Menhaden are an important food source for finfish in the Chesapeake Bay, including striped bass. (Dave Harp)

Note: This article was updated on Nov. 1, 2019, to include more information about the commission's vote and its possible consequences. 

Harvests of Atlantic menhaden in Virginia waters risk being shut down after a fishing fleet based in the state netted more of the commercially and ecologically important fish from the Chesapeake Bay than allowed.

The Atlantic States Marine Fisheries Commission voted unanimously Thursday to find Virginia out of compliance for not enforcing a cap set on menhaden catches in the Bay. The action comes a month after a fishing fleet based in Reedville, VA, that harvests menhaden for Omega Protein exceeded the commission’s 51,000 metric ton limit on annual harvest from the Bay.

The congressionally authorized commission — which regulates migratory fishing in waters along the East Coast and in the Bay — will notify the U.S. Secretary of Commerce of its finding. Secretary Wilbur Ross then has 30 days to decide whether to uphold the panel’s decision. If he does, Virginia faces a federal moratorium on fishing for or possession of menhaden in the state’s waters.

About three quarters of the menhaden harvested along the East Coast are caught by the Reedville fleet. Omega has a processing plant there that “reduces” the fish into animal feed and nutritional supplements. The rest of the menhaden caught coastwide go for bait or other uses.

But the small oily fish are also a food source for other fish, including striped bass. Worried that the company was taking too many menhaden from the Bay, the Atlantic States commission, for the benefit of other species, has capped the Chesapeake harvest since 2006.

The Canada-based company has been at odds with the commission for years over coastwide menhaden harvest limits. But tensions escalated in 2017, when the interstate fishery management body slashed the allowable catch in the Bay from 87,216 metric tons to 51,000 metric tons a year — the average catch in the Chesapeake since 2010.

Virginia has technically been out of compliance for the last two years because it failed to adopt the 51,000-ton cap set by the commission. Omega has successfully lobbied the state’s General Assembly not to lower the catch limit. Yet the commission has withheld enforcement action until now, because the actual harvest had not exceeded the cap.

Omega announced in September, though, that it would exceed the limit for the first time, and it has since reported landing 67,000 metric tons of menhaden from the Bay for the year. The company said it was driven to do so by unsafe fishing conditions along the Atlantic Coast and an abundance of menhaden in the Bay. But it also challenged the basis for the catch limit.

“The Bay cap has never been scientifically justified as necessary for menhaden conservation,” the company said in a statement. “To this day,” it added later, “there remains no study indicating localized depletion of menhaden is occurring in the Bay.”

Indeed, a scientific review in 2017 found the entire East Coast menhaden stock was not overfished, and the commission increased the allowable catch in coastal waters. But it reduced the Bay catch at the urging of conservationists and recreational anglers, who argued that caution was needed because the fish play an important ecological role in the estuary.

Before voting to find Virginia out of compliance, commission members said that while there’s been no study confirming the depletion of menhaden in the Bay, there have been credible studies showing linkages between the abundance of menhaden in the Chesapeake and of fish that feed on them, such as striped bass.

The Atlantic States commission’s technical advisers have been working on guidelines for managing menhaden’s ecological role as a forage fish for other species. When finished, that analysis is expected to lead to changes in harvest rules, but for now commission members say they must maintain the current limit as a precaution. 

Steven G. Bowman, Virginia’s marine resources commissioner and a member of the Atlantic States commission, voted to find his state out of compliance.

“We believe in the ASMFC process and that the menhaden quota is based on precautionary management that is critical for a healthy fishery and a healthy Chesapeake Bay,” he said in a statement issued after the vote.

“If the Administration [of Gov. Ralph Northam] had its way, we would not be here today,” Bowman added. “But here we are, and the ASMFC took the correct action.” 

If Commerce Secretary Ross accepts the commission finding, he can impose a moratorium, but the law allows him to withhold its effective date for up to six months. Commission members said they hoped that Ross would delay the ban long enough to give Virginia lawmakers a chance to adopt the menhaden harvest limit and come into compliance. To make up for exceeding the cap this year, the state would have to accept a reduction in its allowable Bay catch next year by about 16,000 metric tons.

But some worry that Ross won’t go along with the commission’s finding. Chip Lynch, a lawyer with the National Oceanic and Atmospheric Administration, a branch of the Commerce Department, pointed out to commission members Thursday the “novelty” of the secretary being asked to find noncompliance in a fishery where overfishing is not deemed to be occurring.

Two years ago, in a break with longstanding tradition, Ross let New Jersey reject harvest limits on summer flounder that had been accepted by all other East Coast fishery managers with the aim of halting a seven-year decline in that population. It was the first time in decades that the commerce secretary had sided with a state appealing a commission finding of noncompliance.

The dispute with New Jersey was a technical one, in which the state objected to increasing the minimum catchable size of summer flounder. State officials contended that more fish would die from being thrown back than would be spared by the restriction. While commission experts disputed that, Ross found New Jersey made a compelling argument and sided with it.

Others say the Virginia case is different.

“The linkages between forage fish and predator fish in the Chesapeake Bay have been well established,” said Chris Moore, senior regional ecosystem scientist for the Chesapeake Bay Foundation, which issued a statement supporting the commission action. “The whole reason for this cap was to ensure these linkages remain healthy.”

Still, Moore said it was clear the commission hopes to avoid imposing a menhaden moratorium in Virginia, which would hurt not just Omega but other fishermen who catch the fish to sell for bait.

“What a lot of people had wanted to see is Virginia come into compliance,’’ Moore said.