Maine’s congressional delegation has added a provision to the government’s massive spending bill to try to protect Maine lobstermen from federal regulations that they say could sink the state’s iconic industry.

Environmental groups contend the provision could be a death sentence for the critically endangered North Atlantic right whale.

Congress is working feverishly this week to draft and pass the omnibus spending bill that would fund federal agencies through the next fiscal year. The delegation’s add-on, released publicly Tuesday, would essentially reverse a federal court decision this summer and prevent any new regulations from taking effect until Dec. 31, 2028. The change could bring the fishery back into compliance with environmental laws.

The regulatory pause would give fishery officials and researchers time to study potential new types of lobster gear less likely to entangle the whales, and to learn more about them and how much they frequent Maine waters.

COMPLEX DEBATE

The National Marine Fisheries Service in August 2021 approved new rules designed to protect the whales, which are thought to number fewer than 340.

The much-debated regulations included new gear marking mandates, a reduction of vertical lines in the water, the insertion of weak points in rope and a seasonal closure of a nearly 1,000-mile stretch off the Gulf of Maine. The rules are the first of three phases designed to reduce the risk to the whales by 98% in 10 years, but Maine lobstermen have said that level of risk reduction will simply shift the extinction from the whales to the lobster industry.

Maine lobstermen have long contended that they’re not seeing right whales in state waters, and that there have been no right whale deaths linked to the Maine lobster industry. The last known entanglement was in 2004 and the whale survived. However, environmentalists say that because the whales can swim for miles after entanglement, and since there haven’t been state-specific gear markings until recently, it is very difficult to tell where an incident may have happened.

In July, a federal court ruled that the first set of regulations don’t do enough to protect the whales, putting the fishery in violation of the Marine Mammal Protection Act and the Endangered Species Act. The fishery, as a result, lost two important sustainability ratings. The judge gave regulators until 2024 to implement new, more effective rules.

The spending provision would pump up to $50 million annually into studying, developing and deploying a new fishing technology known as ropeless fishing. Environmental groups have been pushing ropeless gear as a solution to help right whales by keeping vertical buoy lines out of the water. But Maine fishery officials have pushed back, arguing that the nascent technology is not ready to be used on a commercial scale.

Patrick Keliher, commissioner of the Maine Department of Marine Resources, said in an email Tuesday that while the delay until 2028 is a “significant window of opportunity” to develop and implement ropeless fishing, it’s still a shorter timeline than the fisheries service told the courts it would take.

Widespread implementation is unlikely before 2030.

“It is clear that much more research is needed to ensure that on-demand gear systems can work with certainty and that gear location can be developed in a way that is available for both the lobster fleet and for the mobile gear fleet,” he said. 

The technology also needs to be available for the Maine Marine Patrol, which is responsible for hauling traps and checking for compliance with marine resource laws. 

The funding in the provision would complement a grant the department recently received from the National Oceanic and Atmospheric Administration to test ropeless and subsea gear and to determine the feasibility of the gear in different areas of Maine’s coastline, Keliher said. 

Keliher welcomed the funding and the rider as a major step forward.

“Without this provision, (the) Maine lobster industry could be facing a complete shutdown, which would have widespread, devastating consequences to our state,” he said.

5,000 SMALL BUSINESS PEOPLE

In a joint statement Tuesday, the delegation – Sens. Susan Collins and Angus King, and Reps. Chellie Pingree and Jared Golden – and Gov. Janet Mills said the provision will enable the lobster fishery to operate while still complying with National Marine Fisheries Service’s most recent requirements for protecting the right whale.

“Without our provision, Maine’s iconic industry could be facing a complete shutdown – and the ripple effects across our state would have been widespread,” they said.

The industry has been committed to sustainability for decades, and has invested in numerous measures to protect the whales, including removing more than 30,000 miles of line from the water and switching to weaker rope for lobstering lines, the lawmakers added.

“We know the right whale population can be protected along with a thriving fishery because Maine lobstermen are already doing it.”

Further regulations, which they call “punitive,” would not only fail to meaningfully protect the whales, but also will threaten the livelihoods of thousands of Maine families and small businesses, they said. Maine has about 5,000 commercial lobster harvesters.

The Maine Lobstermen’s Association applauded the delegation for giving the industry more time and blasted federal regulators for what it said is a broken rulemaking process.

“The National Marine Fisheries Service has shunned its statutory obligations and based its current, unlawful plan to protect right whales on a ‘worst case scenario’ that has already harmed, and could eventually eliminate, Maine’s multigenerational lobstering heritage while doing nothing to reduce the unacceptably high number of right whale deaths occurring in Canadian waters and from vessel strikes,” Patrice McCarron, the association’s executive director, said in a statement. 

McCarron said claims that six more years without stronger protections will lead to the whales’ extinction are false.

“The right whale has persisted for decades since it was almost driven to extinction by commercial whaling and it will continue to do so while a new, lawful plan is developed that appropriately addresses the actual risks to the species,” she said. 

King expressed similar sentiments. He told the Washington Post on Monday that placing the blame at the feet of lobstermen is “unfair and wrong,” especially given the threat posed by ship strikes.

“Why aren’t we banning all ships all along the East Coast of the United States if we’re saying we can’t do anything that remotely threatens the whales?” he said. “Instead, we’re picking on 5,000 small-business people in Maine.”

Pingree also stressed the importance of more time.

“There has been a lot of panic or concern that without a little more time we could be shutting down thousands of fishing boats without saving a single whale,” she said.

Support for the bill also came from state legislators, including House Minority Leader Billy Bob Faulkingham, a Republican and lobsterman from Winter Harbor. “The lives and livelihoods of Maine lobster fishing families and the Maine jobs that depend on them are increasingly being threatened by NOAA’s regulations and outsiders with an agenda,” he said in a statement. “We are pleased that our entire congressional delegation and state leaders, working together, have been able to secure a six-year regulatory pause.”

AN END RUN?

Erica Fuller, an attorney with the Conservation Law Foundation, said in a phone interview Tuesday that while $50 million may seem like a lot, only $20 million – “a drop in the bucket” – has been appropriated.

Fuller criticized the provision, which she said makes any law subject to overreach by Congress.

“It’s an end run around the legal system,” she said. “It’s a last-minute move by Maine politicians for a species that’s facing extinction.”

Fuller, who said in a statement that the politicians who voted for the amendment have “the blood of a magnificent endangered species on their hands,” said six more years without stronger protections means the species will continue to decline.

It’s not necessarily a direct order for extinction, she said, but six more years of dangerous and even lethal entanglements is bad news for the whales.

In order for the species to survive, roughly 50 calves need to be born each year, she said, but even the nonlethal entanglements are affecting females’ ability to breed. Last year, there were 18 calves born. This year, there were 15.

Fuller stressed that she and other environmentalists are not pushing to close the lobster fishery.

“We deeply want both the right whales and the fishing industry to survive,” she said. “In order for both (to happen), we need the fishery to transition to this new technology.”

She encouraged legislators to “do everything in their power” to make sure the full $50 million is appropriated and used.

Gib Brogan, fisheries campaign director at conservation nonprofit Oceana, is worried that if anything, the regulatory pause will slow the development of ropeless gear.

Gear innovation happens when there is an incentive to do so, he said, and this extension takes away the time crunch facing the industry.

“This get out of jail free card the Maine delegation introduced into the appropriations bill is going to chill the development of ropeless gear,” he said in a phone interview.

Brogan also is concerned that the provision would prevent the fisheries service from acting if something else happens and the whale population plummets.

He criticized adding the provision to the omnibus as a “lousy” way of making policy.

“The effect of this 11th-hour rider on conservation and recovery of the species is likely to be dreadful,” he said. “This is a terrible day for North Atlantic right whales and it lays at the feet of the Maine delegation.”

The bill rider also would commission a “continuous plankton recorder survey” to help federal fishery management officials and marine biologists better understand where the whales are congregating to feed and to coordinate with the Canadian government to develop a “transboundary understanding” of plankton abundance and distribution.

The provision also directs the National Marine Fisheries Service to submit an annual report to Congress on the status of right whales, including the “amount of serious injury and mortality by fishery and country.”

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