Right Whales and Cashes Ledge: How to Make a Good Thing Last

By Tricia Jedele

In late January, North Atlantic right whales scored a big win when the National Oceanic Atmospheric Administration (NOAA) expanded the critical habitat for the endangered whale from 4,500 square nautical miles to 28,000 square nautical miles.

The original area included only a portion of Cape Cod Bay and an area east of Nantucket near the Great South Channel. This major expansion adds almost all of the Gulf of Maine, east to Georges Bank, and south all the way to Cape Canaveral, Florida. The Gulf of Maine expansion includes Cashes Ledge – an area known for its rich biodiversity and abundance of fish and marine mammals and a place that CLF has been fighting to permanently protect for years.

This is great news for the North Atlantic right whale – the world’s most endangered large whale – and for those of us who care about saving it. Expanding the whale’s critical habitat means that federal agencies are thinking more systemically about what the right whale needs not just to survive but to once again thrive – designating not only places where the whales congregate to forage, but also the places that are critical for mating and calving.

This expansion is also a terrific example of ocean use planning in action. Before announcing the final decision, NOAA, through its National Marine Fisheries Service, called for public dialogue and input about the proposed expansion. It also allowed for new information to guide and influence its decisions around how to manage and permit other activities (like clean energy projects or industrial exploration) in the expanded areas going forward.

Critical Habitat is Good; Permanent Protection is Better – and Necessary

Right whale calf and mother

Right whale calf and mother. ©Brian Skerry

According to NOAA, calling an area “critical habitat” means that it contains physical or biological features essential to the conservation of a particular species – and those features may require special management considerations or protection.

Federal agencies looking to issue permits or companies seeking permits have to work with NOAA to avoid or reduce impacts from their activities on critical habitats. But, a critical habitat designation isn’t as protective as it sounds. It’s more like a “caution” sign than a stop sign. The designation doesn’t establish a refuge for the right whale or its food sources. And it doesn’t specifically put the area off limits or dictate that certain activities cannot occur.

For endangered species, functional critical habitat is the key to survival. We understand this concept well on land. One ongoing success story is China’s giant panda. People around the world are working to secure permanent protections for its habitats to ensure survival of the species. The Nature Conservancy, for example, has worked with the Chinese government to protect 27,000 acres of Pingwu County for the benefit of just 10 giant pandas.

Today, approximately 1,800 giant pandas remain worldwide. In comparison, just over 500 individual North Atlantic right whales are struggling to survive. Yet we have failed to to permanently protect even one acre of the habitat it needs to recover.

Considering that we know where some of the areas so critical to the North Atlantic right whale are, we need to ask why we’ve been successful in protecting lands critical for terrestrial species, but we haven’t given this same level of protection – or attention – to marine species. Cashes Ledge, a small area in the Gulf of Maine, is uniformly recognized as a scientific marine treasure, and already closed to most fishing. Permanently protecting this area would have little negative impact – yet the positive impact protection might have on the North Atlantic right whale could mean the difference between the species’ survival or its extinction.

Conservation Law Foundation believes that it is time to embrace the familiar land-based conservation principles and apply them, based on the best available scientific information, to permanently protect some of the most impressive and ecologically important ocean habitats and resources in the North Atlantic.

Dramatically expanding the critical habitat area for North Atlantic right whales was without question a good thing – and so was including Cashes Ledge in that designated area.

Let’s now take a good thing and make it even better by permanently protecting Cashes Ledge. Otherwise, this designation will just be a good thing that wasn’t quite good enough.

Baked Cod: The Path Forward in an Era of Climate Change

In recent weeks, we learned more sobering news for New England’s cod population. A paper published in Science detailed how rapidly increasing ocean temperatures are reducing cod’s productivity and impacting – negatively – the long-term rebuilding potential of New England’s iconic groundfish. The paper confirmed both the theoretical predictions associated with climate change and the recent scientific federal, state, and Canadian trawl surveys that reported a record-low number of cod caught in recent months.

To be clear, the Science authors do not conclude that ocean temperature changes associated with climate change have caused the collapse of cod. We have management-approved overfishing of cod to thank for that.

What rising ocean temperatures do seem to be doing, according to the Science paper, is dramatically changing the productivity of the remaining cod stocks. This makes it more difficult for cod to recover from overfishing today than at any other time in history, and perhaps reduces the ultimate recovery potential even if all fishing were halted. Stock assessments conducted without taking these productivity reductions into full account will dramatically overestimate cod populations and, in turn, fishing quotas.

The Science paper is potentially very important, with major implications for fishing limits on cod for decades to come, But stock assessment scientists have warned for years that their recent models were likely overestimating the amount of cod actually in the water – and the corresponding fishing pressure the stock could withstand. Unfortunately, those warnings have fallen on deaf ears at the New England Fishery Management Council.

In fact, the managers at the Council, dominated by fishermen and state fisheries directors with short-term economic agendas, could hardly have done more than they already have to jeopardize Atlantic cod’s future—climate change or not.

Overfishing, a Weakened Gene Pool, and the Loss of Productive Female Fish

As a result of chronic overfishing, New England’s cod population is likely facing what geneticists call a “population bottleneck,” meaning that the diversity of the remaining cod gene pool is now so greatly reduced that the fish that are left are less resilient to environmental stresses like increasing sea temperatures.

Overfishing has also caused the collapse of the age structure of the cod populations by removing almost all of the larger, more reproductive females (also known as the Big, Old, Fat, Fecund Females, or BOFFFS). Scientists have previously warned that losing these old spawners is a problem for cod productivity, but this new research suggests that the potential damage from their elimination may be significantly greater than imagined as a result of poor, climate change–related ecological conditions.

The Science paper hypothesizes that an underlying factor in the productivity decline of cod this past decade was the correlation between extremely warm spikes in ocean temperatures and the drop in zooplankton species that are critical to the survival of larval cod. With fewer zooplankton, fewer cod larvae make it to their first birthday.

The impacts of this zooplankton decline on cod productivity, however, could be exacerbated by the loss of the BOFFFs. Here’s why:

Cod start to spawn at three to four years old, but young females produce significantly fewer and weaker eggs and cod larvae than their older counterparts. Those elder female fish, on the other hand, produce larger, more viable eggs – sometimes exponentially more healthy eggs – over longer periods of time. If the older female cod population had still been plentiful, they might have produced larvae more capable of surviving variations in zooplankton abundance.

Perhaps the continued presence of larger, older, spawning females to the south of New England (where there is no commercial cod fishery) is one of the reasons that the cod fishery in the nearby warm waters off New Jersey is healthier now than it has been in recent history.

The Cod Aren’t Completely Cooked Yet: Four Potential Solutions

Cod have been in trouble since the 1990s, and now climate change is magnifying these troubles. This new reality, however, is not cause for us to throw in the towel. There are actions that our fishery managers can take now that will make a difference.

First, large cod habitat areas have to be closed to fishingpermanently. This is the only way to protect the large females and increase their number. Designating cod refuges such as the Cashes Ledge Closed Area as a marine national monument will remove the temptation for fishery councils – always under pressure to provide access to fish – to reopen them in the future.

Such monuments would also sustain a critical marine laboratory where more of these complex interactions between cod and our changing ocean environment can be studied and understood.

Second, managers need to gain a better understanding of the cod populations south of Cape Cod. While it is well and good to land “monster” female cod on recreational boat trips, those fish may be the key to re-populating Georges Bank. Caution, rather than a free-for-all, is the best course of action until the patterns of movement of those cod populations, as related to ocean temperature increases, are better understood.

Third, as observed in the Science paper, stock assessment models as well as guidance from the Council’s Science and Statistical Committee must start incorporating more ecosystem variables and reflecting a more appropriate level of scientific precaution in the face of the reality of climate change shifts. Enough talk about scientific uncertainty and ecosystem-based fisheries management; action is needed, and science should have the lead in guiding that action.

Finally, the importance of funding data collection and fishery science is evident from this important Science paper, which was supported by private, philanthropic dollars. NOAA should be undertaking this sort of work – but it is not in a position to even provide adequate and timely stock assessments, because limited funding forces the agency to use the existing outdated models.

NOAA’s funding limitations are constraining both collection of the essential field data needed to understand our changing world as well as the analysis of that data into meaningful and appropriate management advice. If Congress can find $33 million to give fishermen for the most recent “groundfish disaster,” it ought to be able to find money to prevent such avoidable disasters in the future.

Ultimately, the Science paper shines some much needed light on our climate change–related fishery issues in New England, but we can’t let it overshadow decades of mismanagement or justify a fatalistic attitude toward cod rebuilding. Steps can and must be taken, and fishery managers are still on the hook for the success or failure of our current and future cod stocks.

Setting the Record Straight: Marine Monuments Have a Long, Proud Legacy

A cunner swims through healthy kelp forest at Cashes LedgeFormer Conservation Law Foundation Staff Attorney Roger Fleming, who is now a part of the Oceans litigation team at EarthJustice, details how the National Monument establishment process through the Antiquities Act serves the public’s interest. 

By Roger Fleming

One hundred-nine years ago this week President Teddy Roosevelt created the first national monument, protecting the magnificent Devil’s Tower formation in Wyoming. Since then, sixteen presidents – eight from each party — have used the power granted by Congress in the Antiquities Act to create more than 115 monuments protecting the nation’s natural and historic heritage on land and at sea, from the Statue of Liberty to the Marianas Trench.

Now we have a chance to see that proud tradition in action again to protect a national treasure right here in our backyard with a Marine National Monument off New England’s coast. On September 15, 2015, NOAA hosted a town hall meeting in Providence, Rhode Island, in order to discuss the possible establishment of a monument that could include deep sea Coral Canyons and Seamounts and Cashes Ledge. Scientists have identified these areas as deserving of special protection due to unique undersea terrain and nutrient upwelling that supports cold water coral gardens, our largest cold water kelp forest, fish, marine mammals, seabirds, and more.

A broad coalition of scientists, small business owners, fishermen, faith groups, civic leaders, and conservationists have sent a clear message that we need to save these ecologically important places before irreparable damage is done, so that future generations can enjoy their unimaginable beauty and a healthier marine environment. That is exactly what the Antiquities Act is intended to do.

Unfortunately, opponents in the fishing industry have attempted to muddy the waters with unfounded concerns about the “process” being used to provide protection for these areas.

Opponents who spoke at NOAA’s town hall event argued that the monument designation process is undemocratic, and that decisions about how to manage these areas should be left to the New England Fishery Management Council, which oversees fishing in the region’s federal waters.

Many who gave comment also complained about a lack of opportunity for public comment on the monument designation. Let that sink in for a moment: complaints about a lack of public comment were made while giving public comment.

Let’s set the record straight on a few things.

First, the monuments process is democratic.

President Obama has the authority to establish permanent protection of these areas through designation of a monument under the Antiquities Act. This Act is another tool provided to the democratically-elected president by our democratically-elected Congress to preserve areas identified as historic landmarks and areas of scientific interest before it is too late – before the opportunity to save a valuable resource is lost. This president’s predecessor, George W. Bush, created four monuments in the Pacific Ocean covering a total of 860,000 square kilometers. None exist in the Atlantic Ocean.

Second, there has been—and continues to be—public input into the process.

Already in this nascent proposal for a new marine monument there has been a town hall meeting where anyone wishing to do so was given the opportunity to speak and an ongoing public comment period through which over 160,000 people have already written in support of saving these important places. Arguably, the Obama administration has gone out of its way to provide opportunities to be heard on a proposal, in circumstances where it is not at all required to by law.

Leading up to the monument proposal, there were years of study of these areas and numerous opportunities for the public and other stakeholders to provide relevant scientific, economic, and other information, and to otherwise make their views known as possible protections were discussed in different venues, including the fishery management process.  Because the President’s decision must be based on science, this will all be considered.

Third, the New England Fishery Management Council has a checkered history regarding public and scientific involvement, and an even worse record as a steward of the public’s ocean resources.

The fishery management process remains dominated by the fishing industry and fails to adequately consider broader public interests. One need only look to the status of New England’s iconic fish species, the Atlantic cod, for evidence of this. Cod stocks have collapsed and the region’s groundfishing sector was declared a disaster, costing taxpayers millions of dollars. The record clearly shows that New England’s Council ignored repeated warnings from science about the deteriorating condition of cod stocks until it was far too late. Just last year more than a hundred-forty scientists and more than 150,000 members of public implored the council to protect more habitat for these and other depleted fish. But the Council instead voted to slash the amount of essential fish habitat protected by more than 60 percent.

The Council did succeed in identifying the ecological, economic, and social importance of the Cashes Ledge Closed area, and has closed the area to most bottom fishing. However, this action came only after an earlier vote to strip existing protections from that area. Further, the limited protections in place leave nearly all of the area open to other fishing, including the East Coast’s largest fishing vessels – industrial midwater trawlers – which are capable of stripping the area of essential forage fish, catching non-targeted fish, mammals and other marine animals as bycatch, and are known to contact the bottom when fishing. The protections in place are not permanent and could be removed at any time through the fishery management process.

Similarly, the New England canyons and seamounts have been identified by the Council as important ecological areas but they have received very few protections which are not worthy of their unique ecological importance.

Finally, this is not just about fishing.

New England’s “Fishery Management” Council has no authority to address other potential threats that could surface for the area, such as marine mining, drilling, or other industrial activity. Unlike the tenuous, partial protections now in place for Cashes Ledge and New England’s Canyons and Seamounts, a national monument provides permanent protection against all types of harmful extraction.

Such protection would benefit critically endangered right whales, which are known to depend on Cashes Ledge, fantastic deep-sea corals in the Canyons and Seamounts, and the important sea birds that feed on the surface of these rich waters.  Many coastal businesses, including many fishermen, support the proposal because they recognize there will also be broad economic benefits that will result from protecting these unique treasures and a healthier marine environment.

These areas belong to the U.S. public, and overwhelming evidence shows that the monument process is fair and that a marine monument would best serve the public’s interests now and into the future.

Video: Take a 5-Minute Dive on Cashes Ledge

If only everyone could see and experience the wonder of Cashes Ledge for themselves, we know they would feel as passionate about protecting it as we do. That’s why we’re excited to share with you this new video, filmed with our partner, National Geographic photographer Brian Skerry, Brown University Biologist Jon Witman, and local fishermen. We hope you’ll agree that this video, which features stunning new footage by underwater videographer Evan Kovacs, brings Cashes Ledge to life in a whole new way.

Cashes Ledge is unlike anyplace you’ll find on land or sea – one of the most dynamic hotspots of biodiversity in New England and the entire North Atlantic. But it’s in danger. Cashes Ledge has been protected from the most harmful fishing practices for more than 10 years. But this amazing preserve for fish and ocean wildlife may be just a few months away from having its protected status revoked.

We need your help to make sure that doesn’t happen. You can make a difference for Cashes in just two easy steps:

First, if you haven’t already, please sign our petition to NOAA today, asking them to protect Cashes Ledge.

And second, share this video far and wide with your friends, colleagues, and networks, and ask them to sign our petition and support our work. Because we need many more passionate people like you to take action, today, to protect this remarkable marine refuge.

It’s going to take all of us raising our voices loudly and clearly to protect Cashes Ledge. Thank you for your commitment and for being part of the New England Ocean Odyssey community.