Virginia will not face penalties for failing to formally adopt new catch limits on Atlantic menhaden — as long as harvests stay within limits established by East Coast fishery managers.While no one disputes that menhaden are ecologically important, scientists have struggled for years to determine whether harvests are adversely affecting other species. (Dave Harp)

The decision by the Atlantic States Marine Fisheries Commission in February headed off a potential legal showdown as to whether it had scientific justification for slashing the commercial menhaden harvest in the Bay in 2017, even as it raised catch limits along most of the coast.

Since then, the Virginia General Assembly has twice failed to adopt the commission’s mandated annual Bay cap of 51,000 metric tons.

Failure to adopt the limit put the state out of compliance with the commission’s regulations. As a result, the ASMFC could ask the U.S. Department of Commerce to impose a moratorium on all menhaden harvests in Virginia. Twice last year the ASMFC considered, but delayed, such an action.

Steven Bowman, who heads the Virginia Marine Resources Commission, said his agency monitored 2018 harvests both through catch records and aerial surveillance and would continue to do so. “The cap was not exceeded,” he said. “It did not come close to being exceeded.”

“It has been a difficult situation,” Bowman added. “We believe we have done our best as far as doing what is the intent of the [ASMFC].”

Robert Boyles of the South Carolina Department of Natural Resources made the motion to indefinitely postpone action. Boyles said the ASMFC was on shaky legal ground to act against Virginia because harvests in state waters were still less than the commission’s recommendations. “It is important to note that the law doesn’t support a noncompliance finding here,” he said. “That is the hard and fast fact.”

But, Boyles noted, “if the cap had been exceeded, I would have a much different take on the status of this issue.”

The commission voted 17–1 to hold off any action unless the cap is exceeded.

It was the latest chapter in the long-running dispute over how to manage menhaden, a small, oily fish that few people eat but is an important food for many fish, birds and marine mammals.

Conservation groups and recreational anglers have long contended that Omega Protein, which operates a fishing fleet out of Reedville, VA, harvests too many menhaden from the Bay, leaving too few for striped bass, osprey and other predators.

Omega — which turns menhaden into fish oil, animal feed and other products — catches about 75 percent of the menhaden harvested along the East Coast, with the rest being captured by smaller operations that sell the fish for bait.

Worried that Omega’s fleet was taking too many fish out of the Bay, the ASMFC first took action in 2006, capping the company’s Bay harvests at 109,020 metric tons, an average of the previous five years of catches from the Chesapeake. The commission lowered that cap to 87,216 metric tons in 2013, when it reduced all harvests by 20 percent.

It further cut the cap to 51,000 metric tons last year — a move Omega strongly opposed — even though catches along the coast were increased in response to a new stock assessment showing a healthy menhaden population.

Ben Landry, a spokesman for Omega, said the company’s 2018 Bay harvest was around 35,000 metric tons, well below the cap and about a third of what it averaged when the original cap was established. He said the company’s boat captains prefer to fish off the Virginia coast where menhaden are generally larger and can be caught with less effort than in the Bay.

But Omega has opposed efforts to further curtail catches in the Chesapeake, saying such action lacks a scientific basis and would limit the company’s options if conditions change. Landry said the commission’s decision “signals their acknowledgement that the basis for the reduced Bay cap was not going to meet federal standards.”

At its meeting last August, an attorney from the National Marine Fisheries Service warned the ASMFC that the Commerce Department might not uphold action against Virginia if the commission did not have an adequate scientific basis for the Bay cap.

Conservation groups were disappointed to see action delayed. “It’s good that the board maintained the importance of the Chesapeake Bay cap,” said Chris Moore, regional ecosystem scientist for the Chesapeake Bay Foundation. “It’s unfortunate that we continue to be in this situation where Virginia is not fully in compliance with a plan that was overwhelming adopted.”

Recreational fishermen and conservation groups contend that the 2017 assessment, which found the menhaden stock to be in good shape, was based on the status of the entire coastal stock and was not specific to the Bay.

“I think there are a lot of ecological signals pointing to a problem in the Bay,” said Kate Wilke, director of The Nature Conservancy’s Mid-Atlantic Marine Program.

Conservation groups have long argued that the Bay is an important nursery area for many species that depend on menhaden and that these species may suffer if fishing causes “localized depletion” of menhaden.

While no one disputes that menhaden are ecologically important, scientists have struggled for years to determine whether harvests in the Bay are adversely affecting other species.

A review of scientific research about the menhaden’s role in the Bay ecosystem prepared by ASMFC staff for the February meeting didn’t draw any firm conclusions on the issue.

It said demand for “forage” species, such as menhaden, has increased in recent decades in the Bay with a rise in the number of fish and bird predators; menhaden can make up a significant portion of their diets, especially when menhaden are abundant.

In some cases, it said, the low abundance of menhaden might be linked to adverse impacts on some species. But the review also cautioned that the Bay food web is impacted by many factors and “parsing out the importance of menhaden abundance alone is difficult.”

Some help could be on its way, as the ASMFC’s technical advisers have been working to better account for the menhaden’s ecological role.Their findings are expected late this year. Still, that effort is looking at the coastwide stock, and it’s unclear the extent to which it will help to address Bay-specific concerns.

Andrew Shiels of the Pennsylvania Fish and Boat Commission cast the lone vote against the ASMFC’s recent decision. Shiels said he would like more assurance that new information will be available regarding the Chesapeake.

“What brought us here today is what is going on in the Bay,” Shiels said. “That may be more important than the coastwide analysis.”