Kimberly E. Johnson

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           Will the New England Fishery Management Council’s recent Clam Dredge Framework harm critically endangered North Atlantic right whale habitat by permitting hydraulic clam dredging in three excepted areas of the Great South Channel Habitat Management Area? On April 9, 2018, the National Marine Fisheries Service (NMFS), the National Oceanic and Atmospheric Administration (NOAA), and the Department of Commerce approved the final rule to implement the New England Fisheries Council Omnibus Essential Fish Habitat Amendment 2 (OHA2).[1] The OHA2 made several changes to fishery management practices: (1) it revised essential fish habitat and areas of particular concern, (2) it revised or created new habitat management areas, (3) it established habitat research areas, and (4) it implemented several other administrative measures.[2] The OHA2 established the Great South Channel Habitat Management Area (HMA), a protected area off the coast of Massachusetts.[3] The HMA is closed to bottom-tending mobile gear, and it is closed to hydraulic clam dredge gear in the northeast corner.[4] The New England Fishery Management Council (the Council) finalized its Clam Dredge Framework, a trailing action to the OHA2, on December 5, 2018.[5] The Framework closed the HMA to hydraulic clam dredging but granted three exceptions for areas within the HMA where hydraulic clam dredging will be permitted.[6] Next, the Council will submit its recommendations to NMFS/NOAA Fisheries for approval.[7] If NMFS/NOAA approves the Council’s recommendations, right whale critical habitat in the HMA may be adversely affected by the surfclam industry’s fishing gear.[8]

           The Great South Channel includes critical habitat for the North Atlantic right whale,[9] a critically endangered species.[10] The surfclam fishers in this area use hydraulic clam dredges.[11] A hydraulic clam dredge scrapes along the surface of the sea floor, collecting the clams in the attached metal basket.[12]A hydraulic dredge injects seawater forcefully into the seabed to separate clams from the underlying sediment.[13] Because right whales “use the entire water column from surface to sea floor,”[14] it is vital to understand how clam dredging affects sedimentation and turbidity in the water column. Dredging can cause “significant physical, biological, and chemical effects” in the dredging area.[15] Clam dredges can disrupt the sediment composition of the ocean floor and can increase the turbidity of the surrounding water.[16]  Increased turbidity is known to harm several types of marine organism, including those organisms that rely on sight to feed, macroscopic benthic organisms, and photosynthetic plankton.[17]  Without more data, it is not clear how hydraulic clam dredging in the Great South Channel HMA will affect zooplankton and copepods, the right whale’s main food sources.[18]

           This Note argues that if NMFS approves the Council’s proposed framework, it will act arbitrarily and capriciously by failing to satisfy requirements of the Endangered Species Act. Part I of this Note establishes the statutory and regulatory background that created the Great South Channel HMA. Additionally, this Note explains the Section 7 consultation requirements of the Endangered Species Act. The Note then dives into the substance of the Omnibus Essential Fish Habitat Amendment 2 (OHA2) and the regulations promulgated to implement it. In Part II, this Note examines the effects of hydraulic clam dredging on the substrate and water column of the Great South Channel HMA and its potential impact on North Atlantic right whale critical habitat. Part III of this Note will argue that the D.C. Circuit should grant the plaintiff’s Motion for Summary Judgment in the case of Conservation Law Foundation v. Ross, a case challenging the validity of the OHA2.[19] Finally, in Part IV, this Note will contend that the Council should follow NMFS’s own guidance regarding the Endangered Species Act Section 7 consultations and perform a formal consultation, including a biological opinion, for each fishery in the right whales’ critical habitat. The Council must determine the potential effects of clam dredging on the physical, biological, and chemical properties of the North Atlantic right whale’s critical habitat before determining that this species is not affected by the framework adjustment action.

[1]Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Essential Fish Habitat,83 Fed. Reg. 15,240 (Apr. 9, 2018) (to be codified at 50 C.F.R. pt. 648).

[2]Id.

[3]Id. at 15,241.

[4]Id. at 15,262, 15,276 (“Bottom-tending mobile gear, means gear in contact with the ocean bottom, and towed from a vessel, which is moved through the water during fishing in order to capture fish. . . .”).

[5]Press Release, New Eng. Fishery Mgmt. Council, Council Supports Surfclam, Mussel Fishery Access to Certain Areas Within Great South Channel HMA Plus Further Research (Dec. 5, 2018), https://s3.amazonaws.com/nefmc.org/NEFMC-Advances-Clam-Dredge-FW.pdf.

[6]Id.

[7]Id.

[8]Complaint at 31–32, Conservation Law Foundation v. Ross, No. 1:18-cv-01087 (D.D.C. May 9, 2018) [hereinafter Complaint].

[9]Critical habitat for North Atlantic right whales (Eubalaena glacialis), 50 C.F.R. § 226.203 (2016).

[10]Id. at 28,802.

[11]Memorandum from the Habitat Comm. to the Habitat Plan Dev. Team 2 (Apr. 24, 2018), https://s3.amazonaws.com/nefmc.org/3.-180423-Hab-PDT-memo-to-CTTE-re-clam-fwk-alts.pdf [hereinafter Memo Apr. 2018].

[12]Lance E. Morgan & Ratana Chuenpadgee, Shifting Gears: Addressing the Collateral Impacts of Fishing Methods in U.S. Waters 12 (2003).

[13]Memo Apr. 2018, supra note 10, at 2.

[14]Mark F. Baumgartner et al., North Atlantic Right Whale Foraging Ecology and Its Role in Human-Caused Mortality, 581 Marine Ecology Progress Series 165, 178 (2017).

[15]Antonio G. Fraone, Note, Shucking a Patent: How a Simple Best Available Technology Law Can Break the Shell of Patent Protections, 59 B.C. L. Rev. 1049, 1060 (2018).

[16]Id.

[17]Id. at 1061. Benthic organisms live on the ocean floor; macroscopic benthic organisms include polychaetes, crustaceans, mollusks, and echinoderms. Paul V. R. Snelgrove et al., The Importance of Marine Sediment Biodiversity in Ecosystem Processes, 26 Ambio 578, 578–79 (2007), ftp://ftp.aoml.noaa.gov/od/pub/library/biodiversity-snelgrove.pdf.

[18]North Atlantic Right Whale, NOAA Fisheries, https://www.fisheries.noaa.gov/species/north-atlantic-right-whale (last visited Jan. 22, 2019).

[19]Motion for Summary Judgment, Conservation Law Foundation v. Ross, No. 1:18-cv-01087 (D.D.C. Dec. 21, 2018).