Winter Flounder for NY State Endangered Species Act

October 16, 2008

Wally John, Projects Coordinator
Executive Department
New York State Department of Environmental Conservation
625 Broadway, 5th Floor
Albany, NY  12233

Dear Mr. John:

Coastal Conservation Association New York (“CCA NY”) has been an active advocate for the restoration and conservation of the state’s marine resources since its inception in 1996.  Over that time, CCA NY has watched, with increasing concern, the precipitous decline of New York’s winter flounder population.  That collapse has now reached crisis levels, with the most recent Groundfish Assessment Review Meeting (“GARM III”) reaching the conclusions that the Southern New England/Mid-Atlantic (“SNEMA”) stock of winter flounder, to which New York’s inshore populations belong, is not only overfished and subject to continued overfishing, but has declined to just 9% of sustainable levels, and has only a 1% chance of being restored to sustainable levels by the 2014 rebuilding deadline.

In February of this year, based on what was then the best scientific information available, CCA NY wrote to Commissioner Peter Grannis of the Department of Environmental Conservation (the “DEC”), recommending that the DEC take all necessary steps, up to and including a complete closure of New York’s winter flounder fishery, to begin the restoration of New York’s local spawning subpopulations of winter flounder.  To date, CCA NY is unaware of any action having been taken on that request.  However, in view of the GARM III findings and some of the preliminary information developed by researchers headed by Dr. Michael Frisk, Associate Professor at Stony Brook University’s School of Marine and Atmospheric Sciences, CCA NY has determined that it is appropriate to both renew its February request and to ask the DEC to consider listing the winter flounder under Section 11-0535 of the Environmental Conservation Law (“Section 11-0535”).
            To fully understand why such a listing is justified, one must first examine some of the peculiarities of winter flounder management, as well as aspects of the species’ life history which make it particularly vulnerable.

BIOLOGY AND CURRENT MANAGEMENT

The overall winter flounder population is divided into three stocks for management purposes, with the Georges Bank stock being managed solely by the New England Fishery Management Council (“NEFMC”), and the Gulf of Maine and SNEMA stocks being managed jointly by NEFMC and the Atlantic States Marine Fisheries Commission (“ASMFC”).   However, such division is made primarily for management convenience, due to a lack of available data on a finer scale.   In fact, the spawning stock structure of the SNEMA stock is much more complicated.  “Numerous genetically identifiable stocks of winter flounder may exist.”   Each such “stocklet” may be subject to localized overfishing, or to local habitat degradation that, while not obvious, causes the stocklet to decline over time.   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.”

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.  Perhaps such overfishing also offers an explanation as to why flounder in Great South Bay have historically been smaller than those found in other state waters, including Peconic, Moriches or Shinnecock bays.  However, the size difference could also be attributed to genetic or environmental factors unique to the Great South Bay subpopulation(s).

More recently, in the course of Dr. Frisk’s research 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.   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 argues forcefully for the application of Section 11-0535, as will be further discussed below.

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.   Since recreational landings in the winter flounder fishery are “very highly correlated” with the spawning stock biomass, the decline in angling harvest is a sign of real problems.   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 SNEMA stock overall. 

APPLICABILITY OF SECTION 11-0535 TO WINTER FLOUNDER
           
Section 11-0535 establishes three categories of depleted species, “endangered”, “threatened” and “species of special concern”.  In practice, and leaving Federal designations aside, “endangered” species “are native species in imminent danger of extirpation or extinction in New York”, “threatened” species “are native species likely to become an endangered species within the foreseeable future in New York” and “species of special concern are species of fish and wildlife found by the [DEC] to be at risk of becoming threatened in New York.”   For purposes of the law, the term “species” has been expanded from its customary meaning, to include “any species or subspecies of fish or wildlife and any distinct population segment of any such species which interbreed when mature.”

Given those definitions, it is clear that New York’s locally spawning subpopulations of winter flounder, when taken as a whole, do not qualify for an “endangered” listing, as there is no indication that the species is in “imminent” danger of extirpation from all of the waters of the state.  Whether the species may qualify as “threatened” is a closer question.  Stock-wide, biomass has dropped from an estimated 14,714 metric tons in 1983 to 2,098 in 2005 and 3,368 in 2007.   Recruitment in 2006 reached an all-time low, and while it improved to 8.8 million fish in 2007, remained far below the 1981-1988 mean of 35.2 million age-1 juveniles.   It has been noted that “current biomass is extremely low and could remain so until recruitment improves.”

If one used changes in New York’s recreational harvest as a proxy for trends in the state’s winter flounder population, as Correia suggests is appropriate, or if one refers to the abundance and recruitment levels suggested by Frisk’s work in Shinnecock Bay, it would appear that the abundance level of New York’s spawning subpopulations is no better than that of the SNEMA stock as a whole.  Given that trend, combined with the regulators’ continuing failure to end chronic overfishing and the low recruitment levels suggested by Frisk’s work, it would not be unreasonable to conclude that winter flounder are “likely to become an endangered species within the foreseeable future in New York.”  However, even if one finds that, when viewed on an aggregate basis, New York’s winter flounder do not yet qualify for a threatened listing, the overwhelming weight of the information available makes it clear that they are at risk of declining to “threatened” levels.  Thus, at minimum, a designation as a “species of special concern” is clearly justified.

Yet, the analysis cannot stop there.  Even if, based on winter flounder’s relative abundance in one or more localities, it is decided that a “threatened” designation is not justified for the overall population of winter flounder in New York, such designation may still be appropriate for a “distinct population segment”.  Since such segment must be one which “interbreeds when mature”, given the current state of knowledge regarding the winter flounder, it is reasonable to designate each locally spawning subpopulation as a “distinct population segment.”

Unfortunately, such spawning subpopulations have never been adequately defined.  No one knows, for example, whether one or more than one such subpopulation exists in Great South Bay.  However, given the results of studies such as that made off Millstone Point in Connecticut, it should be safe to assume that the spawning range of any subpopulation does not extend beyond a single bay complex (and, perhaps, to assume that, even if a single bay complex hosted more than one spawning population, the biological, environmental and harvest conditions encountered by such adjacent subpopulations would be sufficiently similar to allow them to be treated as a single unit for purposes of Section 11-0535 analysis.)

Taking such approach, one could examine Shinnecock Bay, for example, and use the apparent recruitment rate of 0.2%, coupled with the fact that Frisk’s sampling could only turn up 14 individuals, to determine that the “distinct population segment” made up of the local spawning population or populations in the bay was “threatened”, or even “endangered”, even though the condition of New York’s winter flounder population as a whole might justify a lesser classification.  In fact, given the clear language of the statute and the regulations which interpret it, the application of Section 11-0535 to local spawning subpopulations is probably the only way that subpopulations teetering close to extirpation could be adequately protected.  If the aggregate population of winter flounder in New York waters were given a single classification, the existence of one or two less severely depleted subpopulations might well militate against a listing more restrictive than “species of special concern”, a result which would in all likelihood lead to the eventual loss of some local subpopulations.  It is precisely that problem which so concerned Correia during the discussions leading up to the current amendment to ASMFC’s winter flounder management plan, where he called the local overfishing problem “particularly dangerous”.

ADDRESSING THE OBJECTIONS

            Any attempt to list winter flounder under Section 11-0535 (or any attempt to impose additional restrictions on the recreational and/or commercial winter flounder fisheries) will face the objections of fishing industry members who are more concerned with their short-term profits than with the long-term health of New York’s subpopulations of flounder.  Such objections will, for the most part, take a number of predictable forms.
            The most frequent objection will probably be that increased predation, and not fishing pressure, is responsible for the decline in New York’s winter flounder subpopulations.  While there is no question that both fishing mortality and natural mortality combine to remove winter flounder populations from the population, and predation seems to play a significant role in keeping the recruitment rate low in Shinnecock Bay, the cause of mortality is irrelevant to the question of whether a species should be listed under Section 11-0535.  If a species is at imminent risk of being extirpated from the waters of the State of New York, it is by definition “endangered”, regardless of the factor or factors that placed it in jeopardy.  Similarly, if a species is not yet endangered, but at risk of becoming so, it is “threatened”, for whatever reason that its status is expected to decline.  Section 11-0535 is not about placing blame, it is about remediation.  The cause of the decline is relevant only to the recovery plan, not to the original listing.  However, it is worth noting that, if natural mortality does increase, it will render a stock less productive, with a lower attainable biomass and, as a result, permissible harvests must be reduced accordingly.  Whether natural mortality or fishing mortality (or environmental factors) is the primary cause of the winter flounder’s decline, reducing or eliminating harvest must be part of any successful rebuilding effort.
            Others will make the argument that habitat change, whether in the form of global warming and its follow-on effects or the form of shoreline development and/or pollution, has so altered New York’s waters that flounder can no longer live there, at least in the numbers that once teemed along the state’ shores.  Some casually throw out the term “regime change” to describe the flounder’s decline, without taking the time to explain precisely how such decline falls within the technical definition of the term, or what hard evidence exists to demonstrate that such regime change has taken place.  In the end, such arguments offer no rational opposition to a listing under Section 11-0535 for, as listed above, it is the fact of a species’ decline, and not the cause, that is relevant to the question of whether a species qualifies for protection.  If anything, those who argue that New York’s waters are no longer able to support a significant winter flounder population , or perhaps can no longer support any population at all, are making a case for, rather than against, a listing under Section 11-0535.
            Finally, there are those who will point to times and places where winter flounder still appear to be abundant.  The April fishery in Raritan Bay and its environs is probably the best winter flounder fishery extant anywhere within the range of the SNEMA stock.  Anecdotal evidence suggests that such fishery is just a shadow of what it was a decade or more ago.  However, even if it were still as robust as it once was, the fact of local abundance does not remove the need for the State of New York to protect the discrete local spawning subpopulations elsewhere, which are clearly in a state of deep decline.  Others may point to the relative abundance of winter flounder around South Shore inlets in late May.  However, such fish represent the entire population of the relevant bay, staging just inside the inlet prior to their summer movement into cooler ocean waters.  It would be more appropriate to recall that, when the population was healthy, anglers could find fish throughout the bay beginning no later than early March, and they didn’t have to wait until every fish in the bay was bunched onto an acre or two of bottom before angling became productive.

CONCLUSION

New York’s locally-spawning subpopulations of winter flounder are in serious trouble.  Like the overall SNEMA stock, they are at very low levels of abundance, and rebuilding is going to take a very long time, even if every possible protection is put in place.  Some subpopulations, such as that in Shinnecock Bay, may be at imminent risk of extirpation.  Thus, the DEC has an obligation to consider the winter flounder, and each locally-spawning subpopulation thereof, for listing under Section 11-0535, and to mandate the appropriate protections once the listing process has been completed.

Thank you for considering our views on this matter.

Sincerely,

Charles A. Witek, III
State Chair