Virginia faces a threatened shutdown of its large commercial fishery for Atlantic menhaden after federal officials found the state had allowed too many of the commercially and ecologically important fish to be taken from the Chesapeake Bay.A statewide moratorium on catching menhaden may be imposed June 17 if Virginia does not by then adopt a 2-year-old cap on Bay harvests of the fish, as set by the Atlantic States Marine Fisheries Commission. (Dave Harp)

In a letter released Thursday, the head of the Commerce Department agency that regulates federally managed fisheries declared Virginia out of compliance with an interstate management plan for menhaden.

As a result, a statewide catch moratorium will be imposed June 17 if Virginia does not by then adopt and enforce a 2-year-old cap on Bay harvests of the fish, wrote Chris Oliver, assistant administrator for fisheries with the National Oceanic and Atmospheric Administration. NOAA is a branch of the Commerce Department.

The rare federal action comes after a fishing fleet working for Omega Protein this year netted more menhaden from the Chesapeake than permitted by the Atlantic States Marine Fisheries Commission. The fleet hauled in 67,000 metric tons, more than 30% above the cap.

Conservation and recreational fishing groups applauded the move. So did Virginia officials, who said they were unable to persuade Omega to abide by the 51,000-metric ton annual limit on Bay menhaden harvests.

“It’s unfortunate that Omega’s actions earlier this year have tarnished the entire commonwealth,” said Chris Moore, senior regional ecosystem scientist with the Chesapeake Bay Foundation.

About three-quarters of all the menhaden harvested along the East Coast are caught by the fleet contracted to Omega. The Canada-based company has a processing plant in Reedville, VA, that “reduces” menhaden into animal feed and nutritional supplements.

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, since 2006, has capped the Chesapeake harvest for the benefit of other species.

Omega has sparred for years with the commission over its coastwide menhaden harvest limits. Tensions increased in November 2017 when the interstate body slashed the allowable catch in the Bay from 87,216 metric tons to the level it is now — which is about what the Chesapeake catch has averaged the last several years.

Virginia has technically been out of compliance for the last two years because it failed to adopt the 51,000 metric ton cap. The state’s General Assembly sets fishing rules for menhaden, and Omega successfully lobbied lawmakers not to lower the catch limit.

The commission didn’t move against Virginia right away, though, because Omega had not exceeded the cap. But in September, the company declared that it would surpass the limit for the first time. It said it was forced to do so by unsafe fishing conditions along the Atlantic coast, but it also challenged the basis for the Bay limit.

“This is the first time that a moratorium has been placed on a fishery that is not overfished and is healthy by every measure,” the company said in a statement expressing its disappointment with the federal decision.

A scientific review in 2017 did find that the coastwide menhaden stock is not overfished, and the commission increased the allowable catch in coastal waters in response. But it reduced the Bay catch at the urging of conservationists and recreational anglers, who urged caution because of the important ecological role the fish play in the estuary.

While there’s no study confirming menhaden are being depleted in the Bay, commission members say research has suggested links between the abundance of menhaden in the Chesapeake and fish that feed on them.

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. 

The commission’s October vote finding Virginia out of compliance was subject to review by U.S. Commerce Secretary Wilbur Ross, who had to decide whether to impose a moratorium and under what terms. NOAA’s Oliver, acting on behalf of Ross, said the harvest ban wouldn’t take effect until June 17, to give Virginia time to come into compliance by adopting the mandated Bay harvest cap.

“Upholding the ASMFC's noncompliance finding for Virginia was simply the right thing to do,” said David Sikorski, executive director of Coastal Conservation Maryland, a sportfishing group. “We applaud Secretary Ross for defending both the management system and the forage base in the Chesapeake Bay.”

Matthew J. Strickler, Virginia’s natural resources secretary, thanked Ross and Oliver for their decision, which he said would “protect the Chesapeake Bay and the livelihoods of all those who depend on it, including the workers at Omega Protein.

“We believe strongly that a science-based approach that accounts for all fisheries in the Chesapeake Bay ecosystem is appropriate,” Strickler added, “and we look forward to working with the General Assembly to apply such an approach to the menhaden fishery."

The Chesapeake Bay Foundation urged the Virginia General Assembly to go beyond simply changing the harvest cap and transfer responsibility for managing menhaden to the Virginia Marine Resources Commission, which regulates all other fisheries in the state.

But if the Assembly fails to do either, the moratorium would affect more than Omega. About 189 Virginia watermen harvest menhaden every year to sell as bait to catch other fish, according to the marine resources commission. They account for about 10% of all menhaden caught in the state.

“It’s a pretty big fishery,” J.C. Hudgins of Mathews, who is president of the Virginia Waterman’s Association.

Hundreds of watermen in Virginia and Maryland also use menhaden as bait to catch crabs, and they could be hurt by a moratorium, as could fishermen in other East Coast states who buy bait fish from Virginia.

Omega, in its statement, said it would work with the Atlantic States Marine Fisheries Commission and Virginia to bring the fishery back into compliance and eventually establish ecosystem-based harvest rules.