Continued from page 1
LEGISLATIVE STATUS
International Protection: The right whale was initially protected from hunting in 1935 by a resolution adopted by the League of Nations. In 1949, the International Whaling Commission (IWC) banned all harvesting of right whales. Additionally, they are now listed under Appendix I of CITES, a treaty observed by 122 nations,(5) including the United States.
Domestic Protection: Right whales are protected in the United States by the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA). Both laws have provisions against harm and harassment of species.(6) Under section 7 of the ESA, all Federal agencies must insure that any activity authorized or funded by the agency is not likely to jeopardize the continued existence of an endangered species, such as the northern right whale.
MAJOR AFFECTED AREAS: Two regions located in Canada and three within the United States have been identified as essential to the recovery of the right whale. The three within Federal jurisdiction include coastal Florida and Georgia, Cape Cod Bay, and the Great South Channel south and east of Cape Cod. These areas have been designated as critical habitats recently by the National Marine Fisheries Service (NMFS). (See below.)
AFFECTED FEDERAL AGENCIES: NMFS (including the New England and South Atlantic Regional Fishery Management Councils), Fish and Wildlife Service, National Oceanic and Atmospheric Administration, Minerals Management Service, Environmental Protection Agency, the Army Corps of Engineers, National Ocean Service, Office of Ocean and Coastal Resources Management, the U.S. Coast Guard, and the U.S. Navy.
RECENT DEVELOPMENTS AND CONTROVERSY: Right whale research within NMFS has been funded by Congress since 1986. Initial appropriations totalled $500,000 in FY1986, and between $200,000-$250,000 for FY1987-1994. In FY1995, NMFS spent $157,000 on a research contract with the New England Aquarium. A panel was convened by NMFS at the end of 1994 to determine future right whale research priorities. (Their report is not yet available.)
The Final Recovery Plan for the Northern Right Whale was completed in 1991 by NMFS. Recovery Plan Implementation Teams were formed in 1993 in the Southeast United States and in 1994 in New England to identify any actions of Federal agencies that would be needed to implement the objectives of the Plan. The Southeastern Team initiated an education campaign to improve public awareness of the whales and reduce human-induced injuries. It also assisted in the development an Early Warning System which alerts mariners to the presence of right whales to diminish the number of collisions.
A lawsuit filed in June 1994 alleges that the U.S. Coast Guard violated the Endangered Species Act, the Marine Mammal Protection Act, and the Whaling Convention Act by being responsible, without incidental take authority under any of these Acts, for two right whale deaths by Coast Guard ship collisions in the last four years.(7) The plaintiff also claims that the Coast Guard failed to consult with NMFS under section 7 of the ESA. A decision regarding a possible injunction against the Coast Guard is pending.
Critical Habitat Designation and the No-Approach Zone: Effective July 5, 1994, three areas of the right whale's range in the United States were declared to be critical habitat by the NMFS.(8) This designation increases public awareness of the species' plight and strengthens the protection offered by the ESA and the MMPA by insuring that habitat is not modified even when the whales are not present. It also helps to determine which activities (such as wastewater disposal in adjacent wat ers) outside the proscribed area are subject to ESA section 7 consultations.
The designated regions and their functions are:
(1) Cape Cod Bay, Massachusetts, a primary feeding ground and nursery used from late winter until early spring;
(2) Great South Channel, 45 miles southeast of Cape Cod, a primary feeding ground used from spring until early summer; and
(3) The Atlantic coastline and adjacent waters from the mouth of the Altamaha River in Georgia to Sebastian Inlet (south of Cape Canaveral) in Florida, the only known calving grounds, which are used from late November until early March.
In general, public and private organizations and individuals were in favor of the critical habitat designations. However, some opponents argued that the ruling does not provide enough protection for the whales or adequately meet their biological needs, while others contended that it facilitates the placement of unwarranted or unnecessary restrictions on already-regulated activities.
In October 1994, NMFS was petitioned to establish a protection zone of 500 yards around each right whale. It is surmised that vessel activity, including engine noise and wakes, disturbs the whales and may adversely alter their behavior. The suggested restriction would prevent ships and individuals from approaching the whales and reduce the risk of disturbance and injury from propellers and fishing gear. The proposal is similar to but somewhat broader than rules already in place concerning humpback whales and Steller sea lion rookeries. However, it will likely face criticism from several sources. Commercial whale watching operators may object to a no-approach zone, since it would interfere with their ability to observe the animals.(9) Also, shipping interests may be concerned about the zone's effect on vessel transit as well as any economic burdens created for mariners who would have to adjust their boats' courses to maintain a 500-yard distance from the whales. In addition, the practicality of obeying and enforcing such a regulation is open to question.
In response to both the protection-zone petition and comments from previous hearings, NMFS is soliciting public input about measures to minimize harmful vessel interactions with right whales.(10)
Footnotes:
1. Under the supervision of M. Lynne Corn, Jennifer Sekula, B.Sc. (College of William and Mary), researched and contributed to this report.
2. At most, a few hundred right whales exist off the Pacific coast of the United States and Canada; however, this report focuses exclusively on the Atlantic population, which is reproductively isolated from that of the Pacific.
3. However, the lowest estimated number of California grey whales was 8,000 while the right whale population may have included only three breeding females 75 years ago (Hans Neuhauser, Institute of Area and Community Development, the University of Georgia, personal communication). This discrepancy may explain the different recovery responses.
4. The right whale was so named by early whalers, who found that its coastal distribution, slow swimming speed, tendency to float when killed, and other characteristics made it the "right whale to hunt."
5. As of August 1994. See CRS Rept. 94-765, The Convention on International Trade in Endangered Species: Its Past and Future.
6. However, there are court cases which contest the definition of "take" to include "harm and harassment." For one example, see Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 17 F.3rd 1463 (D.C. Cir. 1994), cert granted, 63 U.S.L.W. 3500 (Jan. 6, 1995) (No. 94-859).
7. Strahan v. Linnon, (D. Mass, Civil Action No. 94-11128; filed June 7, 1994).
8. See "Designated Critical Habitat; Northern Right Whale," 59 Federal Register 28793 (June 3,1994).
9. The Commonwealth of Massachusetts already has a 500-yard no-approach regulation in place (322 Code of Massachusetts Regulations 12.01-12.05), under which a warning citation was issued in 1994 to an overly-zealous whale-watching cruise captain.
10. See "North Atlantic Right Whale Protection," 59 Federal Register 66513 (Dec. 27, 1994).
| Top | Back |
 NetPets® Main Page |  The Fish Center |