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The New Whale Rules . . . How Did We Get Here?

Maine lobstermen are bracing for the release of the National Marine Fisheries Service’s (NMFS) draft whale rules and Biological Opinion which have been three years in the making. What changes will the rules require of lobstermen? How will lobstermen adapt? And how did we get to this point?

2017 The development of the new whale rules started in earnest in 2017. Prior to that, the industry had enjoyed some relatively good news on right whales. Lobstermen had removed more than 30,000 miles of rope from the water by changing over to sinking groundline in 2009 and removing vertical lines by setting longer trawls in 2014. As lobstermen invested in these whale protection measures, the right whale population appeared to be increasing. The annual North Atlantic right whale stock assessments reported a growing right whale population, estimated at 325 whales in 2008, 454 whales in 2013, and 455 whales in 2017. Unfortunately, 2017 was a perfect storm for right whales. NMFS declared an Unusual Mortality Event for right whales in June. By the end of the year, the death toll reached 17, with 12 attributed to Canada and five observed in the U.S. The deaths were due to a combination of vessel strikes (4 Canadian, 1 U.S.), entanglement (3 Canadian) and undetermined causes (5 Canadian, 4 U.S.). To make matters worse, only five right whale calves were born. In September of that year, Richard Pace of the Northeast Fisheries Science Center published a paper introducing a new method for estimating the right whale population. Previously, the population estimate was based on a simple count of whales that had been identified through aerial surveys within a six-year period. This method worked because right whales predictably visited the same habitats year after year. However, a distribution shift occurred in 2010; the right whales were going elsewhere. This made it less likely that a significant portion of the population would be observed and cataloged, necessitating a statistical modeling approach to estimate the population. The model had two significant findings. First, it turned out that the right whale population had not been increasing since 2010. According to the model, the population peaked in 2010 at 458 whales and then began to decline. The model also found that female right whales had a lower survival rate than males, resulting in fewer females and thus a lower reproductive potential. In 2015, there were 1.46 males per females (272 males, 186 females), compared to 1.15 males per female in 1990 (142 males, 123 females). In October 2017, NMFS released the North Atlantic Right Whale 5-Year Review, as required under the Endangered Species Act (ESA). The 5-Year Review affirmed the endangered status of right whales, noting a wide range of threats facing right whales including threats to habitat, disease, inadequacy of regulatory protections to address ship strikes and entanglements in the U.S. and Canada, declining right whale health, and stress due to climate change. As a result, NMFS reinitiated a Section 7 consultation under the ESA of the American lobster fishery to replace the 2014 Biological Opinion and renewed its commitment to modify the Atlantic Large Whale Take Reduction Plan with new measures to protect right whales.

2018 Several environmental groups wanted to see more stringent protections in place for right whales and in January 2018, filed suit against NMFS claiming that the lobster fishery had not done enough to protect the species. With growing pressure to increase protections for right whales, the Maine Lobstermen’s Association (MLA) organized a series of meetings with lobstermen to share data on the right whale decline and to begin brainstorming additional whale protection measures lobstermen could consider. The MLA also became an intervenor in the court case. That spring, NMFS organized several Take Reduction Team subgroup meetings to consider the potential for new gear marking, weak rope and ropeless fishing as management options in the next whale plan. In September of 2018, NMFS published a Technical Memo, North Atlantic Right Whales - Evaluating Their Recovery Challenges in 2018, which highlighted many of the challenges facing right whales, such as entanglement, vessel strikes and climate change. The report, however, focused predominantly on the potential risk of the lobster fishery to right whales, based in large part on the scale of the fishery. The Take Reduction Team convened in October 2018 to discuss potential modification to the whale plan -- such as closures, trap limits, weak rope, ropeless fishing and gear marking -- to reduce the risk of serious injury and death from fixed gear fisheries to right whales. 2018 was a far less lethal year for right whales than 2017, yet there were three reported deaths: one in Canadian snow crab gear and two from entanglements with no gear present found in the U.S. Unfortunately, there were no right whale calves born in 2018.

2019 NMFS scheduled a Take Reduction Team meeting in April 2019 to finalize management options for inclusion in the new whale plan. To prepare for the meeting, DMR held three industry meetings in March to discuss potential management approaches with lobstermen. In the days leading up to the Take Reduction Team meeting, NMFS announced via email that modifications to the whale plan must achieve a 60% risk reduction target. NMFS followed the email with release, just days before the meeting, of a preliminary computer model it would use to assess the conservation benefit of all proposed modifications to the whale plan. Several state agencies and the MLA expressed strong concern about the 60% risk reduction goal, yet NMFS held firm that only proposed changes to the whale plan that meet that standard would be considered. With no viable alternatives, the Take Reduction Team agreed that the next round of modifications to the whale plan must achieve a 60% risk reduction. In June, DMR held seven industry meetings to present a ‘strawman’ proposal to lobstermen that would achieve the 60% risk reduction goal through removal of vertical lines and use of weak points in vertical lines. DMR also solicited feedback on creating a unique and expanded gear marking system for the Maine lobster fishery to improve identification of any gear removed from whales. More than 1,000 lobstermen turned out to weigh in on the DMR proposals, which considered trap limits of 400, 500, 600 or 800 traps in combination with more aggressive trawling up requirements based on distance from shore. These ‘strawman’ proposals would apply to all Maine lobstermen, including those who fish in exempt waters. Maine lobstermen soundly rejected this management approach. The summer of 2019 was marked by much outrage from the lobster industry, sparking a rally in Stonington in July and significant engagement from Governor Mills and Maine’s Congressional delegation. NMFS held four “scoping meetings” in August in Maine to explain the need for the lobster industry to implement additional whale conservation measures and to solicit feedback on the range of options that the agency was considering in the new whale plan. By late summer, the MLA had completed its analysis of NMFS’ data to understand the prevalence of lobster gear in right whale serious injuries and mortalities and to assess the effectiveness of the whale protection measures already in place. The results showed a striking 90% reduction in entanglements known to have occurred in U.S. lobster gear. MLA’s analysis showed that prior to 2010, there were 10 documented right whale entanglements in lobster gear, resulting in one mortality in 2002. Since 2010, there has been only one known right whale entanglement in lobster gear which occurred in Massachusetts, resulting in a non-serious injury. Known entanglements in Maine lobster gear were rare, with only one confirmed in 2002 and an additional case in 2004 in which Maine lobster gear was not the primary source of entanglement. Both interactions in Maine lobster gear resulted in non-serious injuries. As a result of its analysis, in August the MLA withdrew its support for the Take Reduction Team agreement and challenged NMFS on its approach to mandate new whale protection measures solely for the lobster fishery. DMR released its draft whale paln in August but cancelled its scheduled outreach meetings due to a lack of guidance from NMFS on how the plan would be reviewed. DMR ultimately held three industry meetings in November to discuss the draft plan, which eliminated proposed trap reductions in favor of increasing traps per trawl based on distance from shore in combination with required weak points in endlines. The proposal received mixed reviews from lobstermen. While most agreed that it was a vast improvement over the ‘strawman’ proposals discussed in June, many were concerned that the trawl lengths were too long for many of Maine’s vessels, and were worried about the danger of fishing longer trawls with weakened endlines.

2020 DMR submitted its draft whale plan to NMFS in January 2020. DMR’s plan proposed a minimum of triples from the exemption line to the 3 mile line, minimum of 8’s (or 4’s with one endline) from 3 to 6 miles, minimum of 15’s (or 8’s with one endline) from 6 to 12 miles, and 25’s outside of 12 miles. The plan also required the use of weak points in vertical lines with one weak point half way down the line from the shore to 3 miles, two weak points located a quarter and half way down the line from 3 to 12 miles, and one weak point a third of the way down the line outside of 12 miles. DMR also mandated comprehensive new gear marking requirements for Maine lobstermen to begin in September 2020.

Lobstermen have been making adjustments to protect North Atlantic right whales for many years. Reuters photo.

In 2020, the federal court case filed against NMFS by the environmental groups moved forward in Washington, D.C. district court. In April, the judge ruled that NMFS had violated the ESA when in 2014 it continued to permit the lobster fishery without including an Incidental Take Permit for right whales in the Biological Opinion. The court determined that the Biological Opinion was invalid. In August, the judge considered arguments on how to remedy the ESA violation since the lobster fishery cannot legally operate without a valid Biological Opinion. Ultimately, the judge ruled in favor of NMFS, giving the agency until May 31, 2021 to complete the final whale rule and Biological Opinion for right whales. NMFS’s Proposed Rule for the lobster fishery is expected by October 8. NMFS’s Greater Atlantic Regional Office (GARFO) submitted the draft rule to the federal Office of Management and Budget (OMB) on July 8 for a 90-day review. OMB can extend its review an additional 30 days, which could delay the Proposed Rule until early November. The deadline set by the court for adoption of the Final Rule is May 31, 2021. Meanwhile, DMR has been conducting a three-year study of vertical lines used in the New England lobster fishery. This work has included determining the breaking strength of varying line diameters, and working closely with lobstermen this summer to test ideas for weak point options, such as various knots and splices (sheet bends, lazy splices and dogbones). An important component of Maine’s proposed whale plan is an option for conservation equivalencies, a provision which would allow individual lobster management zone councils to alter the state’s plan to better fit the zone’s needs without increasing risk to whales. This enables lobstermen in different zones to finetune the state’s measures to better suit their local fishing practices, oceanographic conditions, and safety concerns. Earlier this summer each zone council formed a sub-committee to consider conservation equivalency measures to better serve the needs of local fishermen. These measures were voted on by the full zone councils in late September and early October. DMR will include any conservation equivalencies adopted by zone councils in its recommendations to NMFS for inclusion in the Final Rule.

What’s Next When the OMB review is completed and the Proposed Rule is released by NMFS, lobstermen and the public will have 75 days to submit feedback on the management alternatives set forth within it. NMFS plans to hold a series of online webinars to explain those management alternatives and will take public comments at that time. The agency will also schedule office hours for fishermen to call with questions or comments and will accept written comments. NMFS will also release a Draft Environmental Impact Statement (DEIS) with the Proposed Rule and provide a 45-day public comment period. The draft Biological Opinion is expected to be released on a parallel track with the Proposed Rule. The Biological Opinion will be released to the Atlantic States Marine Fisheries Commission, the New England Fishery Management Council, and the Mid-Atlantic Fishery Management Council for review. Public comment on it will be received through the Councils and Commission.

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