State of Delaware Request for Special Management Zone (SMZ) Designation for Five Artificial Reefs in the Exclusive Economic Zone
Public Hearing Document
Mid-Atlantic Fishery Management Council in cooperation with the National Marine Fisheries Service
January 2013
Introduction
The Delaware Division of Fish and Wildlife (DFW) petitioned the Mid-Atlantic Council (Council) in June 201 1to designate five artificial reef sites as Special Management Zones (SMZs) in the EEZ under provisions of Amendment 9 to the Summer Flounder, Scup and Black Sea Bass FMP. The justification for this request was based on the need to ameliorate gear conflicts between hook and line fishermen and fixed pot/trap gear at those sites. The DFW may face termination of funding for its artificial reef program in the EEZ under the US Fish and Wildlife Service Sport Fish Restoration (SFR) Program (which is effectively the DFWs sole source of funding for its reef program) if this alleged gear conflict issue is not resolved. The Council has been evaluating Delaware's SMZ request and has developed a number of options to address this issue according to the procedures established in Amendment 9. The Council is seeking public comment on the proposed options.
Background
Amendment 9 to the Summer Flounder, Scup and Black Sea Bass FMP (approved by NOAA on 17 October 1996; see 61 FR 58467, Nov. 15, 1996) incorporated a provision into the FMP (Section 9.1.2.7) that allows for the designation of artificial reefs in the EEZ as SMZs, if so petitioned by the permit holder. The current regulatory language (as of July 19, 2012) pertaining to the SMZ provision of the FMP can be found at 50 CFR Part 648: Subpart I - Management of the Black Sea Bass Fishery is as follows:
The recipient of a U.S. Army Corps of Engineers permit for an artificial reef, fish attraction device, or other modification of habitat for purposes of fishing may request that an area surrounding and including the site be designated by the MAFMC as a special management zone (SMZ). The MAFMC may prohibit or restrain the use of specific types of fishing gear that are not compatible with the intent of the artificial reef or fish attraction device or other habitat modification within the SMZ. The establishment of an SMZ will be effected by a regulatory amendment, pursuant to the following procedure:
(a) A SMZ monitoring team comprised of members of staff from the MAFMC, NMFS Northeast Region, and NMFS Northeast Fisheries Science Center will evaluate the request in the form of a written report, considering the following criteria:
(1) Fairness and equity;
(2) Promotion of conservation;
(3) Avoidance of excessive shares;
(4) Consistency with the objectives of Amendment 9 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, the Magnuson-Stevens Act, and other applicable law;
(5) The natural bottom in and surrounding potential SMZs; and
(6) Impacts on historical uses.
(b) The MAFMC Chairman may schedule meetings of MAFMC's industry advisors and/or the SSC to review the report and associated documents and to advise the MAFMC. The MAFMC Chairman may also schedule public hearings.
(c) The MAFMC, following review of the SMZ monitoring team's report, supporting data, public comments, and other relevant information, may recommend to the Regional Administrator that a SMZ be approved. Such a recommendation will be accompanied by all relevant background information.
(d) The Regional Administrator will review the MAFMC's recommendation. If the Regional Administrator concurs in the recommendation, he or she will publish a proposed rule in the Federal Register in accordance with the recommendations. If the Regional Administrator rejects the MAFMC's recommendation, he or she shall advise the MAFMC in writing of the basis for the rejection.
(e) The proposed rule to establish a SMZ shall afford a reasonable period for public comment. Following a review of public comments and any information or data not previously available, the Regional Administrator will publish a final rule if he or she determines that the establishment of the SMZ is supported by the substantial weight of evidence in the record and consistent with the Magnuson-Stevens Act and other applicable law.
Council consideration of Delaware's Request
A Monitoring Team was formed to evaluate the DFW request relative to the following factors: (1) fairness and equity; (2) promotion of conservation; (3) avoidance of excessive shares; (4) consistency with the objectives of Amendment 9 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, the Magnuson-Stevens Act, and other applicable law; (5) the natural bottom in and surrounding potential SMZs; and (6) impacts on historical uses. This report contains an analysis of these factors and recommendations relative to the DFW request (see Appendix 1). Based on that analysis, the SMZ Monitoring Team recommended that consideration of Delaware's request for SMZ status for its five artificial reefs by the Council is warranted. The Council subsequently developed a list of options to address Delaware's SMZ request after receiving input from its industry advisory panel. The Council is soliciting public comment on the impacts of the following options and implications for fisheries managed by the Atlantic States Marine Fisheries Commission under the Atlantic Coastal Cooperative Fisheries Act.
Options for Special Management Zone Designation of Delaware Artificial Reefs in the EEZ
1. No Action
Under this option the Council would take no action and the Delaware artificial reef sites in the EEZ would remain open to all gear types. This option would deny the Delaware request to grant SMZ status for its EEZ reef sites and allegations of gear conflicts would likely continue. Delaware could potentially lose a portion or all of its funding for maintenance and construction of artificial reef sites in the EEZ under the Wallops-Breaux Sportfish Restoration Program if no action is taken.
2. Designate some or all of the Delaware permitted artificial reef sites as SMZs
2a. Designate reef sites 9, 10, 11, 13 and 14 as SMZ (i.e., all five reef sites)
Under this option all five of the Delaware reef sites would be designated as SMZs as described in Amendment 9 to the Summer Flounder, Scup and Black Sea Bass FMP. Provisions of Amendment 9 allow the Council to prohibit or restrain the use of specific types of fishing gear that are not compatible with the intent of the artificial reef or fish attraction device or other habitat modification within the SMZ. If the Council chooses this option, the specific gear(s) that would be prohibited would be determined by the Council under option 3 below. The degree of potential impact from this option on various fishing sectors would depend on which gears were prohibited within the SMZ and the duration of the SMZ designation.
2b. Designate reef sites 11, 13 and 14 as SMZs (only sites with documented potential for gear conflicts)
Little or no commercial fishing activity was documented in the vicinity of reef sites 9 and 10, so there appears to be little opportunity for gear conflicts to occur at these sites (especially for fixed pot/trap gear). Therefore, it would appear unnecessary to designate these sites as SMZs on the basis of amelioration of gear conflicts. However, commercial fishing activity on sites 11, 13 and 14 was documented at these sites based on VTR data, so the potential for gear conflicts exists at these sites. As noted above, the potential impact on various sectors of the fisheries would depend on the gears prohibited and the seasonal extent of the SMZ designation.
2c. Designate reef sites 9, 10, 13 and 14 as SMZs but not site 11
During the original permit process for reef sites 9, 10 and 11, the Council opposed the granting of a permit for reef site 11 by the COE because there were indications that considerable commercial fishing activity took place at this location. Therefore, the Council could designate reef sites 9, 10, 13, and 14 as SMZs but not site 11 based on the argument that it would remain consistent with that historical position. However, site 11 appears to be the area that has the greatest potential for gear conflicts between hook & line gear and fixed pot/trap gear and, therefore, the Council would not be addressing the primary justification given by the state of Delaware for the SMZ designation request (i.e., amelioration of gear conflicts).
3. Gear Restrictions
3a. Prohibit use of fixed pot/trap gear on sites designated as SMZs
Under this alternative, the Council would prohibit the use of fixed pot/trap gear on reef sites designated as SMZs. This gear restriction would apply during the time periods associated with the options under alternative set 4 below. This option responds to the basis for Delaware's SMZ request which was to ameloriate gear conflicts on its artificial reef sites between hook & line and fixed pot/trap gear.
3b. Restrict fishing activities in designated SMZ sites to hook & line and spear fishing gear only
Under this alternative, the Council would prohibit the use all fishing gear on reef sites designated as SMZs, except hook & line and spear-fishing gear (during periods of SMZ designation as per the option chosen under alternative set
4) . Under this alternative, the use of
commercial hook & line fishing gear within the designated boundaries of SMZs would still be permitted, however the use of all other commercial fishing gears would be prohibited (i.e., gill nets, long lines, etc.).
4. Seasonal SMZ Restrictions
4a. Designate SMZs during periods when recreational fishery for black sea bass is open
The original request by Delaware for SMZ designation was based on the stated need to reduce gear conflicts between hook & line and fixed pot/trap gear on its EEZ reef sites under provisions of Amendment 9 (black sea bass FMP amendment). Since the rational for the SMZ request is related to the black sea bass fishery and its management, the Council could designate all or some of the Delaware EEZ reef sites as SMZs when the recreational season for black sea bass is open.
4b. Designate SMZs year round
Under this alternative the SMZ designation for any or all of the five artificial reefs would be in effect for the entire calendar year.
4c. Designate SMZs during periods peak recreational fishing effort (e.g., Memorial Day to Labor Day)
The purpose of this alternative to be to attempt to reduce gear conflicts of Delaware reefs sites by designating SMZs during periods when the chance of gear conflicts would be expected to be at a maximum (i.e., during periods of peak recreational fishing activity).
5. SMZ Buffer
5a. no buffer
5b. 1000 yard buffer (equivalent to 0.5 nautical miles)
Law enforcement personnel have advised the Council that any SMZ designations should include a buffer around the boundaries of the artificial reef to allow for adequate enforcement. Under this alternative, the areas designated as SMZs would include the area within the published boundaries of the reef included in the COE permit plus a buffer of 1000 yards (0.5 nautical miles). This buffer was specifically recommended by personnel from the US Coast Guard and NMFS Office of Law Enforcement.
5c. 500 meter buffer (equivalent to 0.25 nautical miles)
Law enforcement personnel have advised the Council that any SMZ designations should include a buffer around the boundaries of the artificial reef to allow for adequate enforcement. Under this alternative, the areas designated as SMZs would include the area within the published boundaries of the reef included in the COE permit plus a buffer of 500 meters (0.25 nautical miles). The SMZ designations in the South Atlantic include a 500 meter buffer around the reef site boundaries.
Public Hearings and Opportunity for Public Comment
The Mid-Atlantic Fishery Management Council (Council) will hold public hearings on January 15, 16, and 17, 2013 to allow for public input on the potential designation of the State of Delaware's five artificial reef sites located in the Exclusive Economic Zone (EEZ) as SMZs. The dates and locations of the public hearings are as follows:
January 15: 7– 9 pm; Clarion Resort Fontainebleau Hotel, 10100 Coastal Highway Ocean City, MD 21842 (410-524-3535);
January 16: 7–9 p.m.; DNREC - Division of Watershed Stewardship Bldg., 901 Pilottown Road, Lewes, DE 19958
January 17 : 7–9 pm.; Ocean County Administration Building, 101 Hooper Avenue, Public Hearing Room #119, Toms River, NJ 08754.
Written comments should be mailed to the Council office at: Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901(telephone: 302-674-2331) by January 29, 2013 and marked “SMZ Comments.” This public hearing document can be obtained by contacting the Council at: Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901; telephone302) 674-2331 or at
http://www.mafmc.org/smz.htm.
