Menhaden regulations have plagued lawmakers for decades. Why were they able to find a fix now?

By: - February 17, 2020 12:02 am

Bunker or menhaden fish, seen while whale watching off Long Beach, N.Y. (Vicki Jauron, Babylon and Beyond Photography via Getty Images)

For decades, the small bony fish known as the menhaden has been a fixture on the Virginia General Assembly’s agenda.

Every year, the drama has followed the same lines. Some lawmakers and environmentalists concerned about the health of the valuable fishery, the only one managed by the legislature rather than regulators, push to transfer its management to the Virginia Marine Resources Commission. The industry and its unionized fishermen, concerned that regulators will cramp their business, push back.

It’s been perhaps the state’s dullest political tug-of-war. But then, this winter, it ended when Omega Protein, the Reedville-based Canadian company that is the largest single player in the U.S. menhaden industry, told a Senate panel that it supported legislation to hand over fishery management to the VMRC.

“The lion,” marveled Sen. Chap Petersen, D-Fairfax City, “shall lie down with the lamb.”

Since then, the House and Senate bills have passed on 73-25 and 40-0 votes, respectively. The versions will still need to be reconciled and the final measure signed into law by Gov. Ralph Northam, but the chambers’ approval and a lack of resistance among stakeholders signals that the policy change is likely a done deal. 

A federal threat

Why, after so many years of wrangling, was 2020 the year the menhaden fight was resolved?

Unlike many other issues that have seen legislative reversals this winter, the policy shift had little to do with the Democratic takeover of the General Assembly. Over the years, Democrats have just as stoutly resisted proposals to transfer fishery management to regulators as Republicans, often spurred on by the complaints of Omega’s fishing workers, one of the few bastions of unionized labor in the traditionally union-unfriendly state.

Noting that “10, 12 years ago I was on the other side,” Democratic Sen. Lynwood Lewis of Accomack, the chief patron of the Senate bill, explained his own altered view in terms of the need to preserve “public trust.” 

But for most stakeholders, the decisive factor seems to have been the threat of federal intervention. After all, it’s one thing for legislators to give up their power to a regulatory body. It’s quite another to give it up to Washington.

“We don’t want the federal government to take control of something in Virginia,” said Del. Ken Plum, D-Fairfax, the chief patron of the House bill.

The threat wasn’t an idle one. This November, in response to an announcement by Omega that it intended to exceed its Chesapeake Bay menhaden quota, U.S. Commerce Secretary Wilbur Ross ordered that the fishery be shut down in June unless Virginia comes into compliance with the limits.

How are fisheries managed?

When it comes to fisheries management, there are a lot of cooks in the kitchen. On the East Coast, all fishing in state waters is overseen by the Atlantic States Marine Fisheries Commission, which since the 1940s has set commercial and recreational quotas for each species on both a regional and state level to ensure that populations remain sustainable. States are then responsible for carrying out its decisions, often through commissions like the VMRC.

Three miles away from shore, however, states’ jurisdiction halts. In federal waters, all fishing is managed by regional councils coordinated by the National Oceanic and Atmospheric Administration. Federal waters off Virginia fall under the oversight of the Mid-Atlantic Fishery Management Council.

That order set the tone for the annual argument over menhaden management, bringing what Plum called a “new sense of urgency” to the discussion.

“A transfer is something that we have argued against for probably two decades, but we saw the grander scheme, knowing that the governor has a great deal of leverage right now,” said Omega spokesperson Ben Landry.

Landry said that Omega had been willing to negotiate with Northam’s administration because the legislation it proposed would combine the transfer of fishery management to VMRC with the effort to bring the fishery back into compliance with federal quotas, the company’s “top priority.” 

While not formally supporting the legislation, the United Food and Commercial Workers Local 400, the union that represents about 90 to 100 of the fishermen who work on Omega’s boats, also decided not to oppose the policy shift out of a desire to avoid federal intervention.

“Our priority has always been making sure that our members who fish menhaden have the opportunity to continue to do that,” said Mike Wilson, Local 400’s chief of staff. And “the fact that we were facing a potential moratorium on fishing this year was definitely a determining factor” in the union’s decision to accept the agreement.

Omega did secure several key protections in the negotiations. One would limit the VMRC to adopting menhaden management regulations between Oct. 1 and Dec. 31 so the company could tailor its capital expenditures on its fleet to its quota. Another would establish a 12-person Menhaden Management Advisory Committee with at least one seat for an industry representative and one for a labor representative. A third would keep the authority to set geographic limits of the fishery with the General Assembly.

“We’re comfortable with the current language,” said Landry. “We would have loved for some other things to be put into it, but that’s part of what the General Assembly is all about — taking what you can get.”

The end of the road or a new twist?

While Lewis characterized the legislation during a panel as “a period at the end of a very long sentence,” discussion among lawmakers indicates that points of tension remain.

In the House Agriculture Chesapeake and Natural Resources Committee, several delegates pushed back against the new policy’s underlying assumption that placing the fishery under the VMRC rather than the General Assembly will ensure decisions are driven by science rather than politics. 

“To say that the VMRC is not political is naive,” said Del. Rob Bloxom, R-Accomack. “You have eight members appointed by the governor. It’s as political as we are here.” 

The scientific argument for VMRC management has been a sore spot for Omega, which has consistently claimed that the Atlantic States Marine Fisheries Commission’s 2017 decision to reduce the menhaden quota was not based on scientific data and was not necessary for conservation of the species. The General Assembly’s failure in 2018 to pass legislation confirming the new quota appeared to many a tacit agreement with Omega’s stance. Nevertheless, groups like the Chesapeake Bay Foundation and sport fishermen contend that overfishing by Omega harms other species that rely on menhaden, such as striped bass.

“Is VMRC not going to use the same quota-slash science that we have been using to pass legislation in this regard?” Del. Michael Webert, R-Fauquier, asked during a House committee discussion Jan. 29.

“The fact of the matter is we haven’t been very responsible about setting those quotas. … We’re out of compliance now because we didn’t set the quotas,” Plum replied. 

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Sarah Vogelsong
Sarah Vogelsong

Sarah is Editor-in-Chief of the Mercury and previously its environment and energy reporter. She has worked for multiple Virginia and regional publications, including Chesapeake Bay Journal, The Progress-Index and The Caroline Progress. Her reporting has won awards from groups such as the Society of Environmental Journalists and Virginia Press Association, and she is an alumna of the Columbia Energy Journalism Initiative and Metcalf Institute Science Immersion Workshop for Journalists.