Brooks Law Digest: Marine Mammal Protection Act

The National Marine Fisheries Service is considering an application under the Marine Mammal Protection Act for the import of grey seal specimens from Canada for research at Texas Tech University. The applicant in the university’s biology department seeks to import and possibly re-export blood, milk, whiskers, nails, fur, blubber, muscle, scat, spew, saliva, and urine opportunistically salvaged from at least 120 dead seals for purposes of scientific research over the next five years studying the role of maternal iron transfer in the development of heme stores and aerobic diving capacity in gray seal pups. The public comment period is open through November 4, 2021.

The National Marine Fisheries Service has issued an incidental harassment authorization (IHA) under the Marine Mammal Protection Act to the U.S. Navy’s Office of Naval Research for the harassment (not harm) of marine mammals during oceanographic research activities in the Arctic Ocean. The IHA is effective for activities in the Beaufort and Chukchi Seas between October 5, 2021, and October 4, 2022. The NMFS considers the Navy's activities to be military readiness activities pursuant to the MMPA.

The National Marine Fisheries Service has approved an application under the Marine Mammal Protection Act for the incidental harassment and harm to five species of marine mammals by the Carnival Cruise line during the expansion of the company’s Port of Long Beach cruise terminal in California. The effective dates of the incidental harassment authorization have been adjusted due to a delay in construction and are now applicable for the incidental take of short-beaked common dolphin, long-beaked common dolphin, bottlenose dolphin, California sea lions, and harbor seals between December 10, 2021, and December 9, 2022.

The Sonoma County Water Agency has applied for a letter of authorization to incidentally harass pinnipeds in the Russian River (California) during estuary management activities that require the presence of humans, heavy equipment, and boats over the next five years. Sonoma County Water Agency is undertaking the estuary management in order to prevent flooding and enhance the habitat for ESA-listed juvenile salmonids. NMFS is accepting comments through October 9, 2021.

Following the recommendation of an administrative law judge, NMFS is soliciting comments on its proposal to grant a waiver under the Marine Mammal Protection Act in order to allow the Makah Indian Tribe to hold “a tribal hunt” of Eastern North Pacific gray whales off the northwest coast of Washington State “for ceremonial and subsistence purposes and the making and sale of handicrafts.” The ALJ held a 6-day hearing and found that the waiver would not have a significant detrimental impact on the existing stock of affected gray whales. The proposal was opposed in the ALJ proceedings by the Animal Welfare Institute, Sea Shepherd Conservation Society, and Peninsula Citizens for the Protection of Whales. The comment period is open through October 19, 2021.

The National Marine Fisheries Service has promulgated a rule under the Marine Mammal Protection Act that prohibits swimmers and vessels who are within two miles off shore of the Hawaiian Islands from coming within 50 yards of Hawaiian spinner dolphins. The rule, which aims to reduce disturbance of dolphins in areas where human-dolphin interactions are most likely to occur, will become effective on October 28, 2021. The agency simultaneously is proposing an additional regulation that would prohibit any entry into five known Hawaiian spinner dolphin habitats between the hours of 6 a.m. and 3 p.m. daily in order to minimize human-dolphin disturbance. NMFS is accepting public comments on the proposed closure through December 27, 2021.

The National Marine Fisheries Service has issued a Letter of Authorization (LOA) to Andarko Petroleum Company for the incidental harassment of killer whales and other cetaceans during the company’s geophysical survey activity in the Gulf of Mexico from September 18, 2021, through March 17, 2022. Pursuant to existing Marine Mammal Protection Act regulations, issuance of an LOA is only permissible when the number of affected animals is “small,” which the agency interprets to mean less than one third of the best available population abundance estimate in the area.

The National Marine Fisheries Service is proposing an extension of the information collection relating to conservation plans––which NMFS believes are helpful to coordinated conservation efforts that protect species from being added to the Endangered Species List. The public comment period on the proposed extension of the information collection is open through November 22, 2021.

The National Marine Fisheries Service has announced the issuance of a Marine Mammal Protection Act Incidental Harassment Authorization (IHA) to the California Department of Fish & Wildlife to harass (but not harm) harbor seals during the course of the state agency’s completion of a 122-acre restoration project in the Elkhorn Slough Tidal Marsh in Monterey County. The IHA is effective from September 16, 2021, through September 15, 2022.

The National Marine Fisheries Service has announced that, due to a lack of resources, the agency will not increase monitoring of sea turtle bycatch in 2022. NMFS annually identifies fisheries that it observes (by placing observers on relevant fishing vessels) in order to monitor and mitigate sea turtle bycatch––which is the primary source of human-caused sea turtle injury and mortality in the United States. All sea turtle species are protected by the Endangered Species Act. Each fishery is placed on a five-year surveillance list; and for calendar year 2022, NMFS will observe six fisheries in the Gulf of Mexico, Southeastern Atlantic, Mid-Atlantic, Chesapeake Bay, and Long Island.