Despite a quarter century of special protection, the population of North Atlantic right whales remains perilously low and is even declining. But new federal efforts are trying to save them before it’s too late.

New rules to protect these critically endangered marine mammals from fishing lines, including a controversial one restricting fishing in certain areas during whale migration season, and new pending legislation seek to create technology to keep them safe from human activity, especially entanglements with fishing gear, which appear to be the greatest threat to these whales.

Right whale Catalog #3560 ‘Snow Cone’ and calf sighted off Fernandina Beach, FL on January 6, 2022, has been entangled in fishing rope since March 2021. Photo courtesy of Florida Fish and Wildlife Conservation Commission.

Current estimates indicate that fewer than 350 North Atlantic right whales exist and they are dying at faster rates than they can reproduce, making these cetaceans “one of the world’s most endangered large whale species,” according to National Oceanic & Atmospheric Administration (NOAA) Fisheries.

Historically, North Atlantic right whales — who live primarily in Atlantic coastal waters on the continental shelf and are one of three species of right whales — were hunted nearly to extinction by the 1890s. While whaling, which was outlawed in the 1930s, is no longer a threat to them, their populations never fully recovered. Right whales continue to face death and injury from collisions with watercraft and entanglements with fishing gear. These threats have been amplified by warming ocean temperatures that have impacted the whales’ access to plankton and krill and forced them to come closer to the New England and Canadian shores for the same reason the fishermen go there: to find food.

According to NOAA, entanglements of North Atlantic right whales typically occur in fixed fishing gear, including lobster and crab pots and gillnets. Back in 1997, the agency created an Atlantic Large Whale Take Reduction Plan, restricting commercial gillnet and trap/pot fishing gear to protect right, humpback and fin whales. The plan has been modified repeatedly over the years, in terms of types and amount of gear and fishing areas and seasons depending on whale populations. It limits the number of traps per trawl, requires gear marking, closes areas seasonally and requires weak fishing lines that whales can break away from. But despite these measures, right whales continue to suffer from entanglements and vessel strikes.

“Fishing gear can cut into a whale’s body, cause serious injuries, and result in infections and mortality,” NOAA Fisheries says on its website. “Even if gear is shed or removed through disentanglement efforts, the time spent entangled can severely stress a whale, weaken it, prevent it from feeding, and sap the energy it needs to swim, feed, and reproduce.” At the moment, the agency says, “entanglement in fishing gear is one of the greatest threats to North Atlantic right whales.”

Last fall, the agency issued new regulations in order to safeguard the whales from entanglements. The regulations, which went into effect in May, close off areas along the New England coast to fishing during the times whales gather and migrate through those areas and require fishing gear that make it less likely to entrap whales.

The fishing industry, as expected, has been opposing the new regulations. Maine lobster fishers immediately challenged the seasonal closure of static lobster lines in a 967-square-mile expanse of federal waters off of Maine from mid-October to January each year. The Maine Lobstermen’s Association complained that its members will have to spend $45 million or more to comply with these regulations. But in July, the 1st US Circuit Court of Appeals upheld the prohibition while the case is heard, saying it “found it unlikely that plaintiffs would prevail on appeal” and it “did not doubt…that the loss of even one right whale caught in a thicket of trap lines in the (zone) would be irreversible.”

This ruling came just days after another decision in a separate case filed by conservation groups alleging that NOAA’s new rule violated the Marine Mammal Protection Act by failing to adequately reduce the risk that right whales will die in lobster lines to low enough levels. In this is case too, a federal judge in Washington, DC sided with the conservation groups. The judge “told the agency it has to find a better way forward to allow the lobster industry and right whales to coexist without the former driving the latter to extinction,” explains Jane Davenport, a lawyer for Defenders of Wildlife, one of the plaintiffs. “An opportunity for a forward-looking business is how do you fish with twenty-first century technology rather than with nineteenth-century technology,” she added.

While these legal challenges are playing out, lawmakers are seeking legislative action to save the whales.

Congress is currently considering the Right Whale Coexistence Act of 2022, identical bills introduced by House and Senate Democrats that would help right whale conservation efforts “by supporting and providing financial resources for conservation programs and projects” designed to protect these marine mammals. If passed, the legislation would provide $15 million a year, “subject to availability,” to develop technology to reduce collisions and entanglements, including working with Canada (since vessel strikes and fishing line entanglements happen off the Canadian Atlantic coast as well.) It also would provide $300,000 a year to survey the amount of plankton, a major whale food source, available in the whale’s habitat.

The Senate Committee on Commerce, Science & Transportation has approved the Senate version of the bill, S 3664. The House Natural Resources Subcommittee on Water, Oceans & Wildlife conducted a hearing on the House version, H.R. 6785, in March but won’t move it along for a House vote until at least September.

“Without immediate and concerted conservation action to address these two major causes of mortality (entanglements and boat strikes), this iconic species faces a high risk of extinction,” Jessica Redfern, senior scientist at the Anderson Cabot Center for Ocean Life at the New England Aquarium in Boston, testified before the House Natural Resources Subcommittee in March. She said the legislation could help develop inventions such as ropeless fishing gear (which do not use buoy lines), find ways to lessen the risk of vessel strikes, and deal with another threat: the impact of offshore wind energy infrastructure on the whales. (The same technology could also help reduce humpback whale and endangered leatherback sea turtle entanglements.)

Additionally, the House passed an amendment to the FY 23 National Defense Authorization Act (H.R. 7900) in July that included a provision to establish a pilot project to study how to monitor and protect right whales from vessel strikes. It provides the Maritime Administration and Coast Guard $17 million/year for five years to develop a system to track the whales and develop protocols so boaters and fishers know where they are and can avoid them. The legislation calls for a report within six years on how to expand the program to protect all whales. There’s no telling whether this provision will be included in the final defense bill that gets passed.

Meanwhile, to ease the transition for the fishing industry, NOAA Fisheries says it will be phasing in enforcement of these regulations to give fishers time to make the necessary changes in equipment and schedules.

“(W)e are working closely with our state and federal enforcement partners to implement a graduated enforcement effort that will focus on compliance assistance rather than civil penalties until we have determined that localized supply chain issues have been sufficiently resolved,“ the agency said in a statement. The agency is also working fishers and manufacturers to test ropeless crab and lobster fishing gear.

“We are also developing a ‘roadmap’ to guide wider use of ropeless gear and anticipate sharing that for public comment in the coming months,” NOAA spokesperson Katie Wagner told the Journal via email. A 2020 NOAA survey found some fishing vessels didn’t comply with vessel speed limits, though observance had been improving. NOAA realizes the need to study further “the impact of non-lethal vessel collisions” and “strengthen our ability to enforce the speed regulations,” Wagner said.

The region’s lawmakers too, are working to support the industry. Senator Susan Collins, a Maine Republican, unsuccessfully tried to get $100 million added to the current appropriations bill in order to get fishers reimbursed for the expenses they will incur. Additionally, the Maine and New Hampshire delegations introduced the Stewarding Atlantic Fisheries Ecosystems by Supporting Economic Assistance and Sustainability (SAFE SEAS) Act of 2022 (S. 3765, H.R. 7042), which would authorize at least $10 million for the cost of the gear. There has been no action as yet on this bill.

Marine conservation groups, however, say that while the new regulations and bills are a step in the right direction, this dwindling species needs a lot more help.

“We believe the government took a good first step with the current regulations but more needs to be done [to save the North Atlantic right whales],” says Gib Brogan, a fisheries campaign manager for Oceana, a nonprofit dedicated to protecting oceans. “The regulations don’t provide protection for all the spaces the whale needs….With a species in such dire straits, we need to be doing a lot more than watchful waiting.”

These new regulations and technologies will probably help keep the right whale from disappearing for now. But even if we manage to address the issue of entanglements and vessel strikes through these measures, humanity will still need to address other long-term threats to the right whale’s existence, such as dwindling food supply, climate change, and ocean noise pollution.

Charles Pekow is an award-winning investigative reporter who has covered environmental issues for the Washington Monthly, In These Times, Forest Magazine, and other publications.

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