Second in a series by Jennifer Allen of Coastal Review investigating why, after years of consistent seasons for inland, joint and coastal waters, recreational anglers found themselves negotiating different flounder and mullet rules in 2023.
Conflicting recreational flounder seasons this past September put a spotlight on a bitter rift between two separate agencies that manage state waters.
In the past, the Wildlife Resources Commission had a rule in place to line up its recreational flounder season and a handful of other species for inland and joint waters with those established by the Marine Fisheries Commission or Division of Marine Fisheries for joint and coastal fishing waters.
But that changed last year, despite the Division of Marine Fisheries’ objections.
The division’s public information officer Patricia Smith said that, prior to recent rule adoptions by the Wildlife Resources Commission, the inland fishing rule for spotted seatrout, flounder and red drum referred to the Marine Fisheries Commission rules for these marine fish species.
Wildlife Resource’s “reference rule” said that for those species, “recreational seasons, size limits, and creel limits are the same as those established” by Marine Fisheries Commission rules or Division of Marine Fisheries proclamations “in adjacent joint or coastal fishing waters.”
The amended rule that went into effect March 15, after several months delay due to legislative review requests by the public, now reads, “(a) The daily creel limit for flounder is four fish. (b) The minimum size limit is 15 inches. (c) The season for taking and possessing flounder is September 1 through September 14.”
The division proclaimed in June that the season for coastal and joint waters for recreational flounder would be Sept. 15-30, with a limit of one fish per day, minimum 15 inches in size.
Wildlife Resources Inland Fisheries Division Chief Christian Waters explained to Coastal Review that the original intent of the “reference rule” was to efficiently implement consistent seasons, size limits and creel limits in the commission’s jurisdictional waters, which he said are inland fishing waters and hook and line in joint fishing waters.
“When the ‘reference rule’ was established in 2011, DMF staff agreed to notify WRC, prior to the issuance of any proclamation to allow WRC opportunity to publicize the change to its constituents via news release, website, etc. Unfortunately, advance notice from DMF to WRC does not regularly occur, creating confusion to WRC staff (including Wildlife law enforcement) and the public,” Waters wrote in the email.
“As part of the Periodic Review of Rules, the WRC Board on December 9, 2021, initiated rulemaking which included removing the reference to MFC and DMF seasons, size limits, and creel limits for Flounder, Red Drum, Spotted Sea Trout, and Weakfish and reestablishing species-specific rules as in the past,” he said in an email. “The rule changes simply revert to WRC-specified season and limits promulgated in accordance with the Administrative Procedures Act with the seasons and limits mimicking the current MFC and DMF seasons and limits.”
He added that the board undertook this effort then to clarify rules for species when found in inland fishing waters, certain inland game fish in all public fishing waters, and species when caught by hook and line in joint fishing waters.
“Note that in addition to the four species covered by the ‘reference rule,’ the rule changes addressed over a dozen other species for which DMF had established seasons and limits via proclamation. Additionally, the WRC Board addressed the issues caused by the lack of communication from DMF regarding the ‘reference rule’,” he said.
Smith explained that the Division of Marine Fisheries is required under state law and Marine Fisheries Commission rule to manage all commercially and recreationally significant marine fisheries species or fisheries for long-term viability.
“As stewards of the environment, the Division also has an obligation to the people of North Carolina to conserve their fisheries resources. The latest stock assessment for Southern Flounder indicates the species is overfished and overfishing is occurring throughout the Southeast Atlantic region,” she said. “Through a fishery management plan process, the Division has implemented management measures designed to end overfishing and rebuild the Southern Flounder stocks within state-mandated timeframes. The Division implemented the 2023 recreational flounder season in coastal and joint waters in accordance with the fishery management plan.”
Division of Marine Fisheries Director Kathy Rawls said during the Marine Fisheries Commission’s Nov. 16 meeting, that, as predicted, there was “significant public confusion around the separate flounder seasons in the state and where those regulations applied.”
She continued that the issue is not resolved and “is a significant challenge that will impact other fisheries.” It’s impacting striped mullet now and will potentially impact spotted sea trout down the road, and there are others.
Because the most recent striped mullet stock assessment indicated that the stock is overfished and that overfishing is occurring, Marine Fisheries Commission approved a supplemental action in May to end overfishing mullet. The season has been closed since Nov. 7 for waters north of the Emerald Isle bridge and Nov. 10 for waters south of the Emerald Isle bridge, with the season to reopen Jan. 1. This measure was put in place to address overfishing of the species while the Striped Mullet Fishery Management Plan Amendment 2 was being developed.
“The separate rules recently established by the Wildlife Resources Commission continue to fall out of sync with Marine Fisheries Commission rules, with division proclamations and out of compliance with interstate and federal management for marine and estuarine species,” Rawls said.
Waters said that in the 1980s, 1990s and 2000s, both commissions had separate, but essentially matching rules for fish species under shared jurisdiction. In the 2000s, the division began regulating more frequently through proclamations and it became difficult for Wildlife Resources to keep rules for species in inland and joint fishing waters consistent with division proclamations.
Then in January 2011, the Wildlife Resources Commission adopted the rule that referenced the seasons, size limits, and creel limits for flounder, red drum, spotted sea trout, and weakfish established in coastal fishing waters.
This rule change, effective Aug. 1, 2011, was implemented with the understanding that the Marine Fisheries Commission and the Division of Marine Fisheries would coordinate changes in species management, but “the coordination and communication regarding MFC and DMF changes in species management rarely occurred. As a result, there was often confusion among anglers fishing in WRC jurisdictional waters,” Waters said.
He added that Wildlife Resources continues to attempt to communicate and coordinate with the division in order to undertake rulemaking in a timely manner to match seasons, size and creel limits. “For example, we have proposed to change the creel limit for Flounder in rule so that it matches the current limit established by DMF by proclamation.” They are proposing to change the limit from four to one fish per day.
If the division decides to change its current limit and does not communicate the change in a timely manner, “our limit would again be different,” he said.
North Carolina Fisheries Association Executive Director Glenn Skinner said in an interview that when the Wildlife Resources Commission did away with the reference rule in 2022, its officials did so knowing they could not adjust their rules fast enough to comply with changes by the Marine Fisheries Commission or the Division of Marine Fisheries, which is the reason the rule was in place for so long.
Skinner said that the reference rule was put in place specifically because officials had dealt with the flounder issue before. At one time, recreational size limits and bag limits were changing constantly for the summer flounder fishery, which is managed regionally by the Atlantic States Marine Fisheries Commission.
“Every time our state had to comply with ASMFC, they would change the size limit and bag limit recreationally. The WRC adopted that rule specifically to make sure that they didn’t have to deal with this issue that we’re dealing with now. And then, for whatever reason, they repealed this rule and set their own rule for flounder and a bunch of other species, knowing that it was going to cause problems.”
A back-and-forth
The buildup to the conflict is evident in meeting minutes and public comment periods, beginning in early 2019 when the two agencies formed a committee to discuss how to manage joint waters.
The discussion was spurred by the state-mandated 10-year rules review, because these joint rules were set to expire in 2022. The joint rules address scope and purpose, the classification of inland, coastal and joint waters, posting dividing lines, applicability of rules and special regulations for joint waters, and estuarine striped bass management.
Early in the discussion, the Wildlife Resources Commission voted on using estuarine salinity zones to determine inland and coastal boundaries, but because of the significant jurisdictional changes some state agencies would face and ecological concerns, the Marine Fisheries Commission at its November 2019 meeting did not vote.
In August 2020, the Marine Fisheries Commission moved forward with approving a notice of text with no changes for the joint rules. The Wildlife Resources Commission, after seeing the notice in the Oct. 1, 2020, North Carolina Register, responded by letter in November 2020, stating “we would appreciate the chance to discuss potential updates to these 30-year-old rules and the DMF’s plan to ensure joint readoption prior to final approval” and suggested other changes.
Wildlife Resouces Commission Chairman Monty Crump told Coastal Review recently that the two agencies met Sept. 2, 2021, and had come to an agreement, but the Marine Fisheries Commission called a special meeting Sept. 9, 2021, to approve readoption of joint rules with substantive changes, with which WRC disagreed.
“At that point,” Crump said about the joint rules readoption by Marine Fisheries, “we’re in full disagreement with them on what they wanted to change,” adding since these were joint rules, they needed to be adopted by both commissions.
“This whole timeline you can see kind of sets the stage for a showdown, so to speak,” Crump added.
At the specially called meeting Sept. 9, 2021, Marine Fisheries Commission Chair Rob Bizzell explained that some of the proposed changes discussed at the Sept. 2 meeting to improve clarity and accuracy of the rules were incorporated into the draft language, other “changes represent a significant departure from our commission’s and DMF’s understanding of the authority in joint waters and from historical management of fisheries in these areas” and were not recommended for adoption.
The Marine Fisheries Commission ended up withdrawing the nine rules before going before the Rules Review Commission in December 2021. That’s because the staff attorney had said they would recommend objection.
Then in October 2021, Wildlife Resources Commission members and staff opened up about the conflict. Waters “described disputes with the Division of Marine Fisheries and Marine Fisheries Commission” during an update on the delineation of waters and joint rules, according to the meeting minutes.
Waters summarized proposed rule changes and new rules “to reaffirm and clarify the Commission’s authority to regulate specific inland game fishes in all Public Fishing Waters and all fishes in Joint Fishing Waters when caught by hook and line,” the minutes state.
In December 2021, Wildlife Resources began what Waters called in an interview clarifying rules for inland fishing waters, certain inland game fish in all public fishing waters, and species when caught by hook and line in joint fishing waters.
With the joint rules set to expire that year and the two commissions at a standstill, the officials went before the governor’s office Feb. 17, 2022, as directed by a general statute that reads, “In the event the Marine Fisheries Commission and the Wildlife Resources Commission cannot agree, the Governor is empowered to resolve the differences.”
Both commissions were told to readopt the existing joint rules with no substantive changes. Marine Fisheries voted to approve the nine rules June 23, 2022, and Wildlife Resources on June 28, 2022, during a special meeting. The rules went into effect Sept. 1, 2022.
Crump and Bizzell met to discuss delineation boundaries again June 6, 2022, and directed staff to work on a memorandum of agreement and accompanying maps, for which the Wildlife Resources Commission approved a draft on Aug. 17, 2022.
Largely because Wildlife Resources is moving away from mirroring Marine Fisheries Commission rules and toward setting its own species-specific rules, the Marine Fisheries Commission did not sign the agreement during its meeting Nov. 17, 2022.
Bizzell, a recreational fisherman, reiterated that the two agencies had run into conflicts in adopting each other’s rules, adding that the reason was jointly managed waters. He said that two agencies shouldn’t be regulating the same body of waters, and Wildlife Resources agreed with him during its February 2022 meeting with the governor’s office.
Bizzell continued that the agreement was intended to capture the June 2022 discussion, and many of the points that are included in the documents were agreed upon, but there were two that were not.
First is a statement to establish a rule-making deadline of December 2024, which Bizzell said he didn’t feel was appropriate.
“The other point is not specifically with the document but rather a change in regulation. Following the June 6, 2022, meeting, The Wildlife Resources Commission undertook rule-making establishing Inland water specific rules for marine and estuary species such as flounder, black drum and cobia,” Bizzell said, which he considered counter to the discussions that were had during that meeting.
He was referring to the temporary, species-specific rules that Wildlife Resources had presented to the North Carolina Office of Administrative Hearings June 10, 2022, for publication.
“This is because the proposed lines were discussed based on the assumption that the Wildlife Resources Commission will continue referencing the Marine Fisheries Commission rules for marine and estuarine species. Given that it’s no longer the case, lines will need to be reevaluated based on these changes,” Bizzell said.
Part one: Conflicting mullet, flounder seasons signal bigger problems
Next: Current rules, new rules and the impact on other commissions
