Can Magnuson-Stevens’ Stock Rebuilding Provisions Be Improved?

Gulf of Maine Atlantic Cod, by Joachim S. Mueller

Photo: Gulf of Maine cod

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) is probably the most comprehensive, and most successful, marine fishery conservation law in the world. Since the year 2000, it has been responsible for rebuilding 47 once-overfished stocks; other overfished stocks are well on their way to recovery.

Much of that success can be attributed to the fact that Magnuson-Stevens doesn’t merely give federal fishery managers the option of rebuilding overfished stocks; instead, it requires them to do so, and sets a firm deadline for achieving that goal. If a stock is found to be overfished or approaching an overfished condition, the National Marine Fisheries Service (NMFS) must put a rebuilding plan into effect within two years. Once such a plan is in place, it must rebuild the stock in no more than 10 years, unless it is biologically impossible to do so, or the stock is managed pursuant to an international agreement. In any event, rebuilding must be completed in as short a time as possible, given the prevailing circumstances.

Yet Magnuson-Stevens hasn’t met with success in every fishery. Some remain stubbornly unwilling to rebuild. Many of those are located in New England, where the New England Fishery Management Council often adopts rebuilding plans that are insufficiently risk averse. While such management plans successfully limit the short-term hardships that fishermen would experience under more restrictive management regimes, they do long-term harm to the health of fish stocks.

As a result, historically important stocks such as Georges Bank cod, Gulf of Maine cod and Southern New England/Mid-Atlantic winter flounder have remained overfished for many years, and show few signs of recovery. As such fish remain scarce, it is clear that the less risk averse plans didn’t avoid causing hardship to fishermen; by failing to rebuild badly depleted stocks, they instead forced fishermen to endure hardship over a much longer period of time, which has yet to come to an end.

But there is now hope that an end to such hardship might, just possibly, be in sight.

In late December 2020, Rep. Jared Huffman (D-CA), chair of the House Natural Resources Water, Oceans, and Wildlife Subcommittee, and Ed Case (D-HI), a subcommittee member, released the discussion draft of a Magnuson-Stevens reauthorization bill. That draft contained a number of provisions that would strengthen the stock rebuilding provisions of Magnuson-Stevens.

One of the provisions would make it easier for fisheries managers to determine whether a stock has, in fact, become overfished.

Currently, Magnuson-Stevens requires that all federal fishery management plans “specify objective and measurable criteria for identifying when the fishery to which the plan applies is overfished.” To satisfy that requirement, management plans will typically deem a stock to be overfished when its spawning stock biomass falls beneath a specified threshold, which is most often 50% of the biomass needed to produce maximum sustainable yield. Problems arise when scientists lack the data to calculate whether the criteria specified in the management plan have been met.

When that happens, scientists may not declare a stock overfished, even when they know that spawning stock biomass has declined sharply. Instead, as recently occurred in a stock assessment for Gulf of Maine winter flounder, they may only declare that “biomass based reference points cannot be determined and overfished status is unknown,” while also noting that both recreational and commercial landings have fallen sharply in recent decades, a long-term trend that could reflect declining abundance.

The discussion draft’s proposed language would allow fishery managers greater discretion, allowing them to declare a stock to be “overfished” if “the best available scientific information” suggests that is the case, even if clear criteria identifying when such stock is overfished is not available.

Yet the mere facts that a stock has been deemed to be overfished, and a rebuilding plan has been put in place, does not mean that such rebuilding plan will be successful. Gulf of Maine cod have been overfished since at least 2001, and probably for long before that, if the current criteria for gauging stock status had been applied in earlier assessments. The first rebuilding plan for Gulf of Maine cod was unsuccessful; the stock remained overfished. A second rebuilding plan, initiated in 2014, is supposed to rebuild the stock by 2024. But with the spawning stock biomass totaling only 3,838 metric tons, which is only somewhere between 6% and 9% of the rebuilding target, in 2018, it is very likely that the second rebuilding plan is going to fail as well.

If that happens, the NMFS will undoubtedly initiate a third rebuilding plan, which will probably look much like the two previous, unsuccessful rebuilding plans. It will undoubtedly try to balance mitigating the burdens placed on fishermen with the legal requirement that the rebuilding plan have at least a 50% probability of achieving its goals. If, under such new rebuilding plan, the stock didn’t make “adequate progress” toward its rebuilding goal, the NMFS would have to “immediately make revisions to achieve adequate progress,” but the rebuilding plan wouldn’t have to define what such “adequate progress” might look like.

The language proposed in the discussion draft would address those issues as well.

First, it would require every fishery management plan to “contain objective and measurable criteria for evaluating rebuilding progress.” Then, it would establish clear criteria that would signal to the NMFS that adequate progress was not being made.

The discussion draft’s proposed language states that

The Secretary [of Commerce] shall find a lack of adequate progress toward ending overfishing and rebuilding an affected fish stock if (i) the status of the stock is not improving sufficiently such that it becomes unlikely that the stock will be rebuilt during the rebuilding time period; (ii) the applicable fishing mortality rate or annual catch limits are exceeded, and the causes and rebuilding consequences of such exceedances have not been corrected; (iii) the rebuilding expectations are fundamentally changed due to new scientific information about the stock, and the new information indicates that the current rebuilding plan is inadequate to address the stock’s rebuilding needs; or (iv) for other reasons, as appropriate. [internal formatting deleted]

If such language was added to Magnuson-Stevens, the NMFS would not be able to let an overfished stock languish, or see overfishing occur, without taking the action needed to put such stock back on the path to rebuilding by the scheduled date.

If, despite the agency’s efforts, a stock still remains overfished on the scheduled rebuilding date, a new rebuilding plan would have to be prepared. But given the failure of the original rebuilding plan, any such new rebuilding plan would be required to have at least a 75% probability of successfully rebuilding the overfished stock.

Such a provision would make any successor rebuilding plan more restrictive than the original, failed plan. It would make it more likely that other fish stocks will not share the fate of the Gulf of Maine cod, which will almost certainly have to undergo a third consecutive rebuilding plan before it has any realistic chance of being restored.

Magnuson-Stevens is already a very good fisheries conservation and management law. But changes to its stock rebuilding provisions, as provided in the discussion draft, would make it even better. If such changes are made, species such as Atlantic cod and winter flounder, which have so far fallen through the cracks of then management system, would finally have a reasonable chance of being rebuilt.

Fishermen across the nation would do well to see those changes become law.

About Charles Witek

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

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