Another tipping point has arrived for New England fisheries.

Maybe the science assessment will change, maybe disaster relief will come from Congress, maybe our analysis (click here) of the government data is wrong, maybe cod will change their recent low productivity characteristics. But should fisheries managers bet the inshore fleet and large segments of the recreational fleet on it?

Given the risks of further potential declines of spawning stock biomass below the lowest levels ever observed, we think it would be just plain wrong and irresponsible to dodge this biological crisis and try to push it off to 2013. There aren’t any good choices but there may be choices that are less irreversible or harmful than others.

What is the New England Council thinking?

I was so sad to read that Alexandra Dawson died recently. After working alongside her here at CLF, I’m sure of one thing: she gave whatever illness took her away one hell of a fight. That’s just the kind of person she was.

I was lucky to have worked with Sandra during the formative stages of my legal career. I was a third year night student at Suffolk University Law School in 1977 and had just started volunteering full time at CLF that year. I hadn’t a clue what it meant to be a conservationist as a legal practice but fate landed me for the next two years at the knees of one of the all-time masters in New England: Sandra Dawson.  She came to work every day absolutely on fire with her commitment to the environment,public resources, and the law. I am not alone, either. Sandra influenced the lives of so many lawyers and conservationists that it is barely worth trying to generate a list. The legal services program she designed and directed at CLF from 1972 to 1979 may have been the only one of its kind in the country.  Her legal opinions – whether the topic was wetland protection, the law of public ways, the public trust doctrine, or conservation tax law – were definitive, practical, and clearly written so anyone with an interest could access and work to protect their conservation interests. I can’t imagine how many of the public spaces and wetlands that we take for granted today owe their survival to her fierce and unflinching advocacy.

Although she was surprisingly modest at a personal level, she was a giant as a lawyer. When I saw her last at the celebration of her 80^th birthday organized by the Kestrel Land Trust and MACC, her first action after a smile of recognition and a hug (amazing!) was to grill me on a “just ghastly” municipal development that she was fighting.

Her influence and spirit will continue to live on in me and the thousands of others in New England who she shaped and the people they, in turn, have shaped.  But, at least in my lifetime, there will never be another Sandra Dawson.

Thank you, Alexandra, from the bottom of my heart.

As I wrote in a recent post here on CLF Scoop, I testified before the House Committee on Natural Resources on a topic that I have worked on for years: restoring New England’s fisheries and commercial fish populations. We recently posted that clip to YouTube. You can watch it by clicking on the image below.

You can also download a transcript of my testimony here, or read it here.

Thanks for supporting CLF’s work to rebuild a vibrant New England fishery.

Last Thursday, I testified before the House Committee on Natural Resources on a topic that I have worked on for years: restoring New England’s fisheries and commercial fish populations.

The topic is as important today as it was when I started working on it in 1989, if not more: our fish species continue to face immense pressure with a number of stocks still in terrible condition after a decade of concerted effort and the region’s fishing communities and fishermen continue to face unacceptable levels of business uncertainty and volatility. At the same time, there are some positive signs in the fishing industry that are critical to build on rather than  continuing to focus on the past.

There were not any commercial fishermen on the panel before the Natural Resources Committee, which was a lost opportunity for the panel to hear what’s working and what’s not working for the working fleets.  In any event,  I appreciated the opportunity to voice CLF’s support for rebuilding a vibrant New England fishery.

Below find the full text of my testimony. Or, if you like, you can find a .pdf here.

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Chairman Hastings, and Ranking Member Markey, thank you for inviting me to testify today.

My name is Peter Shelley. I am a senior attorney with New England’s Conservation Law Foundation, the oldest regional conservation advocacy group in the nation. I have worked on federal fishery management issues in New England since 1989.

Next to my computer at work, I have a post-it note with formula on it:

31 billion (dollars more in fish product sales) + 500,000 (new jobs) +

2.2 billion (more dollars flowing to America’s fishermen and their communities).

Those are the results that rebuilt fisheries in this country could produce. Even if the country could only reach half those numbers, rebuilding fisheries would be an important national strategic objective.

Those were the goals Congress had when it overwhelmingly passed the Magnuson Reauthorization Act in the Bush Administration in 2006.

To get to those goals, I believe, Congress needs to do three things:

1. Allow the current law to work and allow the regional councils and the agencies to implement it — it’s only just begun to take effect.
2. Fund the Act so it can work, perhaps on the order of three times the current appropriation for the essential tasks of stock assessments, monitoring, and data collection, and
3. Invest in our working waterfronts and coastal communities so they will be there to benefit from a healthy, restored ocean.

In my view, three of the bills before the Committee today are aligned with those actions. The other five bills, notwithstanding the good intentions of their sponsors, are not.

The Coastal Jobs Creation Act, sponsored by Representatives Pallone and Pingree, is a great piece of legislation with broad public support. The infrastructure and capacity investments the bill identifies are essential to our maritime and fishery future and will be repaid many times over. H.R. 594 should be supported by the Committee.

Rep. Frank’s Asset Forfeiture Fund bill and Rep. Keating’s Strengthen Fisheries bill also have merit.  These two bills are the only ones before the Committee today that make an effort to identify new funding streams for the fisheries science and data collection that is critically needed in the regions. HR 2753 also has merit but no new funding source.

In my opinion, the other four major bills before the Committee, H.R. 1646, 2304, 2772, and 3061, would move this country farther from our common goals, perhaps out of reach.

Without exception, they

–impose new costs and mandates for marginal benefits and without new funding
–create more business uncertainty and volatility for fishermen
–require substantial new regulations and guidelines
–cause more procedural delay in the management process
–mandate that councils take higher risks than they might deem advisable
–and eliminate one of the only market-driven and de-regulatory tools in the management toolbox—the LAPPs.

Finally, by providing the least protection to the weakest fish populations, these four bills actually increase the probabilities of future stock failures and job losses in my opinion.

I think that they could put New England’s groundfisheries right back in the 20-year deep ditch they have just now started to climb out of.

The first New England groundfishing season using a management plan in full compliance with the new Reauthorization Act requirements ended April 2011.

The net profits to the small business boat owners that year are reported to have increased $10.8 million—in a year when quotas were significantly cut, the Council started an entirely new management program, and diesel prices went up 30%.

If the New England Council had not shifted to the “sector” catch share program they now use, the economic estimates were that the fleet might lose 15 million dollars.

As stated in a letter sent to the New England Congressional delegation on Nov. 14, 109 fishing captains –- some of N.E.’s best small business owners in the groundfishery –- want to retain the current catch share program and management program.

By my count, these folks have seen rules changes on average every four months from March 1994 to May 2010. They think that’s enough and I tend to agree with them. They believe they can make the Magnuson Act work and I agree with them there as well.

These four bills do not directly address one of the three specific things those knowledgeable fishermen have asked for in their letter to the delegation.

1) Management stability
2) New opportunities to target rebuilt fish stocks and reduce operations costs
3) Funding to improve and increase frequency of stock assessments to support effective management

Despite the often heated rhetoric, it is clear to me that more New England fishermen are starting to have some hope based on the success of the sectors program. These fishermen now need regulatory stability so they can continue to grow their businesses.

Moreover, there are strong signs that the Magnuson Act Reauthorization is working around the country. Overfishing is finally stopping and many fish stocks are growing, sometimes rapidly.

I am confident that  conditions will continue to improve if the course is continued and not weakened. Decades of overfishing can’t be turned around overnight. Full recovery will take time and patience and there will be some very rough spots ahead. we can get through them without new law and when statutory changes are needed, such as with the Canadian trans-boundary issue last year in New England, precise and surgical changes can be made that minimize the ever present risk of unintended consequences.

In 1976, Congress created a fishery management council system, which is unique in the country and one that many skeptics thought couldn’t work. But the system brings regional and local values and local political accountability to these complex and multi-faceted fishery decisions and management actions and risks get adjusted for local conditions.  In New England, the Council system is starting to work for more and more fisheries and fishermen.

I urge the Committee to continue to trust the council system and the agencies with these tough management decisions without statutory micromanagement. I also urge the Committee to fund the agencies and programs so they can succeed.

Thank you and I look forward to answering your questions.

Yesterday, New England’s groundfishermen—from Rhode Island to Maine and from day boat to trip boat—took back their fishery from the politicians. In a letter addressed to the New England Congressional delegation, more than one hundred boat owners stated clearly that what they need most now is stability, profitability, and flexibility. In one of those moments that have happened too rarely over the past many years, all I can say is  “amen.”

The fishing port of Gloucester (Photo credit: NOAA)

The letter was written in response to politicians’ calls for the dismantling of the sector system for the groundfish fishery, a management system that went into effect in May 2010 and has been lambasted ever since by a small vocal minority of fishermen. While critics of sector management frame the system as if it puts New England’s iconic groundfish fishery in danger of being controlled by only a few colossal corporate boats, the letter reminds the delegation that the entire groundfish fleet in New England is a small business fleet. There are some bigger small businesses and some smaller small businesses, but there is no danger of takeover by factory ships or foreign fleets. The small business owners who signed this letter say that the politicians are putting their well-being at risk by calling for the overturn of the sector system.

These boat owners were likely appreciative of the Massachusetts delegation’s intent in trying to intervene on the industry’s behalf. But in the letter, they demonstrate that they are of one mind that the new sector system is one they can work with, that they want to work with. The outcomes they have been fighting for–stability, profitability, and flexibility–are what groundfish sectors are all about. Almost no one who fished under the old days-at-sea management system wants to return to that failed program.

There are still many groundfish management problems facing the New England Council, and Congress could certainly help resolve them by securing funding to improve fisheries data collection, stock assessments, gear research and development, and to cover the cost of on-board monitors. Senator Kerry has introduced important legislation that may well help support these needed initiatives, and it would be nice to see thoughtful discussion and action on these real needs in Congress.

The message of the unequivocal and unprecedented fishing industry letter sent yesterday is that the problems of the few in the fishery should not be used to paint the management system as fundamentally flawed. With this letter, a diverse group of fishermen publicly defended the sector system and implicitly pushed back strongly against both those who have attempted to repeal it through lawsuits and those Congressional offices that have sought to politicize the fishery. If Washington ends up breaking the regionally-designed sector program by its interventions, then Washington will own the results.  But for these fishermen, New England is on the right course. Again, amen.

The New England coastline has many faces, from the rocky slabs on Schoodic Point in Maine to the cascading sand dunes at the Cape Cod National Seashore. One of the coastal resources with which virtually all New Englanders are familiar, however, is salt marshes. Every coastal New England state is blessed with these resource areas. Some are high marshes that are flooded by salt water only infrequently at maximum high tides; others are low marshes that are flooded on every tidal cycle. These marshes are comprised of a variety of rugged marsh grasses and plants that are adapted to this complex environment, as well as mud flats that form below the lowest grasses and can only be seen at the lowest tides.

We say New England is “blessed” with these resources because marshes have been critical to human activities from the earliest days of human presence in New England. In pre-colonial days, Native Americans hunted on the marshes for birds, clams and fish, and the early European settlers harvested salt marsh grasses for hay and took advantage of tidal cycles to set up fishing traps that caught the then-abundant variety of coastal marine fish. Later settlers discovered that these marsh areas could be diked to create valuable upland farmland, a good thing for the struggling farmers but a significant ecological loss to New England.

A salt marsh in Sandwich, MA. Salt marshes perform a number of critical functions for our environment. (CLF photo)

These salt marshes, you see, perform a number of critical functions in our environment. They are essential habitat for a diverse number of resident and migratory birds and juvenile marine fish; they protect the uplands from ocean storms, reducing storm surges and mitigating the power of ocean waves; and they filter the water running off the land and remove sediments and pollution before that run-off reaches the sea. They are also a fundamental part of our New England landscape, as any review of New England art will reveal.

To make way for agriculture, housing, marine commerce, and major urban centers like Boston, Portsmouth, and Portland, thousands of acres of coastal wetlands were filled. Fairly reliable estimates are that the Gulf of Maine, for example, has lost roughly half of its original inventory of rich salt marshes. With sea level rise a certainty in the coming decades, increasing numbers of people will begin to understand the protective role that these marshes once played.

It is not too late to restore some of this lost natural heritage. CLF and other conservation groups around the country formed Restore America’s Estuaries (RAE) in 1996. RAE’s mission is to restore one million acres of wetlands, and we are well on our way. Each year, CLF places more than $100,000 with municipalities and citizen groups to pay for the costs of wetland restoration.  These projects remove dams and dikes and eliminate tidal restrictions, such as highway culverts, that choke many marsh systems of the salt water tidal flows that they need to survive. Through this work, we are making important strides.

On September 24^th, the nation is celebrating National Estuaries Day. We ask you to celebrate it with us: take a walk in an estuary (and pick up any trash that you see), go to your library and read Life and Death of the Salt Marsh—a natural history classic written by CLF Board member Dr. John Teal – join an Audubon Society in your state, visit CLF’s estuaries website page to learn about CLF’s restoration projects and support our work, teach your children about salt marshes, or just spend a sunrise looking out at the ocean over a marsh. New England is blessed by our salt marshes; take some time on September 24th to discover why.

To learn more about National Estuaries Day, visit the RAE National Estuaries Day website. To learn more about CLF’s work with RAE, click here.

Peter Shelley, CLF senior counsel. Photo credit: Evgenia Eliseeva

Twenty-eight years ago, we at CLF said we were going to take Boston Harbor back from the state polluters for the benefit of the children at the beach, the economic opportunities around a clean harbor and the future of Massachusetts. No one at CLF even suspected that this was to be a $4.5 billion, generational effort, let alone that billions more would be needed to rebuild metropolitan Boston’s water distribution system. Last week, the final major capital project from the original litigation to create that cleaner harbor was completed, producing feelings of great satisfaction as well as nostalgia. It was the light at the end of the tunnel that CLF entered on behalf of our members so long ago. Our supporters have been patient beyond recognition.

It is safe to say that it was worth the wait and the investment. Today, Boston Harbor is swimmable and fishable. Boston now has a world-class water and sewer authority and a new National Park celebrating the Boston Harbor Islands. Billions of dollars were invested in real estate, producing thousands of jobs around the harbor in the process, and Boston Harbor now also has its own watchdog—Save The Harbor/Save The Bay, a group CLF helped form to carry our vigilance forward. While CLF was just the point of the spear that made all this happen, there is no question that we were the point of that spear.

So many of the people who made this a success story are now gone. At the top of that list would have to be Massachusetts Superior Court Justice Paul G. Garrity and Federal Judge A. David Mazzone, neither of whom lived to see the final realization of their judicial efforts. Judge Garrity singlehandedly faced down the Massachusetts Legislature and refused to budge until they released their control of the sewer and water system by creating the Massachusetts Water Resource Authority (MWRA). In the process, he may have issued the only city-wide building ban in Boston history. Judge Mazzone was the harbor cleanup program. He loved this harbor and threw his keen intellect, his brilliant strategic skills and his wonderful sense of humor—not to mention a couple of unbelievably good law clerks—into the challenge that was thrown before his court. Also in that list has to be Sam Hoar, a long time friend of CLF’s who died in 2004. Sam selflessly volunteered himself and some of the best lawyers at Goodwin, Procter & Hoar to help CLF survive the relentless legal briefing of the early days.

Among those who have moved on to other things are Doug Foy, Paul Levy, Doug MacDonald and Dick Fox. Doug Foy is gone only in the sense that he is no longer CEO of CLF. He needs no special introduction to the CLF family. His vision never faltered when he had made up his mind that something had to happen with Boston Harbor. Paul Levy and Doug MacDonald both performed project management miracles to bring one of the biggest and most complicated public works projects in Massachusetts history online both on schedule and on budget.  They, of course, were just the tip of the iceberg of the extraordinary staff at the MWRA. As for Dick Fox, lead engineer for CDM, the project design and construction lead, I’ll never forget the moment in open court when Judge Mazzone leaned his long frame forward, fixed Dick Fox in his eyes and said: “I’m going to hold you to your promises here.” Dick not only didn’t flinch; he responded “I expect you to.” This may have been a court-supervised cleanup, but make no mistake—it was a cleanup that happened because of the personal integrity commitment of lots of folks like Dick Fox.

Great credit also has to be extended to Diane Dumanowski, one of the finest reporters ever at the Boston Globe and one of the best environmental reporters in the country. Her series in the Globe on the collapse of the Metropolitan District Commission sewerage system, backed up by strong editorials from Globe columnist Ian Menzies, was the spark that ignited Doug Foy into action. Finally, no story about the Boston Harbor cleanup would be complete without mentioning Bill Golden, then solicitor for the City of Quincy, whose fateful jog on the feces-strewn Wollaston Beach in 1982 made him mad as hell and got the whole ball rolling.

CLF is not done with Boston Harbor, however. All the tributaries coming into Boston Harbor still suffer from significant pollution discharges from multiple public and private sources. These discharges expose Massachusetts residents to disease, damage the environment, and frustrate new economic opportunities. With the same energy we brought to the battle for Boston Harbor, we are hard at work fighting those upstream pollution sources with a terrific coalition of community groups and partner conservation non-profits. We look forward to similar moments of great accomplishment and satisfaction in the future when we can finally say that this great harbor’s entire watershed has a clean bill of health.

May 17th was a good day for fish and Massachusetts fishermen. In a harsh but eloquent opinion issued on Tuesday, the federal First Circuit Court of Appeals told the U.S. Coast Guard in no uncertain terms that it had failed to meet its responsibilities to fully evaluate the potential environmental impacts of its decision to overrule protections that Massachusetts put in place to protect Cape Cod, Buzzards Bay and the islands from further oil spills from coastal oil transport.

At issue was a new set of state rules, adopted by the Massachusetts legislature after the disastrous Bouchard oil barge spill in 2003 on a rock outcropping in Buzzards Bay. The state rules imposed mandatory tug escorts for oil barges, barge manning, and crew task requirements that were stricter than existing federal rules. The Coast Guard didn’t like being second-guessed on safety issues and issued rules that overruled the Massachusetts effort with more lax and oil transport-friendly requirements. The Commonwealth of Massachusetts and Coalition for Buzzards Bay challenged that action in federal district court and Conservation Law Foundation also briefed the case.

On appeal from an unfavorable lower court opinion, the federal Court of Appeals agreed with Massachusetts, chastising the lower court that it had misread legal precedent. The Court of Appeals held that the Coast Guard had done no environmental review at all despite the “tidal wave” of public concern about the consequences of the weaker rules and increased risks of more oil spills. Instead of a “hard look” at those risks, the Court found that the Coast Guard had, at best, given them a “brief glance.” In trying to avoid confronting the safety issues, the Appeals Court said, the Coast Guard “rip[ped] out the heart” of its own rules.

A bird covered in oil as a result of the Bouchard oil barge spill (Photo: MA EOEEA)

Unfortunately, the fight to protect Cape Cod, Buzzards Bay, and the Islands is not over, and further vigilance will be critical. The case will now be sent back to the Coast Guard to complete the necessary environmental review. We can only hope that they will be more responsive this time around. Coastal oil transport is no doubt critical to our regional economy but it must be done with maximum protections. Oil economic interests should not trump coastal safety issues. The future of our fisheries depends on clean coastal waters as does the health of all marine life, from fish to fowl to mammals.

A great debt is owed to the Massachusetts legislature for acting so forcefully on this issue and to the Massachusetts Attorney General’s office and the Coalition for Buzzards Bay for their intelligent and passionate defense of these state interests. May 17, 2011 was a good day for our oceans.

The Science and Statistical Committee (SSC) of the New England Fisheries Management Council met yesterday and today in Boston to review the report developed by the Massachusetts Marine Fisheries Institute (MFI) in support of Governor Patrick’s request to the U.S. Department of Commerce for emergency relief for Massachusetts fishermen. The MFI report concluded that recent fishery management actions had produced losses on the order of $21 million dollars for Massachusetts fishermen and that catch limits could be raised without compromising the health of the fish populations or the conservation objectives of the management plan.

The SSC is a distinguished, international panel of scientists, some of whom have been assessing fish populations in New England for decades. Specifically, the SSC was asked to review several positions taken by the MFI report:

1.      Whether the methodologies used to calculate the biological reference points and the catch limits represented the best available science;

2.      Whether the methodology chosen to set catch limits resulted in an overly conservative approach because of “double counting” of scientific uncertainty;

3.      Whether there were other aspects of the fish modeling, such as the presence of so-called “retrospective patterns” in the models,  that resulted in overly cautious adjustments of the catch recommendations;

4.      Whether there were any recommendations for additional information that could be used in the future to improve the assessment process.

The SSC did not agree with any of the science-related assertions in the MFI report. In their discussion, they noted a number of places where the conclusions were based on faulty premises or ignored widely recognized issues that the scientists who had developed the original catch limit recommendations had addressed when they set the limits.

They concluded that the stock assessment and catch specification process was fully consistent with best scientific practices, that there was no “double counting” of uncertainty or risk, and that the annual catch limits could not be increased without increasing, in some cases significantly, the risk of meeting the conservation objectives of the New England Council and the federal statute that controls harvest, the Magnuson-Stevens Act.

In their brief economic review, the SSC rejected the analysis and conclusions from the MFI report. Aside from noting that it was questionable to draw economic or social conclusions from a new management plan that had only been in effect for six months, the SSC noted that the report misrepresented $21 million of theoretical losses as actual losses and did not account for the revenues from the numerous other species that groundfishermen pursue in addition to the groundfish species. A number of SSC members also indicated that comparisons to the 2009 fishing year were not proper since the scientists had all concluded that the 2009 catch limits were set significantly too high for many species. The SSC agreed by and large that the economics of the new fishery plan looked positive for the first year, and provided no evidence of an economic crisis.

The SSC did acknowledge that there was always room for improvement in fish stock assessments and that additional research on both the assessment methodologies and a range of social and economic effects should be considered in the future.

The MFI report has now been rejected as a basis for emergency action or even immediate reconsideration of existing harvest levels by the Department of Commerce, a national scientific meeting of fisheries experts, and by the New England SSC.  It is time to move on and focus on continuing to improve the management system in New England so that we can restore healthy fish populations that support thriving and diverse regional fishing communities as quickly as practicable.