Doug McLennan looks out his window in South Thomaston every morning at the traps and boats in his yard and worries about the future of lobster fishing in Maine.

McLennan’s wife, Laura, is his sternman. His two sons, who have homes on either side of his driveway, are lobster fishermen, too. His great-grandfather was the legendary “Tall Barney Beal” of Jonesport, a Grand Banks fisherman and the 6-foot-6 descendent of the original settler of Beals Island, known for his incredible strength.

McLennan isn’t worried about the state of the fishery. Despite a dip in landings last year, more than 100 million pounds of lobster were hauled and their value broke records. Also, Maine’s lobstermen have a reputation for sustainable practices that preserve the stock for future generations, he said.

What worries McLennan and thousands of other Maine lobstermen is the latest round of federal regulations designed to protect the endangered North Atlantic right whale, and additional measures being planned for the next decade. The newest regulations took effect Sunday, though their enforcement has been delayed until supply chain issues for some of the required gear are resolved.

This is just the latest in gear regulation change required by the Atlantic Large Whale Take Reduction Plan, which was put in place in 1997 and has been amended several times since. The current changes comprise the first phase of a 10-year conservation plan to reduce the risk of right whale entanglements in fishing gear by 98 percent.

Many lobstermen have raised concerns about safety and the potential for gear failure and loss of expensive traps under the new rules, and they worry about what is coming next.

“My family has been involved in fishing for generations, and I’m afraid that my kids aren’t even going to be able to continue a couple of years away the way we’re headed,” he said. “It is almost like (the regulators) just sit around and think about what will not work, and that’s what they implemented.”

INDUSTRY DISPUTES CHANGES

The Maine Lobstermen’s Association is suing the federal government, claiming the new regulations are based on flawed science and will not help the whales. It argues that right whales are not using the area of the Gulf of Maine where lobstermen fish and would be better protected by addressing their other threats. Regulators counter that the whales continue to travel through Maine waters and that the changes are necessary to protect the species from extinction.

It’s estimated that fewer than 370 North Atlantic right whales exist today.

State Rep. Billy Bob Faulkingham, R-Winter Harbor, has said fishermen will pay on average $20,000 to $30,000 each to buy new gear to meet the latest requirements. The state’s lobster industry will receive $14 million in federal funding for gear upgrades as part of the 2022 omnibus spending package. Maine lawmakers also passed a bill to create a $30 million relief fund to help the industry cover its costs, but the bill did not receive funding approval from the Legislature’s Appropriations and Financial Affairs Committee.

“After my bill received such overwhelming support in the Maine Legislature, passing 116-16 in the House and unanimously in the Senate, I was sorry to see funding for it not included in the supplemental budget,” said Rep. Holly Stover, D-Boothbay. “Maine’s lobstermen deserve this funding to mitigate the effects of the unfair federal regulations, and I will not give up on this issue until they get the relief they need.”

The Lobstermen’s Association, along with Gov. Janet Mills and Maine’s congressional delegation, has been pushing for a two-month delay in implementation of the new regulations, citing supply chain issues that have made it difficult for lobstermen to obtain the equipment they need to comply. In response, the National Oceanic and Atmospheric Administration announced this month that it would use a “graduated enforcement” approach until the supply issues are resolved. The federal agency said it will focus on assisting lobstermen who are making a good faith effort to comply, rather than assessing civil penalties.

NOAA’s National Marine Fisheries Service is collaborating directly with fishermen to assess their ability to comply with the measures and has sent staff to meet with them in person in more than a dozen ports, said spokesperson Allison Ferreira.

“Many fishermen we spoke to were fully aware of the new regulations and expressed their ability to comply,” Ferreira said. “We also heard from others in the industry important feedback including safety concerns … supply chain issues, weather, and labor intensity.”

HISTORY OF COMPLIANCE

Over the past 25 years, lobstermen have had to switch to sinking groundline so whales would not be caught under arcs of floating rope between traps. They’ve also added weak links to their buoys so the buoy would break off if the rope connecting it to the trap below got caught in a whale’s mouth.

They’ve added more traps to each buoy line to reduce the number of vertical lines in the water, and used sinking rope at the top of the line to keep swirls of rope from floating on the surface, among other changes. These have caused some difficulties for fishermen, especially the sinking groundline, which can get caught in areas of rocky ocean bottom, but compliance has been high.

“Maine fishermen have always shown a strong commitment to compliance with whale protection rules, and I fully expect that to continue,” said Maine Marine Patrol Maj. Rob Beal.

Marine patrol officers are also working with fishermen to help them comply, Beal said. He encouraged them to contact their local officer with any questions.

The new changes require that more traps be strung together per line, and for the line to have specially manufactured weak rope or plastic links that break at 1,700 pounds of pressure spliced in at various points up to halfway down the line, or weak rope used for the top half of the line.

The changes also require a new gear-marking system so the source of the entanglement can be determined if a whale is found dragging gear. The combination of markings, weak links and trap minimums differs depending on the area fished and distance from shore.

For example, lobstermen fishing more than 12 miles from shore will have to insert a weak link halfway down the line and increase the minimum number of traps strung together from 20 to 25, with a buoy line at each end. They also will have to add four sets of purple and green markings to the rope to indicate that it is from Maine federal waters. Other areas of federal waters require two weak links, a quarter and halfway down the line.

In state waters, fishermen must add a weak link halfway down the line and mark their ropes with three purple marks down the line. Increases in minimum traps per buoy line are different for each zone.

Lobsterman Scott O’Brien, of Jefferson, said he fishes in the bay in Harpswell.

“There aren’t any whales up in the bay and never will be, especially right whales,” he said. “They (regulators) have lost their minds. I have to make 900 splices and tape or paint all of my ends. I bought some purple rope but it all faded to blue, so I’ll have to do it all over again. This is a nightmare – a mountain of work and expense for nothing.”

NOAA REJECTS STATE ROPE TESTS 

Dustin Delano, who has been on the Lobstermen’s Association board of directors for seven years, said that when the latest round of changes were proposed, he and the board thought they would probably work. A lot of the rope commonly used by lobstermen already broke at 1,700 pounds, he said, and they thought they would be able to haul their gear with the plastic links in their ropes.

The state Department of Marine Resources did its own testing and proposed several configurations of certain-diameter ropes to be approved as weak points in state waters. But the Marine Fisheries Service rejected the state results in favor of its own, while also forbidding the use of knots as weak points.

“Lobstermen are still frustrated that NOAA is not allowing the use of knots determined by the state of Maine to meet the requirements of the rule and (that) could be readily implemented with existing gear,” said Lobstermen’s Association Executive Director Patrice McCarron.

The take reduction plan explains that lines should be kept knot-free because knots can become lodged in the whale’s filter-feeding system, known as baleen, in its mouth.

Delano said that since rope weakens over time, lobstermen are not eager to buy weak rope that they know is only going to weaken further, so many have been waiting for the plastic links. But after testing a link and having it break, Delano said he doesn’t have much faith in those, either.

He thinks either option will lead to gear loss, resulting in more gear littering the ocean bottom. 

NOAA’s Take Reduction Team addressed those concerns in its final rule document. According to NOAA, no whales have ever been found entangled in ropes with breaking strengths below 1,700 pounds, and studies suggest that right whales can break free from weaker ropes before a serious injury occurs, especially if the rope can break below where it is entangled.

It referenced Maine Department of Marine Resources studies showing that forces on lines hauling up gear exceed 1,700 pounds sometimes, particularly in trawls of 35 traps or more in water greater than 50 fathoms deep, but it noted that those forces were not detected until well past the halfway point of the haul. A weak link or weak insertion would likely not be subject to forces near or greater than 1,700 pounds during a haul in normal conditions, the team stated.

Michael Pentony, Greater Atlantic Regional Administrator at NOAA, said nearly every weak rope and insert that has been approved was designed by or developed in collaboration with fishermen. Members of the Atlantic Offshore Lobstermen’s Association, he said, are testing larger-diameter weak ropes to ensure they can be used in offshore haulers without jamming.

ROPES TAKE A BEATING

But the stress on the rope does not only come from hauling, fishermen say.

“I’m worried that when I get caught down on the hard bottom and try to tow around in circles to free it that my rope will part off, and I’ll lose a trap that’s worth at least $100,” said O’Brien.

Lobsterman Jordan Drouin, of Cutler, fishes in federal waters in the “gray zone,” which overlaps with a Canadian fishing area. There he must have a minimum of 20 traps per trawl, and even though in that zone the link is required only one-third of the way down the rope, he is apprehensive about setting his traps this season. 

Canadians fish with longer trawls and heavier rope and set their traps “willy nilly,” Drouin said, so if a Maine fisherman gets his gear tangled up with theirs, the Maine rope is not going to hold. 

“We’re trusting $100,000, $150,000 worth of gear to this little tiny $1 piece of plastic,” he said. “It’s going to be a struggle, and there’s going to be a lot of lost gear.”

McLennan and Delano said there are other operational problems with the new requirements. Spliced rope can unravel and pull out as the buoy line spins in the tide. Break points halfway down the rope leave less floating buoy line to work with in retrieval efforts should a trap become lost. Longer trawls of 25 traps crowd 40-foot boats and make it harder to maneuver traps off the end of the stern. Further, some of the traps on the trawl will be set in unproductive areas because of the variability of the ocean bottom.

“Everything that they do is just the opposite of what common-sense fishermen would tell you to do,” said McLennan, the South Thomaston lobsterman. “It’s just counterproductive, all of it.”

RIGHT WHALES’ RECENT DECLINE 

Biologists estimate that the North Atlantic could have supported between 9,000 and 21,000 right whales before centuries of whaling decimated their population. The North Atlantic right whale was the first of the whales to be hunted commercially, and by 1730 their population had dropped so low that whalers shifted to other species.

By the turn of the 20th century, they were believed to have been wiped out. But in the 1950s, they were rediscovered in New England waters.  

Southern and North Pacific right whales were also targeted by whaling. It is estimated that there are fewer than 500 endangered North Pacific right whales left. The Southern right whales, with a population between 3,000 and 4,000, is a species of “least concern,” according to the International Union for Conservation of Nature, but is listed as endangered by the New South Wales Biodiversity Conservation Act of 2016.

NOAA estimates that in 1935, when international whaling protections went into effect, fewer than 100 of the North Atlantic variety remained. The species has been rebounding slowly – females typically give birth to a calf once every three years, and researchers estimate there are fewer than 100 reproducing females remaining – reaching about 260 individuals in 1990, 300 in 1996, and 481 in 2011. But since then, their numbers have fallen by 23 percent, to just 368 in 2021, according to NOAA. 

A big portion of the decline occurred in 2017, when 17 stranded whales were found dead, 12 in Canada and five in the United States. It was the most North Atlantic right whale deaths recorded in 25 years, triggering NOAA to declare an “unusual mortality event” requiring immediate action under the Marine Mammal Protection Act.

Through December 2019, there have been 30 dead whales documented, 21 in Canada and 13 in the United States, in the ongoing unusual mortality event, including 20 with evidence of entanglement or a vessel strike as the preliminary cause of death. Another 14 were documented with serious injuries from entanglements. Good news came in 2021, when 20 new calves were born after four years of low birth rates.

NOAA determined the risk of entanglement in U.S. fishing gear would have to be reduced by 60 percent to bring it below the “potential biological removal” level, or the number of deaths and serious injuries that the stock can withstand and still reach a sustainable population. The Atlantic Large Whale Take Reduction Team – a 60-member team of scientists, fishermen, environmentalists, state and federal officials and others – has based the current gear modification requirements on that 60 percent risk-reduction goal.

The Maine Lobstermen’s Association disputes the U.S. entanglement death rate used in NOAA’s calculations of how much additional risk reduction is needed on the part of the Maine lobster fishery. NOAA divided the number of entangled whales in which the source of the gear could not be determined equally between the U.S. and Canada, even though there have been more documented entanglements in Canada than in the U.S.

The lobstermen’s group argues that a right whale death has never been attributed to the Maine lobster industry, that the last known right whale entanglement in state waters was in 2004, and that whale survived.

“I just don’t feel that the science and the history really records that we are a threat to the whales,” McLennan said. “I don’t think they really have a lot of evidence against us. It’s just all ‘potential risk.’ “

SHIFTING HABITAT FOR WHALES

Despite the lobstermen’s efforts in court, McLennan isn’t confident that lobstermen will be able to avoid these and future changes, and that they might not be able to adapt past a certain point, particularly if they are required to convert to expensive and complicated ropeless technology.

“Throughout this whole battle that we’ve been going through as fishermen, I feel like there’s no end until we’re gone,” he said. “I don’t want to stop fishing. This is my life. That’s how I feel about it. That’s how my kids feel about it. It’s not something that we do to make money, it’s something we do because we love doing what we do. We’re born into it. It’s just what we do.

“It’s never going to be enough for (conservationists),” he continued, breaking off mid-sentence, his voice cracking in exasperation. “There aren’t any right whales here. Everyone says it’s true.”

NOAA reports in its draft 2021 marine mammal stock assessment and other documents that “regime shifts” in ocean conditions in the Gulf of Maine that began in 2010 has caused a drop in the abundance of the zooplankton that the whales feed on, and that whales are increasingly foraging in other areas such as the Gulf of St. Lawrence in Canada, a heavily used fishing area and shipping channel, increasing both stress on the animals and risk of encounters with gear or ships.

“Right whale habitat shifts in recent years follow their preferred prey farther north as the Gulf of Maine warms,” NOAA’s Take Reduction Plan states. “Climate change impacts their preferred prey abundance, which is known to impede reproductive success in this species.”

And NOAA has limited input in regulating offshore wind power development, which will bring additional threats from construction vessel traffic and effects on hydrodynamics and ocean mixing downwind of turbines, further disrupting distribution of the zooplankton the whales feed on, the plan reports. The plan also notes that ocean warming in the Gulf of St. Lawrence may displace the whales further to waters east of Newfoundland and Labrador in search of food.

Nevertheless, it concludes that while the number of whales and the length of their stay may have shifted, right whales still enter waters offshore of Maine at various times of the year, and the team’s task is to reduce entanglement risk to right whales in its jurisdiction.

“Given the endangered status of the population, the high rate of entanglements evidenced by scars on right whales, and the continued mortality and serious injuries above potential biological removal,” the report states, “(The National Marine Fisheries Service) must provide protective measures throughout the population’s range in U.S. waters.”

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