NMFS calls for deeper cuts over ten years to protect whales

Right whales will continue to decline unless other actions taken

2021 Brings beauty but also unwelcome news to Maine lobstermen. Photo M. Philbrook

Two major announcements related to North Atlantic right whales and the U.S. lobster fishery were made by the National Marine Fisheries Service (NMFS) as 2020 ended and 2021 began.
On December 31, NMFS released its long-awaited draft whale rules, published as a Proposed Rule under the Marine Mammal Protection Act (MMPA). The Proposed Rule would modify the Atlantic Large Whale Take Reduction Plan (ALWTRP) to achieve a 60% reduction in risk to right whales from the northeast lobster fishery.
In early January, NMFS published its draft Biological Opinion, under Section 7 of the Endangered Species Act (ESA), on the impact of ten fisheries, including American lobster and Jonah crab, on the survival and recovery of North Atlantic right whales. NMFS is seeking public comment on both of these documents. The Biological Opinion finds that the lobster and crab fisheries do not jeopardize the right whale population only because of planned implementation of a stringent and likely impossible new risk reduction framework resulting in reductions of 88% to 98% over ten years.
The two documents go hand-in-hand. Under an August 2020 Washington, D.C. District Court ruling, NMFS is required to finalize the new whale rules and biological opinion by May 31, 2021.
The MMPA and ESA have similar objectives and work together to protect and aid the recovery of North Atlantic right whales; however, they have different mandates. NMFS recognizes that MMPA measures, such as the Proposed Rule amending the ALWTRP, contribute toward ESA goals. Accordingly, the draft biological opinion incorporates the Proposed Rule as the first of four steps necessary to permit federal fisheries in a manner that will not jeopardize right whale recovery.

NMFS has provided a path to keep the fishery going for another five years. Beyond that, however, it is inconceivable how our fisheries would survive a 98% cumulative risk reduction by 2030.”

Patrice McCarron, executive director, Maine Lobstermen’s Association

This may seem like good news for the lobster community – the fishery will not get shut down, at least in the short-term. The draft biological opinion determined that the lobster fishery is not likely to jeopardize the continued existence of North Atlantic right whales as long as the Proposed Rule and additional whale conservation measures, which mandate an 88% to 98% cumulative risk reduction by 2030, are implemented in federal waters fisheries. Those additional measures are outlined in the draft biological opinion’s “North Atlantic Right Whale Conservation Framework.”
“It is clear that NMFS has heard MLA’s concerns that shutting down the lobster fishery would be devastating for Maine and our coastal communities,” said Patrice McCarron, executive director of the Maine lobstermen’s Association. “NMFS has provided a path to keep the fishery going for another five years. Beyond that, however, it is inconceivable how our fisheries would survive a 98% cumulative risk reduction by 2030.”
The proposed rule amending the Atlantic Large Whale Take Reduction Plan
The first step in the draft biological opinion’s Conservation Framework is adoption of NMFS’s Proposed Rule in 2021. The Proposed Rule, which was presented to the public at four virtual meetings in January, results in at least a 60% reduction of entanglement risk of right whales by the lobster and Jonah crab fishery. NMFS has stated that it will reconvene the Take Reduction Team to address the risk of whale entanglement from the gillnet fishery and other Atlantic trap/pot fisheries in 2021 in order to fulfill Phase 2 of the Conservation Framework.
The Proposed Rule includes a variety of whale conservation measures, the majority of which were put forward by the states and Area 3 fishermen. For Maine lobstermen most of the measures, such as modifications in gear marking, trawling up and the use of weak points in vertical lines, were proposed to NMFS by the Maine Department of Marine Resources (DMR) and have been discussed at length. A seasonal closure in the offshore waters of Area 1 and a push toward ropeless fishing, however, are new proposals and are of grave concern to many Maine fishermen.
DMR’s proposal for whale rules also included a provision for “conservation equivalencies.” Such measures would be commensurate with the management approaches included in the Proposed Rule. DMR held a series of zone council meetings last fall to finalize conservation equivalency proposals for each lobster zone. While the allowance of conservation equivalencies is not referenced directly in the Proposed Rule, Colleen Coogan, NMFS Atlantic Large Whale Take Reduction Plan Coordinator, told an audience of nearly 100 during a January virtual information meeting on the rules that she expects to receive conservation equivalency proposals from DMR in its comments. NMFS is optimistic that such proposals can be reviewed for possible inclusion in the Final Rule.

What is in the Proposed Rule
For Maine, the draft whale rules, which apply to lobster gear fished in all non-exempt waters (seaward of the exemption line), include new measures for gear marking, trawling up based on distance from shore, weak points in vertical lines and seasonal restricted areas in which ropeless fishing is allowed.
Whale protection measures for lobstermen fishing in Maine’s exempt state waters (from the exemption line to the shore) would require the addition of one weak point half-way down the vertical line, and continuation of the new gear marking implemented by Maine in September 2020. These measures would be implemented by the state of Maine rather than through the federal whale plan and are necessary for Maine to reach its 60% risk reduction goal.
For Area 1 lobstermen (Maine, New Hampshire and Massachusetts) fishing non-exempt waters, the draft rules propose to increase the number of traps per trawl based on distance from shore. Lobstermen operating from the exemption line to 3 nautical miles (nm), or the sliver, would increase from two traps per trawl to three. Those fishing from 3 to 6 nautical miles would increase from three traps per trawl to eight; from 6 to 12 miles would increase from 10 trap trawls to 15; and outside of 12 miles would increase from 15 to 20-trap trawls to 25-trap trawls. Area 3 fishermen would increase from 20 to 45-trap trawls. Maine’s proposal to allow lobstermen to split trawls in half using only one endline is not included in the federal proposal.
Area 1 lobstermen fishing in non-exempt waters would also be required to add weak points in all vertical lines. Lobstermen setting gear from the exemption line to 12 nm would add two weak points, at one quarter and halfway down the line; lobstermen fishing outside of 12 miles would add one weak point one-third of the way down the line. Area 3 lobstermen would be required to fish one weak endline per trawl comprised of 75% weak rope.
Two new restricted areas would be created, open only to fishermen using ropeless gear. The Gulf of Maine Area 1 restricted area would lie offshore along the Area 1 line, spanning the length of zones C, D, and E from October to January. The second restricted area lies south of Nantucket Island, from February and March, when large groups of right whales have gathered there in recent years. The Proposed Rule also makes changes to existing seasonal closures. Lobstermen who have been prohibited from setting gear in the Massachusetts Restricted Area and the Great South Channel Area would be allowed to lobster in those areas using ropeless gear.
Finally, the Proposed Rule includes a new state-specific gear marking proposal that requires lobstermen in non-exempt waters to mark their vertical lines with a 3-foot state-specific color within two fathoms of the buoy and with three 12-inch marks at the top, middle and bottom of the line. In addition, there must be a 6-inch green mark within 12 inches of the 3-foot mark. Under this proposal Maine gear would be marked with purple, New Hampshire with yellow, Rhode Island with silver/gray, Massachusetts with red and Area 3 with black. Maine instituted these gear marking regulations in September 2020.

The draft Biological Opinion
Section 7 of the ESA prevents NMFS from authorizing any federal action, such as permitting a fishery, that is likely to jeopardize the continued existence of any endangered or threatened species. Due to the sharp population decline in right whales, NMFS conducted a Section 7 consultation reviewing ten federal fisheries to evaluate their effects on North Atlantic right whales as well as other ESA-listed species. The resulting “Batched Fisheries Biological Opinion” evaluates interactions between NMFS-authorized fishing activities and ESA-listed species. Its goal is to reduce those interactions and minimize any resulting impacts.
The Conservation Framework included in the draft biological opinion sets a strategy to reduce risk to right whales by phasing in risk reductions in federal fisheries over ten years while those fisheries continue to operate. The framework specifically addresses the federal American lobster and Jonah crab fisheries, U.S. gillnet fisheries, and other U.S. Atlantic trap/pot fisheries.
The draft biological opinion recognizes that right whales face myriad threats which, cumulatively, put the species at “high risk of extinction.” However, NMFS considers these many threats — such as climate change, small population size, limited genetic diversity, low reproduction, interactions with U.S and Canadian ships and Canadian fisheries, and entanglement taking place in U.S. state waters’ fisheries — as part of the baseline of current conditions negatively impacting right whales. The agency considers whether the continuation of federal fisheries, in addition to these activities, will threaten the survival and recovery of right whales.
The role of Canadian fisheries, vessel strikes
The draft biological opinion is clear that “Canadian fisheries and vessel strikes in the U.S. and Canada, puts this population [of right whales] at high risk of extinction.” Since NMFS declared an Unusual Mortality Event (UME) for right whales in 2017, 31 right whales have died (as of October 2020). Twenty-one deaths occurred in Canada, ten of which happened in 2019 after the implementation of Canadian mitigation measures.
In assessing the impacts of U.S. federal fisheries on right whales, NMFS assumes that the “estimated number of right whale M/SIs due to vessel strike and entanglement that occurred in Canada between 2010 and 2019 continue to occur in the future… [and] also that M/SI resulting from vessel strikes in U.S. waters continue to occur.”
“This Conservation Framework takes a conservative approach and plans as if the Canadian measures are not benefitting the right whale population. As more information becomes available on risk reductions in Canadian waters and from other U.S. sources (vessel strikes and state fisheries), the Conservation Framework may be modified to reduce the degree to which additional measures are needed.”

Deep cuts for U.S. federal fisheries phased in over ten years
NMFS estimates that “entanglements in the [U.S.] federal fisheries… seriously injure or result in the death an average of approximately five right whales each year,” a figure much greater than the allowed death rate (Potential Biological Removal or PBR) of 0.8 annually. NMFS determined in 2019 that the risk of entanglement to the whales from U.S. fishing gear must be reduced by 60% to 80% through the federal whale plan.
Those reductions fall far short of what is needed, according to the draft biological opinion. “Once the ALWTRP measures are implemented, NMFS estimates that, without further action, the federal fisheries are anticipated to result in the death of approximately an annual average of 2.2 right whales (22 right whales over a 10-year period).”
Additional measures “to ensure the fisheries will not appreciably reduce the likelihood of the survival and recovery of the species as required by the ESA” are outlined in the draft biological opinion’s ten-year Conservation Framework.
Phase 1 requires the implementation of the draft Proposed Rule to further to reduce risk to right whales from the northeast lobster and Jonah crab fisheries by at least 60% in 2021.
Phase 2 requires rulemaking to reduce mortality and serious injury (M/SI) in federal gillnet and other Atlantic coast trap/pot fisheries by 60% in 2023.
Phase 3 seeks an additional 60% risk reduction in all federal fixed gear fisheries in 2025
Phase 4, if necessary, seeks up to an additional 87% risk reduction in all federal fixed gear fisheries in 2030.
The Framework requires NMFS to evaluate the recovery progress of right whales and efficacy of Canadian conservation measures to protect right whales in 2024 and 2026. If measures outside U.S. federal fisheries have further reduced M/SI, Phase 4 of the framework could be reduced to a 28% risk reduction.
The Conservation Framework aims to reach a rate of only 0.11 right whale deaths per year within 10 years to support the continued survival and recovery of the species. NMFS plans three additional rulemakings over a ten-year period, scheduled in 2023, 2025 and 2030. NMFS hopes to quantify risk reductions achieved in Canada and potential improvements in the population through the two scheduled evaluations in 2024 and 2026 to determine “to what extent the fourth and final rulemaking needs to be implemented.”

The future of the North Atlantic right whale population
Where did these new risk reduction mandates come from? NMFS has created a new right whale population model to assess the impact of the continued operation of U.S. federal fisheries on the survival and recovery of right whales. According to this model, the long-term recovery prospects for right whales over the next 50 years are grim. The model considered three scenarios.

Under the first scenario, NMFS assumes that all U.S. federal fixed gear fisheries are shut down. The model predicts that with a complete fisheries shutdown (lobster, Jonah crab, gillnet and other trap/pot fisheries) the right whale population will continue to decline because the whales continue to die from vessel strikes and entanglement in Canadian fisheries, and reproduction remains low. Scenario one predicts the loss of 64 females from the population over 50 years.
Under the second scenario, NMFS assumes that federal fixed gear fisheries continue to operate under the constraints of the Conservation Framework. The model predicts that the right whale population will decline slightly more than it would with a full shutdown of those fisheries. Scenario two predicts the loss of 69 females from the population over 50 years.
NMFS concludes that the federal fixed gear fisheries can continue to operate with the Conservation Framework in place because a full shut down of the fishery will result in only minimal gains to the right whale population. “The proposed action [implementation of Conservation Framework] will result in a loss of approximately 13 right whales (5 females) compared to the no federal fisheries scenario over a 50-year time period.”
“Given all of the available data, it is logical to conclude that right whale entanglements due to the operation of the federal fisheries does not represent an appreciable reduction in the likelihood of survival and recovery of North Atlantic right whales compared to the no federal fishery scenario. Therefore, we believe that the proposed action, including the implementation of the Framework, is not likely to jeopardize the continued existence of North Atlantic right whales”.

Can right whales be saved?
According to NMFS, right whale recovery is possible. Despite the current challenges facing right whales, the population grew from 162 right whales (63 females) in 1980 to a peak of 481 (200 females) in 2011.
U.S. fishermen cannot recover the species on their own. Right whales can only recover if all human threats to right whales, particularly vessel strikes and Canadian fisheries, are reduced.
NMFS considered a third modelling scenario which assumes that both the U.S. and Canada implement the Conservation Framework. The model predicts that when both countries take equivalent action, the right whale population will increase. Scenario three predicts an increase of 24 females to the population over 50 years.

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