the the fish in question are usually caught, yet you’re still not having much success, there’s a good chance that it’s not a matter of a fish being “somewhere else.”   You're probably dealing with a depleted stock made up of too few individuals to occupy all of its typical range.

That’s something that people, particularly people who profit in any way from the harvest of fish, often try to deny.  They go to great pains to explain why fish aren’t being caught, arguing that fish remain abundant, but are merely sojourning in some distant, ill-defined place where neither fishermen nor scientists can manage to find them.

But there is usually a much simpler explanation for a species’ absence.  

Fish, for various reasons, often experience periods when spawning success falls well below average, and fewer young individuals recruit into the population.  That poor recruitment translates into poorer fishing a few years down the road.

Striped bass may be the best example of that phenomenon. 

Tell me what the Maryland Juvenile Abundance Index is for 

any year, and I will tell you what the fishing will look like for many years into the future, as each year class moves through the population and through the coastal fishery.

Let's take a look at how that works.

The Maryland index hit 30.52 in 1970, which at the time was the highest point that it had ever attained.  In a couple of years, immature striped bass were swarming everywhere along the coast, but something else was happening, too:  After more-or-less average recruitment in 1971 and 1972, when the index was over 11, the numbers started to slide, falling to 6.69 in 1975, 4.91 a year later, and then staying low for well over a decade, bottoming out at 1.22 in 1981.  ‘

A very few striped bass fishermen, most notably including Bob Pond, creator of the Atom line of striped bass fishing lures, understood what that meant for the future, and urged fishery managers to adopt stricter regulations in order to avoid a future crash.  But most fishermen, and just about all of the fishery managers, weren’t listening.  There were still plenty of big bass around due to good recruitment during the 1950s and '60s, and no one wanted to think about what the more recent poor recruitment meant for the stock.

When fishing pressure wasn’t relaxed, even the big 1970 year class was quickly decimated.  By 1980, with few new fish entering the population, the stock had collapsed.  

Eventually, thanks to passage of the Atlantic Striped Bass Conservation Act in 1984, managers finally got their act together and took meaningful action to rebuild the stock. 

In 1989, the Maryland index reached 25.2, the most successful recruitment since 1970.  Much of that year class reached 28 inches in length, and recruited into the coastal fishery, in 1995, the year that the striped bass stock was deemed to be fully recovered, and Amendment 5 to the Interstate Management Plan for Atlantic Striped Bass led to liberalized size and bag limits along the coast and in the so-called “producer areas.”

Those liberalized regulations put a lot of pressure on the ’89 year class.  Striped bass seemed to be abundant again, and many anglers and for-hire vessels spent less time targeting depleted summer flounder, scup and black sea bass populations, and focused more of their efforts on bass.  That led to a push-back by conservation-minded striped bass anglers, who pointed to the dearth of larger, older fish in the population, and called for more conservative management.

Those anglers acknowledged biologists’ findings that the striped bass stock had been restored to abundance, but argued that abundance, by itself, wasn’t enough.  They declared that

“The job’s not done until we bring back the big bass,”

and called for more restrictive management measures, that would allow more older fish to survive and so expand the age and size structure of the spawning stock.  They met with mixed success in Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, which made increasing the number of older females in the spawning stock one of its goals, but didn’t reduce the fishing mortality target enough to make that happen.

Even so, it was clear that the striped bass was doing well, producing large year classes in 1993 (39.76), 1996 (59.39), 2001 (50.75) and 2003 (25.75).  For a while during the late 2000s, striped bass fishermen could enjoy the best of all worlds, catching large bass from the 1989 and 1993 year classes, and also enjoying abundant school and low-20s fish from ’96, ’01 and ’03.

The problem is that some fishermen, and most fishery managers, failed to learn from the past.

When the Maryland index started sliding again, producing mostly below-average numbers for the period 2004-2010, those managers sat on their hands even though anglers, along with some of the people who sat on the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board, urged action to prevent stock decline.  

Even after a 2011 stock assessment update warned that the stock would become overfished by 2017, the Management Board declared striped bass to be

“a green light fishery”

and did nothing.

Perhaps that’s because they felt free to ignore all of the years of sub-par recruitment, but noted that the 2011 Maryland index was a very good 34.58, and so hoped that would turn things around.  

But if we learned anything from the prior collapse, it was that one good year class, such as the 1970, can’t salvage a stock on its own, if managers do nothing to help.  When managers chose to ignore the clear language of Amendment 6, and so failed to take action to rebuild the spawning stock biomass within ten years, even though a 2013 benchmark stock assessment showed it heading the wrong way, they set themselves on a path to more problems.

That path was probably set in stone after the 2011 year class didn't appear in expected numbers along the coast, perhaps because the same Management Board allowed Maryland recreational landings to increase by more than 50 percent and stay at that level for years, despite the fact that Addendum IV to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan, adopted in late 2014, supposedly required such mortality to be reduced by 20.5 percent.

The fact that the Maryland index for 2012, at 0.89, which was the lowest ever recorded in the 60-plus-year-long time series, brought no management comment at all revealed the bias of a Management Board that was more than willing to liberalize rules, or at least defer needed restrictions, upon hearing good news, but which was reluctant to restrict landings even when the bad news was clear.

So now we’re dealing with an overfished stock, but also with a decent 2015 year class (24.20) that is pushing a bunch of barely sub-legal fish up the coast, bracketed by more-or-less average year classes in 2014 (11.02), 2017 (13.19) and 2018 (14.78), which could provide some fish for the future—provided that they’re properly managed.

But, as always, there are some in the fishing community—both fishermen and fishery managers—who still haven’t learned, and are trying to argue that everything’s fine, that are plenty of bass, and that they have merely gone elsewhere once again.

The current favorite destination, for those allegedly still-abundant bass, is the federal exclusive economic zone, where striped bass fishing is not allowed.

But if that’s the case, where did those fish come from?

Ideally, striped bass can live for more than 30 years, but as a practical matter, individuals in a fished population—and remember that bass have not only been fished, but overfished for most recent years—are killed before they reach their maximum age, making that 30-year figure somewhat irrelevant.  

Looking at the Maryland data, it’s likely that there are still some big fish—50 pounds plus—surviving from the 1996 year class, some 40s and perhaps low 50s spawned in 2001 and 2003, and not much else until we get to whatever fish from the big 2011 year class are still around.  They should be pushing the upper limit of the 28 to 35-inch slot size that was adopted by most, but not all, coastal states this spring.

The low recruitment between 2004 and 2010 suggests that we won’t see many fish between 20 and 40 pounds, while the solid 2015 year class, buffered on both sides by the about-average 2014s, 2017s and 2018s, should be reflected in quite a few bass that exceed the lower end of the slot limit next year, more trickling over the minimum through 2024, and some 2014s big enough to recruit into the fishery this year.

And when you stop to think about it, that’s exactly what people are seeing.  A handful of big bass, a few high teens and barely-legal fish, and quite a few shorts that fall just below the slot.

Pretending that there are more, unseen striped bass swimming around in the EEZ, and that the stock is healthy as a result, just gives life to a pipe dream.

There are a lot of uncertainties surrounding fisheries management, but we know at least one thing for sure:  Fish that were never spawned, and never recruited into the population, just can't be swimming around in the EEZ today.

ADMINISTRATION OPENS YET ANOTHER SENSITIVE OCEAN AREA TO COMMERCIAL ACTIVITY

About two months ago, I wrote about the National Marine Fisheries Service’s decision to reopen three previously closed areas, off New York/New Jersey, off North Carolina, and in the Gulf of Mexico, to pelagic longlining.  The areas in question were originally placed off-limits to longliners in order to protect bluefin tuna, where were being taken in large quantities as bycatch.  

The closed areas in the Gulf of Mexico included the only areas in the western hemisphere were Atlantic bluefin tuna were known, with certainty, to spawn.

In opening the areas, NMFS argued that regulations put in place in 2015 were adequate to control bluefin bycatch, and that in an effort to reduce the “regulatory burden” and give longliners a greater opportunity to fill their entire swordfish quota, the closed areas should be abolished—although NMFS reserved the right to close them again should bycatch get too high.

NMFS’ justification for the reopening contradicted statements that the agency itself made when the closed areas were created, which suggested both that they were needed to protect bluefin and that they wouldn’t significantly impact longliners’ swordfish catch.  It's most recent statements were not supported by any substantial body of verifiable data.  Yet the areas were opened anyway.

On June 5 of this year, at an event held in Maine, President Donald Trump issued a proclamation that reopened an additional 5,000 square miles of ocean off the New England coast to commercial fishing, based on arguments that don’t seem to be supported by any facts at all.

The area in question is known as the Northeast Canyons and Seamounts Marine National Monument, which was created by President Barak Obama on September 15, 2016.  In creating the monument, President Obama noted,

“In these waters, the Atlantic Ocean meets the continental shelf in a region of great abundance and diversity as well as stark geological relief.  The waters are home to many species of deep-sea corals, fish, whales and other marine mammals.  Three submarine canyons and, beyond them, four undersea mountains lie in the waters approximately 130 miles southeast of Cape Cod.  This area (the canyon and seamount area) includes unique ecological resources that have long been the subject of scientific interest.

“…The canyons start at the edge of the geological continental shelf and drop from 200 meters to thousands of meters deep.  The seamounts are farther off shore, at the start of the New England Seamount chain, rising thousands of meters from the ocean floor.  These canyons and seamounts are home to at least 54 species of deep-sea corals, which live at depths of at least 3,900 meters below the sea surface.  The corals, together with other structure-forming fauna such as sponges and anemones, create a foundation for vibrant deep-sea ecosystems, providing food, spawning habitat, and shelter for an array of fish and invertebrate species.  These habitats are extremely sensitive to disturbance from extractive activities.

“…[In the canyons,] major oceanographic features, such as currents, temperature gradients, eddies, and fronts, occur on a large scale and influence the distribution patterns of such highly migratory oceanic species as tuna, billfish, and sharks.  They provide feeding grounds for these and many other marine species.

“Toothed whales, such as the endangered sperm whale, and many species of beaked whales are strongly attracted to the environments created by submarine canyons.  Surveys of the area show significantly higher numbers of beaked whales present in canyon regions than in non-canyon shelf-edge regions…

“Geographically isolated from the continental platform, [the] seamounts support highly diverse ecological communities with deep-sea corals that are hundreds or thousands of years old and a wide array of other benthic marine organisms not found on the surrounding deep-sea floor.    They provide shelter from predators, increased food, nurseries, and feeding areas.  The New England seamounts have many rare and endemic species, several of which are new to science and are not known to live anywhere else on Earth…”

In other words, it’s not just about fish.  

The New England Canyons and Seamounts marine monument is a rare and special place, with ecosystems vulnerable to damage from human activity that, once destroyed, cannot be replaced, or found anywhere else in the world.

It’s a place that’s worth special protections.

And those protections don’t come at much of a cost.  5,000 square miles sounds like a big piece of ocean, but amounts to just 1.5 percent of all federal waters on the U.S. East Coast.  Located nearly 150 miles from the closest land, only the bigger trawlers, pelagic longliners and offshore lobster and crab boats are likely to fish it, and there is no evidence that such long-ranged operations suffered any significant financial harm as a result of the monument’s creation.

Nonetheless, Trump has decided to reopen the monument to commercial fishing, saying that

“following further consideration of the nature of the objects identified in [President Obama’s proclamation creating the monument] and the protection of those objects already provided by relevant law, I find that appropriately managed commercial fishing would not put the objects of scientific and historic interest that the monument protects at risk…

“With respect to fish in particular, many of the fish species that [President Obama’s proclamation] identifies are highly migratory and not unique to the monument.  Some of the examples of fish species that [such proclamation] identifies are not of such significant scientific interest that they merit additional protection beyond that already provided by other law.  Moreover, the fish species described in [the proclamation] are subject to Federal protections under existing laws and agency management decisions.  For example, Magnuson-Stevens regulates commercial fishing to assure long-term biological and economic sustainability for our Nation’s marine fisheries, taking into account the protection of associated marine ecosystems…

“After further consideration of the nature of the objects identified in [President Obama’s proclamation] and the protection of those objects already provided by Magnuson-Stevens and other relevant law, I find that a prohibition on commercial fishing is not, at this time, necessary for the proper care and management of the Northeast Canyons and Seamounts Marine National Monument, or the objects of historic or scientific interest therein…”

There is more than a little irony in Trump announcing, from a platform in Maine, that the provisions of Magnuson-Stevens were sufficient to protect the national monument, when that state’s groundfish, and the commercial fishery that once pursued them, has been devastated by Magnuson-Stevens’ inability to protect the fish stocks of the Gulf of Maine.    

It’s not that Magnuson-Stevens is a bad law—I am a strong MSA supporter—but the plain truth is that to work, Magnuson-Stevens requires the support of concerned and forward-looking regional fishery management councils, while the New England Fishery Management Council, which would have oversight of some of the marine monument’s fisheries, has historically been one of the most-backward looking, and arguably the most ineffective, regional fishery management council in the nation.

While it’s true that pelagic longlining for highly migratory species within the marine monument would cause no lasting harm to the Northeast Canyons and Seamounts ecosystem, at least so long as no gear was lost and settled to the ocean floor, it’s also true that it would result in bycatch of and harm to protected species, which are not receiving adequate protection anywhere along the U.S. coast. 

Yet, while longlines might not cause long-term habitat damage, the fixed gear used by lobster and crab fishermen, as well as whatever bottom trawls might be deployed in the canyon region, can do long-lasting harm to deep-sea corals and other benthic communities, which grow so slowly that their lives of some can be measured in the thousands of years.  The lines that stretch from surface buoys to crab and lobster traps on the ocean bottom also pose an entanglement threat to the critically endangered right whale, which can be found within the marine monument.

And the saddest thing about the decision to allow commercial fishing in the national monument is that it is unlikely to do anyone, except for a few of the larger and better-capitalized fishing companies, much good at all.

Independent Maine Senator Angus King noted that

“The President’s decision today to roll back the Northeast Canyons and Seamounts Marine National Monument designation won’t improve the prospects for our fishermen a fraction as much as reconsidering the tariffs that have wiped out years of time, toil, and energy invested by our seafood industry in developing new markets around the globe…”

Maine Congresswoman Chellie Pingree concurred, saying

“President Trump spent much of his roundtable saying that he could fix trade policies that have hurt Maine fishermen with a stroke of a pen, but it is his failed trade policies that caused China to retaliate with a lobster tariff…This move will not provide economic benefits to the fishing industry at a time when markets have been lost, the global supply chain is in shambles, and boats are tied up at the dock.”

The state’s governor, Janet Mills, was even more vehement, saying

“…At a time when Maine fishermen are badly hurting, the President had an opportunity to acknowledge and address their very real and significant concerns—many of which are the direct result of the administration’s harmful policies.

“Rolling back a national monument 35 [sic] miles southeast of Cape Cod—one that is currently open to commercial fishing according to NOAA—is not going to help the vast majority of Maine fishermen feed their families.  It will not help them pay their mortgage or rent.  It will not support an industry that is struggling under the massive weight of an unprecedented pandemic and misguided Federal policies.

“What Maine fishermen need from this President is a better trade policy from his Administration, not misguided plans for retaliatory tariffs which have been shown to do more harm than good.  They also need more Federal financial support, as I requested months ago…”

However, Trump’s action is in accord with consensus advice received from the chairs of the regional fishery management councils, which advised Commerce Secretary Wilbur Ross that

“Marine monument designations have the potential to be counterproductive to achieving domestic fishery management goals.”

It was also lauded by persons such as Jon Williams, owner of the Massachusetts-based Atlantic Red Crab Company, who said that

“We appreciate that he’s paying attention to New England fisheries.”

Trump's proclamation also undoubtedly pleased members of various commercial fishing organizations that filed, but ultimately lost, a federal lawsuit challenging the marine monument’s creation.

It’s likely that the courts will also have the final word with respect to Trump’s latest action.  onservation groups have already spoken out against it and have clearly stated their intent to sue. 

The Natural Resources Defense Council put out a press release that said, in part,

“Once again, President Trump is moving to strip protections for our nation’s public lands and waters and hand them over to industry for private profit.

“Those fragile, extraordinary ocean areas are full of thousand-year-old corals, endangered whales, and other precious marine life.  They belong to all Americans, and they are held in trust for future generations…

“We are prepared to sue the Trump Administration to protect these marine treasures from harm and exploitation by commercial fishing and other extractive industries.”

The New England-based Conservation Law Foundation has also expressed its intent to take legal action to counter Trump’s action.  Earthjustice, which specializes in environmental litigation, suggested a similar intent when it wrote

“As Earthjustice attorneys work in court to defend national monuments across the country, you are an important part of giving voice to the Northeast Canyons and Seamounts.”

In that vein, I’ll close with comments from Oceana, another marine conservation group, which probably provide a foretaste of what we’ll see next.

“This assault on our oceans joins the administration’s almost-daily actions to dismantle environmental protections for our nation’s air, water, oceans, historic treasures and wildlife—and to shut down public participation in decisions by our federal government.  Another political attack on our environment will put the longevity of productive fisheries at stake.  Unless this action is reversed immediately Oceana will make sure that President Trump’s proclamation will not go unchecked.”

TIME TO REDUCE BLACK SEA BASS DISCARDS

Black sea bass have become an increasingly important part of the recreational fishery in New England and New York.  In 2020, black sea bass harvest in that region was a mere 750,000 fish, weighing about 975,000 pounds.  That number increased to about 2.9 million fish weighing nearly 5.6 million pounds by 2010, and to almost 3.7 million fish, weighing 6.9 million pounds, last year. 

While such numbers are significant enough on their own, they gain added importance when compared to landings of other recreational species, particularly summer flounder (5.4 million fish in 2000, 1.2 million in 2010, 0.9 million in 2019) that have declined over the same period.

Black sea bass landings have been buoyed by an extremely large year class produced in 2011, and another smaller, but still very large, year class in 2015, they are beginning to decline again along with black sea bass abundance.  While the spawning stock biomass was around 240 percent of the target level at the end of 2018, the 2017 year class was the smallest recorded in the past thirty years.  As a result of fewer new fish entering the population, projections show the spawning stock biomass continuing to decline, at least in the near term, to about 160% of target this year and 145% of target in 2021.

At the same time, revised estimates of recreational landings show that such harvest is higher than previously believed; managers’ decision to leave 2020 regulations unchanged from those in place throughout 2019 is likely to result in the recreational catch limit to be exceeded by about 23%, while the acceptable biological catch recommended by the Mid-Atlantic Fishery Management Council’s Scientific and Statistical Committee, which is supposed to set the absolute upper limit of landings, is expected to be exceeded by 12 percent.

Given the relatively low summer flounder recruitment through at least 2018, along with the fact that striped bass and bluefish are both overfished, it’s likely that black sea bass’ importance to the recreational fishery in the northeast isn’t going to wane at any time soon.  And given that black sea bass are what might be deemed a “meat” fish—that is, a fish that is sought primarily for food, as opposed to a “sport” fish such as striped bass or bluefish, that is most often caught and released—high levels of fishing pressure also mean high levels of landings.  Thus, it makes sense to regulate the fishery in a way that best allows anglers to take fish home, without resulting in large numbers of fish being returned, dead or dying, to the ocean.

That poses a problem for black sea bass, which are often caught in deeper waters, and suffer barotrauma when brought up to the surface.  Barotrauma, which can be roughly translated into “wounded from pressure” and occurs when a fish is brought up from deep water to the much lower-pressure environment at the surface, is a common problem in deep water fisheries on every coast, where high release mortality rates have resulted in more restrictive recreational and commercial harvest regulations.

Currently, when proposing regulations, fishery managers assume that about 15 percent of released black sea bass die from various angling-related causes, including barotrauma.  

That’s probably an accurate estimate when fishing in relatively shallow water, but significantly understates discard mortality of fish caught on deeper structure.  

A study conducted by the Partnership for Mid-Atlantic Fisheries Science, released for the Atlantic States Marine Fisheries Commission’s August 2019 meeting, suggests that black sea bass caught on deep (roughly 150 feet or more) structure experienced a release mortality rate slightly in excess of 50 percent, if no efforts were taken to counter the impacts of barotrauma.  On the other hand, fish that were properly vented—had their swim bladders pierced to allow the escape of gasses that prevented the fish from returning to the bottom—experienced a release mortality rate of slightly over 20 percent, not too far off the 15 percent mortality estimate currently being used.

Thus, if fishery managers want to maximize the number of black sea bass that anglers may retain, and minimize the number of such fish that die after release, they would be well-advised to require both private boat anglers and those on for-hire vessels to carry and employ devices that will, if used, allow released fish to return to the bottom after release.

While that would be something new in the black sea bass fishery, and in the New England and Mid-Atlantic regions, the precedent has been set elsewhere.  In the Pacific, rockfish anglers faced a situation that would seem very familiar to recreational black sea bass fishermen in the northeast.  As described in a study produced by Duke University,

“Recreational anglers were facing closures, shorter seasons, and coming close or exceeding harvest guidelines.  As recreational fishermen experienced more restrictions through regulations, the initiative and the drive to address the regulations grew…

“In addition to closures and shorter seasons, participants described the frustration of fishermen perceiving regulatory discards as a wasted resource.  It is frustrating to fishermen to throw a fish overboard that they knew would not survive.”

Such problems led recreational anglers to voluntarily begin using descending devices, and resulted in fishery managers adjusting the discard mortality estimates in response.  It was a win-win situation, that lowered the number of rockfish that died after being released, and led to more liberal regulations that, at the same time, allowed anglers to take more rockfish home.

In the Gulf of Mexico and South Atlantic, the same sort of barotrauma concerns arose in the deep water snapper and grouper fisheries.  The South Atlantic Fishery Management Council has adopted Snapper Grouper Regulatory Amendment 29 which, if approved by the National Marine Fisheries Service, will require all vessels bottom fishing in more than 50 feet of water to carry descending devices onboard. 

Amendment 29 may finally permit NMFS to open a meaningful red snapper season in the South Atlantic region, an effort that has been frustrated by the number of still-depleted red snapper that die as a consequence of barotrauma when caught and released in other fisheries.  

While the use of descending devices does create a minor burden for anglers, who must take more time away from fishing while safely releasing their fish, Amendment 29 has garnered strong support from the angling community. 

Even Jeff Angers, President of the anglers rights-oriented Center for Sportfishing Policy, enthusiastically supported the amendment, saying

“The science is clear that the use of descending devices increases the survivability of these deep-water fish.  Although many anglers are already using descending devices, we look forward to Secretary Ross implementing the descending device requirement for all fishermen targeting snapper and grouper in the South Atlantic to better conserve the resource and allow for more opportunity for public access in the future.”

There’s no reason to believe that the use of descending devices, which have already been shown to reduce Pacific rockfish and South Atlantic snapper and grouper survival, wouldn’t benefit black sea bass as well, although they wouldn’t need to be deployed in water as shallow as 50 feet.

In my experience, in the case of black sea bass, 90 feet is the critical juncture.  Fish released in shallower water have no trouble getting back to the bottom on their own, but once you begin taking fish off even slightly deeper structure, you begin seeing floaters, and the number of such floaters quickly increases as the depth increases.  

I frequently fish on a few pieces that lie in 80 to 85 feet of water; except for a couple of sea bass that had lost their tails to predators, and were trying to swim with healed stumps, no released fish ever had trouble getting back down to the bottom.  But when I move just 10 feet deeper, to wrecks in 95 feet of water, that begins to change.  Perhaps 25 percent of the black sea bass suffer from barotrauma, and float on the surface after release.

To deal with the situation, I’ve started to use a “SeaQualizer” descending device, which automatically releases the fish at a pre-set distance below the surface (50, 100 or 150 feet, depending on how deep I am fishing).  The use of such device makes me far more comfortable fishing on deeper wrecks, and extends my sea bass season into months when most of the larger fish are on deep structure.

There’s little doubt that the widespread use of such devices could substantially cut back on black sea bass mortality, and lead to more fish being available for anglers to take home. 

The question is whether such use should be voluntary, or whether it should be required by the Mid-Atlantic Council and NMFS.  The Pacific and South Atlantic fishery management councils split on that issue, with the Pacific Council preferring voluntary adoption and the South Atlantic opting for mandatory use.

So which would be best for black sea bass?

The Duke University report notes that the Pacific Council preferred voluntary use out of concern that

“if use was made mandatory, fishermen participating in dockside surveys might over report their use of descending devices…

“We kind of decided to make it work with the fishing community in order to get them to use them voluntarily and have more accurate information on the frequency of use…

“It was hard to get compliance in the beginning, because they weren’t counting the use of descending devices to reduce the mortality; it became extremely difficult…when the change in the mortality came to the council then the fishermen were told, ‘if you do this, then we are working now on getting you credit for doing it,’ and that changed the whole thing…like a lot of people, they were looking for a return on investment.”

Would northeastern black sea bass fishermen be equally cooperative if they believed that voluntarily using descending devices would lead to longer seasons and/or higher bag limits?  

It’s hard to say.  There is a level of venom among some black sea bass anglers that makes it hard to believe that they consistently comply with existing regulations, much less that they would voluntarily use a descender.

On the other hand, if the use of descenders was made mandatory, is there any hope that such rule could be enforced?  The fishery takes place far from shore, where it’s highly unlikely that law enforcement could know what went on.  The proposed South Atlantic rule gets around that by requiring that descending devices be on board any vessel participating in the snapper/grouper fishery, whether the devices are used or not.

But that is physically a very different fishery; most of the time, fish come aboard at a more relaxed pace, unlike the black sea bass fishery, where anglers use two or three hooks, and often bring up two or three fish at a time.  Under such circumstances, having only one descender on board would be only marginally better than having none on board at all.  

To be effective, one would need something closer to one descender per angler, and not merely one descender per vessel.

Given the cost of the devices, that makes mandating descenders for sea bass far harder to do.  Perhaps it makes more sense to ease into the issue slowly, and only require descenders for boats fishing between November and April or early May, when the sea bass are on deeper structure, and barotrauma becomes a much bigger issue.  

How effective that would be is open to doubt, given that most sea bass are caught between July and October, when plenty of boats are fishing beyond the critical 15-fathom line.

In the end, there would be plenty of things that need sorting out before descenders become a part of the fishery.  But there is little doubt that descenders would make for a better managed black sea bass fishery, and make more black sea bass available to anglers.

If it is an idea whose time has not quite yet come, it is nonetheless and idea whose time is coming up very soon.