With a suggestion from the Friends of the San Juans and a personal opinion from a NOAA attorney, the San Juan County Council members want to move quickly to create a local ordinance to protect killer whales from vessels. Last week, Prosecutor Randy Gaylord had expressed doubts that the county could enforce such a law, citing a conflict between the Marine Mammal Protection Act and the Endangered Species Act. He also cited a unsuccessful case involving humpback whales in Hawaii as a precedent. He was overruled by the council, and directed to draft an ordinance.
This week, Gaylord suggested the council take a two step approach similar to what was done when the county successfully regulated jetskis. First, invite stakeholders and leaders from other counties to a hearing to gather information on what should be in the ordinance. This was done with the jetski ordinance and the information gathered became an important part of the record which helped when the case went to court. Since there are unusual issues involved in the killer whale ordinance including boarding boats from other countries which haven't gone through customs, the more people involved in the initial hearing, the better chance of success, according to Gaylord.
Councilmember Howie Rosenfeld was not in favor of that approach. He worried the endangered whales might be at the "tipping point" and any delay could be harmful. He wanted the ordinance in place by the 4th of July. He suggested just adopting the Whale Wise Guidelines. He said Canada was already doing that.
The Canadian DFO prohibits prohibits the disturbance of whales. Violating the Fisheries Act: Except as otherwise provided in this Act, every person who contravenes this Act or the regulations is guilty of (a) an offence punishable on summary conviction and liable, for a first offence, to a fine not exceeding one hundred thousand dollars and, for any subsequent offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year, or to both;
The DFO does have a Whale Watching Guideline list it uses to help educate people about whales.
- Approach whales from the side, not from the front or the rear.
- Approach no closer than 100 metres and shift your motor into neutral or idle.
- Keep noise levels down - no horns, whistles or racing of motors.
Start your motor only after the whales are more than 100 metres from your vessel.
Leave the area slowly, gradually accelerating when you are more than 300 metres from the whales.
Approach and depart slowly, avoiding sudden changes in speed or direction. Do not "leapfrog."
Avoid disturbing groups of resting whales.
Maintain low speeds and constant direction if travelling parallel to whales.
When whales are travelling close to shore, avoid crowding them near the shore or coming between the whales and the shore.
Limit the time spent with any group of whales to less than 30 minutes at a time when within 100 to 200 metres of whales.
If there is more than one vessel at the same observation site, be sure to avoid any boat position that would result in encircling the whales.
Minimize the time spent and the number of vessels with any one group of whales.
Limit time, as above, and then move out to allow other vessels access to good viewing positions.
- Coordinate activities by maintaining contact with other vessels, and ensure that all operators are aware of the whale watching guidelines.
After a discussion, Tuesday May 22, which was complicated by the fact, that only part of the council was at the worksession on Monday where the two-step process was discussed, a decision was made to form a subcommittee. The subcommittee will work on setting up the hearing/meeting. In the meantime, the council directed Gaylord to draft an ordinance based on the Whale Wise Guidelines.
BE WHALE WISE
BE CAUTIOUS and COURTEOUS: approach areas
of known or suspected marine wildlife activity
with extreme caution. Look in all directions before
planning your approach or departure.
- SLOW DOWN: reduce speed to less than 7 knots
when within 400 metres/yards of the nearest whale.
Avoid abrupt course changes.
- KEEP CLEAR of the whales’ path. If whales are
approaching you, cautiously move out of the way.
- DO NOT APPROACH whales from the front or from
behind. Always approach and depart whales from
the side, moving in a direction parallel to the
direction of the whales.
- DO NOT APPROACH or position your vessel
closer than 100 metres/yards to any whale.
- If your vessel is not in compliance with the 100
metres/yards approach guideline (#5), place engine
in neutral and allow whales to pass.
- STAY on the OFFSHORE side of the whales when
they are traveling close to shore.
- LIMIT your viewing time to a recommended
maximum of 30 minutes. This will minimize the
cumulative impact of many vessels and give
consideration to other viewers.
- DO NOT swim with, touch or feed marine wildlife.
Local orcas depleted not endangered
An endangered listing for the southern resident pods of orcas is not warranted according to the National Marine Fisheries Service because the animals do not qualify as a separate species. NMFS said they may warrant a "depleted " classification under the Marine Mammal Protection Act (MMPA). The Center for Biological Diversity had requested a threatened or endangered listing under the Endangered Species Act (ESA) in May 2001. NOAA WEB SITE
NOAA PRESS RELEASE
NOAA Fisheries Takes Steps to Protect Killer Whales Agency Determines that ESA Listing Not Presently Warranted
The National Marine Fisheries Service (NOAA Fisheries), announced today that it will take steps to protect a population of killer whales (Orcinus orca) that summers in Washington state’s Puget Sound. NOAA Fisheries managers said they will immediately seek federal protection for the orcas, and will follow well defined steps to halt the population’s decline.
NOAA Fisheries, an agency of the Commerce Department’s National Oceanic and Atmospheric Administration (NOAA), is one of the federal agencies responsible for protecting marine mammals and determining protection under the Endangered Species Act (ESA).
"We are taking the decline of these killer whales seriously and we will work to sustain and support this population," said Bob Lohn, head of the NOAA Fisheries northwest regional office.
The NOAA Fisheries steps to help protect Puget Sound killer whales include:
Starting the process to declare the stock as "depleted," a classification that would give it greater federal protection.
- Soliciting public comment about additional protections needed to stop the
southern residents’ decline.
- Improving whale-watching guidelines. Such steps would be made in consultation
with Canadian authorities.
- Committing to a reassessment of these whales under the Endangered Species Act within the next four years.
Although historically the southern resident population has been small, in recent years scientists have seen it fall from a high of 97 animals in 1996 to approximately 78 last year. At a conference sponsored by NOAA Fisheries in 2001, killer-whale experts attributed the decline to depleted food sources, the effects of pollution and whale watching.
In spite of these low numbers, a biological review team assembled by NOAA Fisheries said that even if the 1992-2001 population decline continued that there would be a slightly greater than 10 percent chance that the southern resident population would become extinct in the next 100 years. If the population data starting in 1974 is used to make the same prediction, the scientists said the risk of extinction by 2101 would fall to as little as one percent.
In May 2001, the California-based Center for Biological Diversity and 11 other groups petitioned NOAA Fisheries to list Puget Sound killer whales – known by scientists as the southern population of resident killer whales – under the Endangered Species Act.
"While these animals are in trouble, there is not sufficient justification to list the Puget Sound population under the ESA," explained Lohn. When they are considered as a part of the larger group of North Pacific killer whales, there is no risk of extinction for the population according to the NOAA Fisheries biological review team's report. The general killer whale population in the North Pacific is regarded as healthy.
The Endangered Species Act allows the government to list individual species or subspecies, but also "distinct population segments" as well. A joint policy, signed in 1996 by NOAA Fisheries and the US Fish and Wildlife Service, another federal agency with wide-spread responsibility under the ESA, declares such sub-groups must not only be separate or "discretev” from the overall population, they must be "significant" as well. NOAA Fisheries convened a team of scientists and killer-whale biologists to examine the killer whale’s status and make a recommendation about listing. It determined that the Southern Resident killer whales constitute neither a "species," "subspecies" nor "distinct population segments" as defined by the ESA. Current scientific classification, the scientists said, categorizes all killer whales as a single global species with no recognized subspecies.
Lohn noted, however, that the validity of a single-species classification for killer whales has been questioned by some taxonomists – scientists who study the principles of scientific classification – and is currently under review by scientists world wide. "Any changes in the species’ classification may warrant a reassessment of our ESA findings," he added. The familiar black-and-white killer whales, and all marine mammals in the United States, are protected by the Marine Mammal Protection Act – a law that among other things forbids killing or harming marine mammals. NOAA Fisheries is dedicated to protecting and preserving our nation’s living marine resources through scientific research, management, enforcement, and the conservation of marine mammals and other protected marine species and their habitat.
Orcas are one step closer to endangered species listing
The National Marine Fisheries Service (NOAA fisheries) will put together a biological review team of killer whale experts to try to determine if the local orcas are a distinct population segment as defined by Endangered Species Act. The group will try to find out why the whale's population is declining and will make a recommendation about whether the agency should formally propose an ESA listing. The report will be completed in May 2002. This is the first in a series of steps which could lead to ESA listing by 2003.
The NOAA fisheries was asked to consider an ESA listing by the Center for Biological Diversity in May, 2001. Local groups -- The Whale Museum, Orca Conservancy and the Friends of the San Juans were co-petitioners.
"We take very seriously the recent declines in killer whale populations and are determined to find out what's causing it," said Donna Darm, the acting head of NOAA fisheries Northwest regional office in Seattle. "Accepting this petition to conduct the review is an important first step in determining an appropriate course of action."
The three pods which make up the resident whale population in Puget Sound have dropped from a population high of 99 in 1995 to 78 this year.
Mark Anderson, executive director of Orca Relief Citizens' Alliance noting the loss of breeding whales said, "It's great news, but we shouldn't take comfort in it. It can take up to five years (to go through the ESA listing process). I don't think we have five years."
National Marine Fisheries Service
These questions and answers are from the NMFS Web site.
Killer Whale Questions and Answers
- Are there different kinds of killer whales in Puget Sound?
All killer whales are members of the toothed whale family and belong to the same genus and species, Orcinus orca. However, there are two forms of killer whale found in Puget Sound, called residents and transients. Some taxonomists (scientists who study the relationships within and between species) believe that some differences between forms of killer whales may be great enough to further sub-divide the species.
- How are transient killer whales and resident killer whales different?
As the terms transient and resident imply, the two forms of killer whales have different behavior and movement patterns, but both forms can be found seasonally in Puget Sound. Transient killer whales travel in smaller groups (called . pods . ) and hunt other marine mammals for food. Resident killer whales spend more time in the Sound, travel in larger pods and eat mostly fish.
- What is a southern resident killer whale and are there resident killer whales in other places?
Southern resident killer whales are fish-eating killer whales with a seasonal (summer) home range that includes Washington and southern British Columbia waters (Puget Sound, the Strait of Juan de Fuca and the southern Strait of Georgia). Along the north Pacific coast, resident killer whales occur from Oregon and Washington to the Bering Sea. In the Pacific Northwest, the two closest resident killer whale communities (groups of pods that share a common home range), are the southern residents . the ones petitioned for protection . and the northern residents, which live in northern British Columbia and southeast Alaska.
- Where do the southern resident killer whales go when they . re not in Puget Sound?
Most of the information we have about southern resident killer whales has been collected in Puget Sound during the summer months. Very little is known about their movements or feeding areas during the winter. In 1999, for the first time, scientists observed resident whales from Puget Sound as far south as Monterey, California.
- How many southern resident killer whales are there?
As far as we know, the number of southern resident killer whales has never been large, perhaps numbering between 100 and 200 before 1960. Live captures of whales from the southern resident community, for the public display industry, reduced the number to fewer than 70 in 1973, when an annual killer whale census of the population began. The 2001 census counted 78 southern residents. This is lower than the 2000 census and a continuation of a downward trend that began in 1996 when 97 whales were counted. There is no comprehensive world-wide estimate of the total number of killer whales.
Questions about the petition and the process
- What is the Petition to List Southern Resident Killer as Endangered under the Endangered Species Act ?
The petition is essentially a request for the government to conduct the necessary studies and reviews to determine whether southern resident killer whales can be considered a . species, . as defined in the ESA, and whether human-caused threats to the population warrant the additional protection of listing them as threatened or endangered. Although killer whales everywhere are part of the same species, the ESA allows for a species to be broken down into . distinct population segments . (DPS) when considering listing. Up until now, the distinct population segment criteria have never been applied to killer whales.
- What will happen now that the petition has been accepted?
The National Marine Fisheries Service will publish a notice in the Federal Register announcing acceptance of the petition on or about Aug. 8, and requesting information from the public. Acceptance of the petition means that NMFS believes there is substantial information presented in the petition to warrant a listing. Acceptance does not mean that listing is automatic, or that NMFS has accepted the arguments presented in the petition as appropriate in the context of the ESA. Next, NMFS will name a biological review team (BRT) to compile and review all of the available information, including comments and data received from the public.
- Who is on the biological review team and what will it do?
The BRT is composed of agency scientists from a variety of disciplines who will try to answer a number of key questions including: 1) What constitutes a DPS of killer whales? 2) Are southern resident killer whales a DPS themselves or part of a larger DPS? 3) If the southern resident DPS is declining, is it threatened or endangered, according to the definitions of the ESA? 4) If it is threatened or endangered, what attributes of its habitat are critical to its continued survival? 5) What factors are contributing to the decline? 6) If factors contributing to the decline can be identified, are there regulatory mechanisms in place to address those factors and mitigate or reverse their adverse effects?
- Will there be any chance for non-agency experts to review and comment on the findings of the BRT?
Yes. In the Federal Register notice, NMFS solicited recommendations for independent peer reviewers who will review the findings of the BRT in the event the agency later proposes to list these killer whales.
Petition filed to list
local orcas as endangered species
Three local groups joined the Arizona-based Center for Biological Diversity in issuing a "May Day" for local killer whales yesterday. A petition, formally requesting the Southern Resident killer whale population be listed as an endangered species under the federal Endangered Species Act, was filed with the National Marine Fisheries Service (NMFS). The Whale Museum, Orca Conservancy and the Friends of the San Juans were co-petitioners. As an alternative, the petition asks for the whales to be listed as an endangered species.
Over-fishing, pollution, whale-watching vessels and the small population size are cited as concerns in the 108-page petition. The petition is available on the CBD's Web site. The non-profit organization is dedicated to protecting endangered species and wild places of western North America and the Pacific.
The petition states:
This petition seeks to list the Southern Resident killer whale, Orcinus orca, as an endangered species under the Endangered Species Act. The Southern Resident killer whale has experienced alarming population instability over the past 30 years, indicating that the population is unsteady and oscillating toward extinction. Currently the population is experiencing a population decline that is incomparable to any previous population fluctuation in the Southern Residents’ known history, and it is now considered the most endangered killer whale population in the world.
The Southern Residents’ extinction trajectory has been caused by several anthropogenic factors. During the late 1960s and early 1970s, approximately 34 Southern Residents were captured and removed for display in aquaria; perhaps a dozen more Southern Residents were killed in the process of capture (Olesiuk et al., 1990). These captures altered the sex and age ratio of the Southern Residents, creating a reproductive gap that led to population declines in the 1980s. Concentrations of organochlorines in Southern Residents have recently been determined to be greater than levels at which harmful effects have been documented in other marine species.
The contamination may be affecting the survivability of the population. Chinook salmon stocks—the Southern Residents’ main food source—have been declining throughout the Pacific Northwest due to over-harvesting and destruction of salmon habitat. The reduction of this food source may be reducing the carrying capacity of the Southern Residents’ historical range, and may be enhancing the effects of bioaccumulated toxic chemicals. Disturbances caused by whale- watching and shipping vessels are also a likely factor in the Southern Resident killer whale’s decline. Vessel traffic can affect individual whale behavior and lead to fatal collisions with ships.
More information is available on the Center for Biological Diversity Web site.