The 2014 whale rules: Understanding the Endangered Species Act

First published in the MLA Newsletter, June, 2011.

This summer the National Marine Fisheries Service (NMFS) will hold a series of public scoping meetings in Maine discuss options to reduce the risk of entangling endangered whales in lobster gear, specifically, vertical lines. These meetings are part of a multi-year process through which NMFS will devise new whale rules that will go into effect in 2014. To raise awareness about the importance of these meetings and help lobstermen understand why they are happening, the MLA newsletter will run a series of articles on endangered whales and the laws in place to protect them. The first of this series explores Endangered Species Acts (ESA) with a little information on the Marine Mammal Protection (MMPA) in context with the ESA.

The whale rules, as they are referred to in Maine, are officially known as the Atlantic Large Whale Take Reduction Plan (ALWTRP). The goal of the plan is to reduce the risk of “serious injury to” or “mortality of” large whales due to entanglement in fishing gear. NMFS is required to develop the recovery plan for large whale species by the MMPA, not the ESA.

In August, 1996, NMFS formed the Atlantic Large Whale Take Reduction Team (TRT) to draft an ALWTRP that would reduce the likelihood of North Atlantic right, fin and humpback whales getting injured or killed in lobster or gillnet gear. The immediate goal of a take reduction plan is to prevent right whales from getting killed or severely injured within six months of the plan’s implementation. The longer term goal is to reduce serious injuries and mortality to an insignificant level approaching zero. Since the plan’s adoption fifteen years ago, those goals have not been reached.

The ESA plays an additional role in protecting right whales. The law’s primary goal is to prevent the extinction of imperiled plant and animal life and to recover and maintain those species by removing or lessening threats to their survival. The ESA requires federal agencies such as NMFS to ensure that permitted activities — in this case, the lobster fishery — do not “harm” or “jeopardize” the continued existence of any listed species. Since the ALWTRP developed under MMPA is intended to reduce entanglements in fishing gear, these measures also help to avoid the likelihood that fishing activities will “jeopardize” the whales’ existence. So if the whale rules work, they should meet the requirements of the ESA too.

The ESA directs NMFS to carry out programs to conserve threatened and endangered species and to consult with other federal agencies on activities that may affect a listed species. These interagency consultations, or section 7 consultations, are designed to ensure federal actions do not jeopardize the continued existence of a species or destroy or adversely modify critical habitat. If a federal action is found violate these measures, NMFS will suggest Reasonable and Prudent Alternatives (RPAs) to avoid, minimize or mitigate those impacts.

Since NMFS’ responsibilities including both protecting endangered species and permitting fisheries, it must conduct a section 7 intra-agency consultation with itself. The agency’s Office of Protected Resources thus consults with the agency’s Office of Sustainable Fisheries. Essentially, the protected resources people make sure that activities permitted in the lobster fishery do not violate the ESA.

In October, 2010, NMFS Office of Protected Resources conducted a section 7 consultation and released its “Biological Opinion on the Continued Implementation of Management Measures for the American Lobster Fishery.” This gives the office’s opinion as to whether the federal action — in this case, issuing permits to go lobstering — is likely to jeopardize the continued existence of right whales or adversely modify its habitat. If the lobster fishery jeopardizes the continued existence of endangered species, an RPA must be set up or the fishery could be shut down.

The 2010 biological opinion found that the lobster fishery did not jeopardize any listed endangered or threatened species. It determined that the whale rules (ALWTRP), which required fishing gear modifications such as weak links, gear marking and sinking groundline, coupled with the  ongoing effort by NMFS to reduce entanglement risk from vertical fishing lines will provide enough protection to whales that the lobster fishery does not jeopardize the continued existence of the species. The opinion thus gives added importance to developing additional whale rules that address vertical lines and implementing those rules by 2014.

If there had been a finding of jeopardy, NMFS would have been obligated to implement an RPA in order to allow the fishery to continue. This has happened in the past. A 1996 biological opinion resulted in a finding of jeopardy from lobster gear. That led to an RPA prohibiting lobster trap gear from being fished in the Great South Channel critical habitat area and the implementation of the 1997 Take Reduction Plan, the first round of whale rules.

In 2000, NMFS was sued for its failure to amend the ALWTRP in a timely manner. The resulting 2001 finding of jeopardy produced an RPA implementing the Seasonal Area Management (SAM) and Dynamic Area Management (DAM) programs. While those programs were not popular with fishermen, they did allow the lobster fishery to continue.

It is important to note that section 7 consultations and resulting biological opinions for the American Lobster fishery consider more than just whales. They look at interactions between the lobster fishery and all threatened and endangered species. While the 2010 finding was not one of jeopardy, NMFS did state that the lobster fishery “is likely to result in adverse effects” for many species including endangered North Atlantic right, humpback, fin and sei whales, endangered leatherback turtles and threatened loggerhead turtles. It also looked at several other endangered species including shortnose sturgeon, Atlantic salmon, Kemp’s ridley sea turtles, green sea turtles, hawksbill sea turtles, blue whales and sperm whales for which it found no adverse impact. The biological opinion also considered and found it not likely that lobstering would adversely affect designated critical habitat for Atlantic salmon or North Atlantic right whales.

The ESA is a very complex law with serious implications for the lobster fishery. Americans are familiar with the snail darter case which stopped a Tennessee Valley Authority dam project in the 1970s, a decision subsequently upheld by the Supreme Court. In the Pacific Northwest, the case involving the Northern Spotted Owl halted logging operations in parts of the region, ultimately resulting in scaled-back logging operations.

So, if you are wondering why you should care about all this federal nonsense, think about the consequences of doing nothing. There were five right whale entanglements in 2010 and six entanglements thus far 2011. NMFS has determined that at least seven right whales have been entangled in lobster gear, three set by Maine lobstermen, over a ten-year period. They know this because they retrieved the gear and interviewed the lobstermen who set it. If another one or two right whales are found seriously injured or killed as a result of entanglement in lobster gear, NMFS likely would conclude that the lobster fishery is jeopardizing the survival of right whales. If that happens, NMFS will implement even tougher new whale rules or simply stop permitting the fishery. This current round of rulemaking gives Maine lobstermen a chance to inject some common sense and practical ideas on how to reduce the risk of vertical lines to right whales.

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