On April 17, Secretary of Commerce, Wilbur Ross, announced the approval of exempted fishing permits (EFPs) for the recreational red snapper fisheries in both state and federal waters of the five Gulf of Mexico states – Florida, Alabama, Mississippi, Louisiana, and Texas. Thus the entire red snapper fishery in the Gulf will be managed under EFPs at the state level, for both the 2018 and 2019 seasons.
The terms of the EFPs, designed by natural resource managers at the state level, and approved by NOAA Fisheries, allow for each state to set its own red snapper season. Seasons will then apply to recreational fishermen in both state and federal waters. The federally-mandated 16-inch minimum size and 2-fish bag limit will still apply, and states will be required to end their seasons once they assess that they have caught their state’s share of the overall annual catch limit. The annual catch limit will continue to be determined by NOAA. The EFPs only apply to private recreational vessels – commercial and charter-for-hire boats are unaffected.
So far, so good. Management of the recreational red snapper fishery has been notoriously fraught and contentious for years. These EFPs are an example of the kind of creative thinking that has eluded managers hitherto, thus breaking a stalemate that frustrated everyone. The EFPs are also tangible proof of the flexibility of the Magnuson-Stevens management system, a vindication of the system against critics who claim that it is overly rigid or out-of-date.
Moreover, the devolution of red snapper management to state natural resource agencies is a good thing in principle, just insofar as a devolution of all management to the most local competent authority is a good thing. But the key word is “competent.” One of the primary purposes of our federal system of government, broadly speaking, is the adjudication of interstate issues and interests – like marine fish stocks shared by several states, and to which every American enjoys the right of access. It is no slight to local resource managers to wonder whether their competency extends to the management of a resource as trans-local (so to speak) as red snapper in the Gulf of Mexico. I don’t even mean to suggest that state resource managers are not in fact capable of managing red snapper – I just don’t know that they are. One of the purposes of EFPs as a management tool under the Magnuson-Stevens regulatory regime is to test precisely this sort of question. So I suppose can wait and see. The proof of the pudding will be, as ever, in the eating.
Obviously the effectiveness of management under these EFPs will hinge on the ability of states to monitor landings, so as to know when a state is approaching its share of the annual catch limit, and hence when to close its season and avoid overfishing. Yet some state monitoring programs have proven more effective than others. Louisiana’s LA-CREEL springs to mind as an effective alternative to the Marine Recreational Information Program (MRIP), and has been certified by NOAA as being sufficiently rigorous for the task. Alabama’s Snapper Check, by contrast, had a compliance rate of just 7% in 2017. Its unclear how any meaningful data could be extrapolated from a compliance rate that dismal, and it’s not hard to understand how fuzziness and imprecision in data collection aids and abets overfishing.
It’s also interesting to see the red snapper EFPs garnering praise from the same angler rights groups and recreational industry interests that praised the ill-fated (and illegal) decision by the Secretary of Commerce to increase the 2017 recreational red snapper season from 3 days to 42 days – a decision which would have led to the overfishing of the annual catch limit by 70%, had the overfishing goalposts not been moved retroactively, in 2018, by the Gulf Council in light of SEDAR 52 data. When the cheerleaders of a given initiative have a track record of cheering for cavalier and illegal policies, astute observers will be wise to tempter their optimism with caution.
And speaking of the 2017 season and its erstwhile 70% overage, one of the “exemptions” of the “exempted” fishing permits is exemption from the requirement, under the regular MSA management regime, for sectors to repay the overages from a given year from the following year’s allocation. Thus last year’s 70% overage would be exempted from what would otherwise have been a legal requirement that the overage be subtracted from 2018’s allocation. Yet that too was under the “old” rules, the rules in effect when the erstwhile overfishing took place. But the overfishing goalposts have moved too: NMFS redefined “overfishing” in the middle of the 2017 red snapper season – from 90% of Bmsy (the biomass necessary for a stock to deliver maximum sustainable yield) to 50% of Bmsy. Whether that redefinition itself is prudent is a question we will have to defer, although it should be noted that 50% of Bmsy is the widest buffer allowed under existing law and, according to MSA’s National Standard 1 guidelines and NFMS’s own admission, “[s]tocks that fall below this level are considered to be seriously depleted, and stringent management measures may be needed to implement a rebuilding plan.”
If the EFPs prove to be ineffective and the 2018 and 2019 seasons produce more overages that are, in turn, exempted from repayment requirements, then the damage setbacks to the rebuilding of the stock will be even more egregious than they would have been under the regular MSA management structure. The normal regulatory structure of MSA’s overage repayment requirements mitigates the damage from overfishing from one year to the next. The flipside of this is that the elimination of this requirement from management under the EFPs is another reason to temper one’s optimism with caution. And if all that is preventing legal safeguards from being triggered is the shifting of the overfishing goalposts and a whack-a-mole style redefinition of terms, then we’re in trouble.
In short, there are good reasons to be optimistic about the red snapper EFPs that are now coming into effect, and there are also many reasons to be circumspect. At any rate, we are off to the races, and we’ll have to wait and see.
