16Nov

The Ongoing Debate Between Boaters Freedom of Navigation and NOAA’s Conservation Efforts to Protect The North Atlantic Right Whale

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By Alexander Van Zijl

The Origins of NOAA’s North Atlantic Right Whale Regulatory Scheme

On August 1, 2022, the National Oceanic and Atmospheric Administration (“NOAA”) sent shockwaves through the boating community when the agency decided to further protect the endangered North Atlantic right whale by proposing an amendment to 50 C.F.R. § 224.105.[1] In 2008, NOAA adopted 50 C.F.R. § 224.105 to “reduce the incidence and severity of ship collisions with North Atlantic right whales.”[2] NOAA wished to achieve its remedial goals by preventing vessels longer than sixty-five feet from going faster than ten knots in designated seasonal management areas along the East Coast.[3] The regulation would only apply during a specific range of months, generally between November and April, with some variation in specific zones.[4] The rule provided an exemption for Federal, State, and foreign vessels.[5]

Environmental Groups Pressure to Amend 50 C.F.R. § 224.105

However, since 2008 there has been a push by environmental groups to expand the protections of the 2008 rule for the remaining 400 North Atlantic right whales.[6] In 2020, Whale and Dolphin Conservation, and multiple other conversation groups filed a legal petition asking NOAA to expand the area and times of the current rule and reduce the size of the vessels to below sixty-five feet.[7] The groups argued that since 2017, thirty-one North Atlantic right whales had died, half of which occurred from fishing gear entanglement and vessel strikes.[8] NOAA failed to act on either of the petitions. In response, on January 13, 2021, the Conversation groups filed a Complaint for Declaratory and Injunctive Relief in the United States District Court for the District of Columbia.[9] The plaintiffs argued that the agency’s response to the 2012 and 2020 petitions had been unreasonably delayed and the court should compel NOAA to respond.[10] NOAA argued that they had provided an adequate response in a letter sent in March 2021, two months after the suit was filed.[11] The court denied the agency’s motion to dismiss the 2020 petition but granted the motion to dismiss the 2012 petition. [12]

NOAA’s Scientific Justification for its Proposed Amendment to 50 C.F.R. § 224.105

NOAA, either prompted by these environmental groups or from internal agency decisions, decided to amend the 2008 North Atlantic right whale regulation.[13] The agency put forth data from National Marine Fisheries Service, also known as NOAA Fisheries, that the 2008 regulation had reduced North Atlantic right whale strikes.[14] NOAA Fisheries in May 2022 released a technical memorandum that claimed speed reduction could reduce the lethality of whale strikes by 80-90%.[15] The 2008 regulation had reduced whale strikes from “12 during the 10 years prior to the rule’s implementation to 8 in the 10 years.”[16] However, it was impossible to establish “a direct causal link.”[17] Notwithstanding the lack of a causal link, the memo argued that boats below sixty-five feet were an additional cause of whale strikes and that expanding the U.S. speed zones would reduce the “risk of vessel strike mortality by an average of 27.5%.”[18]

On August 1, 2022, NOAA put forward the aforementioned proposed amendment to the 2008 regulation. The proposed amendment argued that the decline of North Atlantic right whale species has been caused by Unusual Mortality Events (“UME”), which included fifty-one mortalities and serious injuries.[19] The agency acknowledged that vessel strikes and entanglement in fishing gear were the two leading causes of whale mortality.[20] NOAA credited human actions as the primary reason for female whale death and the overall decline in population.[21] Mothers and calves were at the highest risk and disproportionally represented in the data because they rest and nurse near the shore close to the water surface.[22] NOAA claimed that five of twelve vessel strikes since 2008 had occurred from vessels under sixty-five feet and that only six of the lethal strikes since 1999 occurred from a vessel going under ten knots (NOAA acknowledge their lack of data on this issue).[23] However, the agency still parroted the same belief that it was “not possible to establish a direct causal link between speed reduction efforts and the relative decline in observed right whale mortality and serious injury events.”[24] But it was possible to establish by the preponderance of the evidence that the speed reductions have helped.[25]

Proposed Regulatory Expansions to 50 C.F.R. § 224.105

Applying the agency’s Vessel Strike Mortality Risk Model, NOAA determined that areas with high density of vessel traffic and North Atlantic right whale population were ripe for regulation.[26] NOAA believed the areas of highest risk ranged from “Mid-Atlantic between Cape Hatteras, North Carolina, and New York, and in relatively shallow waters over the continental shelf.”[27] These areas have more vessels below 65 feet and thus their speed should be limited to less than 10 knots.[28] The new speed restrictions will be applied to the newly defined Seasonal Speed Zones (“SSZs”), which will cover most of the East Coast and span generally from November to April depending on the geographic zone.[29] NOAA believes the expanded zones and reduced speed limits for vessels below sixty-five feet will protect boaters, often injured in collisions, and North Atlantic right whales.[30] The regulation would now apply to boats thirty-five feet or above, affecting 8,500–10,000 vessels, with 80% of these vessels being large recreational boats, 7% being commercial boats, and 6% being passenger boats.[31]

This proposed regulation will provide a speed restriction exception during severe weather events and threats to the health and safety of the passengers.[32] Boaters will have the burden of proving their need for the exception by describing and reporting their reasons for the speed deviations within forty-eight hours to NOAA Fisheries.[33] The same exception from the 2008 regulation applies to Federal, State, and foreign vessels, but reduce speed recommendation may still occur.[34] Enforcement of this regulation will occur under “2020 vessel speed rule assessment (NMFS 2020).”[35] NOAA will also use the Office of Law Enforcement to “track[] vessel speed at sea[,]” begin research on new “vessel tracking technologies,” and start “investigating land-based and aerial monitoring options.”[36] NOAA has “commenced staff level discussions with the U.S. Coast Guard regarding possible modification of current AIS carriage requirements to include additional vessel types and sizes.”[37] NOAA will enforce violations of the speed restrictions through “civil administrative enforcement cases[,]” which will levy “significant monetary penalties.” [38] NOAA may also take a less coercive approach that will achieve compliance via outreach letters sent to noncomplying boaters.[39]

Legal Basis for NOAA’s Proposed Amendment

The legal basis for this regulation is found under the Endangered Species Act and the Marine Mammal Protection Act.[40] Thus, there is a Congressional mandate to protect endangered species, specifically Marine Mammals. [41] NOAA relied upon both statutes’ “take” prohibitions.[42] The Endanger Species Act defined take as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”[43] The Marine Mammals Protection Act defined “take” as to “means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.”[44] When the Endangered Species Act was debated, a Senate Report determined that “‘Take’ is defined in section 3(12) in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.”[45] The agency’s reliance on Endanger Species Act and Marine Mammal Protection Act are reasonable.

Boating Communities’ Negative Response to the Proposed Amendment

However, the boating communities’ backlash from this proposed amendment have been substantial. The boating community has cited the disparity in the number of boating trips to whale hits, increased travel time, and the economic hardship it places on boaters. John Chambers of the American Sportfishing Association claimed the expansion of the regulation will “have huge ramifications for our members and individuals who enjoy spending time on the water.”[46] Mr. Chambers called for a less restrictive measure because of the major economic impact the regulation could have on the boating community.[47] He cited that the heavy-handed regulation was unnecessary because of the disparity between the number of boating trips that occur is upwards of 5.1 million compared to the five whale strikes.[48]

Captain Rick Bellavance, the president of the Rhode Island Party and Charter Boat Association, cited similar arguments “[i]f we’re driving 10 miles an hour instead of 15, that’s 5 miles of travel every hour. It could be a half hour or an hour each day of less fishing and more driving.”[49] Ferry Companies, such as the Block Island ferry, agreed that “daily ferry ride could take upwards of 90 minutes per one-way trip, with a reduced number of trips per day.”[50] John DePersenaire, Viking’s director of government affairs and sustainability, said the regulation “as written, would be the most consequential maritime regulation that we have ever seen imposed on the recreational boating and fishing section.”[51] Mr. DePersenaire cited the economic effect the regulation will have on “boat owners” but especially “marinas, tackle shops, charter boat operators – basically all maritime-related businesses on the Atlantic Coast.”[52] Mr. DePersenaire believes the regulation “compromises [recreational boaters’] maneuverability and overall safety at sea.”[53]

Economic Impact

In 2020, NOAA performed an economic impact analysis on the effect of the 2008 regulation for boats that were longer sixty-five feet.[54] Under the old regulation, the study claimed that the effects on transit time would cost “approximately $28.3 million to $39.4 million annually with commercial shipping industry bears between 74 to 87.”[55] For fishing vessels longer than sixty-five feet, the increased cost from speed limits would be around $147 thousand to $1.3 million per year.[56] However, lowering the size to thirty-five feet will expand the effects on the boating industry. The proposed regulation argues that “a total of 2,524 small entities (individual vessels) would be affected by the proposed rule with an estimated annual cost, as a percentage of revenue, ranging from 0.06% to 2.09%, depending on the vessel type.”[57] To better understand the impact of this regulation the public comment period ran from August 1, 2022, till September 31, and was extended till October 31.[58]

Conclusion

NOAA has shown that it is highly probable that boating has adversely affected the North Atlantic right whale. However, the agency admits that only five of twelve vessel strikes since 2008 have been caused by boats under sixty-five feet, and NOAA has not proven causation connecting speed reduction and whale strikes.[59] Thus, increasing government oversight over boaters seems imprudent when the damage from boats under sixty-five feet is so minor. Mr. Chambers is correct to argue that the proposed amendment is overinclusive. However, it remains to be seen if NOAA will consider the boater’s concerns. NOAA should perform a new economic impact analysis because the proposed amendment will affect 8,500–10,000 thirty-five-plus foot boats making the 2020 economic impact study obsolete.[60] If adopted, this regulation will have a cascading effect on the industry and will touch the entire boating community. Thus, it raises the question: Should the environmental groups and the Federal Government determine how a broad swath of free and independent boaters should navigate?

 

 

  1. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46923 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  2. Endangered Fish and Wildlife; Final Rule To Implement Speed Restrictions To Reduce the Threat of Ship Collisions With North Atlantic Right Whales, 73 Fed. Reg. 74003 (proposed December 5, 2008) ( to be codified at 15 C.F.R. Part 902). ↑

  3. 50 C.F.R. § 224.105(a) (2011); DEP’T OF COM., NAT’L OCEANIC & ATMO. ADMIN., Assessing the risk of vessel strike mortality in North Atlantic right whales along the U.S East Coast I (May 2022), https://media.fisheries.noaa.gov/2022-07/Right_Whale_Vessel_Strike_Risk_Assessment_NMFS-SEFSC-757_508.pdf[hereinafter Risk Assessment]; NOAA Fisheries Comp. Guide for Right Whale Ship Strike Reduction Rule, https://www.dco.uscg.mil/Portals/9/DCO%20Documents/5p/CG-5PC/CG-CVC/CVC2/psc/policy/epolicy/nrwhale/Ship_Strike_Reduction_Compliance_Guide.pdf. ↑

  4. 50 C.F.R. § 224.105(1-3) (2011). ↑

  5. Id. at (a). ↑

  6. Kristen Monsell et. al., Vessel Speed Limits Sought to Protect Endangered North Atlantic Right Whales, The Center for Biological Diversity (Aug. 6, 2020), https://biologicaldiversity.org/w/news/press-releases/vessel-speed-limits-sought-protect-endangered-north-atlantic-right-whales-2020-08-06/; Regina Asmutis-Silvia et. al., Federal Proposal Aims to Protect Endangered Right Whales From Ship Strikes, The Center for Biological Diversity (July 29, 2022), https://biologicaldiversity.org/w/news/press-releases/federal-proposal-aims-to-protect-endangered-right-whales-from-ship-strikes-2022-07-29/; Risk Assessment, supra note 3, at 1. ↑

  7. Monsell, supra note 6; see generally Whale and Dolphin Conservation et. al., Petition for Rulemaking to Prevent Deaths and Injuries of Critically Endangered North Atlantic Right Whales from Vessel Strikes 3, 12–23 (Aug. 6, 2020), https://www.biologicaldiversity.org/species/mammals/North_Atlantic_right_whale/pdfs/NARW-Ship-Speed-Petition-08-06-2020.pdf [hereinafter petition]. ↑

  8. Monsell, supra note 6. ↑

  9. Regina Asmutis-Silvia et. al., Feds Sued to Force Them to Protect Endangered North Atlantic Right Whales from Vessel Strikes, The Center for Biological Diversity (Jan. 13, 2021), https://biologicaldiversity.org/w/news/press-releases/feds-sued-force-them-protect-endangered-north-atlantic-right-whales-vessel-strikes-2021-01-13/; Whale & Dolphin Conservation v. Nat’l Marine Fisheries Serv., 573 F. Supp. 3d 175, 178 (D.D.C. 2021). ↑

  10. Whale & Dolphin Conservation v. Nat’l Marine Fisheries Serv., 573 F. Supp. 3d 175, 179 (D.D.C. 2021) ↑

  11. Id. ↑

  12. Id. at 181. ↑

  13. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46922 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  14. Id. at 46923–24 ↑

  15. Risk Assessment, supra note 3, at 2. ↑

  16. Id. ↑

  17. Id. ↑

  18. Id at 3, 15. ↑

  19. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46922 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  20. Id. ↑

  21. Id. ↑

  22. Id. at 46923‑4. ↑

  23. Id. at 46924. ↑

  24. Id. ↑

  25. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46924 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  26. Id. at 46926. ↑

  27. Id. ↑

  28. Id. ↑

  29. Id. ↑

  30. Id. at 46928. ↑

  31. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46928 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  32. Id. at 46930. ↑

  33. Id. at 46930–31. ↑

  34. Id. at 46931. ↑

  35. Id. at 46932. ↑

  36. Id. ↑

  37. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46932 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  38. Id. ↑

  39. Id. ↑

  40. See 16 U.S.C. §§ 1531, 1538 (a)(1)(B) (Supp. 2020) & 16 U.S.C. §§ 1361, 1372 (a)(1) (Supp. 2020). ↑

  41. 16 U.S.C. § 1531 (b) (Supp. 2020) & 16 U.S.C. § 1361 (1)–(2) (Supp. 2020). ↑

  42. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46923 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  43. 16 U.S.C. § 1532 (19) (Supp. 2020). ↑

  44. 16 U.S.C. § 1362 (13) (Supp. 2020). ↑

  45. S. Rep. No. 93-307, at 7 (1973). ↑

  46. Gareth McGrath, Should NC Recreational Boats Have to Slow Down for Endangered Whales? Feds Think So, Star News Online (Sept. 29, 2022, 6:02 AM), https://www.starnewsonline.com/story/news/local/2022/09/29/environmentalist-backed-proposal-force-boaters-slow-protect-endangered-north-atlantic-right-whales/69498327007/. ↑

  47. Id. ↑

  48. Id. ↑

  49. Rob Smith, Vessel Speed Restrictions Proposed for New England Waters to Protect Endangered Right Whales, ecoRI News (Sept. 22, 2022), https://ecori.org/vessel-speed-restrictions-proposed-for-new-england-waters-to-protect-endangered-right-whales/. ↑

  50. Id. ↑

  51. Kirk Moore, Resistance Builds on New Speed Restrictions to Protect Whales, Nat’l Fisherman (Sept. 26, 2022), https://www.nationalfisherman.com/national-international/resistance-builds-on-new-speed-restrictions-to-protect-whales. ↑

  52. Id. ↑

  53. Id. ↑

  54. Indus. Econ., Inc. Econ. Analysis of the North Atlantic Right Whale Vessel Speed Restriction Rule 1-1 (March 2020), https://media.fisheries.noaa.gov/2021-01/FINAL_Appendix_B-Economic_Assessment_of_the_Vessel_Speed_Rule.pdf?null (Report prepared by Industrial Economics, Incorporated for the Office of Protected Resources National Marine Fisheries Service). ↑

  55. Id. at ES-1. ↑

  56. Id. at 3-17. ↑

  57. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46934 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  58. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 56925 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  59. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46924 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  60. Id. at 46928. ↑

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