Puget Sound Orcas, Vessel Noise, And Whale-Watching: A Licensing Program To Overcome The Problem Of The ESA's Economically-Blind "Take" Rule

Authors

Ian Boisvert

Document Type

Comment

Abstract

The din of Puget Sound's seafaring activities negatively affects one of the region's natural icons, the southern resident killer whales (Orcinus orca). The most extreme example is when high-intensity naval sonar causes cetaceans to beach themselves, leading to their death. Vessel noise, however, is more problematic on a long-term scale because of its pervasiveness. Vessels, which contribute the greatest amount of anthropogenic noise in the ocean, raise background noise to a level that interferes with marine mammals' communication, navigation, and prey detection. This interference, called "masking," reduces animals' abilities to receive and transmit information. By contributing to masking, whale-watchinggrowing both globally and in Puget Sound-- causes short-term behavioral changes that might be impairing the orcas' long-term survival. The National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration lists noise disturbance as a discrete factor threatening the chances of the southern resident killer whales to rebound to a viable population. Along with vessel noise, three other factors impair the killer whales' reproductive success. First, salmon, the orcas' preferred prey stock, are at historically low levels. Second, toxins such as DDT and PCB permeate the food web of which the killer whales are the top level predator-the level most susceptible to the highest concentrations of toxins. Third, NMFS considers the potential for an oil spill a threat to the killer whales. This complex of stressors impairs the orcas' ability to regenerate to a viable level following an all-time low in the 1970s, when humans removed sixty or more killer whales for display and study. The first step NMFS took to restore the orcas was designating them as a "depleted stock" under the Marine Mammal Protection Act (MMPA)-a stock that has fallen below its optimum sustainable population, or is listed under the Endangered Species Act. This designation triggers a responsibility of NMFS to devise a "conservation plan" that maps a way to reestablish the killer whales' population to its maximum level of productivity. The conservation plan must address how the agency will deal with the problems causing killer whales to remain at critically low levels. The plan is in addition to the MMPA's prohibition against "takes," or the harassing, capturing, killing or hunting, of a marine mammal. Harassment is further defined for civilian acts "as any act of pursuit, torment or annoyance" that potentially injures or disrupts the behavioral patterns of a marine mammal or its stock. NMFS is in the midst of their second step to recover the orcas by deciding whether to list their population under the Endangered Species Act (ESA) as a threatened "distinct population segment." This step follows a judicial order requiring NMFS to reconsider listing the orcas. The ESA duplicates some of the MMPA' s protections such as requiring a recovery plan for regenerating a species. Both the ESA and the MMPA prohibit "takes," or actions that could harm their respectively covered species. Furthermore, NMFS is devising a regulation, called the "Noise Exposure Criteria," that would determine when human-generated noise would cause an "acoustic take" under both the MMPA and the ESA. Although NMFS is far from completing this regulation, the criteria will likely pertain to Puget Sound whale-watching because currently NMFS considers it a take if a marine mammal continuously receives a noise at 120 dB and commercial whale-watching vessels, such as zodiacs, emit noise in excess of 150 dB within Im of their engines depending on their speed. Although the ESA brings additional protections, such as granting automatic standing for citizens to sue, these provisions probably do not justify the additional costs and protections. Over 1,200 species have been listed as threatened or endangered, but only forty have made it off the list; nine of these forty became extinct. Yet NMFS is likely to list the southern residents because in response to a court order the agency reversed its position and now claims that the killer whales' population satisfies the criteria to be a distinct population segment. The issue is now finding the most cost-effective ways to reduce the threats impairing the orcas' recovery using the MMPA and ESA. This Comment proposes that NMFS should create a licensing program to reduce whale-watching in Puget Sound and associated noise emissions for the following reasons. First, the negative effects on killer whales of proximal boat presence and vessel noise are well documented. Reduction in vessel presence will likely alleviate some of the stress on the whales. Second, whale-watching, in comparison with commercial ships that follow strictly defined lanes, is more likely to be considered harmful for orcas because whale-watchers pursue the animals rather than incidentally pass through their habitat, as the commercial shippers do. Third, of all the risk factors NMFS recognizes as harming the orcas, whale-watching is most prone to being litigated as a harassment or harm because this human activity directly causes negative effects on these killer whales. If a court found whale-watching to be a harm or harassment under the ESA the court must prohibit the activity without considering any economic repercussions of the prohibition, thereby terminating a Puget Sound activity that generates scientific research as well as money. Therefore, minimizing whalewatching with a licensing program is better than a blanket proscription through the ESA "take" prohibition. Furthermore, licensing has the advantage of making market-entry difficult for newcomers in the commercial sector. It also limits per se recreational whale-watching because the abundance of these boats could be more harmful than commercial boats. More importantly, licensing allows NMFS to reduce the number of trips or outings that commercial licenseholders may take in a year through mandated reductions during the transfer of licenses. Additionally, licensing creates a means of reducing operators' noise emission levels by imposing mandatory noise emission reductions with each transfer. Furthermore, other interested parties such as conservation groups would also be allowed to purchase licenses and retire them in perpetuity if they desired. NMFS could adopt this as part of their MMPA conservation plan or, in the likelihood the orcas are listed, as part of the ESA recovery plan. The program could be replicated in other areas where whale-watching molests endangered whales, as is true for the northern right whale. Part II of this Comment lays out the background of the whales' decline and underwater sound as it affects the orcas. Part III explains the legal protections for the southern residents and the forthcoming noise regulations. Part VI explains why shortfalls of the ESA make it illequipped to deal with systemic ecosystem threats. Thus we need to find effective and efficient solutions for each problem. Part V provides a solution to vessel disturbance through applying a market instrument, licenses, that will reduce vessel noise and presence. This Comment concludes that until a statute arrives that offers ecosystem-level management to guard against species' decline, it is better to avoid the costblind ESA "take" provision where feasible alternatives to reducing the harm exist.

Recommended Citation

Ian Boisvert, Puget Sound Orcas, Vessel Noise, And Whale-Watching: A Licensing Program To Overcome The Problem Of The ESA's Economically-Blind "Take" Rule, 10 Ocean & Coastal L.J. (2004).
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol10/iss1/5