Third and final in a series 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.

Disagreements between the two commissions that manage state waters began to flare in 2019 after they formed an interagency committee to work on the required 10-year review on rules for the joint waters they both manage.

With the threat of these rules expiring in 2022 looming over the Wildlife Resources Commission that manages inland waters and the Marine Fisheries Commission manages coastal waters and the two never coming to an agreement, the governor’s office directed the agencies in February 2022 to adopt the existing joint rules without any changes.

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.

Though there was mounting conflict evident between the agencies, what highlighted the impasse was the two recreational flounder seasons in September 2023. The WRC season was the first two weeks and MFC’s was the second two weeks, leading to confusion and even warnings issued to some fishers for breaking one agency’s rules.

North Carolina Fisheries Association Executive Director Glenn Skinner told Coastal Review that with the two agencies trying to decide who has authority over what, “you’ve got a lot of stakeholders that are really caught in the middle. And that’s a shame whenever it comes to that.”

What kept the inland and coastal seasons concurrent was a 2011 Wildlife Resources Commission rule to mirror the recreational seatrout, flounder and red drum seasons set by the Marine Fisheries Commission or Division of Marine Fisheries, which carries out the Marine Fisheries Commission’s rules. The Wildlife Resources Commission amended this rule in late 2021 to establish its own flounder season and limits as well as dozens of species-specific rules that went into effect March 2023.

Division of Marine Fisheries Public Information Officer Tricia Smith recently explained to Coastal Review that the 2023 southern flounder seasons “demonstrated the real-world consequences of competing regulations for a single species: confusion for anglers and the potential for significant overharvest of a stock in need of rebuilding.”

Division of Marine Fisheries and Marine Fisheries Commission specifically warned the Wildlife Resources Commission of these consequences when the Wildlife Resources Commission proposed separate rules for a host of marine and estuarine species, she said. “The WRC adopted these rules despite the MFC and DMF’s objections.”

Wildlife Resources Commission Inland Waters Chief Christian Waters said that the commission’s goal is to be consistent with the species management of the Marine Fisheries Commission and Division of Marine Fisheries to provide anglers the opportunity to fish and eliminate unnecessary confusion. 

“We acknowledge that the angling public suffers when seasons and limits are not consistent. However, we can only effectively implement any regulatory change in our jurisdictional waters per our statutory requirements and responsibilities when MFC and DMF communicate with us in a timely manner about management decisions being considered. We believe this would ultimately eliminate confusion for all staff involved and our customer – the public,” Waters said.

Capt. Jess Hawkins, who operates an ecotours business in Carteret County, previously worked 30 years with the division as a marine biologist.

Hawkins said that for most people who do not follow fisheries regulations or environmental protection measures, these disparate fish restrictions probably do not mean much and may appear to be an example of government inefficiency.

“However, in reality they mean much more to North Carolina citizens,” he explained in an email. “We have a situation where one state agency, created by our General Assembly with jurisdiction over freshwater (inland) fish are creating different regulations on primarily coastal/marine fish that differ from another state agency which was created by our elected officials to manage and conserve those fish.”

Hawkins said that any scientific data used to objectively manage those fish are collected by the coastal fisheries agency.

“The conflicting limits jeopardize science-based efforts on these fish, some of which are experiencing population declines based on that info. Enforcement officers are placed in a very difficult situation where they have to deal with a scenario where fishermen legally taking fish in areas become illegal when taking their catch back to the boat ramp where they launched,” he said. “If officers decide to write a citation, then our district attorneys and judges have to determine what is ‘just’ in such a situation. Also, up until recently the agency primarily dealing with freshwater fish mirrored those of the coastal agency, preventing such scenarios.”

Looking ahead

In response to the conflicting seasons, Smith said the Marine Fisheries Commission, during its November 2023 meeting, began rulemaking to amend the joint rules with “a straightforward approach,” which is to allow the Marine Fisheries Commission and Wildlife Resources Commission to regulate species based upon the respective expertise of each agency.

“Under the proposed amendments, the WRC would continue to set regulations for freshwater species in joint fishing waters, while the MFC would set regulations for marine and estuarine species,” Smith said.

She said the proposed amendments align regulatory authority with management responsibility and expertise, and it ensures that the state remains in compliance with the multiple federal and regional bodies with oversight of coastwide stocks that frequent joint waters.

“The two agencies would continue to share enforcement authority in joint waters under a single set of regulations, rather than separate, and, at times, competing regulations,” she said, adding staff are finalizing the regulatory impact analysis for submission to Office of State Budget and Management.

Waters said that the wildlife commission voted Oct. 26, 2023, to move forward with proposed rule text as part of its 2024-25 annual rulemaking cycle with a public comment period and hearings for amendments to inland fisheries rules.

“Of the proposals in the package, one would reduce the daily creel limit for Flounder from four fish to one fish. A second one would reaffirm the WRC’s authority over certain species designated as inland game fish in all public fishing waters and clarify the size and creel limits which apply,” he explained in an email. “A third one would reaffirm the WRC’s authority over all fishes taken by hook and line in Joint Fishing Waters and clarify the size and creel limits, seasons, and restrictions on species that may be sold.”

The public comment period for the proposed rules opened Dec. 1 and will end Tuesday, Jan. 30. The website has information on how to submit comments. There will be a public hearing at 7 p.m. Wednesday, Jan. 17, at the Craven County Courthouse in New Bern and a virtual hearing 7 p.m. Thursday, Jan. 18.  Hearings were scheduled for Jan. 9 in Asheboro and Jan. 11 in Clyde, as well.

Joint water rules discussion

Early in the conversation, completely eliminating joint waters was proposed, which would cause boundaries for inland and coastal waters to change.

Wildlife Resources Commission Chairman Monty Crump explained to Coastal Review that the point of getting rid of the delineation of waters — to just have coastal and inland waters, and get rid of joint jurisdictions – is to avoid the overlapping we have today.

The Wildlife Resources Commission published more than 50 proposed rules in the Jan. 18, 2022, North Carolina Register. The 11 that would have led to significant changes to the definitions of inland, coastal and joint waters were withdrawn before the rules went before the Rules Review Commission at its May 2022 meeting. The rules went into effect March 2023.

Division of Marine Fisheries Director Kathy Rawls in a March 2022 letter said that while they appreciate the Wildlife Resources Commission withdrawing the rules while both commissions work toward updating the joint rules, the remaining 46 rules continue to conflict with the division’s and Marine Fisheries Commission’s interpretation of authority in joint fishing waters. 

Waters said that the action taken in early 2022 was to readopt joint rules to meet the deadline for the periodic review. When the governor’s office directed both agencies to adopt existing joint rules with no changes, there was further direction for the two to develop a comprehensive solution to address joint rules and jurisdictional waters.

“A proposal was developed to modify current jurisdictional boundary lines and eliminate the designation of joint fishing waters, which should have addressed most of the issues with joint rules,” Waters explained.

A draft memorandum of agreement was written for the Wildlife Resources Commission and Marine Fisheries Commission to consider that would commit each to “conducting a comprehensive assessment of the proposal including, but not limited to, impacts to joint rules, recreational and commercial consistencies, fisheries management and regulations, other state agencies, and local governments,” Waters said.

The Wildlife Resources Commission during a committee meeting Aug. 17, 2022, agreed with the draft agreement, pending Marine Fisheries Commission review. The Marine Fisheries Commission at its Nov. 17, 2022, meeting, discussed the agreement, but took no action. 

“There has been no further activity on the designation of jurisdictional waters since then,” Waters said and there are no current efforts by Wildlife Resources Commission to reconsider the designation of jurisdictional waters, specifically joint fishing waters boundaries.

He continued that the jurisdictional waters designation review was not to “merely eliminate joint fishing waters, but a major goal was to ensure WRC and MFC have primary jurisdiction in those waters which are predominately inhabited by the species and supporting habitats under their respective management authority.”

Additionally, Waters said, the purpose was to enhance consistency with the intent of a general statute Relating to Resources and “to provide a consistent, predictable, common-sense approach for constituents. While this wouldn’t eliminate the need for collaboration between WRC and DMF/MFC, it would substantially reduce future conflicts among regulations.”

Smith echoed that there had been no recent developments on changing boundaries for joint waters.

“DMF and the MFC are focused on the more immediate need for consistent regulation in joint waters that is aligned with statutorily mandated fishery management plans,” she said, adding that the recently proposed amendments would address that need.

Joint water rules ripple effect

Smith explained that the concept of eliminating joint waters was considered, “but it became apparent that moving boundary lines, particularly ones that would cause areas to change from joint or coastal to inland, would have unintended consequences to other regulatory programs that far exceeded any potential benefits.”

These concerns were voiced in letters to the Wildlife Resources Commission by the state Department of Environmental Quality on the proposed rules back in 2019, she said.

The NCDEQ letter as well as those from the Division of Marine Fisheries, Division of Coastal Management and Coastal Resources Commission were made available to view in the Wildlife Resources Commission’s April 14, 2022, agenda packet, as part of the the public comments on the proposed rules.

Division of Coastal Management Director Braxton Davis wrote that if the joint rules were allowed to expire automatically, or be repealed as proposed unilaterally by the Wildlife Resources Commission, there would be significant changes for where the division and the Coastal Resources Commission could enforce more protective rules for estuarine shorelines and estuarine waters.

Coastal Resources Commission Chairman Renee Cahoon reiterated during the Marine Fisheries Commission’s November 2022 meeting that the boundary of the existing coastal and inland waters established by the joint rules had significance far beyond jurisdiction for fisheries regulation.

“Several state laws for which the Coastal Resources Commission is responsible, including the Coastal Area Management Act and the state Dredge and Fill Act, refer to the boundary between Coastal and Inland Waters as the extent of the state’s estuarine resources,” Cahoon said.

“As a result, if the Marine Fisheries Commission and the WRC changed the boundary of coastal-inland waters or repeal the rule establishing that boundary, the estuarine shoreline and waters critical to the state’s estuarine fisheries could be removed from protection under Coastal Management, water quality and habitat protection programs,” Cahoon said. “At the very least, changing this boundary could cause significant uncertainty about where the Coastal Resources Commission’s more protective estuarine shoreline rules could be enforced.”

Cahoon added that she had also submitted in March 2022 comments to the Rules Review Commission after learning that the Wildlife Resources Commission had proposed, amended and adopted rules published in the North Carolina Register Jan. 18, 2022, that would “unilaterally change the jurisdictional boundary between coastal and inland waterways.”

Skinner said that from a commercial fishing perspective, it would be a problem for more waters to be classified as inland waters for commercial fisheries. Commercial gear has always been allowed in joint waters but under the Wildlife Resources Commission’s current rules, commercial gear is prohibited.

Hawkins said that the proposal to change classifications of waters by the freshwater fish agency should worry people because, if it had passed, it would have harmed efforts that had been developed over the last 40 years to protect critical coastal fish habitat.

“These proposed reclassifications were pursued even over the strong objections of the agencies responsible for the protection of critical fish habitat and coastal/marine fishes, even writing the current Governor about those concerns,” Hawkins said.

“The Department that the General Assembly empowered for environmental and natural resource protection even objected to the proposals, but the inland fish agency continued to pursue those proposals,” Hawkins said. “The public and our leaders should ask what was broken that caused such a drastic change from policies that were in place to conserve and protect our resources the last 40 years.”

Waters explained that for these previous proposals that reduced or eliminated joint fishing waters, a comprehensive assessment was never conducted that would have better defined any impacts to Coastal Resources Commission rules and potential fixes.

As part of that assessment, “a question that needed to be considered is whether CRC/DCM rules should be linked to where fisheries are executed and managed? Or instead, should the area where CRC/DCM rules apply be defined based on the habitats being conserved and protected? One concern is that habitats currently have different levels of protection and regulation simply based on whether the location is in inland fishing waters compared to joint and coastal fishing waters, Waters explained.

‘One Mission, One Commission’

The nonprofit North Carolina Wildlife Federation proposed in late 2019, “One Mission, One Commission,” which would consolidate the Division of Marine Fisheries into the North Carolina Wildlife Resources Commission.

Wildlife Federation CEO Tim Gestwicki said it doesn’t make sense to have two agencies managing the same species, yet managing those species differently depending on an invisible line in the water.

“The agencies are extremely duplicative with both having administrative, information technology, enforcement, human resources, and budget sections. A single agency, consistent with many east coast states, is a model that is good for the resource and the taxpayer. This is not a unique proposal. Most recently Florida consolidated heir agencies as we have proposed,” he said.

Gestwicki explained that the Wildlife Federation believes that the more holistic approach of the Wildlife Resources Commission being made up of members appointed by the governor, Senate, and House to represent all regions of the state and provide a voice and perspective from all user groups of public trust resources.

“On the other hand, the MFC is selected only by the Governor with the statutory requirement for 4 of the 9 members to have a vested financial interest in the fisheries they manage,” he said, adding the Wildlife Resources Commission has resource successes except for those issues that they must work with the Division of Marine Fisheries and Marine Fisheries Commission to resolve.

“We hear repeatedly from elected officials and stakeholders that the system is broken, something needs to be done, etc etc.,” he wrote in the email.

“The science based, resource first decision making that is typical of the WRC is countermanded by the economic and political decisions by the MFC. Combining the two agencies in some fashion to provide consistency of conservation theory and the precautionary approach in managing our fish and wildlife makes good biological sense that will ultimately reap economic rewards to our state,” he said.

Gestwicki said that the organization has recommended “One Mission, One Commission” publicly, “now it’s up to elected officials to make it happen.”

Smith said Combining the Division of Marine Fisheries and Marine Fisheries Commission with the Wildlife Resources Commission had been studied by the legislature on numerous occasions but had never been recommended.

“While the two agencies share a common statutory charge, each agency has a distinct regulatory framework and area of expertise,” she said, explaining that the Division of Marine Fisheries and the Marine Fisheries Commission are ultimately concerned with the long-term viability of the state’s marine and estuarine resources, rather than the organizational structure through which they are managed.

Waters said that the Wildlife Resources Commission had not taken a position on the proposed merger.

Second in a series 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. Read part one.

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.

“This rule was changed over the objection of the Marine Fisheries Commission, the Division of Marine Fisheries, and the Department of Environmental Quality. The result was contradictory regulation in the state of North Carolina for many marine and estuarine species of fish,” Smith said.

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.

Currently, recreational mullet rules set by Wildlife Resources, which also went into effect March 15, state that there is no closed season in inland fishing waters or in joint fishing waters by hook and line. Its daily limit for both striped and white mullet is 200.

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.

Next: Current rules, new rules and the impact on other commissions

First in a series 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.

Up until recently, the North Carolina Marine Fisheries Commission, which manages coastal waters, and North Carolina Wildlife Resources Commission, which manages inland waters, appeared to have a system in place for the shared responsibility of what’s known as joint waters.

However, since forming a Joint Committee on Delineation of Fishing Waters in late 2018, there’s been a paper trail of mounting disagreements between the two on managing the area between inland and coastal waters. 

Division of Marine Fisheries Public Information Officer Patricia Smith told Coastal Review that the joint committee was formed to determine boundaries defining inland, coastal and joint fishing waters under a statutorily mandated periodic review of rules. Delegates of the two commissions met periodically, but the discussions ended without consensus.

The conflict came to a head last year because the two were unable to agree on changes to joint water rules, which require approval by both commissions before they expired. Because of the dispute, the governor’s office intervened in February 2022 and directed both to approve existing joint rules as written, according to past meeting minutes of both agencies.

Both agencies readopted the joint boundary rules without change later that year but continue to strive for consensus, Smith said.

A Wildlife Resources Commission’s committee approved that summer a memorandum of agreement that included maps with proposed boundaries for coastal and inland waters. The Marine Fisheries Commission discussed the agreement, maps and other aspects of this issue at its November 2022 meeting, but did not vote on the agreement, she said.

Friction appears

The friction between the two agencies became evident earlier this summer.

For the first time in years, recreational flounder seasons for inland waters and coastal waters didn’t overlap, meaning rules for joint waters didn’t either.

Flounder season for Wildlife Resources Commission in inland waters was the first two weeks of September with a limit of four fish per day, and for Marine Fisheries, the second two weeks of September in coastal waters with a limit of one fish per day.

Mullet seasons are inconsistent as well.

North Carolina Wildlife Resources Commission officials said in a statement provided Thursday that, “there is no closed season for the harvest of Striped Mullet and White Mullet in Inland Fishing Waters by any lawful method or in Joint Fishing Waters by hook and line. The daily creel limit is 200 mullet in combination with no minimum size limit.” 

As with flounder, the statement continued, “WRC enforcement officers will enforce our season and creel rules, and, for questions about how marine patrol plans to enforce the proclamation, please contact NCDMF,” or the Division of Marine Fisheries. 

Commission Inland Fisheries Division Chief Christian Waters explained in an email that its current mullet rule applies to all legal gears used in inland fishing waters and for joint fishing waters when taken by hook and line.

Division of Marine Fisheries Director Kathy Rawls declared by proclamation that it is unlawful to possess mullet in North Carolina coastal and joint fishing waters for recreational fishers and for commercial purposes such as possessing, selling or offering for sale, in waters north of the Emerald Isle bridge as of Nov. 7, and as of Nov. 10, south of the bridge. The closure expected to end Dec. 31 is estimated to result in a 20% reduction in harvest. 

Marine Fisheries Commission officials said in May when they approved the measures to address overfishing of striped mullet in state waters that the most recent striped mullet stock assessment indicated that the stock is overfished and that overfishing is occurring.

North Carolina Fisheries Association Executive Director Glenn Skinner told Coastal Review that he is concerned about the consequences. Both agencies claim authority over joint waters, meaning anglers may or may not be allowed to possess mullet in joint waters, depending on which agency’s officer they encounter.

To make matters worse, Division of Marine Fisheries officials have given dealers, fish houses and bait shops until Nov. 18 to dispose of any mullet they have at their place of business, even though they were caught and purchased legally, prior to the closure, Skinner said.

“We believe this represents an illegal take of property by the State, violating both our State and Federal Constitutions,” he said.

Flounder in joint waters

The Wildlife Resources Commission established in February 2022 its 2023 flounder season set for Sept. 1-14 for inland fishing waters and when using hook-and-line gear in joint fishing waters. 

The Marine Fisheries Division announced June 28 that its 2023 recreational flounder season for coastal and joint fishing waters would be Sept. 15-30, with a possession limit of one flounder per person, per day. 

Both agencies in late August released statements explaining their decisions regarding the flounder seasons. 

Waters said in the Aug. 30 statement that when the commission adopted in February 2022 its current rule for flounder, it “mirrored the recreational season, size, and creel limits established by proclamation of the Division of Marine Fisheries director for coastal fishing waters.” 

He continued that it was not until June 28 that the commission learned through a Division of Marine Fisheries news release of its intent for this year’s season and creel limit. 

“You may ask, ‘Why can’t the Wildlife Commission change or simply not implement its rule?’ Legally that is not an option, given the Wildlife Commission does not have proclamation authority like the Division of Marine Fisheries,” he said. “Our agency cannot modify a rule or suspend a rule without going through the rulemaking process, which includes opportunity for public input. Had we been informed of Marine Fisheries’ plans sooner, we could have attempted to address the discrepancies through temporary rulemaking. However, two months is not enough time to complete the rulemaking process as outlined in the Administrative Procedures Act.”

Division of Marine Fisheries officials said in an Aug. 31 announcement that the flounder management measures “are science-based and required by law to ensure the long-term viability of the State’s commercially and recreationally significant species. Ending overfishing and rebuilding overfished stocks within the timeline set out in the Fishery Management Plans is essential for the conservation of these fish for the enjoyment of current and future North Carolinians.”

Additionally, the Division of Marine Fisheries rule prohibits the possession or transport of flounder through coastal or joint fishing waters when those waters are closed to flounder harvest, regardless of where the species was taken.

The inconsistent flounder seasons led to four warnings from Marine Patrol in the first two weeks of September for unlawfully possessing or transporting flounder through coastal waters.

“These warnings were a direct result of the Wildlife Resources Commission’s opening the flounder season in inland waters and the fisherman transporting outside of those waters,” a division representative said.

In response to these warnings, Wildlife Resources Commission Executive Director Cameron Ingram wrote a letter Sept. 8 addressed to Rawls, stating he was appalled when he was informed marine fisheries officers had been directed to take enforcement actions against anglers for fishing or transporting fish in joint waters during an open season that was adopted in 2022, approved by the Rules Review Commission, subjected to legislative review, and codified months before the division’s proclamation. 

He said the warning citations issued by Marine Patrol officers for “transport fish not in compliance w/ body of water” were issued to anglers in joint waters on Wildlife Resources Commission ramps and these “actions are completely unacceptable, unprofessional, and likely unlawful.” He said that Wildlife Resources Commission officers would not be taking similar criminal actions against the angling public during the Marine Fisheries Commission season announced in joint waters starting Sept. 15. 

Division’s view

Rawls, during a Marine Fisheries Commission meeting Aug. 25, explained that although the Wildlife Resources Commission has authority in inland waters, their rule conflicts with the requirements of Amendment 3 to the Flounder Fishery Management Plan, therefore causing confusion to the regulated public. Amendment 3 maintains a 72% reduction across the fisheries, according to the division. 

“And more importantly, because these regulations are a divergent from the current Marine Fisheries Commission regulations, which in contrast are based on data, sound science, and management and in accordance with sustainable harvest requirements, which are outlined in state law, this impacts the Marine Fisheries Commission and the Division of Marine Fisheries ability to meet the objectives of the Flounder Management Plan,” she continued. 

Rawls explained that the Wildlife Resources Commission “now believes that they have sole authority over all hook and line fishing in joint waters despite the fact that they have not exercised that authority since the joint rules were created decades ago.”

The Wildlife Resources Commission executive director had called her earlier in the week to let her know that they would be announcing their authority over hook and line in joint waters to the public “and that he hoped we could be on the same page about this interpretation,” she continued. 

“Certainly, not to his surprise, I let him know that we are absolutely not on the same page and that the Division of Marine Fisheries nor the Marine Fisheries Commission agree with this interpretation. I let him know and I also want to let this commission know that the Division of Marine Fisheries will continue to implement and enforce the rules and regulations of the marine fisheries commission as we always have.”

Rawls referred to the governor’s office having directed in 2022 both agencies to readopt the joint rules as is and the Division of Marine Fisheries has been operating as is — not only the rule text but also the way the rules have been implemented and enforced for decades. 

“It has become abundantly clear with the Wildlife Resources commission’s recent actions that their focus is on jurisdictional boundaries with a total disregard for the condition of the flounder stock,” she said.

Wildlife Resources’ perspective

During a Wildlife Resources Commission committee meeting Aug. 24, Waters, while discussing the two flounder seasons, told the board that it has regulatory authority over inland waters and hook and line in joint waters, but with joint waters, “there’s a little more nuance.” 

State law says that “joint waters are deemed coastal waters from the standpoint of laws and regulations administered by the Department,” which is the Department of Environmental Quality and its Division of Marine Fisheries, “and are deemed inland waters from the standpoint of laws or regulations administered by the Wildlife Resources Commission,” Waters read. 

“‘The Marine Fisheries Commission and the Wildlife Resources Commission may make joint regulations governing the responsibilities of each agency and modifying the applicability of licensing and other regulatory provisions as may be necessary for the rational and compatible management of marine and estuarine and wildlife resources in joint fishing waters’ And that’s because an animal or fish that is in joint waters is legally both a marine and estuarine resource and a wildlife resource.”

He said that joint rulemaking took place in the late 1970s or early 1980s, was revisited in the 1990s and readopted in 2022, at the direction of the governor’s office.

“At the time, it was really adopted based on what both boards were told to do, and that we would address this issue after it was readopted,” Waters said.

Included in the rules readopted by both with no substantive changes, which went into effect Sept. 1, 2022, coastal fishing laws and regulations administered by NCDEQ and the Marine Fisheries Commission apply to joint fishing waters except “the following inland fishing laws and regulations administered by the Wildlife Resources Commission apply to joint fishing waters and shall be enforced by wildlife officers: (1) all laws and regulations pertaining to inland game fishes; (2) all laws and regulations pertaining to inland fishing license requirements for hook and line fishing; and (3) all laws and regulations pertaining to hook and line fishing except as hereinafter provided.”

Commission Chairman Monty Crump of Richmond County told Coastal Review in a recent phone interview that during the Feb. 17, 2022, meeting with the governor’s office that he clarified that Wildlife Resources managed hook and line in joint waters. “I said I want to be clear, so there’s no misunderstanding” that while Marine Fisheries has made it clear that they do not agree with WRC having authority over hook and line in joint waters, the governor’s office was telling both agencies to adopt rules as written. 

Crump, who owns a small family farm and has been on the commission since 2017, said he was asked during that meeting why he thinks the Wildlife Commission has hook and line authority, and “I said because it’s plainly clear in the general statute that Wildlife has hook and line authority in joint waters, which means all species, they consider coastal under them, and when they get into joint waters in inland waters, they’re under our jurisdiction. And they don’t agree with that,  that is the crux of the whole deal, that statutory language.”

Waters told Coastal Review in an email that by rule, WRC has regulatory authority for species in joint fishing waters when taken by hook and line, and certain species listed as “game fish,” and Marine Fisheries Commission has regulatory authority over all other fishing activities.

“These differences in authority means that WRC and MFC can only implement seasons, size and creel limits within their respective jurisdiction. Therefore, there is a critical need for open communication between WRC and MFC/DMF when there is a regulatory change for a given species,” he said.

He said the Wildlife Resources Commission needs to know of a potential change six months in advance of when it is to be effective to have rules in place. 

“In the case of recent changes for Flounder and Mullet, WRC did not learn of the change in time to implement a rule change. The result is that the DMF proclamation is effective in the MFC/DMF jurisdiction and WRC rule is effective in its jurisdiction,” he said. “Traditionally, seasons, size and creel limits have been communicated between agencies. And the WRC has promulgated rules that are consistent with MFC/DMF management. Recently DMF has implemented management changes through proclamation, not allowing WRC sufficient time to address the changes through rulemaking. This occurred with both Flounder and Mullet seasons.”

Waters continued that at this point, regulations for other species are substantially similar, if not identical.

“The WRC has tried to match our rules with MFC/DMF for those species for which they generally take the management lead. The flounder season is now closed in all waters, and we are trying to coordinate with DMF to address regulations for the 2024 harvest season,” he said, adding that the mullet season closure implemented by DMF through proclamation is different than the open season established by the WRC in rule.

Rule change exposes clash

Skinner explained that the conflicting seasons had been avoided in years past because of a Wildlife Resources Commission rule that was amended in 2022. 

The rule, before being changed, read, “In inland fishing waters, Sea Trout (Spotted or Speckled), Flounder, and Red Drum (also known as Channel Bass, Red Fish or Puppy Drum) recreational seasons, size limits, and creel limits are the same as those established in the Rules of the Marine Fisheries Commission or proclamations issued by the Fisheries Director in adjacent joint or coastal fishing waters.”

The rule that went into effect March 15, 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.” 

Skinner noted that the recreational southern flounder season and/or bag limit has changed every year since Amendment 2 to the flounder management plan was adopted in the fall of 2019. “That being said, there’s no way the WRC could have thought that their new rule would have matched the DMF/MFC seasons or bag limits on any given year.”

There was no recreational season in the fall of 2019 because harvest had been allowed all year prior to adopting Amendment 2. In 2020, the season was Aug. 16 to Sept. 30, and a four-fish limit. In 2021, the season was Sept. 1-14, again with a four-fish limit. In 2022, the season was Sept. 1-30 with a one-fish limit. 

Skinner said with the previous rule, the Wildlife Resources Commission acknowledged the Marine Fisheries Commission’s authority over joint waters, “which they now claim they have authority over, at least for the hook-and-line fishery. If they’ve always had authority over the hook-and-line fishery in joint waters, why wait decades to exercise that authority?” he said.

Next in the series: How did this unfold?