Regional fisheries managers have decided to wait until August until taking action that could lead to a closure of Virginia’s commercial menhaden fishery, giving Gov. Tim Kaine more time to bring the state into compliance with new catch limits.

The Atlantic States Marine Fisheries Commission, at its May meeting, could have begun the process of finding the state out of compliance with requirements adopted last year that cap commercial menhaden harvests in the Bay at just less than 106,000 metric tons a year, the average of the past five years.

But the state General Assembly, which has the primary responsibility for regulating menhaden, failed to pass any of four bills that would have established such a cap, which must be in place by July 1 to comply with the ASMFC’s requirement.

A law passed last year allows the governor to issue a proclamation regulating the fishery, but it does not allow the governor to act within 30 days of the May 1 opening of the harvest season, or when the General Assembly is in session.

The state’s General Assembly has been in a special session to deal with transportation and budget issues, preventing Kaine from acting. The governor wrote the commission March 31 saying he would “consider instituting a cap at such time as I have legal authority to do so to help protect the menhaden resource and those who benefit from it.”

At its May meeting, Jack Travelstead, head of the Virginia Marine Resources Commission’s Fisheries Division, told the ASMFC Menhaden Management Board that the General Assembly session presented a “historic situation.”

“Hopefully I will have something different to report to you at your August meeting,” he said. August is the menhaden board’s next meeting.

Howard King, director of the Fisheries Service of the Maryland Department of Natural Resources and a member of the menhaden board, said he had been prepared to introduce a motion finding Virginia out of compliance, but instead decided state officials intended to act in “good faith” when given the opportunity. “We still view this as an internal Virginia issue,” King said.

The ASMFC imposed the cap out of concern that Bay menhaden might be suffering from “localized depletion” as a result of fishing pressure, leaving too few fish in the Chesapeake for striped bass and other predators. Before its action, the commission received more than 26,000 comments on the cap—a record-setting number—overwhelmingly urging it to limit or end the menhaden fishery.

Because of the high level of concern, Bill Goldsborough, senior scientist with the Chesapeake Bay Foundation, said he had anticipated the commission would find Virginia out of compliance. But, he added, “it does seem like the civilized thing to do is to let Virginia try to get it done. I have every hope and confidence that Gov. Kaine will do the right thing on menhaden given the opportunity.”

Lawyers have been carefully reading the Virginia law to find such an opportunity. While the legislation had been taken to mean that the governor had to act 30 days prior to the start of the season, officials believe the wording may also allow Kaine to act 30 days after May 1. “It is still open to interpretation,” said Jeff Corbin, Virginia assistant secretary of natural resources.

“The governor is very interested in taking action on this,” Corbin added. But he cautioned that Kaine may not necessarily endorse the ASMFC cap, and could offer a alternate measure, such as different catch limit. “The governor is very interested in looking not only at what ASMFC has handed down, but also the best available science,” Corbin said.

He also said the governor may act on his own if the General Assembly is still in session July 1. “I think the rules change once you become out of compliance,” he said.

Under a 1994 law, if ASMFC finds a state out of compliance with its fishery management plans, the commission can request the U.S. Secretary of Commerce to impose a moratorium on the state, closing the fishery altogether.

Last year’s action by the ASMFC, an agency made of state and federal fisheries managers, decided to cap the harvest at the average catch from 2000–2004 for five years as a precaution while scientists conduct studies of the Bay’s population, which has had low numbers of small menhaden for more than a decade. The cap does not affect menhaden catches outside the Chesapeake

While many recreational fishermen have blamed the menhaden fishing fleet in Reedville, VA, operated by Omega Protein, for the lack of small fish, many scientists are unsure of the reason for the decline. They say other factors, such as climate, may be limiting production of young menhaden, or that the Chesapeake’s increased abundance of hungry striped bass may be taking too large a bite out of the population.

Measured by weight, menhaden are the largest commercial catch in the Bay. They are used for a variety of purposes, from animal feed to nutritional supplements for humans.