top of page
  • MLCA

Steaming Ahead - January 2022

We may remember 2021 as the best and worst of times for Maine’s lobster fishery. Despite the ongoing pandemic, lobstermen had a stellar year on the water with stable landings and historic lobster prices. The health of the lobster stock and strong market buoyed profits as lobstermen navigated skyrocketing bait prices, high fuel prices, a dwindling labor pool for crew, and shortages of marine supplies.

While the fishery itself provided a great reason for optimism, 2021 more likely will be remembered by Maine lobstermen as a time of anxiety and fear of an uncertain future fueled by the introduction of draconian whale protection mandates and rapidly evolving plans to industrialize the Gulf of Maine’s pristine fishing grounds with massive wind farms.

It is difficult to comprehend the gravity of how whales or wind will impact the lobster industry. The 10-year whale plan requires an incomprehensible 98% risk reduction, and comes with an unachievable timeline. The courts have made it clear that without the plan, the federal lobster fishery cannot operate. Maine’s pledge to develop floating offshore wind farms as a central strategy to achieve its aggressive renewable energy goals coupled with the Biden Administration’s commitment to issue an offshore lease in the Gulf of Maine by 2024 have transformed offshore wind development from a distant threat into reality. Taken together, these issues pose at the very least uncertain prospects for the lobster fishery and, at worst, the end of Maine’s lobstering tradition.

The transformative nature of the whale and wind issues and the rapid pace with which they are evolving is a game changer for Maine’s lobstermen. Gone are the days when the MLA would fight about dragger-caught lobsters or gauge increases. Today we must fight to stave off the elimination of our fishery as the government implements its misguided whale protection plan and offshore renewable energy projects.

We must be realistic in our expectations of what we can and cannot do. This absolutely does not mean surrendering in the face of these seemingly insurmountable challenges, but rather understanding how and where change can be made that will benefit the fishery. We cannot get rid of the strict federal laws that protect endangered whales. We can address, however, the flawed science and assumptions that have set the risk reduction goal post unrealistically high and inflate the burden on the lobster industry.

We cannot undo our state or the nation’s commitment to reduce our reliance on fossil fuels or the rush to develop a renewable energy economy through offering massive incentives to develop offshore wind. As the MLA continues to adamantly oppose offshore wind development, we must also participate in uncomfortable conversations about how to preserve commercial fisheries if offshore wind is developed in the Gulf of Maine.

I don’t think anyone, even a few years ago, could have predicted that Maine’s lobster industry would be contemplating its very existence, but here we are. As we face this uncertain future, commercial fishermen must stand together and fight for our fisheries, our heritage, and our way of life.

The MLA is leading this fight for Maine lobstermen. I can confidently say that in MLA’s 67 year history, the issues have never been this complex and the organization has never worked harder. The task is daunting and the stakes are high. But one thing is certain — if we don’t fight, we could lose the lobster fishery entirely.

A look back at whales….

We literally rang in 2021 with the release of the Proposed Whale Rule and Draft Environmental Impact Statement (DEIS) on New Year’s Eve. The Proposed Rule was a mixed bag for the Maine lobster industry. As expected, it included the trawling up, weak points and gear marking actions developed by Maine Department of Marine Resources (DMR) in collaboration with Maine’s zone councils. But it also included an unwelcome surprise: a new 967-square-mile closure along the Area 1/Area 3 line.

This was followed two weeks later by the release of the draft Biological Opinion (Biop). This document packaged all of the bad news about the declining right whale population along with a new population projection model which predicted a dire future for the species. The draft Biop provided our first look at NMFS’s goal to require a 98% risk reduction by the year 2030. Yet NMFS’s population projection model, introduced in the Biop, concluded that unless Canada achieves equally aggressive risk reductions as proposed for U.S. fisheries, the right whale population will remain in decline. And to the frustration of fishermen, the scope of the Biop is limited to U.S. commercial fishing interactions with right whales, and therefore requires no mitigation measures to reduce risk to right whales from vessel strikes or harmful interactions in Canada.

The MLA moved swiftly to hire a computer modeler to review NMFS’s new right whale population projection model who identified many flaws in its assumptions and methods. Minor changes to those assumptions and use of more sophisticated modeling methods would produce more realistic and optimistic results. For example, the new population projection model assumed that right whales would continue to die at record high rates due to fishing and vessel interactions in Canada and from U.S. ship strikes. The MLA prepared written comments on behalf of twelve commercial fishing groups challenging NMFS’s methods and findings.

The MLA also provided detailed comments to NMFS on the Proposed Whale Rule and DEIS, which included a survey of lobstermen to collect data to provide an alternative to NMFS’s underestimate of the economic impact of the measures on the lobster fishery.

As the MLA awaited the release of the final Biological Opinion and Final Whale Rule, the association continued to raise concerns over the scientific basis of NMFS’s whale protection strategy with the DMR, the Maine Congressional delegation, NMFS, the U.S. Secretary of Commerce, the President’s Council on Environmental Quality, and the White House National Economic Council. The MLA also submitted comments on NMFS’s right whale stock assessment and NMFS’s review of the Vessel Speed Restriction Rule.

NMFS published the final Biological Opinion in late May, meeting its court-mandated deadline. The final Biop was very similar to the draft. While it offered a few updated analyses, it included the same draconian 10-year whale plan to achieve a 98% risk reduction through three phases: 1) 60% risk reduction in 2021 through the Final Whale Rule; 2) an additional 60% risk reduction in 2025; and 3) an additional 87% risk reduction in 2030.

The Final Environmental Impact Statement (FEIS) for the Final Whale Rule was released in July offering a preview of the measures to be included in the Final Rule. The FEIS revealed that in addition to the trawling up and weak point measures, NMFS would close nearly 1,000 square miles of Maine’s prime offshore fishing bottom for one-third of the year with the inclusion of the LMA 1 Closure. And NMFS caught the Maine lobster industry off guard in revealing a brand-new gear marking scheme for Maine’s federal waters fleet which would require four 12” green marks in addition to the four purple marks. The MLA again submitted written comments to NMFS requesting that the LMA 1 closure be eliminated from the Final Rule or, at a minimum, that its size and duration be reduced. The MLA also requested that NMFS not change the gear marking for Maine’s federal waters fleet and instead adopt the gear marking that Maine implemented in September 2020. The MLA also met with the President’s Office of Management and Budget (OMB) to request it uses its authority to require NMFS to address MLA’s concerns in the Final Rule. The Final Whale Rule was released at the end of August, and MLA’s concerns were seemingly dismissed.

Having exhausted all political and regulatory options to address NMFS’s 10-year whale plan and Final Rule, MLA turned to the courts for relief. On September 27, the MLA filed a lawsuit against NMFS over the Biological Opinion and Final Whale Rule asserting that NMFS acted arbitrarily by, among other reasons, failing to rely on the best scientific information and inexplicably failing to account for the positive impact of conservation measures already adopted by the Maine lobster fishery. The MLA asserts that NMFS used worst case scenarios to hold Maine lobstermen accountable for right whale deaths occurring in Canada. To date, national environmental groups and DMR have intervened in the case. The case will move forward early in 2022, with the first round of briefs due in February.

The MLA was not the only organization that turned to the courts in September seeking changes to NMFS’s 10-year whale plan. The environmental groups that initially sued NMFS in 2018, resulting in the new Biop and 10-year plan, updated their complaint against NMFS alleging that the final 2021 Biological Opinion and Final Whale Rule are not legal. The environmental groups claim that the 10-year plan does not provide adequate protection for right whales and that the plan should address risk in both state and federal waters.

The Maine Lobstering Union (MLU) also sued NMFS in U.S. District Court in Bangor. The MLU successfully argued that the LMA 1 closure should not be implemented until the court rules on its legality. The MLA provided an amicus brief in that case. NMFS in turn successfully appealed Judge Lance Walker’s decision and the LMA 1 closure was implemented in mid-November. The MLU then appealed this decision to the U.S. Supreme Court, but the appeal was denied without comment. The MLU’s lawsuit challenging the legality of the LMA 1 closure has not yet been decided.

In November, NMFS presented its updated right whale population and mortality estimates to the Take Reduction Team (TRT). Based on its right whale population model, the population declined from 366 whales in 2019 to 336 whales in 2020. The model also determined that only one-third of right whale deaths are actually observed. Thus regulations must address both observed and “cryptic” mortalities (whales that die but are never seen). According to NMFS, the 60% risk reduction achieved under the Final Rule falls significantly short of the risk reduction needed to address all right whale mortality.

To continue its role as the leading critic of federal and environmental organizations’ overreach and to protect the Maine lobster fishery for future generations, in mid-November the MLA launched a three-year, $10 million capital campaign titled “Save Maine Lobstermen.” The funds are required for the MLA’s fight to halt the ever-expanding risk reduction mandate which threatens to eliminate Maine’s lobster fishery. To this end, the MLA is executing a four-pronged strategy including legal challenges to federal regulations through lawsuits and regulatory processes, scientific research, development of innovative gear solutions, and education. Learn more about and support this campaign at www.savemainelobstermen.org.

A look back at offshore wind….

There was already much tension between the state of Maine and the fishing industry over the Governor’s unilateral decision to move forward with commercial offshore wind development in the Gulf of Maine. The fishing industry had been informed that this plan would move forward with or without them, and the state hoped to work with the fishing community to minimize impacts of commercial fishing operations and identify priorities for research and monitoring. Maine’s commercial fishing associations issued a joint statement in January outlining concerns and reiterating its opposition to the development of offshore wind in the Gulf of Maine.

As the state moved forward with its plan to develop a commercial offshore wind research array off the coast of southern Maine, DMR worked with fishermen to understand how the “Area of Interest (AOI)” identified by the Governor’s Energy Office was used by fishermen, and where within the AOI wind turbines could be placed to minimize impact on fishing operations.

The New England Aqua Ventus (NEAV) single turbine project at Monhegan also moved forward as Fugro survey vessels were hired to conduct a survey of the subsea cable route to connect the turbine to the mainland. This survey proved frustrating and stressful for fishermen who received inconsistent and confusing communications about the survey vessels daily activities. Lobstermen reported losing gear as a result of the survey operating outside its advertised route; while NEAV accused lobstermen of deliberately setting gear in the survey route.

In late March, lobstermen staged a grassroots protest with a parade of more than 80 boats flying protest banners riding the survey route from Monhegan to the mainland. Instead of commending lobstermen for this well-organized, peaceful protest that occurred without incident, NEAV in turn accused lobstermen of sabotaging the survey. Ultimately, DMR Marine Patrol stepped in to manage the high emotions surrounding this project.

At the end of March, the Biden Administration announced its goal to build 30 gigawatts of offshore wind by the year 2030, touting that this initiative would create tens of thousands of good-paying union jobs and generate enough power to meet the energy demands of more than 10 million American homes each year as it reduces carbon emissions. During this time, the Maine Legislature was considering several legislative proposals with regard to offshore wind.

Governor Mills proposed to ban offshore wind in Maine state waters (LD 1619), Representative Faulkingham proposed to ban all offshore wind development that would connect to Maine (LD 101), and Senator Lawrence put forward a bill to encourage and fund research to support offshore wind (LD 336).

These bills drew very divided audiences who testified either that offshore wind was necessary to reverse climate change and any issues associated with the development could be mitigated, or fishing industry representatives who adamantly opposed offshore wind development. Fishermen expressed concern that Maine’s rush to be the first to deploy floating offshore wind technology in the U.S. could harm the Gulf of Maine’s fragile ocean ecosystem, trade Maine’s family-owned-and-operated fishing businesses for jobs with foreign energy companies, and risk eroding Maine’s fishing heritage which has sustained our rural coastal communities for generations. Maine’s fishing industry organized a successful rally in Augusta on April 28 to raise awareness over these concerns.

The Legislature ultimately adopted legislation prohibiting commercial offshore wind development in state waters, requiring an offshore wind strategic plan by 2023, establishing an OSW research consortium, and tasking the Public Utilities Commission to develop agreements that encourage and fund offshore wind research.

Despite concerns from the fishing industry, the Governor’s Energy Office (GEO) pressed forward. In July, GEO announced its preferred site to develop the offshore wind commercial research array and kicked off its Offshore Wind (OSW) Roadmap process through the creation of the Offshore Wind Advisory Committee. The MLA agreed to participate in GEO’s OSW Fisheries Working Group and serve on the Governor’s OSW Advisory Committee, not as a partner, but rather to address unanswered questions and concerns about OSW and to ensure interests of Maine commercial fishermen are voiced, heard, and understood.

In September, DMR’s report went to GEO, identifying bottom within the AOI that would minimize the impact of wind farm development on the fishing industry. DMR did an admirable job under difficult circumstances characterizing fishermen's use of the AOI based on the information available. The DMR also documented the many concerns they heard from fishermen in its report. On October 1, GEO submitted its application to BOEM to obtain an offshore wind lease to develop its floating research array.

Less than two weeks later, BOEM announced its plans to hold seven new lease sales, including in the Gulf of Maine, by 2025. A week later, the fishing industry group RODA (Responsible Offshore Development Alliance) filed a notice of intent to sue the federal government over the Vineyard Wind project moving forward in Massachusetts.

In late November, BOEM issued a “request for information” seeking input from the fishing industry to inform development of a guidance document on avoiding, minimizing and, if needed, compensating for impacts from offshore wind energy projects on fisheries. As part of this project, BOEM held a series of online meetings. During the East coast meetings, fishermen involved in ongoing offshore wind projects expressed anger that their concerns had not been heard during the process, frustration with working with wind developers, many incidents of lost fishing gear during survey work, lack of an effective process to be compensated for gear loss and other impacts, and a host of other frustrations.

In December, NEAV endured another mishap as a result of its poorly planned outreach when it began unannounced survey work for an underground cable in Boothbay and East Boothbay in November. Corporate representatives faced angry residents who expressed frustration over the company’s lack of transparency in its work and lack of respect for the community. Although NEAV officials apologized, it was clear that trust was broken as many expressed that they found NEAV’s apology disingenuous.

Finally, in mid-December, a coalition of commercial fishermen, trade associations and shoreside businesses sued the federal government over the issuance of the offshore wind lease and approval of construction and operations plan for the Vineyard Wind project.

 

2021 Lobster and Right Whales Timeline

  1. Dec. 31, NMFS releases Proposed Rule (PR) and Draft environmental Impact Statement (DEIS)

  2. Jan. 15, Draft Biological Opinion (Biop) released

  3. Jan./Feb., NMFS public hearings on PR/DEIS

  4. Feb. 19, MLA submits comments on draft Biop on behalf of 12 fishing groups

  5. Feb., MLA surveys lobstermen on costs of measures in PR

  6. Mar. 1, MLA submits comments of PR/DEIS

  7. Mar. 4, MLA submits comments on right whale stock assessment

  8. Mar. 26, MLA submits comments on NMFS’ Right Whale Vessel Speed Rule Assessment

  9. May 13, MLA letters to Secretary of Commerce, President’s Council on Environmental Quality, and White House National Economic Council with concerns over 10-year whale plan

  10. May 27, NMFS releases Final Biological Opinion w/ 10-year whale plan to achieve 98% risk reduction

  11. June 7, MLA submits Request for Correction of scientific deficiencies in Biop under Information Quality Act

  12. July 2, NMFS releases Final Environmental Impact Statement (FEIS) on Final Rule

  13. July 28, MLA submits comments to NMFS on FEIS

  14. July 29, MLA meets with Office of Management and Budget to discuss concerns with FEIS and LMA 1 Closure

  15. Aug. 31, NMFS releases Final Whale Rule to achieve 60% risk reduction

  16. Sept. 8, MLA submits comments on NMFS List of Fisheries

  17. Sept. 9, eNGO’s file amended complaint in DC District Court

  18. Sept. 27, MLA sues NMFS over Biop and Final Rule in D.C. U.S. District Court Sept. 27, DMR intervenes in eNGO case in U.S. District Court in Washington D.C.

  19. Sept. 27, Lobster Union sues NMFS over LMA 1 Closure in Bangor District Court

  20. Sept., MLA provides preliminary assessment of cost to implement Final Whale Rule to Maine delegation

  21. Oct. 12, Engo’s intervene in MLU case in U.S. District Court in Bangor

  22. Oct. 14, MLA and ME Legislative Council file Amicus briefs in support of delay of implementation of LMA 1 closure in MLU case

  23. Oct. 16, Judge Walker delays implementation of LMA 1 closure pending ruling on the MLU case

  24. Oct. 25, Right Whale population estimate for 2020 is 336 whales (down from 366 in 2019)

  25. Nov. 2, NMFS presents review of new right whale population and “cryptic mortality” to the TRT implying that the 60% risk reduction achieved under Final Rule is inadequate

  26. Nov. 16, MLA launches 3-year, $10 million fundraising campaign to Save Maine Lobstermen

  27. Nov. 16, Appeals court reverses Judge Walker’s ruling, ordering immediate closure of LMA 1

  28. Nov. 24, MLU appeals to U.S. Supreme Court

  29. Nov. 30, Mass Supreme Court dismisses Max Strahan Case against Mass lobster fishery

  30. Nov., MLA provides updated assessment of the cost to implement Final Whale Rule to Maine delegation estimated to be at least $50 million.

  31. Dec. 3, U.S. Supreme Court Justice Breyer denies MLU appeal

  32. Dec. 8, eNGO’s intervene in MLA case in DC District Court

  33. Dec. 9, Center for Biological Diversity petitions NMFS to mandate ropeless fishing in all trap/pot fisheries within 5 years.

  34. Dec. 16, DMR intervenes in MLA case in DC District Court

  35. As of Dec. 20, NMFS Unusual Mortality Event (UME) website documents 5 serious injuries and mortalities (2 vessel strikes, 3 entanglement). Two were mortalities (1 vessel strike, and 1 CN snow crab) and 3 were serious injuries (1 vessel strike, 1 entanglement in 5/8” leaded sink line spliced into float (this whale just had a calf in Dec.), and 1 entanglement in unknown large diameter blue line with trap attached. Additional cases will be added based on analysis of right whale photographs.

Comments


bottom of page