Council Wrestles with GOM Monuments

by Laurie Schreiber

NEWPORT, R.I.—Members of the New England Fishery Management Council (NEFMC) said they weren’t happy NEFMC was pitched out of the process of managing fisheries and habitat in the Northeast Canyons and Seamounts Marine National Monument, a protected area designated by President Obama in September and the first of its kind in the Atlantic Ocean.

NEFMC never took a formal position on any of the marine monument proposals that were put forward over the past year for the region. But NEFMC was a signatory to the position developed last spring by the Council Coordination Committee (CCC), a body that pulls together the leadership teams of the nation’s eight regional fishery management councils. According to NEFMC information, the CCC, in a late-June letter to President Obama, requested that, in the event of a marine monument designation, the councils be allowed to continue managing fishing and habitat related activities under the Magnuson-Stevens Fishery Conservation and Management Act (MSA).

“In this downeast area, the lobster fishery is the primary economic driver for Hancock and Washington counties, roughly one-third of Maine’s coastline.” – Terry Stockwell, NEFMC Chairman. Fishermen's Voice photo

As it turned out, the declaration announced that commercial fishing will be prohibited within the monument. Lobster and deep-sea red crab fishermen have seven years to phase out fishing activities and exit the area. Other impacted fishermen, such as whiting and squid harvesters, have 60 days to transition out. Recreational fishing will be allowed.

The declaration prohibits other activities, including those involving oil and gas; poisons, electrical charges, and explosives in the collection or harvest of a monument resource; introduced species; removal or disturbance of living or nonliving monument resources; drilling, anchoring, dredging, or otherwise altering submerged lands; and constructing, placing, or abandoning structure, material, or other matter.

Allowed are some types of research and scientific exploration, educational activities, recreational fishing, other activities that don’t impact monument resources, such as sailing or whale watching, placement of scientific instruments, construction and maintenance of submarine cables, and U.S. Armed Forces activities.

According to the declaration, signed Sept. 15, “Three submarine canyons and, beyond them, four undersea mountains lie in the waters approximately 130 miles southeast of Cape Cod. This area (the canyon and seamount area) includes unique ecological resources that have long been the subject of scientific interest.”

The canyons unit covers approximately 941 square miles. The seamounts unit encompasses 3,972 square miles. “These canyons and seamounts are home to at least 54 species of deep-sea corals, which live at depths of at least 3,900 meters below the sea surface. The corals, together with other structure-forming fauna such as sponges and anemones, create a foundation for vibrant deep-sea ecosystems, providing food, spawning habitat, and shelter for an array of fish and invertebrate species. These habitats are extremely sensitive to disturbance from extractive activities.”

The monument is to be managed by the Secretaries of Commerce, through the National Oceanic and Atmospheric Administration (NOAA), and Interior, through the U.S. Fish and Wildlife Service (FWS). The declaration requires the secretaries to prepare a joint management plan within three years of the date of the proclamation.

To that end, John Bullard, the northeast regional administrator for NOAA’s Greater Atlantic Regional Fisheries Office’s (GARFO), asked NEFMC if it wanted to start the management amendment, with GARFO’s assistance. If NEFMC chose not to, GARFO would undertake a secretarial amendment, in consultation with NEFMC and with the Mid-Atlantic Fishery Management Council (MAFMC), he said.

“If you choose not to undertake an amendment yourself, then we’ll get right to work on a secretarial amendment and not waste any time,” Bullard said. “Doing a secretarial amendment takes 18 months to two years. And during that, if there are people who are out there fishing who shouldn’t be—from an enforcement standpoint this is not a familiar situation, so we’d like to get everyone under something that we’re all familiar with, which is the Magnuson Act.”

Bullard noted that, usually NEFMC determines the parameters of its amendments. In this case, he said, “the parameters have been determined by the president. So what it means is you do a lot more work, but there’s not really much that you get to decide. So we’re willing to do the work. We’ll still consult with you on the process. That might be the most expeditious way to go forward.”

NEFMC declined to undertake the amendment. Instead, NEFMC member Terry Stockwell moved that NEFMC send a letter to Bullard indicting it doesn’t intend to develop management plan amendments to implement fishing restrictions associated with the monument.

“This motion speaks for itself,” said Stockwell. “This presidential action was not developed or supported by the full council. It’s my belief that the responsibility of developing a management plan should be the sole responsibility of NOAA Fisheries.”

David Pierce, Director, MA DMF, asked if there was a way to better understand the value of the fishery in those particular areas. Fishermen's Voice photo

Speaking in support of the motion, NEFMC member David Pierce said, “I’ve always opposed the designation….It would be a waste of council time and resources if we were to amend all of the approved fishery management plans to reflect the action of the president, to enact fishing restrictions in a national monument that we had no part in developing. Very inappropriate. Plus, if we were to do it and ended up with an omnibus amendment, there’s no way I would want to go to public hearing with that document. It would be very distasteful. Finally, I suspect we’re going to wait and see what the Trump administration will do. In light of what was said in the election process, it might be that this executive order and others will be removed….There’s no way to predict. I would not want to move forward with [an] omnibus amendment that basically puts this council under a very dark cloud relative to our buying into a national monument designation that we opposed.”

Jeff Kaelin, representing Cape May, N.J.-based Lund’s Fisheries, agreed. Kaelin noted the MAFMC preserved coral areas in its region while still allowed fishing to continue. “I’m extremely disappointed with this proclamation,” he said.

However, Drew Minkiewicz, an attorney who represents Fisheries Survival Fund, said the Magnuson Act empowers secretaries to write their own amendments only in specific instances. He questioned whether this was one of those instances.

“It’s a bit of an artful reading, a bit of a stretch, to say a secretary amendment is authorized in this instance,” Minkiewicz said.

Minkiewicz also asked NEFMC to “keep fighting this unlawful act.”

Long-time fisheries researcher Ron Smolowitz wanted to know more about the status of research activities in the monument area.

Bullard said research is not a prohibited activity. But, he said, “This is new to all of us, so we’re going to have to figure out these things. Research is to be permitted, so what we do between now and three years from now we’ll have to figure out. It’s not our intention to say ‘no research’ for three years. We’re going to have to figure out how to handle this.”

Smolowitz also wanted to know what the status was of marine species that swim through the monument area: Would it be considered a monument resource even when it was outside the monument boundary?

“Let’s say squid, something that’s swimming through and only present in the area a short period of time,” Smolowitz said. “What defines whether that’s a resource of the monument area or not a resource of the monument area?”

Bullard said that question will likely be taken up in the planning process for the monument amendment.

“The proclamation says living marine resources in the monument,” said Gene Martin, Northeast Section chief of NOAA’s Office of General Counsel. “That’s the kind of thing, the nuances we’ll have to clarify in any amendment. I don’t think it’s anybody’s intent to interpret this to mean that when fish are outside the monument it’s still a monument resource that can’t be caught. But that’s the kind of thing we’ll need to clarify.”

Although generally panning the proclamation, or at least the process for defining the monument, NEFMC was still left with considering its implications for NEFMC’s own draft Omnibus Deep-Sea Coral Amendment that’s been in development for the past few years. The monument area overlaps some of the proposals in the coral amendment.

The 4,913-square-mile monument encompasses three deep-sea canyons—Oceanographer, Gilbert, and Lydonia; and four seamounts—Physalia, Bear, Retriever, and Mytilus. Those canyons and seamounts were proposed for additional protection under the coral amendment. The amendment is also expected to cover 15 other deep-sea canyons outside of the monument. Ten are west of Oceanographer Canyon and five are east of Lydonia Canyon; they include seven sites in the Gulf of Maine, including Jordan Basin, Georges Basin, and, closer to the coast, Outer Schoodic Ridge (east) and Mount Desert Rock (west).

NEFMC indicated it’s still gathering information in proposed coral protection areas. That includes species richness and distribution of corals in New England, habitat suitability model descriptions, fishing gear impacts on corals, fisheries potentially affected by restrictions in coral zones, fishery dependent data on revenue and effort information based on vessel trip reports, additional data on the lobster fishery, plus coral conservation metrics such as size, depth, coral presence habitat suitability, and slope by zone.

Stockwell moved that the NEFMC exempt the lobster and crab fisheries from the proposed Outer Schoodic Ridge and Mount Desert Rock coral zones.

“In this downeast area, the lobster fishery is the primary economic driver for Hancock and Washington counties, roughly one-third of Maine’s coastline,” Stockwell said. More than 100 vessels from 15 downeast harbors fish in the two proposed coral areas, he said. The coral areas could potentially impact 400 jobs on the vessels—captains and crews—plus their families, he said. The Maine Department of Marine Resources (DMR) estimates revenue loss greater than $4 million in the areas, he said. That represents at least 50 percent of the income, and sometimes more, for the vessels. Other unintended consequences, he said, would likely be that traps would be displaced from the coral areas into other areas that are already heavily fished and are highly territorial, thus impacting other communities and possibly escalating trap wars that have been going on in recent months.

“So because of this data generated by the DMR, underscoring the economic and social impacts to downeast Maine and hundreds of Maine lobstermen, I urge the council to exempt the lobster and crab fisheries from the Mount Desert Rock and Outer Schoodic Ridge areas,” Stockwell said.

But others said the issues merited further analysis, and rejected the motion.

“This motion is essentially a practicability argument that’s premature,” said Peter Shelly, with the Conservation Law Foundation. “Mr. Stockwell makes a lot of valid practicability points…but there’s no reason to exempt this fishery based on its characteristics.”

Greg Wells, with Pew Charitable Trusts, agreed: “You should be doing the analysis, at a minimum, to help you arrive at an informed decision about whether you’re going to exempt these two gears from the areas.”

Pierce also agreed, and wanted to know if there was a way to better understand the value of the fishery in those particular areas.

NEFMC Executive Director Tom Nies said data limitations likely limit precise estimates for such small areas. “The solution is to ask fishermen, and I’m skeptical they would tell us,” Nies said.

But Stockwell noted the $4 million estimate is indeed based on the DMR’s industry interviews.

NEFMC also considered a motion to remove coral zones from the coral amendment that are now included in the monument area.

That motion failed.

“I supported this motion before, but since then, the political winds have changed. I’ve got information here that you can’t remove the monument, but I see evidence that you can change its boundaries.” – NEFMC member Doug Grout. Fishermen's Voice photo

“I supported this motion before, but since then, the political winds have changed,” said NEFMC member Doug Grout. “A new leader has talked extensively about rescinding executive orders that were made. I’ve got information here that you can’t remove the monument, but I see evidence that you can change its boundaries. With that in mind, what my concern is, given the fact that this council has gone forward in putting together this coral amendment—what happens if the boundary is changed?...Now I’m of a mind, given the knowledge that these boundaries could be changed sometime in the future, that it would be viable for this council to move forward with these measures for consideration without modifying them. Keep them in there. In case those boundaries are changed, we still have coral protection in there. Because the ramification could be that, if they are changed, suddenly we’ve got this big box where there’s no protection.”

According to the draft of the Omnibus Deep-Sea Coral Amendment, deep-sea corals can build reef-like structures or occur as thickets, isolated colonies, or solitary individuals. They’re often significant components of deep-sea ecosystems, providing habitat for diverse organisms, including many economically important fish and invertebrate species.

“All corals are vulnerable to fishing gear impacts, but the degrees of susceptibility and the rates of recovery vary, depending both on coral biology and on spatial overlap between corals and fishing grounds, which influences the likelihood of gear interactions,” the draft says. “In general, coral species richness is greater at deeper depths, but there are concentrations of corals at depths where fishing routinely occurs, for example in the Gulf of Maine.”

According to the draft, the goal is to reduce impacts of fishing gear on deep-sea corals in New England.

Alternatives under consideration include designating “discrete areas” or “broad areas.” Fishing restrictions under consideration for coral zones include prohibiting bottom-tending gears, with possible exemptions for certain fisheries such as lobster and crab; or prohibiting mobile bottom-tending gears.