State and federal agencies' whale regulations overlap

First published in the MLA Newsletter, August, 2011

In July, the National Marine Fisheries Service (NMFS) began the rulemaking process through a series of public scoping meetings to discuss options to reduce the risk of entangling endangered whales in lobster gear, specifically, in vertical lines. This is a multi-year process through which NMFS will devise new whale rules that will go into effect in 2014. To raise awareness about the importance of this rulemaking and help lobstermen understand why it is happening, the MLA newsletter is running a series of articles on endangered whales and the laws in place to protect them. The third part of this series investigates the interplay between state and federal laws.

The National Marine Fisheries Service (NMFS) concluded its public scoping meetings in July in Maine. The purpose of the meetings was to talk to local fishermen in hopes of finding ways to manage the risk posed by vertical lines in order to reduce the frequency and severity of right and humpback whale entanglements. Prior to these federal scoping meetings, the Department of Marine Resources (DMR) held its own scoping meetings. Colonel Joe Fessenden, chief of marine law enforcement and DMR acting deputy commissioner, said that the eight state meetings were successful and that fishermen offered many ideas on how to configure gear to meet future federal requirements.

The state will develop a proposal with specific suggestions for vertical line risk reductions by the September 30 deadline. According to Fessenden, those suggestions will target areas where the NMFS computer model indicates both whales and lobster gear are concentrated. “Looking at the co-occurrence model, we see the greatest amount of co-occurrence happens outside state waters. We should be focusing on that area,” Fessenden said. “We’re trying to be optimistic that we can come up with a proposal with the least impact to fishermen, while reducing the number and severity of whale entanglements”.

The last set of whale rules, put in place in April, 2009, required that ground lines be made of sinking rope. This change was controversial, as it required fishermen to spend more money on gear, change fishing ground and posed significant operational and safety hazards. The rule was just one of several that NMFS must institute under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA). The current issue is vertical lines and so far, there has been much more outreach to fishermen. “We haven't done a good job in the past to get input from industry,” admitted David Gouveia, staff person at NMFS Office of Protected Resources, at the scoping meeting held in Portland.

The DMR and NMFS have been dealing with the protection of large whales for many years, said Fessenden. ESA and the MMPA are the two driving forces behind federal whale regulations. The ESA ensures that any activity in the ocean that affects critical species or habitat is monitored so it does not put the critical species or habitat in jeopardy. In 2010, NMFS released its biological opinion that lobster fishing was “not likely to jeopardize” endangered whales and their habitat given the sinking groundline rules in place and the anticipated 2014 rules to reduce vertical line risk.

North Atlantic right whales are also protected under the MMPA. The MMPA is designed to minimize serious injury and mortality to marine mammals from human interactions through short-term and long-term goals. The law requires a management plan (the Take Reduction Plan) that sets out specifically how those goals will be achieved. The short-term goal states that potential biological removal (PBR), which is the number of animals that can be seriously injured or killed relative to the population abundance in any given year (0.7 right whales per year) must not be exceeded within six months. The long-term goal is to reduce whale mortality to 10% of PBR within five years.

While the state cannot set rules in its own waters that would weaken the protection of protected species, it can choose to be more restrictive than federal law. The 2009 federal whale rules established an exemption line off the coast of Maine, inside of which lobstermen are exempt from the sinking line provisions. However, Maine requires whale-safe measures from the beach to the exemption line. These measures prohibit the use of floating rope at the surface and wet storage of gear for more than 30 days and require lobstermen to choose one of three options to make their gear more whale safe: Option 1) Attach a 600 pound [originally 1,100] breakaway to all buoy lines. The weak link must be designed so that the bitter end of the buoy line is clean and free of knots when the weak link breaks;  option 2) rig all buoy lines entirely of sinking line; or option 3) rig all ground lines entirely of sinking line. These measures were originally part of the federal whale plan that began in 1997, but was later amended in 2009 to apply only to waters outside the exemption line.

“We have to enforce the federal law no matter what,” said Fessenden. The law must be enforced using funds from federal grants or state revenues,. “There is a small amount of [federal] money from protected resources for patrol,” he explained. Because federal agencies don’t have unlimited abilities to enforce federal laws, agencies such as NOAA enlist the help of each state through Joint Enforcement Agreements (JEAs). Through a JEA, federal money is provided to the state to enforce federal laws in state and federal waters. Slightly less than 10% of the money received by DMR through the JEA goes to enforcing protected resource regulations, approximately $70,000 last year.

The state receives additional federal money for whale and gear research. “Right now we have two large federal grants funding a lot of gear research,” said Erin Summers, whale researcher at DMR. “In the past we have had some [ESA] section six money, which was used for humpback whale tagging projects.” State money has also helped fund many whale-related research projects over the last five years. In 2008 and 2009, research on the availability of plankton, a major part of the right whales’ diet, was conducted along the Maine coast as well as passive acoustic detection of large whales in key habitats, photo-identification and scarification rate studies. “Ten cents from every lobster tag sold went to whale research,” Summers explained. “But right now it's all federal money.”

“The state doesn't have to have a role in research,” Summers added. “But we picked up the reigns when the federal regulations were being based on weak data.” In the past, federal plans for the Gulf of Maine were based on whale data from Cape Cod Bay. “We stepped in to fill in key data gaps,” she said. Some of the research that has taken place over the past five years includes gear surveys that feed data into NMFS’ co-occurrence model, gear research and development of new technology, whale-tagging projects and plankton research to find when and where whale food is available.

“The gear surveys are two-fold,” Summers said. “There is the fishery-dependent part and the fishery-independent part.” Fishery-dependent information is collected through gear surveys filled out voluntarily by fishermen. Fishery-independent survey data comes from DMR’s boat-based and aerial surveys to count the number of buoys in an area to determine the density of vertical lines, which is then compared to the paper surveys. “We also worked on a compliance survey with the Marine Patrol in 2009 and 2010 to look at the compliance rate of the industry. This was funded by JEA,” Summers said.

The DMR and the Gulf of Maine Lobster Foundation are currently working with seven to ten lobstermen in Zones C and D on a trawling-up project. Each of these lobstermen will change how he rigs 50 of his traps (normally fished as singles and pairs) to five-, seven- and ten-trap trawls and keep a record of how those traps fish. The DMR will analyze these data to determine how many traps on a trawl is feasible for industry members to use in order to reduce the risk of vertical lines. “This project will equip us with hard data, not just anecdotal data,” Summers said.

Mary Colligan, assistant regional administrator of protected resources at NMFS, agrees that it is important for the state to have input on all the whale rules. “The ALWTRT [Atlantic Large Whale Take Reduction Team] helps advise the federal rule makers on how to move forward,” she said. The state and industry both have a seat on this team. “State input is critically important. We want to put in rules that work for the industry,” Colligan emphasized.

“It's pretty significant what fishermen have done already,” Fessenden said. “There has been a lot of compliance with time and money. It's been really good.”