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The long and winding road to habitat protection for North Atlantic right whales

Over 5 years ago, WDC, in partnership with The Humane Society of the United States, Center for Biological Diversity, and Defenders of Wildlife, petitioned the U.S. government to increase federally designated critical habitat for the 500 remaining critically endangered North Atlantic right whales.  On that day in 2009, we believed we had laid out all of the necessary data, new information, and reasons as to why these whales needed more than 8.5% of their U.S. “home” area protected.   But it wasn’t until last week that the National Marine Fisheries Service, the U.S. agency charged with protecting North Atlantic right whales, finally announced its proposal to increase critical habitat!

So why did it take almost six years to get here?!  It’s complicated.

Critical habitat is a tool available to species listed under the US Endangered Species Act (ESA). When a species is listed under the ESA, the government designates specific habitat necessary for the conservation and recovery of the listed species.  This critical habitat may need special management consideration.  For North Atlantic right whales, a portion of their calving and feeding range was protected in 1994.  Since that time, research has shown that these whales use additional areas for calving, mating, feeding, and migrating – far beyond what was originally designated.  These data constituted “new information” which we used when we submitted our petition, asking the government to expand the boundaries of critical habitat. This 79-page petition was submitted on September 16th, 2009, requesting protection of the waters from New England to Florida. 

Once the government receives a petition such as this, a clock starts ticking.  Under the law, they have up to 90 days to review the request and publish a finding that the petition is either warranted (they generally agree to proceed in the process); unwarranted (no, they don’t agree and that’s the end of it); or warranted but precluded (they agree that you made some valid points, but they state that they can’t grant the request at this time for a variety of administrative reasons). 

On October 1, 2009, we received a letter indicating that the agency in charge, the National Oceanographic and Atmospheric Administration (NOAA), had received our petition.  According to the law, they would have had to respond with a finding by the end of December.  We were dismayed and surprised that we didn’t hear a response after this mandated 90 days. We tried to be patient, but our patience started to wear thin, so in February of 2010 we sent a letter notifying the government of our intent to sue for not responding when they were supposed to (under the Endangered Species Act, you are required to warn the government that you are intending to take legal action).  In response to our letter, the government agency asked to meet with us. WDC and our conservation partners traveled to NOAA Headquarters in Washington DC on April 19th, 2010, to find out what was holding up their response to our petition.    We felt optimistic after what we believed to be a successful meeting, anticipating an imminent response to our petition, but still, it didn’t come. 

The day after our meeting, the Deepwater Horizon oil spill began, dumping more than 200 million gallons of oil in the Gulf of Mexico, and much of NOAA went into crisis-mode, focusing its attention on the disaster.  Understanding the need to triage, we waited longer for a response. 

On May 25, 2010, two hundred and thirty days after filing our petition, we finally went to court, charging NOAA with an unreasonable delay of the process.  It was this action that finally led NOAA to make a determination on our petition. On October 6, 2010, they agreed that our petition provided substantial new information and said they would propose a revision of right whale critical habitat by the second half of 2011.  Finally a victory!  But was it?

 It was frustrating to have had to wait over a year to receive a response and now we were asked to wait another year to see a proposal.   We waited again.  The end of 2011 came and went and no proposals were published. In January of 2012, we sent a request to NOAA under the Freedom of Information Act (FOIA) asking them for all records of what they were doing to move forward with revising right whale critical habitat so we could understand what exactly was causing the delay.  In March, NOAA responded and assured us that they had “made substantial progress” and “were moving forward as quickly as possible”.   While we were frustrated, we were concerned that the court would be sympathetic to NOAA’s assertion that they were moving forward, so we had little to do but wait again. And we waited….through the rest of 2012 and all of 2013.

In 2014, four and a half years after we petitioned, we lost our patience and went back to court.  On April 10, 2014 WDC and its conservation partners filed suit, charging NOAA with “unlawful and unreasonable delay” in responding to our petition.  In response to this lawsuit, NOAA signed a legally binding time frame for revising right whale critical habitat that can be enforced by the court. As a result of our efforts, NOAA is legally obligated to designate additional areas as critical habitat for right whales by February 2016!  This additional year is needed to allow the public time to weigh in on the proposed changes. 

Now we need your help and your voice to ensure protections for not just right whales themselves, but also their habitat—their “home”.  We have not given up on fighting to protect North Atlantic right whale habitat over the past five years.  Now we are asking you to take just five minutes to add your name to the letter of support for increasing right whale critical habitat. 

Impacts from humans may currently be jeopardizing right whale habitat, but input from humans can make all the difference for their survival. Please sign and share our letter. 

Thank you!

Regina Asmutis-Silvia

Executive Director, WDC-North America