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CCA NY opposes opening Federal waters
to striped bass fishing May 19, 2006 Tom Meyer Dear Mr. Meyer: On behalf of Coastal Conservation Association New York (“CCA NY”), I am taking this opportunity to comment on the current proposal to permit fishing for and retaining striped bass in the Exclusive Economic Zone of the United States (the “EEZ”). CCA NY is opposed to the proposed opening, and supports Option 4, that no action be taken to open the EEZ to striped bass fishing. I THE ANALYSES SUGGESTING THAT OPENING THE EEZ TO STRIPED BASS FISHING WILL NOT INCREASE FISHING MORTALITY ARE FLAWED CCA NY notes that the Preliminary Draft Analyses of Federal Management Options in Response to the Recommendations Contained in Amendment 6 to the Atlantic States Marine Fisheries Commission’s Striped Bass Interstate Fisheries Management Plan (the “Draft Analyses”) suggests that opening the EEZ to striped bass fishing will not cause harm. CCA NY respectfully disagrees with such suggestion. The Draft Analyses states that “[a]ny increased EEZ effort will likely be minimal and offset by an equally small decrease in nearshore fishing effort, and that the option would likely not increase fishing pressure on the stock, but in fact, might result in some small decrease in effort in some areas.” That is certainly not the case in the recreational fishery, which is responsible for nearly three-quarters of striped bass mortality. NOAA Fisheries seems to recognize that fact later in the document, when it says that “[a]ny reallocation of fishing effort from the Atlantic coastal and inshore fisheries to the EEZ would depend upon the additional perceived benefits vs. the costs by anglers of going farther offshore and the potential profit of charter operators. It is also possible that larger catches of striped bass would be taken in the overall ocean fishery, at least in the short run.” However, given the Draft Analyses continuing comments on this question, NOAA Fisheries does not seem to grasp the realities of the recreational striped bass fishery. CCA NY is comprised of recreational fishers, and knows that recreational fishers go where the fish are. They do not travel to the EEZ, particularly in this time of rising fuel prices, on a whim, to fish for striped bass. If they venture that far offshore, they’re going because that is where the fish happen to be at the time. Thus, opening the EEZ to striped bass fishing will only cause anglers to fish in Federal waters if they believe that they are more likely to harvest striped bass there than in the nearshore waters of their state. If significant numbers of anglers venture into the EEZ in search of striped bass, the overall number of fish harvested will increase. CCA NY completely disagrees with the statement that “[m]ost striped bass are likely to be taken during trips already occurring in the EEZ for other species.” While some striped bass are taken incidentally to the harvest of species such as bluefish and, at times, scup, black sea bass and other popular “bottom fish,” most striped bass, wherever caught, are caught as part of a directed fishery. It is no coincidence that most of the recreational advocates of opening the EEZ are located in Massachusetts, Virginia and North Carolina. The directed Massachusetts summer fishery for striped bass on various rips and reefs located in Federal waters south of Cape Cod (as well as a smaller but still significant fishery southeast of Cape Ann) is well documented in angling literature. The winter fishery off Virginia and North Carolina is new, and is directed at striped bass at a time when few other species are readily available to anglers; there is no question of most striped bass caught in such fishery constituting an incidental catch by anglers directing on other species. NOAA Fisheries’ statement that “catches from such areas are not expected to be significant relative to the total coastwide recreational harvest” ignores the fact that the areas in question are the most productive striped bass fishing grounds on the coast at the times that the fishery in the EEZ would be prosecuted. However, CCA NY does agree with the statement that striped bass incidentally caught in the EEZ, which now must be released, could be retained by anglers if the EEZ was opened. Such retention would be a new source of fishing mortality, and another reason to keep the EEZ fishery closed. CCA NY is also concerned that NOAA Fisheries does not understand that recreational fishers are seeking more than merely “catching their limit” of striped bass. A statement such as “[g]iven that anglers are already catching their limit in state waters, there would be no regulatory incentive for anglers to incur the additional costs and hazards associated with a move offshore from state to Federal waters” demonstrates such lack of understanding. In an angler’s mind, being able to land two 28- or 30-inch fish in state waters is not the equivalent of having a realistic possibility of landing two 30- or 40-pound (perhaps 45- or 48-inch) fish in the EEZ; for that matter, even if striped bass of the same size inhabited state and Federal waters, the possibility of hooking and releasing (and incidentally causing the mortality of some proportion of) ten, twenty or thirty fish in the EEZ will cause anglers to readily “incur the additional costs and hazards” of a trip to the EEZ if the alternative was catching just two, or even half a dozen fish in state waters. Recreational fishing is primarily about recreation, not about taking fish home, and catching more and/or larger fish in the EEZ has a higher recreational benefit than taking fewer and/or smaller fish in state waters, even if fishing in state waters can put a limit of fish in the cooler at the end of the day. NOAA Fisheries states that “[s]ome small amount of recreational effort may dissipate into the EEZ, but to whatever small extent it does, effort in nearshore reaches will decrease by an equal amount.” That statement may be literally true, but if so, it is also irrelevant. When considering the impact of opening the EEZ on the striped bass population, the key statistic is not effort, but mortality. Since anglers will only venture into the EEZ if it offers higher-quality angling than that offered by nearby state waters at the time, it is impossible to credibly maintain that opening the EEZ will not increase mortality, whether that mortality is a result of harvesting larger fish, which already are fished at levels above that of the overall striped population, harvesting fish in the EEZ at a time when they are scarce in state waters or releasing large numbers of fish, some percentage of which will inevitably die. Thus, a shift of effort into the EEZ will, under any realistic circumstance, result in increased mortality, even if overall effort remains constant. The Draft Analyses’ repeated comments that opening the EEZ to striped bass fishing will not increase fishing mortality derive from a flawed understanding of the recreational fishery and of the behavior of recreational fishers. A close examination of recreational fishers’ attitudes and behavior regarding striped bass makes it clear that opening the EEZ to striped bass fishing will inevitably cause an increase in striped bass mortality. For that reason, the EEZ should remain closed. II OPENING THE EEZ TO STRIPED BASS FISHING OF ANY SORT IS LIKELY TO LEAD TO OVERFISHING. FOR THAT REASON, CONTINUING THE CURRENT CLOSURE IS THE MOST APPROPRIATE ACTION. The current management plan for the striped bass fishery, Amendment 6 to the Interstate Fisheries Management Plan for Atlantic Striped Bass (the “Plan”), established a target fishing mortality rate of 0.30 and an overfishing threshold of 0.41. The most recent virtual population analysis of the striped bass stock conducted by the Atlantic States Marine Fisheries Commission (“ASMFC”) estimates that for 2004, the last year for which mortality was calculated, F=0.40, which is approximately 33% above the target mortality rate and just one one-hundreth of a point below the overfishing threshold. The Plan states that “…if the current F exceeds the threshold level of 0.41, the Board should take steps to reduce the fishing mortality rate to the target level…If F exceeds the target, but is below the threshold, the Board should consider steps to reduce F to the target level.” Since there is little doubt that F is substantially over the target level, and appears to be approaching the overfishing threshold, managers should adopt a precautionary approach, and make no change that might cause any increase in mortality. The need to take a precautionary approach is underlined by the uncertainty surrounding recreational landings, and the uncertainty inherent in the method currently used to estimate such landings. A recently-concluded National Research Council study concluded that such estimates lacked the certainty needed to properly manage marine fisheries, and that there is no way to determine whether or not recreational harvest is currently over- or underestimated. It is completely conceivable that any increase in striped bass fishing mortality could result in overfishing; given how close the 2004 fishing mortality was to the overfishing threshold, it is also possible that overfishing may already be occurring, and that any increase in F will worsen an already-existing problem. There is also a distinct possibility that the most recent stock assessment is overly optimistic. The issue turns on how the large harvest occurring in the winter off Virginia and North Carolina is handled. If such harvest is viewed as evidence of a large number of older fish in the striped bass population, an assumption currently made in the assessment, the assessment will estimate a higher total biomass and lower F; however, if the harvest is viewed as evidence of a higher rate of removal from a smaller-than-currently-estimated population, it would lead to a more pessimistic conclusion. Such uncertainty militates against opening the EEZ to striped bass fishing. III OPENING THE EEZ TO STRIPED BASS FISHING WILL SHIFT CURRENT RECREATIONAL HARVEST PATTERNS IN A MANNER THAT WILL SUBSTANTIALLY BENEFIT ANGLERS IN A MINORITY OF COASTAL STATES. While commercial striped bass harvest is governed by a “hard” quota allocated among the states with commercial fisheries, recreational harvest, and recreational regulations, are governed by fishing mortality rate applied over the entire coast. Should overfishing occur which is attributable, at least in part, to the recreational fishery, recreational management measures designed to reduce F to acceptable levels would be applied to all anglers, in all states, regardless of whether an increased harvest in a particular state or small group of states was responsible for a substantial part of the overage. The manner in which measures implemented to remedy overharvest are applied to the recreational fishing sector has particular relevance to the issue of permitting striped bass fishing in the EEZ. Striped bass generally remain in state waters, and are usually found in the EEZ only in a few areas, as described in Section I, above. Thus, striped bass anglers along most of the coast would receive little or no direct benefit from the creation of a fishery in the EEZ. However, because of the presence of a few ocean bottom features attractive to striped bass in the EEZ, anglers in a limited number of jurisdictions are positioned to substantially increase harvest should the EEZ be opened to striped bass fishing. In response to any such increase in harvest and its effect on F, ASMFC would eventually be compelled to impose more restrictive regulations on anglers in all states, who would see their relative share of the recreational striped bass harvest shrink as that of Massachusetts, Virginia and North Carolina increased substantally. Such an unbalanced result would be grossly inequitable, and would cause economic harm not considered in the Draft Anayses.
IV THE ATLANTIC STATES MARINE FISHERIES COMMISSION PROVIDES SCANT JUSTIFICATION FOR OPENING A STRIPED BASS FISHERY IN THE EEZ In a letter received by NOAA Fisheries on April 24, 2003, ASMFC presented seven arguments to support its request that NOAA Fisheries open the EEZ to striped bass fishing. Upon analysis, none of them, alone or in combination, provide a compelling argument justifying the creation of a striped bass fishery in Federal waters. Those arguments, and an analysis of their insufficiency, is set forth below. (1) In 1995, due in part to a closure of the EEZ in 1990 to striped bass harvest, the population of this species was declared fully restored by the Commission. The purpose of closing the EEZ was to protect strong year classes entering the population and to promote rebuilding of the overfished population. While CCA NY does not dispute the primary thrust of the above statement—that the EEZ closure contributed to the recovery of the Atlantic striped bass population—it takes very strong issue to any suggestion that such statement provides support to any decision to open a striped bass fishery in the EEZ. In fact, it does just the opposite. The success of the current striped bass management regime, which regime includes an EEZ closure, makes a persuasive argument that the management measures should be judged a success that should be kept intact. Such management measures present an integrated whole, with each provision interacting with every other. Eliminating any provision could introduce a substantial risk that the remaining provisions would be weakened, to the detriment of the Plan and the health of the striped bass population. A critical analysis of the history of the Plan, coupled with the legislative history of the Act, suggests that creating a striped bass fishery in the EEZ would have a pronounced negative effect on the remaining elements of the Plan and on the overall striped bass fishery. When ASMFC stated, in its letter to NMFS, that “The purpose of closing the EEZ was to protect strong year classes entering the population and to promote rebuilding of the overfished population,” it made a statement that was both technically accurate and extremely misleading. Such protection and rebuilding was not merely the purpose of the EEZ closure, but rather the purpose of the entire management plan, which was premised on the existence of consistent state laws and regulations that would protect and manage the striped bass resource throughout its range. However, the existence of a striped bass fishery in the EEZ created an enforcement loophole that made effective regulation of the state fisheries problematic. Thus, while the management plan (or, more precisely, Amendment 3 to the plan, which was in effect at that time) was designed to protect strong year classes and end overfishing through cooperative state efforts, achieving such goal was not assured without closing the enforcement loophole through the EEZ closure. Therefore, the function of the EEZ closure was not merely “to protect strong year classes entering the population and to promote rebuilding of the overfished population.” The function of the EEZ closure was, and still is, to safeguard the efficacy of state laws and regulations. That function is recognized in the Act, and remains a strong argument militating against opening a striped bass fishery in the EEZ. (2) The commercial harvest is controlled by hard quotas; when they are reached the fishery is closed; and overages are taken out of next year’s quotas. The Commercial quota will be landed regardless of whether or not the EEZ is opened. Again, one of ASMFC’s arguments in support of opening a striped bass fishery in the EEZ makes a better case for keeping such fishery closed: “The Commercial quota will be landed regardless of whether or not the EEZ is opened.” CCA NY has no doubt that statement is true. Thus, there is no compelling economic argument for opening the EEZ to striped bass fishing. The striped bass quota will be filled even if the fishery remains closed. However, a social argument against opening the EEZ can easily be made. Currently, the coastal commercial striped bass fishery, at least as it exists north of Delaware Bay, is comprised of a large number of fishers who each harvest a relatively small number of striped bass. Gear is often simple, of a type that can be fished by a single operator. Such a commercial striped bass fishery requires a relatively modest investment of capital, and provides an income to many inshore harvesters who move seasonally between species, and do not devote a substantial part of their time to any single fishery. However, if the EEZ were opened to striped bass fishing, such small operators would be placed into direct competition with fishers employing large vessels and highly-efficient gear, which are capable of venturing farther from shore during periods of inclement weather, to harvest striped bass either intentionally or incidentally. As a result of such operations, the striped bass quota is likely to be concentrating among a smaller number of fishers, bringing an economic boon to a handful of operators while denying smaller operators their traditional share of the fishery. Since, as ASMFC points out, the commercial harvest is likely to be achieved in any event, there is no offsetting public benefit justifying the harm that may accrue to inshore fishers should the EEZ be opened. Thus, no such opening should take place. (3) Currently, recreational and commercial catches are occurring in the EEZ and these fish are required to be discarded. Opening the EEZ will convert discarded bycatch of striped bass to landings. The argument that opening a striped bass fishery in the EEZ will allow regulatory discards to be retained and landed is probably the most appealing of all those put forward by ASMFC. However, an examination of the nature of the discards, and the implications of retaining such discards as landings, quickly make it clear that any such appeal is largely superficial, and that the argument does not justify the opening of a striped bass fishery in the EEZ. Recreational discards are the most easily addressed. Anglers, like commercial fishers, are regulated by some combination of size limits, bag limits, seasons and, in the case of striped bass, the EEZ closure. Few would suggest that size, bag or seasonal restrictions should be abandoned in order to “convert discarded bycatch of striped bass to landings”, since it is clear that the benefits of such measures outweigh any discard mortality. That being the case, it is hard to make a logical case for treating the EEZ closure any differently than any other constraint on harvest. This is particularly true in view of the fact that incidentally-caught striped bass are a relatively small proportion of all species encountered in the EEZ, and that all but 8% of such incidentally-caught striped bass are likely to survive. Given the important role the EEZ closure plays in maintaining the integrity of state management measures, and the tiny number of striped bass discarded dead to anglers in the EEZ, recreational bycatch provides no justification for opening the EEZ to striped bass fishing. The argument against permitting commercial retention of striped bass caught in the EEZ is similar to that which counter’s ASMFC’s second point, above. The commercial quota will be landed whether or not the EEZ is opened to striped bass fishing. Thus, retaining striped bass as bycatch in the EEZ will only result in other bass, taken in trawls, pound nets or gill nets in state waters, being discarded once the quota is filled, to the detriment of inshore anglers who once depended on such harvest. In addition, opening the EEZ could negate state gear restrictions, resulting in the creation of directed trawl fisheries that could produce even greater levels of dead discards. When all factors are considered, and whether recreational or commercial fisheries are involved, the bycatch argument does not justify opening the EEZ. (4) Because of management measures implemented since 1990, the striped bass population has recovered to a point where further examination of whether this fishery should occur in the EEZ is appropriate. There are expectations among a number of fishing industry stakeholders that their past sacrifices would result in future opportunities to harvest striped bass, and therefore, there are potential credibility issues. Of all the arguments that ASMFC put forward in support of opening the EEZ, this is perhaps the weakest. As noted above in Section I, overall F exceeded Ftarget in 2004 by more than 30%, which certainly indicates that recreational fishers are having a more than adequate opportunity to harvest striped bass. In addition, Amendment 6 has increased the coastal commercial harvest to equal the average annual harvest of the 1972-1979 base years. Thus, it is difficult to understand how any rational user of the resource could expect “further opportunities to harvest striped bass”, or how current harvest levels militate in favor of opening the striped bass fishery in the EEZ. (5) The recommendations to open the EEZ is part of Amendment 6 which incorporates new management standards to ensure stock conservation including targets and thresholds for both mortality and spawning stock biomass. Fishing mortality is currently below the target level, and spawning stock biomass is 1.5 times the target level. According to the latest Technical Committee calculations, the above statement is no longer accurate, as F now exceeds Ftarget by more than 30%. Thus, it cannot provide justification for opening the striped bass fishery in the EEZ. (6) Amendment 6 includes monitoring requirements and triggers that will allow the Commission to respond quickly to increased mortality. While Amendment 6 certainly does include both monitoring requirements and triggers, whether the Commission will respond “quickly” to increased mortality is certainly open to debate. Such monitoring requirements and triggers are as follows
A review of the above reveals that ASMFC’s definition of “quickly” may be somewhat broader than that of the average citizen. The annual stock assessment, from which fishing mortality and biomass would be calculated, is not generally available until about one year after the close of the assessment period (e.g., the 2004 assessment was completed in November 2005). Thus, a year passes before the Board is even formally notified of a problem, and after that they have additional time to act. For example, in even the most severe circumstances—when overfishing is clearly occurring or the stock has become overfished and depleted in size—described in the above triggers 1 and 2, the Board has another year to end overfishing, and fully ten more years to rebuild the spawning stock biomass. In addition, since ASMFC is not bound by the constraints of the Magnuson-Stevens Fishery Conservation and Management Act, which requires Federal managers to take action immediately in the event of overfishing, ASMFC can choose to refrain from acting even if overfishing occurs, and it is not clear that it could be compelled to take action. We saw ASMFC exercise such restraint in 2004, rather than act on the basis of a stock assessment which indicated that striped bass fishing mortality was well in excess of the overfishing threshold. While ASMFC’s action was understandable in light of the surrounding circumstances, and later events appear to have validated its decision, the fact that such discretion can apparently be exercised gives reason to question whether ASMFC would act even if more credible evidence of overfishing was presented. The fact that it has not acted despite clear evidence that harvest regularly exceeds target mortality gives even more cause for concern. V CONCLUSIONS The EEZ has been closed to striped bass fishing since late 1990. Since that closure was put in place, the striped bass population has expanded, until it now supports robust commercial and recreational fisheries. Such fisheries thrive despite the closure of the EEZ. At the same time, there are reasons for concern. Fishing mortality is over 30% above the target, and scarcely below the overfishing threshold. Mortality is particularly concentrated on the older fish. A new winter fishery has emerged at the southern end of the species’s range, which targets large, predominantly mature female striped bass on the grounds where most of the coastal migratory striped bass congregate at that time. Such grounds straddle the 3-mile boundary of the EEZ, where many of the large breeders currently find a rare sanctuary from the incessant fishing pressure that they face elsewhere on the coast. Opening the EEZ to striped bass fishing will eliminate that sanctuary, as well as other areas that host striped bass in Federal waters, and will inevitably result in increased striped bass mortality that could easily push the species into an overfished condition. There is no need to do so. Commercial fishers already harvest their quotas, and recreational harvest continues to increase. Maintaining the EEZ closure is an appropriate precautionary measure that has no negative impact on the current striped bass fishery but, if eliminated, could negatively impact the striped bass population. When potential benefit is balanced against potential harm, it is clear that maintenance of the closure is the better course. Thank you for considering our views on this matter. Yours Truly, Charles A. Witek, III |
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