“I felt like I was leaving the funeral of a good friend,” said Stonington lobsterman and MLA board member John Williams. He was referring to the stress he felt at the close of the week-long Atlantic Large Whale Take Reduction Team (TRT) meeting held at the end of April in Providence, RI. Williams and fellow MLA board member Mike Sargent, president Kristan Porter, former board member Dwight Carver, executive director Patrice McCarron and Department of Marine Resources (DMR) staff person Erin Summers represented Maine lobstermen in discussions on the development of future regulations designed to protect the endangered North Atlantic right whales.
The Maine team had done a tremendous amount of leg work in preparation for the TRT meeting, attending many meetings organized by the National Marine Fisheries Service (NMFS) and conservation groups in the months leading up to the TRT meeting. But more importantly, the MLA spent a lot of time seeking input from lobstermen about pending changes to the whale rules. The MLA organized eight industry meetings in 2018, helped organize sessions at the Maine Fishermen’s Forum, attended zone council meetings and DMR’s three industry meetings in March to inform lobstermen about the whale rules and discuss ideas for improving Maine’s whale protection measures with them.
The TRT is composed of 60 individuals representing federal, state, regional, scientific and environmental entities involved in right whale protection and management, and the Maine team recognized that they would be outnumbered at the meeting. In 1997 the TRT created the first Atlantic Large Whale Take Reduction Plan, which helped lead to a steady uptick in the right whale population. Unfortunately, that increase came to a halt in 2010 when the birth rate among right whales began to drop and the whales began moving to the Gulf of St. Lawrence in search of food.
The decline worsened as a result of an unprecedented number of right whale deaths, mostly in Canadian waters in 2017 leading environmental organizations to bring suit against NMFS under the Endangered Species Act in January 2018, calling on it to immediately complete a Section 7 consultation. NMFS began work on the consultation in October 2017, which requires NMFS to issue a Biological Opinion on whether federally permitted activities, such as lobster fishing, jeopardize the right whale population. The Biological Opinion is based on the status of the species, description of federally permitted activities, and an effects analysis. The court case, which is before a judge in the U.S. District Court for the District of Columbia, is ongoing.
The release of the Biological Opinion is anticipated later this year and is expected to include an analysis of the lobster fishery with status quo whale rules as well as an alternate analysis taking into account the conservation achieved by new whale protection measures recommended by the TRT that are underway through the federal rulemaking process.
North Atlantic right whales are also protected under the Marine Mammal Protection Act (MMPA) because they are designated as a strategic stock. Whale protection measures, including weak links, sinking groundlines, trawling up and gear marking, are implemented through the Atlantic Large Whale Take Reduction Plan under the MMPA. The MMPA sets the maximum number of animals that can be removed from the population due to human activities such as fishing or shipping. This is known as “Potential Biological Removal” or “PBR”. If PBR is exceeded, the MMPA requires NMFS to implement additional measures. Based on the 2017 North Atlantic right whale draft stock assessment, NMFS determined that serious injury and mortality for right whales exceeded PBR by more than 500%, with an average of 5.5 right whales impacted each year. PBR allows less than one whale (0.9) to be seriously injured or killed each year.
In response, NMFS pledged to make changes to the Atlantic Large Whale Take Reduction Plan to increase protections for right whales from entanglement in fishing gear. NMFS convened the TRT in April 2017 to discuss the declining status of the whales. The agency then held subgroup meetings to explore weak rope and ropeless fishing as potential risk reduction options in March and April of 2018. NMFS convened the TRT again in October of 2018 to discuss preliminary management approaches, and held another TRT meeting in April 2019 to finalize management alternatives and initiate federal rulemaking.
Understanding Jeopardy under the ESA
“Biological opinion” — A document which includes: (1) the opinion of the National Marine Fisheries Service as to whether or not a Federal action (i.e., permitting the lobster fishery) is likely to jeopardize the continued existence of listed species, or result in the destruction or adverse modification of designated critical habitat; (2) a summary of the information on which the opinion is based; and (3) a detailed discussion of the effects of the action on listed species or designated critical habitat.
“Jeopardize the continued existence of” — to engage in an action (i.e., permitting the lobster fishery) that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.
If a jeopardy determination results from the consultation, the action agency may:
adopt one of the reasonable and prudent alternatives for eliminating the jeopardy in the opinion;
decide not to grant the permit, fund the project, or undertake the action;
reinitiate the consultation by proposing modification of the action or offering reasonable and prudent alternatives not yet considered; or
choose to take other action if it believes, after a review of the biological opinion and the best available scientific information, such action satisfies section 7(a)(2).
The Maine lobster industry, through its TRT members, was fully engaged in this process. However, NMFS did not release information on the risk reduction goal required to achieve PBR or the model that would be used to assess the impact of management alternatives until early April, just days before the TRT meeting. NMFS set a very aggressive risk reduction target that new whale protection measures must reduce the risk of serious injury and mortality to right whales by 60% to 80%. This risk reduction must be in addition to protections already afforded to right whales through the plan that is currently in place. NMFS dubbed the newly developed model to assess the effectiveness of proposed management alternatives the “Decision Support Tool.” This tool combines whale density, vertical line density and the risk of those lines based on line diameter and trawl length to produce a risk score. The Decision Support Tool then calculates the estimated risk reduction produced by various actions, such as closures, trawling up, the use of “weak” rope, and other measures.
TRT members had little time to process the impact of the risk reduction goal and understand the Decision Support Tool before the TRT meeting, particularly given NMFS’ objective to initiate rulemaking following the meeting. Both DMR and MLA had many frustrations and concerns with both the risk reduction goal and the decision support tool; each outlined these concerns separately in a letter to NMFS in the days leading up to the meeting. There was deep trepidation about participating in the TRT meeting given the weight of the decisions which needed to be made with so little time to understand critical new information.
NMFS pressed TRT members to work to identify management alternatives to meet the risk reduction goal. NMFS Deputy Assistant Administrator Sam Rauch made the purpose of the meeting explicitly clear. “The TRT’s job is to identify measures to reduce right whale serious injury and mortality from lobster gear by 60%-80%,” recounted McCarron. “The TRT meeting gave the fishing industry its opportunity to shape how that reduction is achieved. If we failed that task, NMFS would begin rulemaking without our advice and decide for us. Either way, the fishery would have to meet that risk reduction.”
Discussions among the TRT members were intense and lasted hours into the night. NMFS was clear that any measures that fell short of the risk reduction goal would be adjusted by the agency during rulemaking. Ultimately, Maine’s representatives worked to ensure that there were no closures to lobster fishing in Maine waters (two were proposed for Maine) and that ropeless fishing was removed as a management option. In turn, Maine agreed to remove 50% of its vertical lines from the water, which, in combination with using toppers on buoy lines (stronger rope on bottom, weaker rope on top), reached the risk reduction goal. While there was widespread disagreement amongst TRT members on the benefits of many management approaches (such as weak line or targeted closures), none could argue with the benefits of taking rope out of the water. Maine’s pledge to make these changes is contingent upon other states and lobster fishing areas providing equal risk reduction for right whales. All participants in the lobster fishery will share equally in reducing risk. NMFS will reconvene the TRT shortly to move forward with measures for additional gear marking and reporting requirements.
“The outcome for Maine’s lobster industry could have been far worse,” DMR Commissioner Patrick Keliher wrote in a subsequent letter to Maine’s commercial lobstermen. “In the end, Maine delegates were successful in pushing back on those proposals, and the final recommendations did not include approaches that were either unproven (ropeless) or shown not to be warranted (closures and weak rope all the way to the bottom or in areas with low risk).”
Yet any in the environmental community do not believe this goes far enough. Erica Fuller, senior staff attorney at Conservation Law Foundation, recently stated that “Reducing and weakening the lines in the water is a start, but we need to go much further, much faster. Appropriate closures and ropeless fishing need to be part of the solution.”
The next steps will be taken by DMR, which will meet with lobstermen in June to talk about the ways the 50% reduction can be achieved. Meanwhile, NMFS will be improving the decision support tool, based on feedback from the TRT. Finetuning the model may make it more reflective of the current movements of whales in the Gulf of Maine, particularly along the Maine coast. “It’s a moving target,” MLA president Porter said. “The most important thing is that whatever we do, we make sure that it affects all lobstermen equally.”
Keliher noted in his letter that nothing will change during the 2019 fishing year. Implementation of Maine’s measures through NMFS rulemaking likely will not take place until 2021.