On September 16, five groups filed a petition to expand critical habitat for the North Atlantic right whale to include the American waters of the entire Gulf of Maine. This set off a chain of events that could cause even more problems for ground and lobster fishermen.

The petition, filed with the National Marine Fisheries Service (NMFS) under the Endangered Species Act by the Center for Biological Diversity, Defenders of Wildlife, Humane Society of the United States, Ocean Conservancy, and Whale and Dolphin Conservation Society, seeks to revise the critical habitat designation for the North Atlantic right whale “to include the marine waters along the East Coast of the United States that constitute essential foraging, breeding, calving, nursery, and migratory areas for this critically imperiled species.”

“The entire gulf isn’t critical habitat,” said Casco Bay fisherman Steve Train, who has fished for 25 years. “I think it is an overreaching, over-encompassing solution that’s not required.”

Within 90 days of receiving the petition, NOAA must respond. Connie Barclay, Director, NOAA Office of Communications at the National Marine Fisheries Service, said that NOAA fisheries will make a determination as to what action is appropriate regarding critical habitat for right whales. According to the petition, however, petitioners need not demonstrate that the proposed revision is warranted, but must only present information demonstrating that it may be warranted.

Within 12 months of receiving the petition, NMFS must determine how it will proceed with the requested revision, “moving forward with a proposed rule to revise critical habitat for the North Atlantic right whale,” if it decides that this action is warranted. The petition also asked for expanded protection in waters off South Carolina, Georgia and Florida.

Ship strikes make up the majority of injury and death to the North Atlantic right whale rather than gear entanglement, nevertheless, animal rights groups have forced commercial fishermen to make changes to the way they fish, the latest being the need to use sinking line on stationary lobster gear.

The National Marine Fisheries Service has previously identified six major habitats or congregation areas. These include: the coastal waters of the southeastern U.S.; the Great South Channel between Georges Bank and Cape Cod; Cape Cod and Massachusetts Bays; the Bay of Fundy; and the Scotian Shelf, off Maritime Canada.

NMFS established the Atlantic Large Whale Take Reduction Team in 1996, made up of scientists, animal rights activists, and fishermen, to develop a plan to reduce the incidental serious injury and mortality of right whales and other endangered species. The North Atlantic right whale population is less than 400, according to the petition.

The petitioners state that data have shown that right whales roam more widely than the identified areas, and the petitioners now feel they need to designate the entire Gulf of Maine as critical habitat.

Asked if petitioners are aware of the potential impacts their request has on working fishermen coasts, Miyoko Sakashita, Oceans Program Director at the Center for Biological Diversity, replied, “The direct impacts on them are probably quite limited. One of the things that might be required is, for example, slowing vessel speed to make sure that they don’t hit whales.” She added, “North Atlantic right whales are protected as endangered species anyway, so anything that harms or kills a North Atlantic right whale needs some sort of permit for incidentally taking those animals, so the requirements on fishing gear and those kinds of things are already necessary. Critical habitat adds an extra layer of protection to look at the impacts on habitat.”

Sakashita said, “We’re hopeful that what revising the critical habitat for the North Atlantic right whale will do is increase awareness of the areas the right whales are using and encourage measures that would reduce some of the impacts on the habitat, which could be slowing vessel speed.”

Asked to be more specific, Sakashita replied, “With regard specifically to impacts on fishing interests, there’s a long chain of events that would need to occur.” If an area is designated as critical habitat, a fishery management plan would need to consider the impacts on that habitat, “if they found that the way fishing is going on currently in the area is harming the critical habitat” of the right whale, she said.

If such impacts were found, Sakashita said, “They may need to adjust the fishery management plan. It could be changing effort limits or changing gear restrictions to prevent those impacts. It’s a consultation requirement that is triggered.”

Once critical habitat is designated, “Any federal action that may affect that habitat has to undergo consultation between the expert wildlife agencies and the agency taking the action. The consultation is about the impacts on the activity of the habitat. If they find that [the activity] harms or destroys the habitat, then they have to change the activity so it doesn’t have those problems,” Sakashita said.

To which Deer Isle lobster fisherman and former long-time NMFS Large Whale Take Reduction Team member Leroy Bridges, replied, “Once they designate the [Gulf of Maine] critical habitat, it’s everybody out of the pool. Once they get that designation, they start the process of chipping away at people’s ability to be there, period.”

Regarding Sakashita’s statement about slowing vessel speed, Bridges said, “In some instances it is a total impossibility because some of those huge supertankers have to be going X number of knots to maintain steerage.” He said he’d been involved with one of the Take Reduction Teams for ship strikes and recalled hearing this from a supertanker captain.

“If the hairs aren’t standing up on the backs of people’s necks,” Bridges said of this petition, “then they’re going to deserve what they get out of this.” He predicted, “Several lawsuits more than likely filed to help hammer through to [the petitioner’s] goal: their goal being total restriction of the Gulf of Maine.” He added, “If they can take out the Maine lobster fishermen, then the rest of the eastern seaboard will fall.”

Patrice McCarron, executive director of the Maine Lobstermen’s Association [MLA], is equally concerned and said, “We are in the process of consulting with our attorneys to see if there is some way where we can weigh in.” She added, “It is up to the government to determine whether or not the data supports the claim.”

The petitioners claim not only that right whales pass through the Gulf of Maine on their way to the summer grounds in the Bay of Fundy, but also that two basins in the Gulf-Jordan and Wilkinson-are sources of important forage for right whales, and that the forage material, a group of crustaceans called copepods, drift around the gulf, so therefore the entire Gulf of Maine needs to be protected.

Based on this, because within 90 days, McCarron said, “The government needs to say whether or not they feel it’s worthy of investigation, I’m guessing they will investigate. They generally do.” She added, though, that closer to the 12-month deadline, “We’ll find out whether or not they feel like they want to move forward with new critical habitat.”

She summed up her reading of the petition by saying, “I think they have a weak case for the northeast because they looked at a NMFS report, which drew a [map] of a right whale foraging area.

“That [map] that the NMFS drew, which is basically what this entire case is built on, is outside the 50-fathom curve in Maine.” McCarron explained that the “50-fathom curve” is a depth contour that runs the entire length of the coast on the ocean bottom and that probably more than 90 percent of lobster fishing is executed inside that 50-fathom line.

McCarron thinks the conservation community took that map of the proposed right whale foraging area and argued that because it’s such a big part of the Gulf of Maine, that the whole gulf should be covered. “That subtlety, is the difference between impacting the Maine lobster fishery or not,” McCarron said.

She then stated, “Scientifically speaking, I think critical habitat at Jordan and Wilkinson is absolutely warranted. They have found those to be over-wintering areas and high-use, critical for the species. I have absolutely no problem with that area being designated as critical habitat.”

She went on to say, “It’s almost ironic that that the lobster fishery has always argued that we needed to put more stringent protection measures in offshore waters where we have seen whales.”

Frank Gotwals, president of the Stonington Lobster Co-op, said, “To declare the entire Gulf of Maine critical habitat for an endangered species is sort of ridiculous, but I don’t have any great faith that they don’t have the law on their side.”

“I think what this comes down to is, it’s critical habitat for us, as well,” he said.