Bluefish: “Either We Have a Risk Policy Or We Don’t”

Bluefish

Bluefish photo by John McMurray

On Tuesday, June 8, the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission’s Bluefish Management Board (Management Board) finalized their joint Atlantic Bluefish Allocation and Rebuilding Amendment (amendment).

When the amendment process began in 2017, it only addressed allocation, but after a 2019 operational stock assessment found that bluefish had become overfished, the Council and Management Board had to modify the amendment to address stock rebuilding as well.

The Council received formal notice that bluefish were overfished in November 2019. Such notice triggered a provision of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which requires that, “Within 2 years after…notification [that a stock has become overfished], the appropriate Council…shall prepare and implement a fishery management plan, plan amendment, or proposed regulations for the fishery to which the…notice applies to end overfishing immediately in the fishery and to rebuild affected stocks of fish… [internal formatting omitted]”.

To comply with the law, the National Marine Fisheries Service (NMFS) must have a bluefish rebuilding plan in place by November 2021. By approving the amendment in June 2021, the Council is providing NMFS plenty of time to meet that deadline.

The amendment could have taken any one of three possible approaches to bluefish rebuilding.

The first was a “constant harvest” strategy, which maintained the same annual catch limits throughout the rebuilding process. Such a strategy could rebuild the stock within just four years, but would keep landings unnecessarily low in its later years, when the stock had grown large enough to safely support a bigger harvest, and could cause lasting damage to the commercial bluefish fishery.

The second was the so-called “P*” approach, which tied annual landings to the risk of overfishing. Such approach kept landings low during the initial years of rebuilding, when the risk of overfishing was greatest, but allowed them to increase steadily as the stock grew and the risk of overfishing decreased. That approach could rebuild the stock within five years.

The third was a “constant fishing mortality” strategy, which would remove the same percentage of fish from the stock throughout the rebuilding period. Under such an approach, the size of the annual harvest would increase in direct proportion to the size of the stock. Maintaining a constant fishing mortality rate would lead to significantly higher landings in the early years of the rebuilding process than permitted under the P* approach. Such early landings would be high enough to violate the Council’s recently revised risk policy, and could only be permitted if such policy was amended. Despite such higher landings at the beginning of the rebuilding process, the constant fishing mortality approach was expected to rebuild the stock within seven years, well within the ten-year rebuilding deadline established by Magnuson-Stevens.

Council staff recommended that the P* approach be adopted, viewing it as “a fair middle point that considers both the biological and social requirements” cited in Magnuson-Stevens. In doing so, it noted that such approach would provide greater economic benefits to the commercial fishery than the constant harvest approach, while still complying with the Council’s risk policy.

The Council and Management Board disagreed with the staff recommendation, and soon took up a motion to adopt the 7-year rebuilding plan. Proponents of the constant fishing mortality approach argued that uncertainties surrounding the cause of the decline in bluefish abundance, the ecosystem impacts of an increasing bluefish stock, the economic effects of changing state commercial allocations (which were also addressed in the amendment), and the chance to maintain a somewhat higher catch limit in 2022 all militated in favor of the longer rebuilding plan.

A number of Council and Management Board members complained that there was no 10-year rebuilding option included in the amendment (such option had been deleted in response to the NMFS’ concerns that it would violate Magnuson-Stevens’ requirement that rebuilding times be “as short as possible”). Many expressed skepticism about the science underlying the amendment, arguing that bluefish abundance fluctuates in response to yet-unidentified environmental conditions, often cryptically referred to as “the cycle,” and is relatively unaffected by changes in fishing mortality. With no longer rebuilding timeline available, such persons supported the 7-year option.

Not everyone agreed that the 7-year rebuilding plan presented the most viable option.

Michael Pentony, the regional administrator for NMFS’ Greater Atlantic Regional Fisheries Office, stated that “I have some concerns with this,” noting that, if the 7-year option was adopted, the Council would have to amend its risk policy. Such policy was already amended once before, when the Council adopted its Atlantic mackerel rebuilding plan in 2019. The regional administrator expressed his belief that making such amendments constituted bad policy, saying “Either we have a risk policy or we don’t.”

His words found little support on either the Council or Management Board, although Megan Ware, a Maine fishery manager who sits on the Management Board, did offer a substitute motion to adopt the P* approach. In making her motion, Ms. Ware asked whether, if the Council is so willing to deviate from its established risk policy, it really has a risk policy at all. To further support her motion, she cited public comments supporting rapid rebuilding, and argued that the P* approach struck a reasonable balance between anglers who wanted to see bluefish managed for abundance, and those in the commercial and recreational fishing industries who believed that landings ought to be maximized.

The substitute motion failed, and the 7-year, constant fishing mortality approach was approved by substantial majorities of both the Council and Management Board. Later in the meeting, the amendment, as a whole, was approved, and forwarded to NMFS for review.

Now, one of three things might happen.

  • NMFS may approve the entire amendment, in which case it will issue proposed regulations that implement the amendment’s recommendations, put the proposed rules out for public comment, and then issue final regulations well ahead of the November deadline.
  • NMFS may also disapprove the entire amendment, although looking at the matter realistically, there is no possibility of that happening.
  • Finally, NMFS may disapprove certain provisions of the amendment, and approve the rest. Michael Pentony’s expressed opposition to the 7-year rebuilding plan, and the associated need to amend the Council’s risk policy, suggests that such a result can’t be completely discounted.

When pressed at the June Council meeting on why NMFS went along with amending the policy in the case of Atlantic mackerel, but doesn’t favor such amendment in the case of bluefish, the regional administrator explained that the decision to approve or disapprove a management plan’s provisions requires NMFS to consider the entire administrative record. In the case of mackerel, the Council made a strong argument that the amendment would only constitute a “minimal,” short-duration deviation from the risk policy, but it was “not clear whether the same considerations would apply” to the 7-year bluefish rebuilding plan.

Despite Michael Pentony’s reservations, it is very likely that the entire amendment will be approved, and that the Council’s risk policy will be amended once again.

While that shouldn’t do the bluefish stock any harm, as it’s still likely to be rebuilt by the end of this decade, it could sound a warning for the future of mid-Atlantic fisheries. To echo Megan Ware, if the Council is willing to repeatedly amend its risk policy, and do so without compelling reason, does it truly have such a policy, or merely words on a page that, while they might sound impressive, serve little real function at all?

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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