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GOMCME LogoGulf of Maine Council on the Marine

Right whale recovery relies on informed marine industries and public... (con'd)

There, they consume an estimated 2,500 to 5,000 pounds (about 1,100 to 2,300 kilograms) of plankton daily, filtering it from the sea water with the bristly material in their jaws, known as baleen. In late spring, the whales resume their northerly travels, bound for the Canadian waters of the Bay of Fundy, Roseway Basin, and Browns and Baccaro banks south of Nova Scotia, where they will breed through the fall.

Researchers note that while the whales do have a somewhat established migration pattern, they will, within those broad pathways, migrate to locations where food happens to be most plentiful at any given time. This can complicate conservation measures requiring advance planning, such as diverting ship traffic.

The "right" whale to hunt

Like other endangered whale species, right whales were nearly obliterated by extensive hunting over many years. In the case of the North Atlantic right whale, generations of whaling slashed their numbers from tens of thousands of whales to an estimated 50 before they were finally protected under a League of Nations treaty in 1935.

Nineteenth-century whalers described the species as the "right" whale to hunt because of its slow swimming speed, and its especially thick layer of blubber. The latter allowed the whale to float, making it easier to tow back to port, and also yielded large amounts of whale oil, used to heat and light homes. Right whales were also harvested for their baleen, used to make corsets and other household items.

Right whale populations began to recover a bit once the whales were given protected status in 1970 under the Endangered Species Conservation Act of 1969, which later became the Endangered Species Act- but not to levels that will prevent extinction. According to the US National Marine Fisheries Service (NMFS), to avoid extinction, only four right whales per decade can die from causes other than natural ones.

Several international treaties also ban whaling and protect right whales, however, "There are no specific regulations to protect right whales in Canada," according to Jerry Conway, Marine Mammal Advisor for the Canadian Department of Fisheries and Oceans' Maritimes Region. Federal regulations pursuant to the Canadian Fisheries Act do afford some generalized protection to marine mammals, and the Canadian government encourages fishermen there not to set their gear in areas frequented by whales, Conway said.

Cumulative threats devastating

Though no longer hunted, right whales continue to face many threats to their survival - human-induced and natural - including collisions with ships; entanglement in fishing gear; low population numbers and inbreeding, although experts disagree over the extent to which inbreeding is hindering the whales' attempts to recover; loss of habitat and the resulting dwindling food supplies; and disturbances by vessels.

Researchers are also investigating the effects of ocean dumping of wastewater and dredge materials, and of the noise generated by oil and gas drilling and pipeline projects on right whales.

The Marine Mammal Protection Act requires federal officials to implement measures to reduce deaths and serious injury of right whales caused by commercial fishing operations to "insignificant levels approaching a zero mortality rate and serious injury rate within seven years after April 30, 1994," though the Act also notes that protection of whales is not limited to measures addressing commercial fishing. But changes in human practices that affect right whales are seldom swift and uncomplicated.

Activists have attempted to hasten the implementation of measures to protect the whales with court action.

Law suits have been brought under the Endangered Species Act against NMFS, the US Coast Guard, and the state of Massachusetts.

The plaintiff in the Massachusetts suit, activist Max Strahan, has accused the state of violating the Endangered Species Act in its licensing of gillnet and lobster pot fishing, according to Massachusetts Assistant Attorney General Douglas Wilkins.

A preliminary court injunction has required the state to consider additional regulatory measures, but the state has appealed the injunction, and as of late August, was awaiting a ruling on the appeal, said Wilkins. Meanwhile, a district court inquiry into the issue of right whales and fishing regulations is in progress, he added.

State officials note that even though the court action is not yet resolved, Massachusetts has increased protective measures for right whales.

The legal challenge prompted development of a state fisheries plan calling for gear modifications and for bans within critical habitat areas when right whales are present in state waters, according to Dan McKiernan, a marine biologist with the Massachusetts Division of Marine Fisheries, and chair of the Endangered Whale Working Group established to address the state's efforts to protect right whales in response to the law suit charging the state was not doing enough to protect the animals.

Diverse groups are emphasizing the need for more exchange of information, and for more research on many fronts including fishing gear design, methods for alerting whales and vessels of each others' presence, and on the whales themselves. Those calling for more research say knowing more about the species will help in developing protective measures that are workable for commercial enterprises.

New course to prevent ship/whale collisions

According to Amy Knowlton, associate scientist at the New England Aquarium, which conducts research on right whales, 14 out of 40 documented right whale deaths since 1970 have resulted from ship collisions, while two out of 40 have resulted from entanglements in fishing line or nets. The number of ship collisions may rise to 15 pending final results of a necropsy performed on a dead whale found by a fisherman in the Bay of Fundy August 19, according to Deborah Tobin, public education coordinator for East Coast Ecosystems (ECE) a non-profit research and education organization in Freeport, Nova Scotia. The whale's injuries were consistent with those resulting from ship strikes, she said.

But Knowlton said the numbers have their limitations. "I think we have to be careful not to give the impression that entanglements are not as important as ship strikes," said Knowlton, explaining that another 81 animals have not been sighted for six years, and are therefore presumed dead by aquarium researchers.

Some of those whales could have died as a result of entanglement, but they could also have died as a result of other causes, or may still be alive even though no one has seen them. To help ships avoid collisions with whales, several groups have organized early warning systems in right whale critical habitat areas along the eastern seaboard.

In Cape Cod Bay, the Great South Channel, and surrounding areas, an early warning system coordinated in 1997 by NMFS has incorporated groups and agencies including the US Coast Guard, US Army Corps of Engineers, National Oceanic and Atmospheric Administration, Massachusetts Execu-tive Office of Environmental Affairs, Stellwagen Bank National Marine Sanctuary in Massachusetts, and the Center for Coastal Studies (CCS) in Provincetown, Massachusetts.

The system has used US Coast Guard helicopters and airplanes and CCS marine vessels to locate right whales, faxing the coordinates of the whale's location at the time of the sighting, along with a "buffer zone," to mariners.

New England Aquarium also participated in the aerial surveillance work, according to Chris Mantzaris, chief of NMFS' Habitat Resource Protection Division. Funds from the Massachu-setts Environmental Trust Fund helped finance the program, McKiernan noted.

The state also implemented a no-approach zone 10 years ago, restricting boaters from coming within 500 yards of a right whale, said McKiernan. NMFS later incorporated the policy into its own regulations.

Fundy Traffic, Canada's federal traffic control agency for the Bay of Fundy, also tracks whales, notifying Canadian mariners of their current locations using surveillance information supplied by whale watching organizations and research groups. The agency has the authority to reroute shipping traffic "as long as it doesn't pose a hazard to the ship," said Conway.

ECE was also recently contracted by the Canadian government to conduct monitoring and surveillance in the Bay of Fundy, according to Tobin.

Andy Rosenberg, NMFS Northeast Regional Administrator, said his agency is working with Canadian officials to see if the two countries can mesh their surveillance networks.

Educating mariners about whale migration

In addition to on-the-spot surveillance reports, mariners also need to know more in general about right whales' migration patterns, said Knowlton of the New England Aquarium. "We need to make sure that every ship coming into port on the eastern seaboard knows where right whales are when," she asserted.

NMFS is trying to address this issue by meeting regularly with port authority officials, and by distributing a waterproof whale identification poster to mariners describing the animals and their behavior, according to Mantzaris.

Though some have blamed US Navy vessels and maneuvers for past right whale deaths off the coast of the southeastern US, that department says it is committed to right whale conservation efforts. According to Stuart Johnston, environmental public affairs officer for Commander Naval Base in Jacksonville, Florida, the Navy has adapted its maneuvers to prevent collisions with whales, and has underwritten testing of surveillance methods using technology developed to detect submarines.

Other efforts to inform mariners about right whales include development of an informational card being coordinated by a group of environmental and industry groups including the Gulf of Maine Council on the Marine Environment for distribution throughout the Gulf by shipping agents and the US Coast Guard starting this fall; and a Gulf of Maine Council workshop on right whales, which will convene representatives from the diverse groups involved in the issue. Canada is distributing two informational brochures for mariners about right whales and their habitat in the Bay of Fundy, which overlaps with heavily traveled shipping lanes.

Capt. Jeff Monroe, Massachusetts Port Authority (Massport) Deputy Port Director, questioned the reported frequency of the incidence of ship collisions, but said, "We want to work with whomever is looking to help protect right whales." Ships' masters have also been "very open to the information we've been providing them," he said.

"No seaman anywhere has any initiative in trying to strike a whale. Navigation at its finest art is collision avoidance," said Kevin Collard, Director of Operations, Environment, and Safety at Marbulk Shipping in Salem, Massachusetts. "Our company is more than willing and pleased to be involved and assist in any way we can," he said.

Monroe said he hopes the issue isn't addressed by banning ships from certain areas altogether, which he said, could cause hardships for Boston area communities. Twelve million tons of oil moves through Boston Harbor annually, he said. "If all of a sudden oil is going to start being trucked or move some other way, that will increase the price, which will drastically impact those families at or near the poverty line," he warned.

Fishing gear modifications intended to cut entanglements

In July, NMFS released a revised version of a rule the agency had initially proposed in April. The earlier version angered fishermen who said the proposed gear modifications would essentially prevent them from earning a living, but the new version, known as an interim final rule, has been described as more balanced by members of the fishing industry. NMFS expects the rule to affect approximately 4,500 lobstermen 320 gillnet fishermen.

All parties involved are calling for development and testing of gear prototypes.

The earlier version contained gear requirements that fishermen said would allow lines to break during storms, costing them equipment and resulting in "ghost gear," which drifts away and can potentially entangle whales.

The interim final rule requires lobstermen and gillnet fishermen (and, in the southeast, shark driftnet fishermen) to choose from a menu of gear modifications designed to prevent whale entanglements. The options include reducing the number of lines and amount of gear floating at the surface; incorporating so-called "weak links" which that intended to break when a whale becomes entangled in them but not during storms or routine handling; and other specific measures.

The rule also calls for more monitoring of whales, continued research into gear modifications, and expansion of disentanglement efforts. Another component of the plan is requiring that gear be marked so it can be identified when found on a whale.

Critical habitat areas off Massa-chusetts and the Georgia and Florida coasts are, under the plan, closed to some gear at times when whales are known to be in the area, and the document notes that if entanglements continue to occur, other closures may also take place.

One conservationist said NMFS backed off too much in drafting the new version of the rule. "NMFS implemented a rule that was a considerable retreat from not only the proposed rule but from what the fishing industry was willing to accept in the course of negotiations in the Take Reduction Team," said Marine Mammal Scientist Nina Young of the Center for Marine Conservation.

But Mantzaris responded, "I personally feel very good about the plan but in order for the plan to be successful it has to be taken in its entirety. Even if we had the best technology about gear and we knew it would work, that in itself would not be enough."

Young said her organization never supported gear modification in Maine waters, "because we recognized that that was not an area of high risk." Maine fishermen were the most outspoken in their opposition to the earlier version of the rule, maintaining that right whales are seldom spotted in Maine waters. According to NMFS' Rosenberg, however, the fact that few people see right whales does not mean they are not there.

"The proposal as drafted represents no difference - for areas such as Stellwagen Bank and Jeffreys Ledge - from current fishing practices, so if we've been catching right whales using current fishing practices, how do we expect that we will prevent...whale entanglement by merely continuing those fishing practices," Young charged.

"As the gear team comes up with new techniques, they will be added to the menus" said Mantzaris, noting, "As much anger as was directed at us at all these public hearings, we got a lot of comments that were useful and constructive and instructive."

Fisheries organizations find new version of rule fair

"We don't mind doing something that will help the whale, as long as we can make a living," said David Cousens, President of the Maine Lobsterman's Association. He said the cost to each Maine lobsterman of modifying gear in order to comply with the earlier version of the rule would have been $10,000 to $20,000.

Fishermen had also noted that the first version of the rule would have discouraged them from reporting entangled whales, for fear of being penalized for being too close them. An entangled right whale eventually freed near Nantucket, Massachusetts in June was initially reported by a fisherman.

"I'm convinced it's going to work," said Terry Stockwell, area manager for the Maine Department of Marine Resources. After the first rule came out, said Stockwell, "DMR wrote an alternate strategy that, in our opinion looks a lot like what their [new] plan is. We took our responsibility to protect fishermen as seriously as we took our responsibility to protect the whales."

Bill Adler, Executive Director of the Massachusetts Lobsterman's Assoc-iation, said, "I'm optimistic that the industry will see it as fair," but that he is concerned about the section of the rule that states that if one right whale is seriously injured or killed in a critical habitat area, the area will be closed to fishing. "That area includes six ports of fishermen who would be out of business like that," he said.

"When you look at the rule, it requires very specific things in the critical habitat. Fortunately, not a lot of fishing goes on there when whales are around," said McKiernan of the Massachusetts DMF." The thing that struck me through the process is that no one knows for sure if any gear types are more risky than another," he said, adding that being able to trace gear from any future entanglements will provide valuable information.

"I think that basically many of our ideas were supported by the other states and reflected their comments. NMFS, to their credit recognized that there was a necessity to revise their initial rules and came up with something that would be more realistic," said John Nelson, Chief of Marine Fisheries Division of the New Hampshire Fish & Game Department and chair of New England Fisheries Management Council's Marine Mammal Committee.

New Hampshire lobsterman Robert Nudd agreed that the revised interim rule is an improvement over NMFS' first proposal. "They were going to create a larger problem for fishermen, whales, the habitat. They weren't realistic as far as being able to retrieve the gear," he said.

But Nelson had not been surprised by NMFS' more restrictive first proposal. "When an agency goes out to rule- making, it behooves you to go out with the worst-case scenario because you can always back off of that. But when you go out with something too lenient, you cannot back off," he said.

NMFS officials, however, maintain that they developed the first rule in good faith. Under MMPA the agency was required to establish an Atlantic Large Whale Take Reduction Team including representatives of federal agencies, state governments, regional fishery management councils, interstate fisheries commissions, fishermen's associations, and the academic, scientific, and environmental communities.

When the team could not come to full agreement on a consensus plan within six months, NMFS had to submit a plan within 60 days included measures for reducing right whale deaths resulting from fishing operations by half within six months, and to nearly zero within five years.

NMFS presented their first proposal at 12 public hearings from Virginia to Maine last spring, receiving more than 300 written and public hearing comments, many of them heated. Comments on the new rule are being accepted through October 15, the interim regulations will take effect November 15, and gear modifications will be required beginning January 1.

Emergency response crucial

NMFS emphasizes that removing gear from an entangled whale as soon as possible is also critical to reducing the number of deaths caused by entanglement. The Center for Coastal Studies is the only organization authorized by NMFS to perform disentanglements. CCS operates a rapid deployment team in cooperation with the US Coast Guard.

While Canada has focused its efforts on preventing ship collisions rather than on entanglement, Conway said an agreement between the two countries allows the US rapid deployment team to disentangle right whales in Canadian waters.

But along with ship collisions and fishing gear entanglements, right whales are also subject to natural obstacles in their attempt to survive.

"We don't know whether there are significant environmental factors which are affecting the right whale's ability to rebound," such as changes in the food supply available in the whale's habitat, said Stormy Mayo, senior scientist at the Center for Coastal Studies. According to Mayo, "It is generally in the Gulf of Maine and its near adjacent waters where the story of right whales will be largely written."

The NMFS Take Reduction Interim Final Plan is published in the Federal Register available at state and federal offices, by calling the NMFS Northeast regional office, (508) 281-9328, or on the Internet at