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Commercial Fisheries News
Volume 36 Number 7
March 2009
NMFS revises scallop/turtle BiOp; makes it ‘reasonable and prudent’
GLOUCESTER, MA – Agreeing that its original mandate would have caused more than a “minor change” to the scallop fishery in the Mid-Atlantic, the National Marine Fisheries Service (NMFS) has revised its March 2008 biological opinion (BiOp) regarding the fishery’s impact on sea turtles.
The revision will give the New England Fishery Management Council more latitude in determining how to reduce turtle takes without completely altering the fishery’s operation and structure.
The initial version of the BiOp contained a “reasonable and prudent measure” (RPM) that would have forced huge reductions in fishing effort throughout the Mid-Atlantic during periods when turtles were present.
The “term and condition” (TC) for implementing the original RPM specified that “no later than the 2010 scallop fishing year,” NMFS would have to limit the total number of open-area days-at-sea and the total number of access-area trips to:
50% of the number used from June through October during the 2004-2007 fishing years; or
70% of the number used from May through November during the 2004-2007 fishing years.
During its November meeting, the New England council strongly objected to this drastic requirement after learning from its scallop plan development team (PDT) that the limited-access fleet would not be able to receive an allocation of even one Mid-Atlantic access-area trip under either alternative.
According to the PDT, vessels would not be able to make even a single 10-day open-area trip under the June-October option either.
As a result, the council voted to relay to NMFS that the first term and condition in the biological opinion was not reasonable and prudent because “it would result in 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.”
The council voted to ask NMFS to revise the RPM and TC and passed along specific recommendations for doing so. (See CFN February 2009 for complete details on the BiOp, its purpose, and the council’s response.)
New language
On Feb. 5, NMFS announced that it agreed with the council’s conclusion and had revised the BiOp accordingly.
“I have reviewed the council’s recommendation in light of the regulatory and statutory requirements (and) have determined that implementation of the March 2008 RPM and term and condition would cause more than a minor change to the scallop fishery and are not reasonable and prudent,” said NMFS Northeast Regional Administrator Pat Kurkul in a letter to the council.
Kurkul said NMFS had revised the RPM and TC in ways that were “similar but not identical” to the council’s recommendations.
The new RPM is more generic and simply states that fishing effort by limited-access scallopers must be limited “during the time of year when sea turtle distribution overlaps with scallop fishing activity.”
The revised TC also is far more flexible, stating that “no later than the 2010 scallop fishing year,” NMFS must limit “the amount of allocated limited-access scallop fishing effort that can be used” throughout the Mid-Atlantic “during the periods in which turtle takes have occurred.”
Those restrictions, added NMFS, “shall be limited to a level that will not result in more than a minor impact on the fishery.”
The RMP and term and condition no longer contain specific months or effort reduction percentages, which came as a great relief to industry.
Positive step
Industry members, frustrated by the fact that their fishery has been subject to five BiOps in the past five years even though they have gone to extreme lengths to reduce turtle takes, were nonetheless pleased with the March 2008 RPM revision.
Industry leaders called it “a step in the right direction” and applauded NMFS for making the change, recognizing that the agency faces enormous pressure from environmental groups.
Still, industry representatives had serious concerns that the BiOp did not take into account the fact that scallopers, through the mandatory use of turtle chains during peak turtle months, already had met the legal standard of the law, which is to “minimize the impact” of takes.
The chain mats, which cover the dredge opening, prevent turtles from entering the dredge bag, where the worst injuries used to occur. Given this significant reduction in injury and mortality, scallopers said they continued to believe that time/area closures and/or reduced effort in the Mid-Atlantic are not necessary in the name of turtle protection.
Gib Brogan of Oceana questioned whether NMFS had the authority “to make changes to a standing BiOp” and said his organization would send a letter asking NMFS to explain this point.
The New England council intends to include new management measures in Framework 21 to the federal scallop plan to address the revised RPM and TC. The framework is scheduled for implementation on March 1, 2010.
Janice M. Plante
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