Nearly two years ago, federal regulators declared that North Atlantic right whales were facing an existential crisis. They convened a wide-ranging team of experts — state officials, scientists, fishermen, and conservation groups — in what they said was an effort to save the species from extinction.
Since then, 14 whales have been found dead and another 14 have been so seriously injured — either from entanglements in fishing gear or vessel strikes — that they’re considered “swimming while dead.” As the estimated right whale population plunged by a quarter, a federal judge ruled last spring that the US government was violating the Endangered Species Act by failing to adequately protect them.
Now, after the Trump administration slow-walked regulations to protect right whales that could harm the powerful lobster industry, the National Marine Fisheries Service is finally on the cusp of issuing the controversial new protections, which are drawing opposition from both the fishing industry and environmentalists.
“Developing these proposed modifications was challenging for everyone involved,” wrote Chris Oliver, the agency’s assistant administrator for fisheries, in a letter that accompanied the release of the draft regulations in late December.
The proposed rules — likely to take effect this summer — are estimated to cost the lobster industry as much as $61 million over six years, or about 10 percent of its annual revenues in recent years.
The costs would come from lost catch due to new fishery closures, including those south of Nantucket and off the coast of Maine. They would also stem from a range of new requirements, including that lobstermen fish with fewer buoy lines and use weaker, specially colored rope that may be less likely to entangle whales and easier for authorities to identify.
“Our goal is to have both a thriving trap/pot fishery and a healthy population of right whales,” Oliver wrote.
But the efforts to balance those often-conflicting goals have drawn criticism from both sides.
In Maine, lobstermen have protested against the proposed regulations and state officials have told regulators that they go too far. They have raised concerns about closures in the Gulf of Maine and requirements that would limit the number of grouped traps, known as trawls, that can be fished in specific areas.
“While we understand and even support some additional levels of protection for North Atlantic right whales, it seems the agency is moving in a direction of species protection with no care about the collateral damage,” Patrick Keliher, commissioner of the Maine Department of Marine Resources, said during an online hearing last week about the proposed rules.
Officials in Maine also said they had significant concerns about the draft of a key report the agency released in January that helped justify the proposed regulations. Their Biological Opinion, a requirement of the Endangered Species Act, found that the lobster and crab industry is not jeopardizing the continued existence of right whales. The 556-page report, however, suggested that the industry and other fisheries will still have to be overhauled to reduce the risks they pose to right whales.
The agency said the proposed rules were the first step of a decade-long plan that seeks to drastically reduce the threats humans pose to the species.
If whales continue to die from entanglements, and regulators find the lobster industry is jeopardizing their existence, the federal government could close the fishery altogether.
In a recent letter to regulators, Maine Governor Janet Mills wrote that she had “grave concern” about the potential impact of the assessment, which she said could threaten the “survival of Maine’s iconic lobster industry, and in fact, our heritage.”
She said that Maine’s lobstermen are being unfairly penalized for the harm caused in Canadian waters, where large numbers of right whales began migrating in 2017. At least 21 whales have since died there.
The report suggested the need for a “complete reinvention of the Maine lobster fishery as we know it,” Mills wrote, noting that the industry generates an estimated $1 billion for the state’s economy, beyond revenue from the catch.
While the lobster industry has recoiled at the government’s plan, environmental advocates said the regulations don’t go nearly far enough. They note scientists have estimated that 85 percent of right whales have been entangled in fishing gear, and most of them more than once.
They also faulted the draft report, saying it fails to account for the agency’s previous finding that the right whale population can’t sustain more than one unnatural death a year without going extinct. Last year, the International Union for Conservation of Nature designated right whales as “critically endangered” on its Red List of Threatened Species, the last classification before they’re considered extinct or “gone from the wild.”
Already this year, an adult female and her newly born calf were hit by a fishing boat off the coast of Northern Florida, which killed the calf and seriously injured the mom. Over the weekend, an adult male right whale was found dead 15 miles off the coast of Myrtle Beach, S.C. And another right whale was found to be severely entangled in January off southern Georgia.
Since 2010, 87 right whales have been found dead, the vast majority from entanglements in fishing gear or vessel strikes. But most die without a trace, according to a recently published paper, which estimated that the number of found carcasses accounted for just 36 percent of overall right whale deaths between 1990 and 2017.
Last year, scientists estimated the population of right whales had fallen to 356, though that didn’t account for 14 calves that have been born since then.
“We have serious concerns about the proposed rules,” said Gib Brogan, a fisheries policy analyst at Oceana, an advocacy group. “They don’t go far enough, and they will leave the whales vulnerable.”
He and others urged the agency to scrap the rules, which aim to reduce mortalities and serious injuries by an estimated 64 percent. They said the rules are unlikely to accomplish that, and even if they did, the goal was insufficient and based on outdated population estimates.
Instead, they urged the agency to impose interim protections similar to those issued by Canada, which last month announced it would extend sweeping protections for right whales that include large seasonal fishery closures and rolling closures in areas where whales are discovered.
They also praised Massachusetts, where this week regulators will close the lobster fishery in all state waters until at least May 1, except in areas south of Cape Cod, or until right whales are no longer in the area.
“Scientists unanimously agree that right whales are dying at unsustainable rates, and that immediate action to address entanglements and ship strikes is necessary,” said Erica Fuller, a senior attorney at the Boston-based Conservation Law Foundation, which successfully sued the agency for its failures to protect right whales.
At last week’s hearing with lobstermen — some of whom accused environmentalists of caring more about whales than fishermen — she said she couldn’t support the proposed rules, calling them “deeply flawed.”
“It is destined for failure,” Fuller said.