Canada and the United States have different laws which apply to the endangered North Atlantic right whale. In the United States, the Endangered
Species Act (ESA) and the Marine Mammal Protection Act (MMPA) govern activities related to the whales. In Canada, the governing law is the Species at Risk Act (SARA). Implementation of these laws in the two countries illustrates their differing approaches toward the long-term conservation of right whales.
The problem
Larger numbers of North Atlantic right whales began appearing in the Gulf of St. Lawrence beginning in 2010, according to whale researchers. By mid-August of this year, at least ten of those whales and possibly twelve were found dead in an area near the Magdalen Islands and along the western shore of Newfoundland.
According to Moira Brown, a whale scientist at the New England Aquarium in Boston, “right whales have been using the Gulf for a long time,” though their numbers have increased recently. Brown has conducted surveys since 1985 of right whales off Grand Manan Island, where the animals typically gather in the late summer and early fall to eat and court. Between 2010 to 2015, the number of right whales found in that location dropped sharply. Brown was curious to learn if the whales had gone elsewhere so she set up her survey in the Gulf of St. Lawrence in 2015, when she recorded 45 individual whales in July and early August. In 2016 that number was 40; that number is likely to be much higher for 2017 when the final count is tallied. “Typically, the whales will leave in early October, although some individuals may stay until November,” Brown said in a recent interview with the CBC.
The increased numbers of whales in the Gulf of St. Lawrence may be due to the presence of fat-rich copepods. Calanus finmarchicus, their preferred food, is found throughout the cold waters of the North Atlantic and once was found in vast schools in the Gulf of Maine. But, as the Gulf of Maine has warmed, researchers have found that the density of Calanus finmarchicus has decreased in areas such as Wilkinson Basin, an area of the Gulf of Maine once frequented by right whales. Researchers have also found decreasing density of this copepod in the Gulf of St. Lawrence. Furthermore, the phytoplankton blooms which provide the food for Calanus finmarchicus are occurring earlier, further disrupting seasonal patterns [see sidebar on research by Jeffrey Runge].
The Gulf of St. Lawrence is a major shipping route, used by huge vessels sailing to the ports of Quebec City and Montreal and into the Great Lakes. It is also a biologically rich area with numerous fisheries underway throughout the year. The Canadian Department of Fisheries and Oceans (DFO) notes that snow crab populations are strong in the northern and southwestern areas around the Magdalen Islands, and that lobster is an important fishery in that region. So with the increased numbers of right whales, which sleep on the surface of the ocean, and have broad backs and no dorsal fin, making them hard to see, it seems likely that strikes by large vessels or entanglement in fishing gear would also increase.
The law in Canada
This summer, in response to the high number of dead right whales, the Canadian Department of Transportation issued a requirement that vessels 20 meters or more reduce speed to a maximum of 10 knots when travelling in the western Gulf of St. Lawrence from the Quebec north shore to just north of Prince Edward Island. The requirement is temporary and will likely be lifted when the whales leave the area.
The DFO closed Snow Crab Fishing Area 12 in the southern Gulf of St. Lawrence two days earlier than in years past and restricted other fixed-gear fisheries, such as rock crab, to shallow water or instituted a delayed opening date.
DFO also kicked in $56,000 towards the Whales Habitat and Listening Experiment (WHaLE) to support the development of a real-time whale-alert system for mariners, which could help reduce whale and ship collisions in Canadian waters. In August, the agency introduced a new web site called LetsTalkWhales.ca, to elicit input from Canadians about proposed recovery measures for the right whale and two other whale species.
Under its law to protect endangered species (SARA), Canada has declared two areas — Roseway Basin, approximately thirty nautical miles south of Sable Island off Nova Scotia, and the Grand Manan Basin, at the mouth of the Bay of Fundy — as critical habitat for right whales, recognizing that the animals travel to these areas at specific times each year. In 2003, prior to SARA, the Canadian government altered the width and location of the shipping lanes in the Bay of Fundy through a proposal to the International Maritime Organization (IMO). This reduced the possibility of right whales being struck by ships that were moving to or from St. John, New Brunswick. In 2008, the IMO approved a seasonal (June – December) closure area in Roseway Basin for ships of 300 gross tonnage and greater.
As required under SARA, the DFO prepared a Recovery Strategy for North Atlantic right whales, released in 2009. That document stated that the two most important threats to the right whale population were vessel strikes and entanglement in fishing gear. Just last fall the department made available for public comment an Action Plan to implement that Recovery Strategy. The Action Plan places particular emphasis on reducing “mortality and injury as a result of fishing gear interactions.” It offers two approaches to achieving this goal: prevention (reduce the probability of right whales interacting with fishing gear) and response (reduce the severity of entanglements by responding to reported incidents).
Unfortunately, at least for the whales, the Action Plan does not call explicitly for any regulatory measures. It states, “The action plan is designed to provide guidance to managers and partners seeking to identify and implement specific risk-reduction measures that are most effective for whales while ensuring the safety of fishers and supporting sustainable fisheries.” In fact, the Action Plan explains that “Some of the measures in the action plan are not prescriptive or highly specific because the different fisheries that present the highest risk to right whales operate under a wide variety of conditions, seasons and gear configurations. In many cases the solutions are not yet well known…”
The law in the U.S.
In contrast, through the MMPA, the U.S. National Oceanic and Atmospheric Administration (NOAA) has taken very specific action to reduce the possibility of injury or mortality to right whales from fishing gear. In 1997 the agency released the Atlantic Large Whale Take Reduction Plan (ALWTRP), a plan developed by a team of 60 scientists, environmentalists, fishing industry representatives, and state and federal agency staff. The plan called for restrictions on how fixed-gear fishermen from Maine to Florida operate. The plan required northeast lobstermen to choose one gear modification beginning in 1999 and imposed mandatory gear marking and weak links in 2001, sinking groundline requirements in 2009 and trawling up and expanded gear marking rules in 2014.
“The U.S. and Canada try to be similar,” explained Kate Swails, coordinator of the Take Reduction Plan team and marine mammal policy analyst at the Greater Atlantic Regional Fisheries Office (GARFO). “They [Canada] are pursuing voluntary measures, avoidance and reporting measures. We differ in that they do not have a Take Reduction Team (TRT).” Canadian officials do attend meetings of the U.S. group, however. Seven staff from DFO took part in the TRT’s meeting last April and, said Swails, when not physically present, Canadian officials often participate through conference call.
Under the ESA, in 2008 NOAA put in place rules designed to reduce injury to right whales through ship strikes. The regulations require vessels greater than 65 feet to reduce speed to no more than 10 knots in certain locations and at certain times of the year along the entire East Coast.
Data on right whale deaths indicate that many of the whales killed by ship strikes have been female. Of the 22 vessel-related deaths prior to 2008 for which the sex and size of the animals were known, 80% were females. Researchers hypothesize that pregnant females and females with nursing calves spend more time at the surface where they are vulnerable to being struck. In the southeast Atlantic coast, speed reductions are in place from November 15 to April 15, when the whales are calving and nursing in that area. When the whales are migrating northward in the winter, speed reductions are in place along the mid-Atlantic coast from November 1 through April 30. In New England speed reductions apply at different times, in different areas, from January 1 through July 30 each year.
Furthermore, the federal government petitioned the IMO to reduce the size of the shipping lanes entering Boston Harbor in order to reduce the possibility of ship strikes. Narrowing the north-south lanes would provide at least a mile additional separation between the 1,000 ships that enter Boston Harbor each year and the whales. At the same time, NOAA established a specific “Area to Be Avoided” at the Great South Channel, between Nantucket Shoals and Georges Bank. Ships are not allowed in the area between April 1 and July 30. A recent review of the U.S. ship strike rule has determined it to be very effective in reducing right whale deaths due to ship strikes.
Currently, U.S. and Canadian scientists coordinate research efforts on right whale populations in the North Atlantic. That coordination is important because under the MMPA, any deaths of right whales, whether in the United States or in Canada, are counted when preparing the yearly stock assessment. Under the law, only one right whale can be seriously injured or killed each year from human activities. Between 2011 and 2016, there were 22 entanglements; an average of 4.65 each year. However, only 0.4% were confirmed to U.S. fishing gear. This year that number will be much, much greater.
What the future holds
Countries that export seafood to the United States will have to start protecting right whales and other marine mammals if they want to continue to sell their products in the U.S. under a new rule instituted by NOAA in 2016. The MMPA requires that all countries that export fish and fish products to the U.S. be held to the same standards as U.S. commercial fishing operations in terms of actions to reduce bycatch of marine mammals. Environmental organizations, including the Center for Biological Diversity, successfully brought suit in 2015 in the U.S. Court of International Trade to make the federal government implement the provisions.
The 2016 rule establishes the criteria for evaluating a harvesting nation’s regulatory program for reducing marine mammal bycatch and the procedures required for nation’s to receive authorization to export fish and fish products into the United States. Countries have a five-year grace period (to 2021) to develop or strengthen their bycatch laws to be comparable in effectiveness to U.S. standards.
NOAA published a draft list of all the countries that export seafood to the U.S. late in August. It noted those fisheries that, due to limited or no interaction with marine mammals, would be considered exempt from the MMPA provision and those fisheries that do interact. In Canada, the Maritime Provinces’ snow crab, Jonah crab, whelk, and lobster fisheries were specifically noted to interact with large whales, among them the North Atlantic right whale.
“We stand by ready to help Canada work out how to strengthen and develop laws comparable to what we have here in the US. We have a lot of experience both good and bad that they could learn from — and they seem willing and ready to do so,” Swails said.