Assistant Regional Administrator-Kimberly Damon-Randall
Protected Resources Division, NMFS
Greater Atlantic Regional Office
55 Great Republic Drive, Gloucester, MA 01930
April 21, 2015
Sierra Club Comments on Proposed Rule re:
Critical Habitat for Endangered North Atlantic Right Whale
Docket ID: NOAA-NMFS-2014-0085
Dear Ms. Damon-Randall,
The Sierra Club welcomes the proposed expansion of Critical Habitat for the endangered North
Atlantic right whale (Eubalaena glacialis)as both necessary and overdue. While we appreciate
that the proposed Critical Habitat boundaries represent a considerable expansion over the current
boundaries, we find that recent events and consideration of the potential impacts of global
warming demand additional expansion of the boundaries, including the inclusion of Maine
coastal waters and the addition of a migratory corridor.
We also note that the proposed rule would change the southern boundary of the North Atlantic
right whale southeastern calving critical habitat from 28 degrees North to 29 degrees North,
removing the Port of Cape Canaveral area from critical habitat protection. We strongly oppose
that reduction in area and respectfully request that the current 28 degree North boundary be
retained.
Despite efforts taken since the 1994 designation of the North Atlantic right whale as an
endangered species, including strides taken to avoid or minimize ship strikes and entanglements,
the population of North Atlantic right whales remains small, and the long term fate of the species
is precarious, as acknowledged by the following statement in the proposed rule: “Due to the past
depletion from which they have not recovered, the continued anthropogenic threats to the
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species, and the whale’s life history, the North Atlantic right whale is in danger of extinction
throughout its range.”1
Recent actions by the Bureau of Ocean Energy Management expose the North Atlantic right
whale to even higher risk, and the proposed rule must be modified to address that risk. The July,
2014 Record of Decision by the Bureau of Ocean Energy Management has cleared the way for
extensive geological and geophysical survey activities off the mid-and South Atlantic coast.
Those survey activities will make extensive use of air gun arrays for seismic surveying, with
potentially harmful impacts to the North Atlantic right whale. The 2017–2022 Outer Continental
Shelf Oil and Gas Leasing Draft Proposed Program announced in January, 2015 potentially
opens up large areas of the mid-Atlantic coast to future oil and gas exploration and production.
The above actions place North Atlantic right whale mothers and calves at risk as they pass
through the mid-Atlantic region on their way to calving grounds farther south, especially from
the proposed use of seismic air guns operating for long periods of time over extensive distances.
The proposed rule should include designation of a migratory corridor that includes the midAtlantic coast region.
The risk of potential impacts on the North Atlantic right whale from oil and gas exploration and
production was recognized in the initial ESA designation in 1994. The 1994 Final Rule for
Critical Habitat identifies the following risks to the North Atlantic right whale habitat:
“3. Possible habitat degradation through pollution, sea bed mining, and oil and gas
exploration: Exploration and development for oil, gas, phosphates, sand, gravel, and other
materials on the outer continental shelf may impact northern right whale habitat through the
discharge of pollutants (such as oil, drilling muds and suspended solids); noise from seismic
testing, drilling and support activity; and disturbance of the environment through vessel traffic
and mining rig activity. If these types of activities are proposed, their timing and location may
also require special management considerations, including the establishment and
maintenance of buffer zones.”
Similar caveats appear in the current proposed rule, which states that “special management
considerations” may need to be applied to foraging areas and calving areas to address risks posed
by oil and gas exploration and production.2 Special management considerations due to oil and
gas exploration would also be required for the migratory route connecting the feeding grounds to
the calving areas, and this should warrant designation of a migratory route critical habitat.
The importance of migratory corridors as a Biologically Important Area (BIA) is discussed in the
Aquatic Mammals journal Special Issue on BIAs for Cetaceans within U.S. Waters3. The four
categories of BIAs identified in the journal articles are: reproductive areas, feeding areas,
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Federal Register /Vol. 80, No. 34 / Friday, February 20, 2015 / Proposed Rules, page 9315
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ibid, pages 9329, 9331
Van Parijs, S. M., Curtice, C., & Ferguson, M. C. (Eds.). (2015). Biologically Important Areas for cetaceans within
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U.S. waters. Aquatic Mammals (Special Issue), 41(1). 128 pp.
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migratory corridors, and areas in which small and resident populations are concentrated.
(Emphasis added). NOAA’s Cetsound website (cetsound.noaa.gov) includes a CetMap module
that can display Migration BIAs for numerous cetacean species, including the North Atlantic
right whale. The Migration BIA boundaries for the North Atlantic right whale produced by
CetMap are shown in Attachment 1, Figure A of our comments. They cover an extensive area of
the Atlantic coast from Maine to Florida.
We recognize that the CetMap migratory corridor was not intended as a regulatory boundary, but
the absence of a migratory corridor of any size within the proposed rule means that one of the
major BIA categories important for the survival of the North Atlantic right whale has been
omitted.
NMFS defends this omission by stating that “ During migratory periods it is difficult to locate
and sample marine mammals systematically or to observe them opportunistically, because they
surface less frequently and cover large distances in any given day during migration (Hiby and
Hammond 1989; Morreale et al. 1996; Mate et al. 1997; Knowlton et al. 2002, as cited by
Firestone et al. 2008). The space used by right whales during their migrations remains almost
entirely unknown (Schick et al. 2009). Defining a particular migratory corridor is further
complicated by the fact that the available data are largely spatially constrained to nearshore
areas (i.e., 30 nm of shore), and consist of opportunistic sightings. Based on the low numbers of
whales observed migrating close to shore between foraging and calving habitats, it is apparent
that not all right whales migrate within 30 nm of shore. A study by Schick et al. (2009), who
tracked the movements of two tagged female right whales, also suggests that movement of
right whales are much broader and more variable than suggested by results based solely on
opportunistic sightings from surveys limited to nearshore areas (see Schick et al. (2009)).
Beyond the uncertainty over the location of one or more migratory corridors, we cannot
currently identify any specific physical or biological features that define migratory habitat.
Therefore, we have concluded that it is not currently possible to define critical habitat
associated with right whale migratory behaviors. The draft Biological Source Document
(NMFS2014a) contains a thorough discussion of the available data we considered in our
analysis. (Emphasis added)
This rationale for not designating a migratory corridor is not convincing. The fact that female
right whales are seen both in nearshore areas within 30 nm of shore and also much farther
offshore suggests that the migratory corridor may be wide, not that is non-existent or impossible
to delineate in some form.
The above statement that “we cannot currently identify any specific physical or biological
features that define migratory habitat” is an erroneous interpretation of the requirement that
some specific physical or biological features be identified in order to define a critical habitat.
More than adequate information exists, along with viable models, that provide the necessary data
to develop a migratory corridor that would provide the minimum necessary requirement to
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enhance survivability of the right whale populations under consideration (Firestone et. al. 2008,
LaBreque 2015, Pendoley et. al. 2014, Schik et. al. 2009, Whitt et. al. 2013).4 The primary
physical features for a migratory habitat would appear to be the existence of a contiguous
volume of ocean water, within an appropriate range of temperatures, that provides a path through
which North Atlantic right whales migrate from their foraging areas to their calving areas and
return. Bombarding that physical body of water with high intensity sound waves over prolonged
periods of times alters its character as habitat. Designating it as critical habitat would help
address those impacts.
In summary we thank you for the opportunity to present our comments on this important
document. On behalf of our 2.4 million members and supporters we urge that you accept our
recommendations for strengthening protection of this unique species on the brink of extinction.
Sincerely,
Patricia Matejcek and Doug Fetterly
Sierra Club Marine Action Team
Co-Team Leaders
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Firestone, J., Lyons, S. B., Wang, C., & Corbett, J. J. (2008). Statistical modeling of north Atlantic right whale
migration along the mid-atlantic region of the eastern seaboard of the united states. Biological Conservation,
141(1), 221-232.
LaBrecque, E., Curtice, C., Harrison, J., Van Parijs, S.,M., & Halpin, P. N. (2015). 2. Biologically important areas for
cetaceans within U.S. waters - east coast region. Aquatic Mammals, 41(1), 17-29.
Pendoley, K. L., Schofield, G., Whittock, P. A., Ierodiaconou, D., & Hays, G. C. (2014). Protected species use of a
coastal marine migratory corridor connecting marine protected areas. Marine Biology, 161(6), 1455-1466.
Schick, R. S., Halpin, P. N., Read, A. J., Slay, C. K., Kraus, S. D., Mate, B. R., . . . Clark, J. S. (2009). Striking the
right balance in Right Whale conservation. Canadian Journal of Fisheries and Aquatic Sciences, 66(9), 1399.
Whitt, A. D., Dudzinski, K., & Laliberte, J. R. (2013). North Atlantic right whale distribution and seasonal occurrence in
nearshore waters off new jersey, USA, and implications for management. Endangered Species Research, 20(1),
59-69.
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ATTACHMENT A
Figure A – North Atlantic right whale BIA type-Migration for U.S. East Coast
Source: http://cetsound.noaa.gov/biologically-important-area-map
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