NMFS Lists Bryde’s Whale as Endangered

Last week, the National Marine Fisheries Service (NMFS) listed the Gulf of Mexico Bryde’s whale, a large baleen whale, as endangered under the Endangered Species Act (ESA). The agency determined that the whale is endangered “due to its small population size and restricted range, and the threats of energy exploration, development and production, oil spills and oil spill response, vessel collision, fishing gear entanglement, and anthropogenic noise.” The agency cited studies showing that there are fewer than 100 Gulf of Mexico Bryde’s whales left in the population.

The ESA aims to protect plant and animal species from extinction and to recover and preserve species by minimizing threats to their existence. (16 U.S.C. § 1531). A species is not afforded any ESA protection until it has been formally listed as threatened or endangered. Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”

NMFS is responsible for implementation of the ESA for marine and anadromous species, like the Bryde’s whale, while the U.S. Fish and Wildlife Service administers the Act for terrestrial and fresh water species. The agencies may initiate a species listing, or citizens, groups, or government agencies may initiate a petition to list a species. The Natural Resources Defense Council petitioned NMFS to list the Gulf of Mexico Bryde’s whale in 2014.

To be considered for listing under the ESA, a group of organisms must constitute a “species.” Two subspecies of Bryde’s whale had previously been identified: Bryde’s whale, located worldwide, and Eden’s whale, a smaller whale found in the Indian and western Pacific oceans. Genetic testing showed that the Gulf of Mexico population was genetically distinct from all other Bryde’s whales worldwide. The Gulf of Mexico Bryde’s whale is primarily located in the northeastern Gulf of Mexico in the De Soto canyon area.

A Status Review Team (SRT) of seven biologists helped determine whether the Gulf of Mexico Bryde’s whale should be listed under the ESA. The SRT found that energy exploration, development, and production, and oil spills and spill response were significant threats to the species. The SRT also identified ship strikes as a substantial threat to the whale, noting the location of commercial shipping lanes, the challenge of detecting a whale at the surface at night, and the difficulty of large ships to change course rapidly enough to circumvent a whale. Ultimately, NMFS found that “the level of anthropogenic noise in the Gulf of Mexico, the risk of vessel collisions, fishing gear entanglements, in combination with the small population size, are threats that are likely to eliminate or seriously degrade the population.”

NMFS also looked at whether existing regulatory mechanisms, such as the Marine Mammal Protection Act (MMPA), were sufficient to manage threats to the whale. The agency noted that current regulation was inadequate to manage the whale’s extinction risk.

After reviewing the best available scientific and commercial information, including the SRT’s findings, and considering public comments on the proposed rule, NMFS listed the Gulf of Mexico Bryde’s Whale as endangered. The listing means that “take” of the whale is now prohibited under the ESA. Next, NMFS will develop a recovery program and designate critical habitat for the species. In addition, the MMPA provides heightened protections to marine mammals designated as “depleted.” Although the whale was not designated as depleted, its listing could result in a change to its MMPA status. The notice of the listing is available here. The listing will go into effect on May 15, 2019.