A member of J Pod, one of three Southern Resident pods, breaches along the west side of San Juan Island in May of 2008. NMFS is currently considering amending the critical habitat for this vulnerable marine mammal population.
Currently, the National Marine Fisheries Service (“NMFS”) is considering a petition from the Center for Biological Diversity (“CBD”) to revise the critical habitat for Southern Resident Killer Whales (“SRKW”), an endangered Distinct Population Segment (“DPS”) listed under the Endangered Species Act (“ESA”). This petition also seeks to establish in-water sound levels as a primary constituent for both the currently designated critical habitat and also the newly proposed critical habitat. This would provide necessary opportunity for the SRKW population to recover to historical norms. Additionally, this provides a focal point for discussing the importance of critical habitat designations and how they can be used in the future.
This is not the only issue regarding critical habitat to which NMFS is being forced to respond. Recently conservation groups including CBD, Whale and Dolphin Conservation (“WDC”), and Humane Society of the United States (“HSUS”), filed a lawsuit against NMFS for failing to respond to and revise critical habitat for the critically endangered North Atlantic right whale (Eubalaena glacialis). NMFS has also been sued in recent years for not designating critical habitat for the even more critically endangered North Pacific right whale (Eubalaena japonica).
The requirement to designate critical habitat and periodically revise them comes directly from the ESA. It should not be taken lightly by the agency. While there could be numerous discussions regarding what the actual conservation benefit of critical habitat is in terms of substantive regulations, that potential does not change the fact that critical habitats are valuable if for no other reason than as a marine spatial planning tool.
As our actions on the ocean continue to increase in the forms of offshore wind developments, military training, and testing, seismic surveys by the oil and gas industry, and commercial and recreational vessel activity, marine spatial planning will be an essential element in successful conservation efforts. While critical habitat does offer additional benefits besides spatial planning, the importance of spatial planning can be seen when it is viewed as a baseline that future environmental analysis of proposed ocean projects can be based upon.
The additional element being considered in the current proposal to revise the critical habitat for the SRKW population, if accepted by NMFS, provides an important tool that could be used in future conservation efforts. By establishing mandatory in-water sound limits, we can protect marine wildlife from harmful acoustic noise in the areas they need it most. Returning to the discussion of marine spatial planning, we can use in-water sound limits as a tool to allow the military and industry specific areas to conduct their activities that reduce to the greatest extent practical the possible harm to sensitive marine populations.
Critical habitat in many ways can be analogized to your home. Most people prefer their home to be comfortable and quiet. If you have a family, you want your home to be a place that provides all the necessary elements for your children to grow and develop. Zoning ordinances and nuisance laws exist to help preserve the peace and comfort of residential areas. If that peace and comfort is ever violated, then you can be sure that the local residents will fight back against the source of said disruption. Similarly, conservation advocates should continue to argue for the maximum critical habitat designations possible, and argue that they include in-water sound levels, so that the critical habitats these animals call home do not become deafening critical habitats.
If you would like to comment on proposed critical habitat amendments for Southern Residents, click here.
The Deafening Sound of Freedom 