Conservationists and Maine lobstermen have waged a legal battle over fishing regulations to save the endangered North Atlantic right whale, such as the one shown off Massachusetts in this 2018 photo. But both sides support another conservation measure that would limit vessel speeds along much of the East Coast. Michael Dwyer/Associated Press
As it seeks sweeping restrictions on lobstering in order to protect North Atlantic right whales, the federal government also wants to slow down more boats in hopes of reducing collisions with the endangered marine mammals.
A proposal to expand speed limits along the East Coast might have little impact on vessels off Maine, and is not directly linked to two lawsuits over pending federal regulations for the state’s lobster fishery.
Still, the groups involved in that litigation recently weighed in on the speeding proposal, which is part of broader efforts to save right whales from extinction.
The Maine Lobstermen’s Association and four conservation groups supported the stricter limits, but took issue with other aspects of the rules and reiterated the priorities that have driven their court battles.
The current rule says vessels 65 feet or longer have to slow down to 10 knots or less in certain areas at certain times. Earlier this year, the National Oceanic Atmospheric Administration proposed the new rule that would greatly expand those areas and also apply the speed limit to vessels as small as 35 feet in length.
The speed zones stretch from Massachusetts to Florida. Boats off the coast of Maine would only be required to follow the limit temporarily if right whales are spotted by survey planes or detected by auditory buoys.
The goal is to protect right whales from vessel strikes, especially along the southeastern coast where calves are born. The greatest dangers to the species are entanglements in fishing gear and vessel strikes, and experts estimate that fewer than 340 whales are left.
Since 2020, NOAA has documented four vessel collisions that have killed right whales in U.S. waters. The exact location of these vessel strikes is often unclear, but none have been documented in Maine waters in recent years.
“North Atlantic right whales are especially vulnerable to vessel strikes due to their coastal distribution and frequent occurrence at near-surface depths, which is particularly true for females with calves,” said Lauren Gaches, a NOAA spokesperson. “This rule is designed to reduce the risk of mortalities from vessel strikes and afford the species a greater opportunity to recover.”
LEGAL SIDEBAR
The National Marine Fisheries Service, part of NOAA, developed a 10-year plan to bring whale deaths down to levels that the population could withstand. The first phase went into effect in May and included a number of new regulations for lobster fishermen.
They were required to reconfigure their gear to use fewer vertical ropes in the water column and to weaken the remaining ropes so they would break if strained by an entangled whale. The first phase also included a 950-square-mile seasonal closure area.
The plan is the subject of two active lawsuits.
In 2018, the Center for Biological Diversity, the Conservation Law Foundation and Defenders of Wildlife sued NOAA for failing to protect whales from lethal entanglement in fishing gear. In July, a federal judge agreed that the administration wasn’t doing enough and had violated the Endangered Species Act and the Marine Mammal Protection Act.
Now, the parties have submitted briefs on how to accelerate those conservation efforts, and the judge will hear oral arguments Nov. 10 on those options.
In 2021, the Maine Lobstermen’s Association filed its own lawsuit, claiming the government used faulty science to craft regulations the group said will decimate the industry. In September, a federal judge rejected the MLA’s arguments, and the association appealed. That case is still open and has been expedited.
While their lawsuits continue, parties on both sides spoke out on the speed limits during a public comment period that closed Oct. 31.
The Maine Lobstermen’s Association said the proposal should help reduce the risk of vessel strikes along the East Coast, but claimed the government is overregulating the industry and not applying the law fairly. The association said the federal conservation plan calls on the lobster fishery to reduce risk to right whales by 90%, but the stricter speed limits would only reduce risk by an estimated 27%.
“This arbitrary application of the law is causing the fishing industry to suffer disproportionate harm and failing to adequately reduce risk from vessel traffic,” the association wrote. “The proposed rule falls short and reflects an arbitrary, disparate treatment of vessel traffic and commercial fisheries.”
Patrice McCarron, the association’s executive director, said the proposed speed limits are the first new regulation to protect right whales from recreational and shipping vessels in more than a decade, while lobster fishermen in Maine have repeatedly adjusted to new rules.
She also said that NOAA did not expand the seasonal speed limits to Maine because there are so few right whales in this area.
“How can the waters be completely safe for vessel traffic, but the fishing industry needs to reduce its footprint by 90%?” she asked. “It doesn’t make sense.”
CONSERVATIVE VOICES
The conservation groups – the Center for Biological Diversity, Conservation Law Foundation, Defenders of Wildlife, and Whale and Dolphin Conservation – also support the speed limits. The groups filed a lawsuit in January 2021 because NOAA had not responded to their petitions about vessel strikes, and the administration eventually issued this proposed rule change this summer.
Erica Fuller, senior attorney at the Conservation Law Foundation in Massachusetts, said these speed limits should protect whales during a critical time for the species. But the proposed rule would not be finalized until next year, and right whales are about to begin a calving season that typically lasts from November to April.
“The part of the population that goes down to Florida and Georgia to calve is on their way right now,” said Fuller.
So the conservation groups also filed an emergency petition that would put some parts of the proposal in place this month. Fuller said the government does not have a deadline to respond. Gaches, a NOAA spokeswoman, said that petition has been received but did not answer a question about whether the administration would take emergency action as requested.
“The highly imperiled status of the right whale and the critical importance of mothers and calves to the recovery of the population – coupled with their unique vulnerability to vessel strikes – demands NMFS take emergency action to better project the species from the ongoing yet mitigatable threat of vessel strikes in its only known calving grounds,” the emergency petition says.
“We urge you to immediately implement an emergency interim final rule that would apply the provisions of the proposed vessel speed rule described above to vessels in the calving grounds.”
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