Massachusetts Proposes New Regulations to Protect Right Whales in State Waters

In January 2020, Max Strahan, a self-described whale activist, filed suit in the U.S. District Court in Massachusetts against the state. He contended that the Division of Marine Fisheries (DMF) licensing of fixed gear fisheries violated the Endangered Species Act because vertical lines deployed in those fisheries could cause entanglements of endangered right whales and sea turtles.

The court was petitioned by Strahan to halt the further deployment of vertical buoy lines and to require the state apply for an Endangered Species Act Incidental Take Permit (ITP). In April 2020, the Court ordered DMF to apply to NOAA Fisheries for an ITP within 90 days.

In October, Strahan asked the court for a preliminary injunction to stop fixed gear fisheries, since the 90-day period had passed. The judge denied Strahan’s request without prejudice, meaning he could request an injunction again, and gave the state additional time to get the necessary permit. The judge did, however, order Strahan and the state to file suggested schedules for a trial by October 15 and directed the state to file reports with the court every 30 days on its progress beginning October 15.
To comply with this court order, DMF has begun the work to submit an ITP application. An ITP application must include a Habitat Conservation Plan (HCP) which details the steps taken to minimize and mitigate impacts the activity is having on an endangered species. DMF is holding two virtual public hearings on its proposed regulations related to fixed gear fisheries, at 6 p.m. on December 8 and December 9. Written public comment will be accepted through 5 p.m. on December 18.
If approved, these regulations would constitute the foundation of the state’s HCP for right whales.

Proposed Massachusetts Right Whale Regulations

Fixed Gear Closures

Commercial Trap Gear Closure
DMF is proposing to extend the existing February 1 – April 30 Large Whale Seasonal Trap Gear Closure (north and east of Cape Cod) to all waters under the jurisdiction of the Commonwealth.
Gillnet Closure in Cape Cod Bay
DMF is proposing to extend the existing January 1 – May 15 gillnet closure in Cape Cod Bay to include those waters shoreward of 70°30’ W longitude between 42°00’ N latitude (Gurnet Point) and 42°12’ N latitude (Scituate Harbor).
Fixed Gear Closure Extensions
DMF intends to retain the regulatory authority to extend the above described fixed gear closures (#1 and #2), or portions thereof, based on the Director’s assessment of the documented presence of right whales in Massachusetts waters and if reasonably necessary to prevent the entanglement of right whales in commercial trap gear.

Recreational Lobster and Crab Trap Gear Haul-Out Season
DMF is proposing to implement a new closed season for buoyed recreational lobster and crab trap gear. The closed season would run from the Tuesday following Columbus Day through the Friday preceding Memorial Day.
Conch Pot Haul-Out Period
As the above described commercial trap gear closure (#1) applies to all trap gear, including conch pot gear, DMF is proposing to extend the existing December 15 – April 14 conch pot haul-out period through April 30.

Trap Gear Configuration Modifications and Restrictions

1,700-lb Breaking Strength Contrivance
DMF is proposing that all vertical buoy lines break when exposed to 1,700 pounds of pressure. This may be accommodated by fishing buoy lines with a 1,700-pound breaking strength or by rigging the buoy line with a contrivance or multiple contrivances that allows for it to break at that pressure.
Vertical Buoy Line Maximum Diameter for Commercial Trap Gear

DMF is proposing that all vertical buoy lines affixed to commercial trap gear have a diameter not greater than 3/8”.
Vertical Buoy Line Maximum Diameter for Recreational Trap Gear
DMF is proposing that all vertical buoy lines affixed to recreational lobster and crab trap gear have a diameter not greater than 5/16”.
Prohibition on Single Lobster Traps for Vessels of a Certain Size
DMF is proposing to prohibit the fishing of single lobster traps onboard vessels with an overall length of 29’ or greater. These vessels will be required to configure their traps as multi-trap trawls. Vessels with an overall length of less than 29’ may continue to fish single lobster traps where authorized; the setting of single lobster traps by any vessel of any size will remain prohibited north of Cape Cod seaward of the three nautical mile line and the Billingsgate exempted area. DMF is proposing that this regulation go into effect on January 1, 2022.

Permitting

Cap on Issuance of Seasonal Lobster Permits
DMF is proposing to cap the annual issuance of seasonal lobster permits for students at 150 permits.

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