Brian P. Segee*
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Introduction
As global whale populations slowly recover from historic hunting that
brought numerous species to the brink of extinction, the increasing number of
whales killed by collisions with ships threatens to slow or even reverse this
recovery in some areas. Along the west coast of the United States, this
conflict is most clearly evident in the Santa Barbara Channel, which not only
provides essential habitat for numerous whales, including the densest seasonal
population of blue whales on the planet, but also serves as the primary formal
shipping lane for traffic into and out of the nation’s busiest port complex at
the Los Angeles and Long Beach Harbors (LA/LB). While ship strikes have been
implicated in the deaths of blue whales off the California coast since as early
as 1980, the incidence of strikes has steadily risen, and in 2007 an
unprecedented five blue whales were struck and killed in the Santa Barbara
Channel.[1]
Despite the protections provided to whales under international treaties
and domestic statutes including the Endangered Species Act (ESA)[2] and Marine Mammal Protection Act
(MMPA),[3] compelling
federal agencies to take protective action in the wake of the 2007 ship strike
mortalities has proven difficult. However, an unanticipated sequence of events,
involving the California Air Resources Board’s (CARB) July 2009 low-sulfur fuel rule for ocean going vessels, prompted the U.S. Coast Guard (USCG) to initiate
a new Port Access Route Study (PARS) for LA/LB. The PARS process may serve as
an unexpected catalyst for instituting the protections necessary to eliminate
or reduce whale ship strike mortalities.
Under the Ports and Waterways Safety Act (PWSA), the PARS must be
conducted in a transparent public process with broad stakeholder involvement.
Once completed, it will provide the basis by which the USCG may propose
modifications to the existing Santa Barbara Channel shipping lanes, as well as
additional regulatory measures such as ship speed limits.[4] The PWSA further requires the USCG
to ensure that its ultimate designation of shipping lanes provides for both
safe access routes and protection of the marine environment.[5] This article addresses how the PARS
process thus provides a key opportunity to designate shipping lanes into LA/LB
that minimize the risk of ship strikes to blue whales and other large cetaceans
(whales).
Near miss between a container ship and whale in Santa Barbara Channel.
Photo: NOAA.
The Santa Barbara Channel and Shipping Traffic into LA/LB
Even in a state as renowned for its natural resources as California, the Santa Barbara Channel stands out for its exceptional beauty and extraordinary
biological diversity. The channel is an arm of the Pacific Ocean separating Santa Barbara, Ventura, and other coastal communities from the northern Channel Islands.
Cool, subarctic waters converge with warmer, equatorial waters in the channel,
fostering a rich diversity of marine and other wildlife, including whales,
porpoises, dolphins, pinnipeds, the southern sea otter, and hundreds of species
of birds, fishes, and invertebrates. Reflecting the environmental importance of
the area, the Channel Islands National Park (encompassing Santa Barbara,
Anacapa, Santa Cruz, Santa Rosa, and San Miguel Islands) and Channel Islands
National Marine Sanctuary (encompassing a 1252 square-nautical-mile area around
the islands) were established in 1980.
Despite the channel’s environmental significance, two mile-wide shipping
lanes run through the Santa Barbara Channel, one for southbound ships
approaching LA/LB, and one for northbound ships leaving LA/LB. The two adjacent
harbors of LA/LB form the nation’s largest port complex and one of its main
transportation arteries of consumer goods.[6] The fortunes of
both ports have soared during the past 40 years, reflecting the ascendency of China and corresponding shift in international shipping trade from the Atlantic to the Pacific Ocean. Indeed, in a span of little more than three decades between 1970 and 2002, China increased its share of U.S. imports from 8 to 40 percent.[7]
The bulk of this trade—dominated by high-value goods including furniture, apparel,
automobiles, and electronics—is shipped into the LA/LB ports, where it is then
transferred to a network of southern California warehouses.[8] From there, roughly half of the
cargo is sent outside the state for consumption.[9]
As a result of this rapid increase in shipping trade at LA/LB, the Santa
Barbara Channel today experiences some of the heaviest levels of commercial
maritime trade in the world. In 2006, it is estimated that there were more than
seven thousand ocean-going vessel (OGV) transits along Santa Barbara County’s coastline.[10] Although these
levels have declined in the wake of the global recession, levels of shipping
traffic are expected to double over the next fifteen years.[11]
Santa Barbara Channel shipping lanes in relation to Channel Islands
National Marine Sanctuary. Map: Jeff Boyd.
Whales and Ship Strikes in the Santa Barbara Channel
The increased shipping through the Santa Barbara Channel has unfortunately
come at a high price for local whale populations, most notably the blue whale,
which was hunted to the brink of extinction but now appears to be slowly
increasing its population numbers and expanding into historic habitats.
Believed to be the largest animal ever to have existed on earth, the blue whale
has developed a particular affinity for the channel and its dense populations
of krill, the species’ primary food source.
It is estimated that 380,000 blue whales were killed by whalers in the
twentieth century—largely for the manufacture of soap and margarine—resulting
in extirpation within some populations and reduction of others by more than 99
percent.[12] The carnage was
especially devastating in the Southern (Antarctic) Ocean, where it is estimated
that whalers killed 999 out of every 1000 blue whales in a span of less than
seventy years.[13]
By 1960, the blue whale was perched on the brink of extinction, a victim of
what author Dan Bortolotti describes as “[what] may have been the greatest war
humans have ever waged against an animal.”[14]
In 1966, the International Whaling Commission finally prohibited blue
whale hunting—although by this late date, the species was essentially
commercially extinct—and subsequently enacted a moratorium on commercial
hunting of all whale species that became effective in 1985.[15] On the domestic level, the blue
whale and several other large whale species have been listed as endangered
since enactment of the ESA. As recognized by the Supreme Court, “the plain
intent of Congress [in enacting the ESA] was to halt and reverse the trend
towards extinction, whatever the cost.”[16]
Accordingly, the listing of a species as threatened or endangered under the ESA
triggers a host of procedural and substantive protections. These protections
include a prohibition on “take” and a requirement that government agencies
ensure that their actions do not jeopardize the species’ continued existence.[17] The MMPA,
enacted in order to preserve and replenish marine mammal populations,
establishes a layer of “take” protections separate from those provided by the
ESA.[18] These
international and domestic protections have allowed many whale populations to
slowly recover.
The beginnings of this recovery have been evident in California generally
and the Santa Barbara Channel in particular. Sightings of blue, humpback, and
other whales were considered very rare prior to the hunting bans, and when
large groups of blues and humpbacks started showing up in the Santa Barbara
Channel in the early 1990s, even seasoned whale researchers considered the
opportunity to view the species a “once in a lifetime experience.”[19] Today, whale
watchers departing from Santa Barbara or Ventura Harbor during summer months
are essentially guaranteed to see several blues and humpbacks, as well as the
occasional fin whale (the second largest animal to have ever lived). As
many locals will attest with considerable pride, the Santa Barbara Channel now
boasts the world’s densest seasonal congregation of the blues.[20]
Unfortunately, in the mid-2000s, it became clear that the channel’s
importance for shipping and its importance for whales were literally on a
collision course. By this time, ship strikes had already been recognized as an
emerging threat to the blue whale and other large whale species for more than a
decade. One study documented 292 confirmed or possible ship strikes in North
American waters between 1975 and 2002.[21]
In the 1998 Blue Whale Recovery Plan prepared by the National Marine Fisheries
Service (NMFS) under the ESA, the agency identified ship strikes as a primary
threat and directed itself to identify and implement measures to reduce such
strikes.[22] In 2007, these
concerns came to a tragic head when blue whales lingered in the Santa Barbara
Channel longer than previous years, and within the space of three weeks in
October, at least four blue whales washed ashore as confirmed victims of ship
strikes.
Blue whale observations in relation to Santa Barbara Channel shipping
lanes, Fall 2007.
In the wake of these deaths, conservation organizations used various
avenues to request that federal wildlife officials institute protective mechanisms
including mandatory ship speed limits and adjustments to the established
shipping lanes.[23]
Frustrated at the lack of meaningful response, the Environmental Defense Center
on behalf of itself and the Center for Biological Diversity, Friends of the
Earth, and Pacific Environment, served NMFS in August 2009 with a formal notice
of intent to sue under the ESA for the agency’s failure to implement various
recovery plan provisions relating to ship strikes and other threats.[24]
The CARB Ocean Going Vessel Rule and Unintended Consequences
While these legal efforts are still pending, efforts by the State of California to better regulate air pollution from the shipping industry have unexpectedly
shifted vessel traffic outside of the channel’s designated shipping lanes. This
unintended shift in vessel traffic has forced the federal government to
carefully reexamine the regulation of shipping traffic into LA/LB.
OGVs typically utilize diesel engines that burn bunker fuel, which is
comprised of residual heavy materials that are left over after lighter materials
such as gasoline and diesel are distilled out from crude petroleum. These
bunker fuels contain extremely high levels of sulfur oxides (SOx) and other
pollutants known to cause cancer, respiratory illnesses, and increased risk of
heart disease. Reflecting the intensity of this pollution, more than 40 percent
of the nitrogen oxides (NOx) emissions in Santa Barbara County arise from OGVs
transiting the Santa Barbara Channel.[25]
In an effort to reduce the public’s exposure to SOx, NOx, diesel particulate
matter (PM), and secondarily formed PM from OGVs, CARB issued a regulation
known as the OGV Low Sulfur Fuel Rule on July 1, 2009. This rule is a central
facet of a larger CARB initiative intended to reduce cancer and other health
risks to communities near maritime ports, known as the Diesel Risk Reduction
Plan and Goods Movement Emission Reduction Plan. Culminating more than a decade
of work, the CARB rule mandates that OGVs, including container vessels,
tankers, bulk carriers, and car carriers, must utilize cleaner-burning,
lower-sulfur distillate fuels within twenty-four nautical miles (nm) of the California coast.[26]
The low sulfur distillate fuels mandated by CARB, not surprisingly, are
considerably more expensive than the heavy bunker fuels long utilized by the
shipping industry. Unfortunately, only a year after CARB’s rule was finalized,
it is clear that the large majority of OGVs have altered their routes into and
out of LA/LB in an effort to minimize their time spent within the twenty-four
nm regulatory zone during which they must burn these cleaner but more expensive
fuels. Instead of approaching the port via the designated shipping lanes within
the Santa Barbara Channel, most OGV traffic into LA/LB is now entering through
a gap between the northern and southern Channel Islands, known as the “western
approach.”[27]
This new and unregulated western approach is outside of all designated
shipping lanes and is squarely within the U.S. Navy’s Point Mugu Sea Range, where the military conducts extensive weapons, maritime, and ballistic missile
defense tests, as well as special operations and joint forces training.
Consequently, between October and December 2009, more than fifty-five ships
transiting the western approach were either diverted or asked to come to a
complete stop because of conflicts with naval training.[28]
Santa Barbara Channel shipping lanes and unregulated western approach in
relation to Point Mugu Sea Range Boundary and CARB 24 nm OGV Rule Zone. Map:
Curtis Bradley (modified from map originally produced by Captain Dick McKenna).
The Ports and Waterways Safety Act and the Coast Guard Port Access Route
Study Process
In response to the public safety and national security issues raised by
this new, unregulated approach, the USCG initiated a new PARS for the LA/LB
ports in April 2010. This serves as the first step in establishing new or
revised shipping lanes under the PWSA.[29]
Congress passed the PWSA in 1967 in reaction to the disastrous grounding
of the oil supertanker Torrey Canyon in the English Channel.
Although the USCG often refers to the PWSA as primarily a public safety
statute, from its first provision the law places equal and repeated emphasis on
protection of the “marine natural environment.” The PWSA expansively defines
“marine natural environment” to include the navigable waters of the United States and the land and resources within and under those waters, including the
seabed and subsoil of the Outer Continental Shelf, fishery resources, “and the
recreational, economic, and scenic values of such waters and resources.”[30]
The heart of the PWSA is its mandate that USCG “provide safe access
routes” through the establishment of shipping lanes, dubbed “Traffic Separation Schemes” (TSS).[31]
Like lanes on a paved road, TSSs are “aimed at the separation of opposing
streams of traffic.”[32]
Before establishing the TSS, the PWSA requires that the USCG “undertake a study
of the potential traffic density and need for safe access routes.”[33] This study, the
PARS, must ensure that “the need for safe access routes” is reconciled “with
the needs of all other reasonable uses of the area,” including the operation of
marine sanctuaries.[34]
The PWSA also mandates that the USCG consider nine specific factors “concerning
navigation and vessel safety and protection of the marine environment,”
including “environmental factors,” as part of the PARS process.[35]
Additionally, the PWSA mandates that the PARS be conducted under a
transparent process that involves a broad range of stakeholders, including the
Secretaries of State, Commerce, the Interior, and the Army, and the governors
of the affected states.[36]
The PWSA also specifically requires that USCG “consult with and receive and
consider the views of . . . representatives of environmental groups.”[37]
Ensuring Whale Conservation in the Los Angeles and Long Beach PARS Process
With its requirements of transparency, broad stakeholder involvement,
and protection of the marine environment, the PARS process provides an
important opportunity to ensure the conservation of large whales and other
wildlife in relation to shipping traffic within and in the vicinity of the
Santa Barbara Channel. USCG and NMFS recently illustrated this potential with
their cooperative PARS for the vicinity of the Boston Harbor. In an effort to
protect the critically endangered North Atlantic right whale, the agencies
amended shipping lanes and instituted mandatory speed limits—the first time in U.S. history that shipping lanes were altered to protect wildlife.[38] Measures adopted by USCG/NMFS included
narrowing and shifting the TSSs for both the northern and southern approaches
to the Boston Harbor, requiring ships to avoid seasonal use areas, and
instituting a seasonal speed limit of ten knots in key areas of right whale
habitat along the eastern seaboard.[39]
As a testament to its inherent but largely unfulfilled potential, the
PARS process has been identified as an appropriate vehicle for achieving the
goals of the Interagency Ocean Policy Task Force created by President Obama in
2009—specifically the concept of coastal and marine spatial planning (CMSP).[40] The Task Force
identifies numerous benefits to implementing a CMSP approach that overlaps with
the PWSA PARS requirements, including moving towards comprehensive decision
making; bringing federal, state, and tribal partners together; emphasizing stakeholder
and public participation; and placing science-based information at the heart of
decision making.[41]
Recognizing this overlap, the Task Force has highlighted the Boston Harbor PARS
as a model of CMSP. In doing so, it noted that the PARS process enabled NMFS,
USCG, and other agencies to “examine shipping needs, proposed deepwater
liquefied natural gas port locations, and endangered whale distribution in a
successful effort to reconfigure the Boston [TSS],” resulting in a greatly
reduced risk of ship strikes with minimal effects on shipping and other industries.[42]
The current LA/LB PARS process provides a similar opportunity to
carefully review the location of shipping lanes in order to improve whale
conservation within, and in the vicinity of, the Santa Barbara Channel. For
example, a recent study by leading blue whale biologists argues that minor
shifts in the location of existing lanes away from shelf edge habitats used by
blue whales in the central and eastern Santa Barbara Channel would reduce the
probability of ship strikes.[43]
In addition, under the PWSA, the USCG has the authority to institute shipping
speed limits similar to those instituted by NMFS on the East Coast. As an
agency dedicated to science-based conservation, NMFS’ active participation in
the LA/LB PARS process will be critical to ensuring that the best available
science concerning whale conservation measures are incorporated into USCG’s
decision making. Moreover, such participation will be necessary for NMFS to
fulfill its responsibility under the ESA and MMPA for protecting marine
mammals, as well as its mandate under the Blue Whale Recovery Plan to identify
and implement measures to reduce ship strikes.
In a recent court decision providing significant guidance on the scope
of the USCG’s duties under the PWSA, the D.C. Circuit held that several PARS
and subsequent TSS designations conducted on the East Coast were subject to the
ESA’s section 7 requirements.[44]
The court reasoned that “by giving the Coast Guard authority to promulgate
traffic separation schemes, Congress intended to make the Coast Guard
accountable for them.”[45]
As confirmed by the court in Defenders, this accountability includes
taking into account “all relevant factors concerning . . . protection of the
marine environment, . . . including but not limited to . . . environmental
factors,” such as the presence of large whales and other sensitive or imperiled
marine wildlife or natural resources, and therefore section 7 consultation was
required.[46]
Realizing the potential of the PARS process will ultimately depend
significantly on the USCG’s approach to implementing it. It remains unclear,
however, whether the USCG and cooperating agencies such as NMFS will embrace
this opportunity and fulfill their legal responsibility to fully incorporate
whale conservation into the Los Angeles and Long Beach PARS process. For
example, the agency’s Federal Register announcement noticeably neglected to
mention ship strikes or any other environmental issues, and did not reference
the numerous provisions of the PWSA mandating that environmental considerations
be central to its analysis. Organizations with an interest in whale
conservation as it relates to the shipping industry will need to remain vigilant
in order to ensure that the ultimate configuration of shipping lanes and
associated rules, such as speed limits, provide for the overdue protection of
large whales from ship strikes in the Santa Barbara Channel.
Whale struck and killed by ship in Santa Barbara Channel, October 2007.
Photo: Monica Bond.
* Brian Segee is a Staff Attorney with the Environmental Defense Center (EDC) in Santa Barbara. EDC is a
nonprofit law firm that primarily works within Santa Barbara, Ventura, and San Luis Obispo counties. EDC’s program areas include protecting coast and ocean
resources, open spaces and wildlife, and human and environmental health. I’d
like to thank Patagonia for helping fund our blue whale conservation work,
Travis Miller for his excellent research and editing assistance, and the
Coastal Fund and Associated Students at UCSB for providing funding for his
work.
[1] See Leslie
Abramson, Shiva Polefka, Sean Hastings & Kristen Bor, Channel Islands National Marine Sanctuary Advisory Council, Reducing the Threat of Ship Strikes on
Large Cetaceans in the Santa Barbara Channel Region and Channel Islands National Marine Sanctuary: Recommendations and Case Studies (2009).
[2] 16
U.S.C. § 1531 (2006).
[3] 16
U.S.C. § 1361 (2006).
[4] See 33 U.S.C. § 1223 (2006).
[5] See 33 U.S.C. § 1224 (2006).
[6] See Jon Haveman & David Hummels, California’s
Global Gateways: Trends and Issues, America’s Container Ports 1–2 (2009).
[7] See Haveman & Hummels, supra note
6, at vi.
[8] See World Port Source.
[9] See Haveman & Hummels, supra note
6, at 19.
[10]
See Terry Dressler, Tom Murphy & Anthony Fournier, Next Challenge on the Horizon: Air Pollution Emissions from
Ships 3 (2006).
[11]
See id.
[12] See Dan Bortolotti, Wild Blue: A Natural History of the World’s
Largest Animal 12–13, 34 (2008).
[13] See id. at 13.
[14] Id. at 44.
[15]
See id. at 81–82. For background on the
IWC and its formation, see Japan Whaling Ass’n v. American Cetacean Soc’y,
478 U.S. 221 (1986).
[16] TVA
v. Hill, 437 U.S. 153, 184 (1978).
[17] See 16 U.S.C. § 1538(a) (2006).
[18] See 16 U.S.C. §§ 1361(2), 1371(a)
(2006).
[19] Pete
Thomas, Out of the Blue, Humpbacks and Other Endangered Whale Species Making
Rare Appearances off Santa Barbara Coast, L.A.
Times, July 29, 1992.
[20] http://condorcruises.blogspot.com/
provides daily updates on whale sightings and abundance during the whale
watching seasons.
[21] See Aleria S. Jensen & Gregory K. Silber, U.S. Department of Commerce, Large Whale Ship Strike Database: NOAA
Technical Memorandum NMFS-OPR-25 (2004).
[22] See Randall R. Reeves et al., National Marine Fisheries Service, Recovery
Plan for the Blue Whale (Balaenoptera musculus) (1998).
[23] See, e.g., Center
for Biological Diversity, Petition for Emergency Rulemaking to Reduce the Risk
of Unlawful Take of Endangered Species (2007).
[24] Available at http://edcnet.org/learn/current_cases/save_the_whales/index.html.
[25]
See Santa Barbara County Air Pollution Control District. Comments on U.S. Coast Guard Port Access Route Study: Approaches to Los Angeles-Long Beach and in the Santa Barbara Channel. June
2, 2010. Available at: http://regulations.gov (Docket ID # USCG-2009-0765-0001).
[26] See 13 Cal. Code Regs. § 2299.2 (2010) (Standards for Fuels for Nonvehicular Sources); 17 Cal. Code Regs. § 93118.2 (2010) (Airborne Toxic Control Measures). The regulation is being
implemented in two phases: on July 1, 2009, OGVs were required to use marine
gas oil with a sulfur content of no more than 1.5 percent and marine diesel oil
with a sulfur content of no more than 0.5 percent; beginning on January 1,
2012, the sulfur limits are lowered to 0.1 percent for both marine gas oil and
marine diesel oil.
[27] Captain
Dick McKenna, Executive Director, Marine Exchange of Southern California,
Presentation to the Channel Islands National Marine Sanctuary (CINMS) Advisory
Council (SAC) (March 19, 2010) (on file with author).
[28] See John Ugoretz, Naval Marine
Biologist, Presentation to the Channel Islands National Marine Sanctuary
(CINMS) Advisory Council (SAC) (March 19, 2010) (on file with author). Although
the current shipping lanes are also within the Sea Range, the vast majority of
training exercises are conducted on the seaward side of the Channel Islands.
[29] See Notice of Study on the Approaches to Los Angeles-Long Beach and in the Santa Barbara Channel and Request for
Comments, 75 Fed. Reg. 17,562 (April 7, 2010).
[30] 33
U.S.C. § 1222(1) (2006); see also id. § 1221(a) (finding “that
navigation and vessel safety, protection of the environment, and safety and
security of United States ports and waterways are matters of major national
importance”); id. § 1221(b) (finding “that increased vessel traffic in
the Nation’s ports and waterways creates substantial hazard to life, property,
and the marine environment”); id. § 1221(c) (finding “that increased
supervision of vessel and port operations is necessary in order to reduce the
possibility of vessel or cargo loss, or damage to life, property, or the marine
environment”).
[31] 33
U.S.C. § 1223(c)(1).
[32] 33
C.F.R. § 167.5(b) (2010).
[33]
33 U.S.C. § 1223(c)(3)(A) (2006).
[34] Id. § 1223(c)(3)(B)–(C).
[35] Id. § 1224(a)(1)–(9).
[36] See id. § 1223(c)(3)(B).
[37] Id. § 1224(b)(1)–(9).
[38] See Allison Winter, NOAA Shifts Mass. Shipping Lanes to Aid Right Whales, Greenwire,
May 29, 2009.
[39] See Final Rule to Implement Speed Restrictions to Reduce the Threat of Ship Collisions with North Atlantic Right
Whales, 73 Fed. Reg. 60,173 (Oct. 10, 2008); Port Access Route Study of
Potential Routing Measures to Reduce Vessel Strikes of North Atlantic Right
Whales, 72 Fed. Reg. 64,968 (Nov. 19, 2007).
[40]
See Council on Environmental Quality, Interim Report of the Interagency Ocean Policy Task Force (2009).
[41]
See id.
[42] Council
on Environmental Quality, Interim Framework for Effective Coastal and Marine
Spatial Planning
(2009).
[43] See John Calambokidis, Erin M. Oleson & Megan F. McKenna, Examination of blue whale occurrence, behavior, and
reaction to ships in and around shipping lanes and insights into ship strikes,
2007-2009, 19 (2010) (in draft).
[44] See Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 926 (D.C. Cir. 2008).
[45] Id.
[46] Id. at 925 (citing PWSA, 33 U.S.C. §§ 1224(a),
1223(a)(1), 1223(c)(3)).
Copyright 2010 Brian P. Segee. All rights reserved.
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