Bad Legislation Threatens Good Fisheries Management

Striped Bass

Top Photo: Striped Bass, by John McMurray

Fisheries management is a complicated endeavor.

Before issuing regulations that will prevent overfishing and maintain healthy fish populations, managers need to consider multiple factors.

They must estimate the size of fish populations, and decide whether such populations must be rebuilt. They must determine how many fish are lost to predation and other natural causes each year, and how many new fish, from the most recent spawns, are being recruited into the population. And they must determine how many fish are removed from the population by commercial and recreational fishermen each year.

Other considerations also come into play. Is abundance increasing or decreasing at current levels of harvest? Are environmental conditions, such as warming water temperatures, having an impact on the stock? Is fishing pressure constant, or are fishermen shifting effort away from one species and onto others?

Stock assessments can be extremely complex and based on data obtained from multiple surveys conducted at the state and federal level. Some surveys will be “fishery-dependent,” meaning that they are surveys based on fishermen’s effort and catches, while other will be “fishery-independent,” when conducted solely for research and management purposes.

Managers know from the outset that, even under the best conditions, there will be some uncertainty in their assessments, and therefore in the regulations that result. However, they do their best to identify the sources of possible error, and to make allowances for both “scientific uncertainty” and “management uncertainty” when setting each year’s rules.

For most sources of uncertainty, that works out pretty well. However, there is one sort of uncertainty that fisheries managers can’t control and can’t account for in their assessments no matter how hard they try.

That’s the uncertainty that results when politicians get involved in the management process.

Unlike scientific or management uncertainty, political uncertainty isn’t related to any sort of data at all. It is not subject to quantification, and it is unpredictable. Political uncertainty arises not out of surveys, biology or any sort of fact, but out of some combination of emotion abetted by legislators who are so eager to help their constituents that they sometimes do not stop to think about whether it’s the right thing to do.

Such legislators sponsor bills that replace well-considered, data-driven fisheries management with arbitrary measures that, in just about every case, conflict with biologists’ advice and threaten the long-term health of the fisheries that they address.

Two recent bills introduced into the House of Representatives by congressmen from the mid-Atlantic region illustrate that principle all too well.

The first of those bills is H.R. 1195, the so-called “Local Fishing Access Act,” introduced by Rep. Lee Zeldin (R-NY).

H.R. 1195 would permit the Secretary of Commerce to open certain federal waters north and west of Block Island, Rhode Island to striped bass fishing. The bill is substantially similar to H.R. 3070, legislation, which Rep. Zeldin introduced in 2015. However, while H.R. 3070 addressed only recreational striped bass fishing in federal waters, H.R. 1195 contains no such restriction, and so would presumably allow commercial striped bass fishing in federal waters as well.

That presents a problem because, on October 20, 2007, President George W. Bush issued an executive order that outlawed commercial fishing for striped bass and red drum in federal waters (the exclusive economic zone, or EEZ). Thus, unless H.R. 1195 contained language specifically overriding such executive order, even if the Secretary opened up all or part of the EEZ to striped bass fishing, commercial striped bass fishing in the EEZ would remain illegal.

That’s a clear oversight, but one that provides a good example of why fisheries management should be left up to professionals who are intimately familiar with the details of the process, and not to legislators who, at best, have a more limited knowledge of the issues and can sometimes be too quick to crank out bills merely to please a vocal constituency.

In the end, Rep. Zeldin’s legislation is relatively harmless. The Secretary of Commerce already has power to allow, or to continue to prohibit, recreational striped bass harvest in the EEZ. A bill such as H.R. 1195, which merely provides that “The Secretary of Commerce, in consultation with the Atlantic States Marine Fisheries Commission, may issue regulations to permit and regulate Atlantic striped bass fishing” in the EEZ doesn’t change the legal status quo at all.

That’s not the case with another recent proposal.

On February 23, Representatives Frank Pallone (D-NJ) and Frank LoBiondo (R-NJ) announced plans to introduce legislation that would prevent the National Marine Fisheries Service (NMFS) from implementing its planned 30% reduction in the annual catch limit for summer flounder.

Such reduction is necessary because summer flounder recruitment—the number of new fish entering the population—has been below average for six consecutive years, causing the biomass to drop to just 58% of the level needed to produce the largest sustainable harvest. The Mid-Atlantic Fishery Management Council’s Science and Statistics Committee has warned that “the stock biomass is dangerously close to being overfished, which could happen as early as next year if increased efforts to curb fishing mortality are not undertaken [emphasis in original].”

Yet Rep. Pallone appears to be focused solely on short-term economic concerns, saying, “These cuts are a body blow to the recreational fishing industry in New Jersey and that is why Congress has to take action. The recreational fishing industry contributes over $1 billion to our state’s economy and directly supports 20,000 jobs…”

Rep. Pallone appears to give no thought to what will happen to the recreational fishing industry in the event that NMFS is right, which appears very likely. In such case the proposed legislation would cause the stock to shrink further, making summer flounder harder to catch, something which would hardly be good for New Jersey’s fishing industry.

He also made the curious statement that “The cuts for New Jersey are greater than what NOAA had required for the region,” which is patently untrue. The Atlantic States Marine Fisheries Commission (ASMFC) ultimately adopted an option that would reduce 2017 recreational harvest by 28 to 32 percent, when compared to 2016. That is a significantly lesser reduction than the 41 percent regional reduction that NMFS had called for.

Rep. LoBiondo also made a number of questionable statements when he referred to “draconian cuts to New Jersey fishermen which allow neighboring states to freely pillage our waters at more favorable limits,” and complained that “the use of questionable methodologies and outdated science by NOAA bureaucrats will cut our fishing industry off at the knees.”

The option selected by ASMFC will include New Jersey in a region that also includes Connecticut and New York, which has been the case since 2014. All states in the region will have the same 3-fish bag and 19-inch minimum size. All will share the same season length. And the region that includes Delaware, New Jersey’s southern neighbor, will adopt regulations that are less restrictive than New Jersey’s. Thus, Rep. LoBiondo’s statement about “cuts…which allow neighboring states to freely pillage [New Jersey] waters at more favorable limits” is just plain wrong.

His claims of “questionable methodologies” and “outdated science” are equally dubious.

The methodologies that were used to prepare the 2013 benchmark summer flounder stock assessment was peer-reviewed by a panel of internationally-recognized fisheries scientists, none of whom found such methodologies “questionable.” And even though the benchmark assessment was completed in 2013, it has been updated annually, with the last update completed in June 2016. That hardly qualifies as “outdated science.”

Thus, any legislation that the two congressmen might propose to block NMFS’ summer flounder management efforts would be based on a host of false premises and a clear desire to override science-based management measures. While such legislation might bring short-term economic relief, the science indicates that it would do so at the expense of the summer flounder stock and, ultimately, at the expense of businesses which depend on a healthy summer flounder stock for their very survival.

Legislators can be many good things. Sometimes they are lawmakers; at other times they are advisers, who help constituents navigate an often-confusing federal bureaucracy. Over the course of their careers, they may at times be orators, philosophers, dealmakers or even, when at their best, the conscience of the entire nation.

But they are not trained fisheries managers. When they try to be, and replace the scientists’ reasoned analysis with their own political passions, they enter waters that they are not trained to navigate. Mishap is the likely result.

About Charles Witek

Charles Witek is an attorney, salt water angler and award-winning blogger. Read his work at One Angler’s Voyage.