January 18, 2010

Stephen W. Heins
New York State Department of Environmental Conservation
Marine Bureau
200 North Belle Mead Road, Suite 1
East Setauket, NY 11733

Dear Mr. Heins:

Coastal Conservation Association New York (“CCA NY”) is taking this opportunity to express its strong opposition to the proposed regulations for the management of winter flounder in the waters of the State of New York (the “Proposed Regulations”), and its equally strong support for the rejected alternative which would prohibit both the commercial and recreational harvest of winter flounder in state waters. In light of the facts acknowledged by the Department of Environmental Conservation (“DEC”) in the Regulatory Impact Statement accompanying such Proposed Regulations (the “DEC Statement”), adoption of the Proposed Regulations would represent an arbitrary and capricious action on the part of the DEC, and would violate the fisheries management policies of the State of New York, as set forth in the Environmental Conservation Law.

THE STATE’S CLEAR POLICY WITH RESPECT TO THE MANAGEMENT OF MARINE RESOURCES, INCLUDING WINTER FLOUNDER, REQUIRES THAT A COMPLETE MORATORIUM ON HARVEST BE IMPOSED

“ It is…the policy of the State of New York to conserve, improve and protect its natural resources…”[1] More specifically, “It is the policy of the state that the primary principle in managing the state’s marine fishery resource is to maintain the long-term health and abundance of marine fisheries resources and their habitats, and to assure that the resources are sustained in usable abundance and diversity for future generations. Utilization and allocation of available resources will be administered consistent with the restoration and maintenance of healthy stocks and habitats.”[2] Adoption of the Proposed Regulations rather than a complete harvest moratorium would violate such policies, as well as a number of objectives in Section 13-0105 of the Environmental Conservation Law.

For example, subsection (b) of Section 13-0105 states in part that

(b) The marine fisheries conservation and management policy shall be carried out through achievement of the following objectives:

(1) the state shall strive to obtain the best possible scientific information through research and monitoring of the resources;

(2) the state shall use the best available scientific information in managing the resources…

The DEC has acknowledged that

…[t]he most recent assessment of regional stocks of winter flounder, conducted by the National Marine Fisheries Service (NMFS), has concluded that Southern New England and Mid-Atlantic (SNE/MA) stocks of winter flounder (including New York's populations) have not recovered and continue to experience high rates of removals. Recruitment has been poor, with record low year classes in the last five years, and the 2007 spawning biomass was only 9 percent of the target level. These findings indicate a very low probability of recovery in the near future under the current management plan. Lastly, winter flounder catch data collected by NMFS show that winter flounder landings in New York have collapsed within the past 10 years.[3]

It is thus clear that the “best available scientific information” indicates that the SNE/MA stocks of winter flounder, including New York’s populations, are in very serious trouble. Accordingly, the DEC properly recognizes that “It is essential that fishing mortality on winter flounder be immediately reduced to the lowest possible level.”[4]

It is at this point that the Proposed Regulations diverge from both the proper course indicated by the best available science and from New York’s declared policy with respect to fisheries management. It cannot be denied that, at least in theory, the “lowest possible level” of fishing mortality occurs when F=0.00, which is precisely the level that the National Marine Fisheries Service recommends as F_rebuild for the SNE/MA stocks of winter flounder.

[5] In reality, even in the face of a harvest moratorium, F will probably never get down to 0.00, as some level of discard mortality will normally occur, particularly in areas where nonselective gear is still tolerated. However, it also cannot be denied that permitting some level of harvest, in addition to the inevitable bycatch and resulting mortality from regulatory discards, will raise F above the level that might be expected from discard mortality alone. Thus, in adopting the Proposed Regulations, the DEC would be acting contrary to its finding that “it is essential” [emphasis added] that fishing mortality be reduced “to the lowest possible level.”

That fact is explicitly admitted by language in the DEC Statement, which reads “Stock projections by the 2008 Groundfish Assessment Review Meeting indicate that the ASMFC mandated harvest reductions…may be insufficient to reduce fishing mortality to the level at which stocks would be expected to rebuild in a reasonable amount of time. A recreational and commercial harvest moratorium has a better chance at achieving the rebuilding target, though likely not in time for 2015.”

Adoption of the Proposed Regulations would thus violate New York’s State’s policy that the “primary principle in managing the state’s marine fisheries resource is to maintain the long-term health and abundance of marine fisheries resources” [emphasis added], run contrary to the best available science regarding winter flounder and contradict the DEC’s own findings that “a recreational and commercial harvest moratorium has a better chance at achieving the rebuilding target.” Thus, it is not difficult to argue that a decision to so adopt the Proposed Regulations would be contrary to the facts and the law relevant to the matter, and would represent an arbitrary and capricious action on behalf of the DEC.

THE ECONOMIC CONSIDERATIONS CITED IN THE DEC STATEMENT ARE INADEQUATE GROUNDS FOR REJECTION OF THE MORATORIUM OPTION

In the DEC Statement, the DEC attempted to provide a partial justification for its decision to adopt the Proposed Regulations rather than impose a complete moratorium by stating “New York is facing severe restrictions in its scup and black sea bass fisheries for 2010, and a potential moratorium on weakfish harvest as well. A winter flounder moratorium in addition to these restrictions may result in significant economic loss for businesses dependent upon commercial or recreational fisheries for these species.” However, such statement is inadequate justification for rejecting the moratorium option, as it both ignores recent regulatory activity in the fisheries cited and is otherwise contrary to the fisheries management policies established by ECL Sec. 13-0105.

There can be little question that New York’s fishing industry is not thriving. However, the argument that the meager harvest restrictions permitted by the Proposed Regulations will prevent the members of such industry from experiencing “significant economic loss” is ludicrous on its face. Law and science aside, it should be obvious to anyone who considers that matter that any business that must rely on a collapsed stock of fish in order to avoid such loss is unlikely to survive in the long term. Jeopardizing the long-term survival of New York’s winter flounder in order to temporarily shore up such a seriously flawed business model is not only unwise, but is a clear violation of the policy, enshrined in statute, that the primary principle guiding the management of New York’s marine fisheries shall be the long-term health and abundance of fish stocks. Sacrificing the winter flounder stock for the short-term benefit of a troubled industry runs directly contrary to such policy. Some might argue that ECL Sec. 13-0105(a) contains the sentence “The state shall optimize the benefits of resource use so as to provide valuable recreational experiences and viable business opportunities for commercial and recreational fisheries,” and that such language justifies rejecting the moratorium option. CCA NY disagrees. When interpreting the statute setting forth fisheries management policy, every word used in the statute shall be deemed significant and given its ordinary meaning. Thus, in specifically stating that the primary principle for the management of New York’s marine fisheries is maintaining “the long-term health and abundance of marine fisheries resources”, the legislature elevated that policy above all others, including the economic viability of fisheries-related businesses. In the event that the long-term health of a fisheries resource cannot be assured without imposing some burden on fisheries-related businesses, the health of the resource takes priority over business concerns.[6]

Beyond that pivotal point, there are other grounds to reject the statement regarding “significant economic loss”, including the fact that it includes obsolete information, as at least one of the contingencies cited will not occur. The DEC was fully aware that the “potential moratorium on weakfish harvest” cited as a consideration in the DEC Statement was no longer a threat at the time the Proposed Regulations were released for comment, having been rejected by the Atlantic States Marine Fisheries Commission at its November, 2010 meeting.[7] Retaining a reference to such potential moratorium in the DEC Statement was misleading at best, and certainly does nothing to shore up an already untenable argument.

With respect to the comments regarding scup and black sea bass, while it is true that anglers in New York and other states are facing more restrictive regulations this year, such regulations are due solely to the fact that such anglers overfished both species in 2009. Commercial fishing interests will face no equivalent restrictions. In fact, at the August, 2009 meeting of the Mid-Atlantic Fisheries Management Council, it was determined that the Allowable Biological Catch (“ABC”) for scup would be modestly increased, and that the ABC for black sea bass would remain the same as it was in the previous year.[8] Subsequent action, reported at the January 12, 2010 meeting of New York’s Marine Resources Advisory Council, suggests that there is now a significant chance that the black sea bass ABC for 2010 may be increased over what was set at the August meeting of the Mid-Atlantic Fishery Management Council.[9]

In view of the above, the economic grounds for rejecting the moratorium option are far less compelling than the DEC Statement suggests. The commercial industry will actually be able to harvest more scup and probably more black sea bass than it was allowed in 2009, and such additional fish will more than make up for the 50 pound trip limit of winter flounder permitted by the Proposed Regulations. The recreational industry will also have access to more fish, although individual harvests will be reduced solely due to the need to control overfishing by the recreational sector. To justify maintaining a recreational winter flounder fishery because of 2010’s more restrictive recreational scup and black sea bass regulations is effectively to reward the recreational sector for its past overfishing of such species. That is just bad policy.

NEW YORK’S FAILURE TO ADOPT A HARVEST MORATORIUM, BASED ON THE FAILURE OF ANY OTHER STATE TO TAKE SIMILAR ACTION, IS SUPPORTED BY NEITHER BIOLOGY NOR LAW

Apart from the aforementioned economic considerations, New York’s only other justification for rejecting the moratorium option is that no other state was willing to take similar action. That is not a valid justification.

Section 13-0105(b)(4) of the Environmental Conservation Law does state that “the management of the state's transboundary and migratory species shall be consistent with any interjurisdictional management plans, interstate or state-federal”, and there is no question that proponents of the Proposed Regulations might attempt to rely on such provision to justify their position. However, such reliance is misguided, for a number of regions.

Two fisheries management plans affect the SNE/MA stocks of winter flounder. The first is the federal groundfish plan, which includes the flounder among its managed species. Such plan only affects fishing for flounder in federal waters, or fishing by federally-permitted vessels. Pursuant to an emergency action taken by NMFS in the spring of 2009, all harvest of winter flounder in federal waters or by federally-permitted vessels has been prohibited.[10] Thus, a state moratorium on winter flounder would not be inconsistent with federal management efforts, and would reinforce the harvest prohibition that already applied to federally-permitted vessels fishing in state waters.

As noted in the DEC Statement, the Atlantic States Marine Fisheries Commission (“ASMFC”) has also adopted a management plan for the inshore stocks of winter flounder, and the Proposed Regulations reflect the provisions adopted under such plan. However, it should be noted that the ASMFC plan sets forth the minimum level of restriction to be imposed on the fishery, and that any ASMFC state is free to adopt regulations that are more restrictive than those adopted in the ASMFC plan.[11] That being the case, a complete moratorium on harvest would not be inconsistent with the ASMFC fisheries management plan for winter flounder.

In fact, given the biology of winter flounder, unilateral action by the State of New York would have a real and beneficial impact on the resource.

The spawning stock structure of the SNE/MA stock is complicated. “Numerous genetically identifiable stocks of winter flounder may exist.”[12] Each such “stocklet” may be subject to localized overfishing,[13] or to local habitat degradation that, while not obvious, causes the stocklet to decline over time.[14] Such localized effects can have dire consequences. “Recent tagging studies have shown spawning-site fidelity in winter flounder, meaning that individuals will often return to the location where they were hatched, or close by. What this suggests is that there is the possibility for subpopulations of winter flounder that may be particularly susceptible to extinction—if you wipe out a breeding ground or spawning subpopulation, the stock may never rebuild.”[15]

There is ample evidence which demonstrates that New York’s spawning subpopulations of winter flounder are probably experiencing such localized distress.

In 1937 and again during the 1960s, John C. Poole of the DEC conducted flounder tagging in New York’s Great South Bay. Removal rates were calculated at 44% and 27%, respectively, both of which exceed the overfishing threshold as it is currently calculated, suggesting that the local population or populations in Great South Bay have been overfished for an extended period of time).[16]

More recently, in the course of research, conducted by Dr. Michael Frisk of Stony Brook University, on flounder in Shinnecock Bay, he found fish so scarce that it took more than 200 trawl samples, made at random locations throughout the bay, before a single flounder was caught. Eventually just fourteen flounder were captured in the sampling program. Other experiments conducted in Shinnecock Bay indicated that young of the year survival was very low, with only about one out of every five hundred individuals (or 0.2%) surviving well into the autumn of their first year.[17] Such a low level of abundance, coupled with a dismal recruitment rate, suggests that current management measures are grossly inadequate to prevent winter flounder from being extirpated from Shinnecock Bay, and very possibly other state waters, and argues forcefully for a complete prohibition on harvest.

As late as 1987, New York’s annual recreational landings of winter flounder approached 5,000,000 fish. In 2007, that figure had dropped to about 15,000; although it improved somewhat, to roughly 60,000, in 2008, the 2008 harvest still represents the second-lowest harvest recorded in the state.[18] Since recreational landings in the winter flounder fishery are “very highly correlated” with the spawning stock biomass,[19] the decline in angling harvest is a sign of real problems. [20] Whatever the cause, there can be little argument that the condition of New York’s local spawning subpopulations is at least as poor as the condition of the SNE/MA stock overall. The same factors that led NMFS to impose a complete moratorium should cause the DEC to follow suit.

IMPOSING A HARVEST MORATORIUM ON THE WINTER FLOUNDER FISHERY WOULD BE CONSISTENT WITH THE POLICY RECENTLY ADOPTED BY THE DEC WITH RESPECT TO HUDSON RIVER SHAD

Unfortunately, winter flounder are not the only troubled fishery being managed by the DEC. The Hudson River stock of American shad is in at least as dire condition. However, in the case of shad, the DEC appears determined to take the action necessary to conserve the stock, and is willing to completely prohibit harvest not only in the Hudson River, but also in the marine waters of the state. CCA NY has strongly endorsed such action.

However, CCA NY also notes that when the need for such closure was questioned, the DEC was quick to defend its proposed action, stating in part

The decision by the state Department of Environmental Conservation to close the fishery was not taken lightly. We have monitored the health of the Hudson River shad stock for more than 30 years and the data collected show a dramatic decline in the health of the stock…It is regrettable that closure of the Hudson River commercial and recreational fisheries for American shad will negatively impact livelihoods and traditions. However, the proposed action also includes benchmarks that will allow those fisheries to reopen if and when the shad population recovers to sustainable levels. Until then, this proposed action is necessary to preserve Hudson River shad so that future generations may have the opportunity to enjoy this valuable natural resource.[21]

Having seen such an admirable philosophy, completely consistent with the fisheries management policies of the State of New York, applied and defended in the case of American shad, CCA NY is at a loss to understand why such a very different approach, as embodied in the seemingly indefensible Proposed Regulations, is being advocated for winter flounder, as the state of winter flounder in the waters of the State of New York is arguably no less dire than the state of American shad in the Hudson River.

CONCLUSION

            CCA NY was established in 1996, and since that time has been steadily engaged in a number of fisheries debates at the state, regional, national and, through ICCAT, international levels. Never in its experience has it encountered a regulatory proposal as indefensible as the Proposed Regulations. Such Proposed Regulations not only run contrary to the facts and to the stated policy of the state, but they also contradict the DEC’s own admissions with respect to the relative efficacy of the Proposed Regulations compared to a complete harvest prohibition, and the DEC’s acknowledged need for fishing mortality to be reduced to the lowest possible level in the shortest period of time.

Although CCA NY recognizes that the issuance of emergency regulations identical in language to the Proposed Regulations strongly suggests that the DEC has reached a final decision on the matter, it hereby requests that agency to reconsider its position. The DEC has an obligation not only to the present users of the resource, but also a duty to persons yet unborn, who should have the opportunity to enjoy the bounty of New York’s waters when those currently enjoying them are gone. By the DEC’s own admission, the Proposed Regulations provide little comfort that will be the case with winter flounder, and that a moratorium will stand a better chance of restoring the SNE/MA stocks. CCA NY asks, then, that such moratorium be instituted.

Thank you for considering our position on this matter.

Sincerely,

Charles A. Witek, III

Charles A. Witek, III

Vice Chair