Maine has finalized a proposal that aims to protect endangered right whales from entanglement in lobster fishing gear while giving state regulators the freedom to adopt alternative protections to sustain lobstermen and their regional fishing practices.

The heart of the state plan is similar to one panned by the lobster industry last fall – cutting the number of buoy lines that could entangle whales by setting a minimum number of traps fished on each line and requiring the use of lines with weak points to help entangled whales break free.

New to the plan is Maine’s bid to get federal approval for flexibility to allow alternative forms of fishing restrictions in cases where the statewide application of federal whale protections would put lobstermen in physical danger or run needlessly afoul of regional fishing practices.

That flexibility is the cornerstone of the Maine Department of Marine Resources’ plan, Commissioner Pat Keliher said. Careful use of alternative protections that achieve the same conservation benefit could help protect whales, fishermen and the state’s $485 million-a-year industry, he said.

“We want to develop a process that would allow us to mix and match regulatory changes to achieve the same risk reduction for whales, while taking into account fishermen safety, traditional fishing practices and fleet diversity,” Keliher said. “It would be a blend of giving and taking that achieves the same goal.”

Scientists believe that only about 406 right whales remain. The species has been on the brink of extinction before, most recently in 1992, when its population shrank to 295. It rebounded to about 500 whales in 2010, but low calving rates, ship strikes and entanglements, especially in Canada, have sent its numbers tumbling.

Regulators say even one death a year could doom the right whale to extinction.

Since 2017, at least 30 right whales have been seriously injured or killed, mostly in Canada. Eight incidents were attributed to ship strikes, including one in U.S. waters. None of the 30 can be attributed to the Maine lobster industry. The most recent known entanglement in Maine lobster gear occurred in 2004.

Maine submitted the proposal to the National Marine Fisheries Service on Dec. 27. The federal branch of the National Oceanic and Atmospheric Administration will evaluate the plan, and those from the other New England lobstering states, to determine whether it meets its proposed 60 percent risk reduction target.

The agency hopes to issue a proposed whale protection rule this spring, spokeswoman Kate Swails said.

Keliher said the department’s internal scientific review of the proposal found the state’s plan achieved a 50 percent to 60 percent risk reduction, depending on how much risk reduction regulators assigned to its use of weak points in surface-to-seabed buoy lines.

New data suggest weak rope protects whales more than federal regulators initially concluded, he said.

Keliher said the proposal focuses the whale protections on where right whales are most likely to be, and spares the large part of the Maine lobstering fleet that sets traps outside the whale’s recently changing habitat. The whales follow the copepods they like to eat, and the copepods are moving into deeper waters.

About 3,800 of Maine’s 5,000 state-licensed commercial lobstermen would not be affected by the requirement to increase trap counts on buoy lines, a practice known as trawling up, because they fish in state waters, where trawling up is generally not required in Maine’s proposal.

About 1,200 Maine lobstermen have federal permits to fish in offshore waters, and most don’t fish there through the entire year.

As a lobsterman sets traps farther from shore, Maine’s trawling-up requirement would increase as follows:

• Four traps per single-buoy trawl or eight traps per two-buoy trawl between 3 and 6 miles from shore.
• Eight traps per single-buoy trawl or 15 traps per two-buoy trawl between 6 and 12 miles from shore.
• 25 traps per two-buoy trawl for anyone fishing beyond 12 miles from shore.

Those trawling-up measures haven’t changed much since the state rolled out its initial proposal last fall. The only change is that fishermen who haul between 6 and 12 miles from shore would have to add one fewer trap to their shortest trawl, setting the minimum at 15 traps instead of 16 per buoy line.

The final plan still calls for all buoy lines to have weak points, which are sleeves, splices and knots added to a surface-to-seabed rope that reduce the strength of the rope enough that adult whales should be able to break free if they become entangled.

But in the zone beyond 12 miles from shore it reduces the number of required weak points from two to one and changes where it must be added to a buoy line to minimize the risk of injury to fishermen caused from a weak rope breaking while hauling up a long string of traps, Keliher said.

Maine’s final plan also calls for state-specific gear marking to help regulators identify the source of gear involved in a right whale entanglement, and requiring all lobstermen to report detailed information about landings instead of the 10 percent of lobstermen required to do so now.

The final state proposal does not include a lot of detail about how Maine would enact alternative whale protections, but it breaks them down into two general categories: alternative measures that recognize the diversity of the fleet and fishing practices, and those meant to keep fishermen safe.

The first kind of alternative, which fishing managers refer to as conservation equivalencies, are allowed by regulators who oversee the management of striped bass and black sea bass along the country’s northeast coast, allowing each state to come up with its own way to achieve the same goal of keeping a healthy stock.

For those stocks, states ask the regulatory board, the Atlantic States Marine Fisheries Commission, for permission to set an alternative rule. If approved, a state must monitor the results to make sure it is achieving the same conservation goal. The commission conducts an annual review of state compliance.

This process is very familiar to Keliher, a longtime member of the Atlantic States commission who became its chairman in October.

Keliher noted that NOAA has already embraced the idea of a conservation equivalency when it comes to right whales, albeit informally. When it enacted the last set of whale protections, NOAA let Maine set its own conservation measures for offshore islands and in the shallows found a quarter mile from shore.

The individual safety program that Keliher is proposing would represent new territory when it comes to managing a fish stock, much less an endangered species such as the right whale. Keliher didn’t know of any other examples comparable to what Maine is seeking in its final right whale proposal.

Maine asked for a similar exemption five years ago when NOAA instituted its first round of trawling-up requirements to protect the right whale, but it failed to win support for the idea from federal agencies. Still, that doesn’t mean NOAA wouldn’t consider it this time, or that it wouldn’t work, Keliher said.

Maine regulators think it’s just as important to protect fishermen as the right whales that pass through the Gulf of Maine, he said. The individual safety program would allow Maine to help a small group of fishermen whose boats don’t have enough room to manage 15- and 25-trap trawls because of their size or configuration.

“We can’t support a rule that would force an individual to go out and invest in a new boat,” Keliher said. “(Maybe) he doesn’t have a rope locker or the live tanks aren’t below deck but above, and they just can’t hold those big strings. We’d like to help him find another way to achieve the same goal.”

Lobstermen worry about getting caught up in the rope used in long trawls that will be crowded on small decks, and getting dragged overboard, as well as the likelihood that weak rope being used to haul up those long strings is more likely to snap, which can injure the person hauling the gear.

Instead of a 15- or 25-trap trawl, fishermen might be able to achieve the same whale protections if they agreed to set fewer strings overall, which could be achieved by reducing the number of traps they could fish for the year, or agreed to use more weak points in their rope, Keliher said.

It would be more work for his agency, but Keliher said he is willing to monitor individual lobster license agreements or fishing contracts if it keeps the fishing fleet safe, encourages overall compliance with an unpopular rule and boosts the likelihood that a critically endangered species can recover.

Concerns over safety prompted lobstermen to speak out against Maine’s first right whale protection proposal. Maine’s biggest lobster trade groups also came out against the state’s initial plan, saying it asked for too many concessions from a fishery that did not pose a real threat to whales when other fisheries got a pass.

No one from the state’s biggest lobster trade group, the Maine Lobstermen’s Association, was available for a comment Friday, and whale advocates and scientists who sit on the federal task force created to protect the right whale could not be reached for comment.

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