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Commercial Fisheries News
Volume 36 Number 6
February 2009
Scallop BiOp seeks action to protect turtles
DANVERS, MA – A biological opinion (BiOp) about the Atlantic scallop fishery’s impact on sea turtles has concluded that the fishery “may adversely affect but is not likely to jeopardize the continued existence of turtles.”
This is the fifth time in the past five years that the National Marine Fisheries Service (NMFS) has produced biological opinions for the scallop fishery as required by the Endangered Species Act (ESA). The last four were prompted by new information and extreme pressure from environmental groups. All five have resulted in “no jeopardy” findings.
Nonetheless, scallopers may face additional restrictions in fishing opportunities throughout the Mid-Atlantic during turtle migration periods beginning in 2010 as a result of the opinion, which was released in March 2008.
The situation has both angered and frustrated industry members, who have spent the past eight years diligently working to reduce takes. Most significantly, scallopers participated in extensive at-sea gear trials and then fought for – and won – mandatory implementation of turtle chains during peak Mid-Atlantic turtle migration periods. The chains form a web across the dredge opening to prevent turtles from entering the bag.
As a result, turtle takes in recent years have dropped dramatically.
“We did the research. We got turtle chains. In 2008, we had only two observed takes with scallop dredges,” said gear specialist Ron Smolowitz of the Fisheries Survival Fund. “This indicates that turtle chains are keeping turtles out of dredge bags, greatly decreasing any risk of injury and mortality to the turtles associated with capture and gear handling.”
Many scallopers began using turtle chains on a voluntary basis as early as 2004. Use of the chains became mandatory in the fall of 2006.
Can’t “quantify” chains
However, the BiOp only uses turtle “take” data from 2003 and 2004 because NMFS said the effect of turtle chains could not be “quantified.”
While acknowledging that fewer turtles were indeed being seen on deck, the agency said it simply did not have information to determine whether or not turtles were still interacting with scallop gear either on the bottom or in the water column.
Therefore, based on the pre-turtle chain take estimates for 2003 and 2004, NMFS said in the BiOp that “continued operation of the scallop fishery … may result” in the following interactions between scallopers and sea turtles:
l Scallop dredge gear – A biennial take of up to 929 loggerhead turtles of which up to 595 will be “lethal” takes, a term that includes “serious injuries” as well as death; and
l Scallop trawl gear – An annual take of up to 154 loggerheads of which up to 20 will be “lethal.”
The agency also anticipated one or two takes each of leatherback, Kemp’s ridley, and green sea turtles by each gear type annually.
Measures; terms
In order to “minimize the impacts” of potential incidental turtle takes, NMFS outlined five “reasonable and prudent measures” (RPMs) in the BiOp. Under the ESA, RPMs are “nondiscretionary,” meaning NMFS is required by federal law to abide by them.
Four of the RPMs are intended to enhance research and data collection efforts. But the first RPM – the one that has industry on edge – stipulates that NMFS “must limit the number of open-area scallop days-at-sea and the number of allocated access-area trips that can be used in Mid-Atlantic waters … during the months of June through October or May through November each year.”
The BiOp also contains a list of “terms and conditions” with details about how to implement the reasonable and prudent measures.
“Term and Condition #1,” which applies to the first RPM specifies that “no later than the 2010 scallop fishing year,” NMFS will impose limits so the total number of open-area days-at-sea used and the total access-area trips taken in the Mid-Atlantic “will not exceed” the following:
l June through October – 50% of the number used in the same months during the 2004-2007 scallop fishing year; or
l May through November – 70% of the number used in the same months during the 2004-2007 scallop fishing years.
Request to council
Here’s how the current deliberations began.
Following the release of the BiOp last March, NMFS Northeast Regional Administrator Pat Kurkul wrote a letter on April 9 to the New England Fishery Management Council stating that RPM #1 and its term and condition did not “specify the management measure or mechanism that must be considered to meet the requirement of the biological opinion.”
She then said, “I think it is crucial that the council has the first opportunity to recommend how this should be done.”
Kurkul asked the council to develop any needed measures to meet RPM #1 through Framework 21 to the scallop plan, which is targeted for implementation on March 1, 2010.
This letter triggered a whirlwind of meetings and debate among the council’s scallop committee, plan development team (PDT), industry advisers, NMFS staffers and scientists, and, finally, the full council.
Reasonable and prudent?
The parties involved first tried to address one primary issue: Were the Mid-Atlantic fishing limitations outlined in RPM #1 and Term and Condition #1 “reasonable and prudent?”
Given the “no jeopardy” finding of the BiOp, RPMs “can only include actions that occur within the action area, involve only minor changes to the project, and reduce the level of take associated with project activities … to the extent reasonable and prudent.”
In a subsequent Aug. 1 letter to the council, Kurkul said NMFS determined that if scallopers ended up being allocated “less than one” Mid-Atlantic access-area trip during the targeted turtle months, the agency would consider the measure to constitute “more than a minor change.”
As a result, Kurkul recommended the council conduct an analysis to:
l Determine whether the RPM and Term and Condition #1 were “reasonable and prudent” and, if not, then
l “Identify what revisions are necessary to make it be reasonable and prudent or identify why there is no acceptable revision that would make it meet the standard.”
PDT analysis
By the time the New England council gathered in Danvers for its Nov. 18-20 meeting, there had been numerous developments.
Most significantly, the PDT had run an analysis and discovered that the 325 vessels in the scallop limited-access fleet would not be able to receive an allocation of even one access-area trip during either the June-October or May-November timeframes in the Mid-Atlantic.
As for open-area days, even if each vessel was restricted to making a single 10-day trip in the Mid-Atlantic area, there wouldn’t be enough days to go around to allow all boats to make that one trip during the June-October period.
Industry speaks
Fisheries Survival Fund representative Drew Minkiewicz of the law firm Kelley Drye & Warren told the council that scallopers strongly opposed any proposal that would limit fishing activity in the Mid-Atlantic and shift effort onto lower weight scallops, force people to fish in bad weather outside of the turtle window, and increase dredge bottom time due to fishermen being forced to fish on alternative bottom with lesser concentrations of scallops.
“What we’re really looking for is the council to say ‘no’ to time/area restrictions,” he said. “There’s no need for these time/area restrictions.”
According to Minkiewicz, the council and industry have the law on their side.
Research has shown that turtles are most seriously injured either inside the dredge bag, where they can be crushed by the sheer weight of the scallop catch, or when dumped on deck with the contents of the dredge.
“The legal standard is to minimize the impact of takes,” Minkiewicz said. “By using turtle chains, by reducing the number-one source of mortality (injury inside the dredge), you’ve done it right there.”
Minkiewicz expressed additional frustration over the months of time the council and industry have spent on this issue instead of focusing on other topics of key importance to scallopers.
“This is a fishery that accounts for a very small fraction of the turtle takes, and yet we’ve talked more about the turtle BiOp than another other scallop issue this year,” he said.
Several other fisheries do, in fact, capture turtles, and in mid-January, a coalition of conservation groups announced their intention to sue NMFS over the Gulf of Mexico bottom longline fishery’s take of turtles.
Shifting effort
Vessel owner Dan Cohen of Atlantic Capes Fisheries Inc. in Cape May, NJ urged the council to consider the consequences of moving effort out of the Mid-Atlantic and away from concentrations of large scallops.
“In 1978, 1980, 1989, we used to have 240 days per year and had 20 hours per day of bottom time. Now with rotational management, we have four-to-five hours of bottom time,” he said. In addition, the fleet now spends far fewer days overall on the water.
By using the 2003-2004 turtle take data alone, Cohen argued that the BiOp was merely an old snapshot of the fishery.
“This has ignored the improvements we’ve made since then. That is the concern of industry,” he said.
According to Ron Smolowitz, the real problem is that NMFS hasn’t been able to collect and analyze enough data to “quantify the effectiveness of turtles chains.”
Once the catch-up happens, “They’ll see that injury and mortality associated with takes are way down,” he said.
Smolowitz urged the council to oppose the RPM.
“The way we’ve been managing our fishery is with high catch per unit effort by using rotational access areas. It’s really not reasonable to replace efficient effort with inefficient effort,” he said. “Don’t start switching effort around over a non problem and create new problems elsewhere.”
Gib Brogan of Oceana, however, saw the issue completely differently.
“Oceana supports time/area management to reduce the takes. Reducing interactions with the gear is the way to go on this one,” he said.
Brogan further stated that Oceana thought the called-for actions met the “minor change” standard required as a result of the BiOp finding.
“We believe the RPMs are minor changes. They seem to be relatively minor in relation to the natural changes in this fishery. This is a highly variable fishery,” he said.
Council reacts
After receiving an extensive briefing on the PDT’s analysis of RPM #1 and related background information, the New England council voted decisively to report to NMFS that “the first term and condition in the biological opinion is not reasonable and prudent because it would cause more than a minor change in the fishery in terms of shifts in effort, with adverse impact to yield, fishing mortality, landings, and potential safety at sea in the scallop fishery.”
Next, the council voted to ask NMFS to revise RPM #1 and Term and Condition #1 and instead have the RPM state that “NMFS must limit the amount of allocated scallop fishing effort and/or its impacts on sea turtles that can be used in the area during the time of year when sea turtle distribution overlaps with scallop fishing activity.”
Under the council’s proposed language, NMFS would have more flexibility in deciding how to limit effort instead of being restricted to specific months and days-at-sea and access-area trip cuts. Restrictions still would be implemented in 2010.
The council passed other motions, too, including one calling for an investigation to “quantify” fishing effort reductions – using 2003 as a baseline – in the Mid-Atlantic since the implementation of Amendments 10 and 11.
Gib Brogan expressed deep concern over the council’s recommendations to NMFS.
“This is uncharted territory,” he said. “Changing a BiOp is a significant thing. The justification needs to be clearly laid out.”
As CFN went to press in late January, NMFS had yet to respond to the council’s recommendations.
Janice M. Plante
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