- Federal Protections
- State of Alaska Protections
- International Protections
- Management Measures Implemented by NMFS
NOTE TO READER: The text below was included in the draft recovery plan developed by the CIBRT, with minor updates, as a detailed description of existing conservation efforts that cover CI belugas, although we note that existing measures have been inadequate to date to effectively ensure the recovery of CI belugas. We also note that this Appendix is not intended to provide an exhaustive review of every existing protective measure that may apply to threats that may be limiting CI beluga recovery. Other such protections not detailed here include federal statutes such as the Oil Pollution Act of 1990, Magnuson-Stevens Fishery Conservation and Management Act, and Outer Continental Shelf Lands Act; and state statutes such as the Anadromous Fish Act and Oil and Hazardous Substance Pollution Control Act. All of the information in this Appendix is reproduced from publicly available laws, reports, or other sources of information. In an effort to improve readability of the recovery plan and to give the reader the basic information necessary to understand the recovery criteria and actions, we removed the following text from the body of the document. However, we have preserved this text to present to readers interested in the details of the discussion.
The Department of Commerce, through the National Oceanographic and Atmospheric Administration’s (NOAA) NMFS, is charged with protecting whales, dolphins, porpoises, seals, and sea lions. Management responsibility for belugas in Alaska has been delegated by the Secretary of Commerce to NMFS, and NMFS Alaska Region (AKR) assumes primary responsibility for CI beluga recovery.
Walrus, manatees, otters, and polar bears are protected by the Department of the Interior through the U.S. Fish and Wildlife Service (USFWS). The Animal and Plant Health Inspection Service, a part of the Department of Agriculture, is responsible for regulations managing marine mammals in captivity.
The Marine Mammal Protection Act
All marine mammals in U.S. waters, including CI belugas, are federally protected under the MMPA of 1972, as amended. The MMPA established a national policy to prevent marine mammal species and population stocks in U.S. waters from declining to the point where they cease to be significant functioning elements of the ecosystems of which they are a part. The MMPA presents a single comprehensive federal program to take the place of formerly state-run programs, and includes protection for population stocks in addition to species and subspecies. Nowhere else in the world had a government made the conservation of healthy and stable ecosystems as important as the conservation of individual species.
The MMPA was enacted in response to increasing concerns that some marine mammal species or stocks may be in danger of extinction or depletion as a result of human activities and that measures should be taken to replenish these species or stocks so that they did not fall below their optimum sustainable population (OSP) level, thus resulting in a “depleted” population. The MMPA established the concept of OSP to ensure healthy ecosystems.
The MMPA prohibits, with certain exceptions, the “take” of marine mammals in U.S. waters and by U.S. citizens on the high seas, and prohibits the importation of marine mammals and marine mammal products into the U.S.
The MMPA has been amended several times since 1972, but the most substantial amendments were in 1994 and provided:
- Certain exceptions to the take prohibitions, including: small takes incidental to specified activities; when access by Alaska Natives to marine mammal subsistence resources can be preserved; and permits and authorizations for scientific research;
- A program to authorize and control the taking of marine mammals incidental to commercial fishing operations;
- Preparation of stock assessments for all marine mammal stocks in waters under U.S. jurisdiction; and
- Studies of pinniped-fishery interactions.
The MMPA is organized into five “titles.” Title I, Conservation and Protection of Marine Mammals, is the most comprehensive. Title I established a moratorium on the taking of marine mammals in U.S. waters. “Take” is defined by section 3(13) of the MMPA (16 U.S.C. § 1362(13)) as “to harass, hunt, capture, or kill or attempt to harass, hunt, capture, or kill any marine mammal.” Under the 1994 amendments to the MMPA, harassment is further defined as any act of pursuit, torment, or annoyance which:
- (Level A Harassment) has the potential to injure a marine mammal or marine mammal stock in the wild; or,
- (Level B Harassment) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering but which does not have the potential to injure a marine mammal or marine mammal stock in the wild.
The moratorium generally does not apply to Alaska Natives who live on the Alaskan coast. Section 101(b) of the MMPA (16 U.S.C. § 1371(b)) contains provisions allowing for take by Alaska Natives for subsistence use or to create and sell “authentic native articles of handicrafts and clothing” without permits or authorizations. However, the taking must not be “accomplished in a wasteful manner,” and the Secretaries of Commerce and the Interior may regulate the taking of a depleted species or stock, regardless of the purpose for which it is taken. Exceptions to the moratorium can be made through permitting actions for take incidental to commercial fishing and other nonfishing activities (section 118), for scientific research (section 104), and for public display at licensed institutions such as aquaria and science centers (section 104). The MMPA shifts the burden from resource managers to resource users to show that proposed taking of living marine resources will not adversely affect the resource or the ecosystem.
Section 115 of Title I requires that the Secretary of Commerce make a determination if a species or stock should be designated as depleted, or should no longer be designated as depleted, on the basis of the best scientific information available. For any species or stock designated as depleted under the MMPA and for which NMFS has management responsibility, section 115 also requires the Secretary of Commerce to prepare a Conservation Plan. Conservation Plans should be prepared as soon as possible for any species or stock designated as depleted. Each plan shall have the purpose of conserving and restoring the species or stock to its OSP. The MMPA requires that Conservation Plans to be modeled after recovery plans required under section 4(f) of the ESA of 1973. In May 2000, NMFS designated the CI beluga stock as depleted under the MMPA. In October 2008, NMFS published the Conservation Plan for the Cook Inlet Beluga Whale and identified 780 belugas as the OSP required to reconsider the depleted designation.
Section 119 of Title I (Marine Mammal Cooperative Agreements in Alaska) states that the Secretary may enter into cooperative agreements with Alaska Native organizations to conserve marine mammals and provide co-management of subsistence use by Alaska Natives. The MMPA also authorizes NMFS to implement subsistence harvest limits through regulation of depleted marine mammal stocks, following an administrative hearing on the record. In October 2000, NMFS proposed regulations to limit the beluga subsistence harvest in Cook Inlet, Alaska. An administrative hearing was held in December 2000, and interim subsistence harvest regulations for 2001 to 2004 were developed. In August 2004, a second administrative hearing was held to determine the long-term subsistence harvest regime. NMFS signed a co-management agreement with the CIMMC in 2005 and 2006, allowing two belugas to be successfully harvested in those years. In June 2008, NMFS published the Cook Inlet Beluga Whale Subsistence Harvest Final Supplemental Environmental Impact Statement (EIS); in September 2008, the record of decision associated with this EIS was signed. Final regulations governing long-term management of the subsistence harvest of CI belugas by Alaska Natives were published in October 2008.
Title II established the Marine Mammal Commission (MMC), an agency of the U.S. Government responsible for providing independent oversight of the marine mammal conservation policies and programs being carried out by federal regulatory agencies. The MMC is charged with the following duties:
- Undertake a review and study of the activities of the United States pursuant to existing laws and international conventions relating to marine mammals, including, but not limited to, the International Convention for the Regulation of Whaling, the Whaling Convention Act of 1949, the Interim Convention on the Conservation of North Pacific Fur Seals, and the Fur Seal Act of 1966.
- Conduct a continuing review of the condition of the stocks of marine mammals, of methods for their protection and conservation, of humane means of taking marine mammals, of research programs conducted or proposed to be conducted under the authority of the MMPA, and of all applications for permits for scientific research, public display, or enhancing the survival or recovery of a species or stock.
- Undertake or cause to be undertaken such other studies as it deems necessary or desirable in connection with its assigned duties as to the protection and conservation of marine mammals.
- Recommend to the Secretary of Commerce and to other federal officials such steps as it deems necessary or desirable for the protection and conservation of marine mammals.
- Recommend to the Secretary of State appropriate policies regarding existing international arrangements for the protection and conservation of marine mammals and suggest appropriate international arrangements for the protection and conservation of marine mammals.
- Recommend to the Secretary of Commerce such revisions of the endangered species list and threatened species list published pursuant to section 4(c)(1) of the ESA of 1973 as may be appropriate with regard to marine mammals.
- Recommend to the Secretary of Commerce, other appropriate federal officials, and Congress such additional measures as it deems necessary or desirable to further the policies of the MMPA, including provisions for the protection of the Indians, Eskimos, and Aleuts whose livelihood may be adversely affected by actions taken pursuant to the MMPA.
The MMC is primarily an oversight and advisory body. Although federal agencies are not required to adopt the MMC’s recommendations, the MMPA specifies that an agency that declines to follow any such recommendations is required to provide detailed written explanations to the MMC within 120 days.
Title III of the MMPA focuses on the International Dolphin Conservation Program. Title IV is the origination of the Marine Mammal Health and Stranding Response program, and includes information about stranding response agreements, the National Marine Mammal Tissue Bank, and the John H. Prescott Marine Mammal Rescue Assistance Grant Program. Title V is dedicated to polar bears.
The Endangered Species Act of 1973
Congress passed the ESA on December 28, 1973, recognizing that the natural heritage of the United States was of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people” (ESA section 2(a)(3)). It was understood that, without protection, many of our nation’s living resources would become extinct. The ESA provides for the conservation of species that are endangered or threatened throughout all or a significant portion of their range, and the conservation of the ecosystems on which they depend. The USFWS and NMFS share responsibility for implementing the ESA. There are more than 1,900 species listed under the ESA. NMFS is responsible for 74 marine species, including CI belugas.
A species is considered endangered if it is in danger of extinction throughout all or a significant portion of its range. A species is considered threatened if it is likely to become endangered in the foreseeable future. The listing of a species as endangered makes it illegal to “take” (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to do these things) that species (ESA section 9(a)(1)). Similar prohibitions are usually extended to threatened species. Federal agencies may be allowed limited take of species through interagency consultations with NMFS or USFWS. Non-federal individuals, agencies, or organizations may have limited take through special permits under conservation plans. Effects to the listed species must be minimized, and in some cases conservation efforts are required to offset the take. The NMFS Office of Law Enforcement works with the U.S. Coast Guard and other partners to enforce and prosecute ESA violations.
NMFS conserves and recovers marine resources by implementing the different programs provided for by the ESA. The ESA is divided into 18 sections; only a few will be highlighted here, with emphasis placed on sections 4, 6, and 7.
Under the authority provided by section 4 of the ESA (Determination of Endangered Species and Threatened Species), NMFS lists species as endangered or threatened, designates critical habitat, and develops and implements recovery plans for listed species. NMFS conducts periodic reviews of species to ensure that they are listed appropriately. Because the ESA requires such reviews to be conducted at least once every five years, these reviews are referred to as five-year reviews. Section 4(f) of the ESA directs NMFS to develop and implement recovery plans for threatened and endangered species, unless such a plan would not promote conservation of the species. According to the statute, these plans must incorporate, at a minimum:
- A description of site-specific management actions necessary to achieve the plan’s goal for the conservation and survival of the species;
- Objective, measurable criteria which, when met, would result in a determination that the species may be removed from the list; and
- Estimates of the time and cost required to carry out those measures needed to achieve the plan’s goal and to achieve intermediate steps toward that goal.
The NMFS is authorized to procure the services of public and private entities to assist in the development and implementation of recovery plans, including the appointing of recovery teams. Many, but not all, recovery plans are written by recovery teams and, in some cases, implementation of plans is guided by recovery teams. NMFS has made a concerted effort in recent years to include representative stakeholders (those with an interest in the species) on recovery teams and to involve the public in recovery planning. All recovery plans are made publically available in draft form and public comments are solicited before the plan is finalized, ensuring that the public has an opportunity to provide input in the recovery planning process. Implementation of recovery actions is the responsibility of all Americans, but tends to fall largely on federal, state and local agencies, tribes, interested organizations, and individuals within the range of the species.
Section 6 of the ESA (Cooperation with States) provides a mechanism for cooperation between NMFS and states in the conservation of threatened, endangered, and candidate species. NMFS is authorized to enter into agreements with any state that establishes and maintains an “adequate and active” program for the conservation of endangered and threatened species. Once a state enters into such an agreement, NMFS is authorized to assist in, and provide federal funding for, implementation of the state’s conservation program. In 2009, the State of Alaska and NMFS formalized a limited cooperative conservation partnership agreement[/simple_tooltip for the conservation and protection of endangered and threatened species pursuant to section 6 of the ESA. 32 This agreement gives the State of Alaska eligibility to compete against other states for section 6 funding under the Species Recovery Grant Program, an annual national competition. This federal grant funding is to be used to support management, outreach, research, and monitoring projects that have direct conservation benefits for listed species, recently de-listed species, and candidate species that reside within that State. To date, no funding has been awarded to the State of Alaska specifically for CI belugas under this program. Section 6 of the ESA also allows state laws to be more restrictive than the ESA regarding taking of listed species; however, state laws cannot be less restrictive.
Section 7 of the ESA (Interagency Cooperation) requires federal interagency cooperation as another means to conserve federally listed species and designated critical habitat. Section 7(a)(1) requires NMFS to review other programs administered by NMFS and utilize such programs to further the purposes of the ESA. It also directs all other federal agencies to utilize their authorities in furtherance of the purposes of the ESA by carrying out programs for the conservation of listed species. Under section 7(a)(2), federal agencies must consult with NMFS on activities that may affect a listed species or its designated critical habitat. These interagency, or section 7, consultations are designed to assist federal agencies in fulfilling their duty to ensure any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. In fulfilling these requirements, each agency must use the best scientific and commercial data available.
Section 8 (International Cooperation) allows NMFS to partner with other nations to ensure that international trade does not threaten species. Section 9 (Prohibited Acts) addresses enforcement of the ESA and investigations of violations. Section 10 (Exceptions) allows NMFS to cooperate with non-federal partners to develop conservation plans for the long-term conservation of species, as well as permitting research to learn more about protected species. States, local agencies, and private entities may conduct conservation actions as a means to minimize or mitigate incidental take of a species as part of a Conservation Plan under section 10 of the ESA. Any entity or individual may also take proactive measures to promote recovery of listed species, although some of these activities may require a section 7 consultation or section 10 permit.
The Fish and Wildlife Coordination Act
The Fish and Wildlife Coordination Act (FWCA) of 1934 (16 U.S.C. 661 et seq.), as amended, requires that fish and wildlife resources receive equal consideration to other project features and that all federal agencies consult with NMFS, USFWS, and state wildlife agencies when proposed actions might result in modification of a natural stream or body of water. Thus, FWCA provides the basic authority for NMFS and USFWS involvement in evaluating impacts to fish and wildlife from proposed water resource development projects.
Specifically, consultation is required in instances where the “waters of any stream or other body of water are proposed or authorized, permitted or licensed to be impounded, diverted, or otherwise controlled or modified” by any agency under a federal permit or license. The purpose of the consultation is to prevent “loss of and damage to wildlife resources” by determining the possible harm to fish and wildlife resources, and the measures that are needed to both prevent the damage to and loss of these resources, and to develop and improve the resources, in connection with water resource development.
FWCA allows NMFS to submit comments and recommendations to federal licensing and permitting agencies and to federal agencies conducting construction projects on the potential harm to living marine resources caused by the proposed water development project, and submit recommendations to prevent harm. NMFS routinely provides comments to the Corps during review of projects under section 404 of the Clean Water Act (CWA) (governing the discharge of dredged materials into navigable waters) and section 10 of the Rivers and Harbors Act of 1899 (governing obstructions in navigable waterways).
The Coastal Zone Management Act of 1972
The U.S. Congress recognized the importance of meeting the challenge of continued growth in the coastal zone by passing the Coastal Zone Management Act (CZMA) (16 U.S.C. 1451 et seq.) in 1972. The Act, administered by NOAA’s Office of Ocean and Coastal Resource Management, provides for management of the nation’s coastal resources, including the Great Lakes, and balances economic development with environmental conservation.
The CZMA outlines two national programs, the National Coastal Zone Management Program and the National Estuarine Research Reserve System. The coastal programs aim to balance competing land and water issues in the coastal zone, while estuarine reserves serve as field laboratories to provide a greater understanding of estuaries and how humans impact them. Through the CZMA, Congress declared it is national policy “to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations.”
The National Coastal Zone Management Program is a voluntary partnership between the federal government and U.S. coastal and Great Lake states and territories authorized by the CZMA to address national coastal issues. The CZMA provides the basis for protecting, restoring, and responsibly developing our nation’s diverse coastal communities and resources. To meet the goals of the CZMA, the National Coastal Zone Management Program takes a comprehensive approach to coastal resource management—balancing the often competing and occasionally conflicting demands of coastal resource use, economic development, and conservation. Some of the key elements of the National Coastal Zone Management Program include:
- Protecting natural resources;
- Managing development in high hazard areas;
- Giving development priority to coastal-dependent uses;
- Providing public access for recreation; and
- Coordinating state and federal actions.
In 2015, 34 states and territories had approved coastal management programs that address a wide range of issues, including coastal development, water quality, public access, habitat protection, energy facility siting, ocean governance and planning, coastal hazards, and climate change. By using both federal and state funds, the program strengthens the capabilities of each partner to address coastal issues. While the Act includes basic requirements for state partners, it also gives them the flexibility to design programs that best address their unique coastal challenges and laws and regulations.
The Alaska Coastal Management Program (ACMP) was discontinued July 1, 2011. This program was previously under the Alaska Department of Natural Resource’s Division of Coastal and Ocean Management, and set forth statewide standards governing natural resource development and conservation in Alaska’s coastal zones, including specific standards for habitats and subsistence. Section 307 of the CZMA requires the state to review most federal activities and federally-permitted activities affecting resources within the state’s coastal zone and to ensure that state-permitted activities are consistent with standards and policies of the ACMP. However, on May 14, 2011, the Alaska State Legislature adjourned a special legislative session without passing legislation necessary to extend the ACMP (AS 44.66.030). Alaska is the only coastal state in the United States without a Coastal Management Program.
The Clean Water Act
The primary objective of the Federal Water Pollution Control Act of 1948, more commonly known as the Clean Water Act (CWA), is to restore and maintain the chemical, physical, and biological integrity of the nation’s surface waters. The EPA is the federal agency responsible for creating and enforcing national water quality regulations under the CWA. The CWA regulates the discharges of pollutants into the waters of the U.S., and in doing so, is aimed at ensuring that the Nation’s waters are fishable, swimmable, and drinkable.
The EPA, the Corps, and the State of Alaska all have a role in the implementation and enforcement of the CWA in Alaska. Section 303(d) of the CWA requires states to prepare a list of all impaired waters within their jurisdiction. The State of Alaska’s Department of Environmental Conservation (ADEC) assesses the quality of Alaska’s water bodies by utilizing a multi-agency task force, and reviews information provided on water bodies through a nomination and public solicitation process. Each nominated water body is then analyzed to determine if the existing protections are sufficient to meet water quality, water quantity, and habitat needs. These reviews occur every two years, and, after a public review, the assessments are presented to the EPA for approval.
Section 401 of the CWA requires that any applicant for a federal permit that may result in effluent being discharged into navigable waters must first be granted certification by the state that the proposed action will not violate state water quality standards. Such certification will define effluent limitations and monitoring requirements necessary for ensuring that: 1) the water quality sections of the CWA are upheld, and 2) applicable state laws are complied with. These requirements are to be incorporated as requirements in the federal permit. The purpose of this section is to allow the states, who define water quality standards, the opportunity to ensure that the Federal permits issued are protective of the designated use(s) of the receiving waters. Thus, this section gives significant authority to the states to have a say in compliance with water quality issues for waters within their jurisdiction.
Section 402 of the CWA requires that all discharges to surface waters be permitted under the National Pollutant Discharge Elimination System (NPDES) permit program. All dischargers from point sources are required to obtain a permit from the EPA under the NPDES program, which outlines effluent limitations based on two levels of control: technology-based criteria and water quality-based criteria. The more stringent of the two criteria apply. Discharging without an NPDES permit is unlawful. The CWA allows for states to implement (to have “primacy” for) the NPDES program with the EPA acting in an oversight role. The State of Alaska’s application for a state-run section 402 program was approved by the EPA on October 31, 2008. The State of Alaska’s program is referred to as the Alaska Pollutant Discharge Elimination System Program (APDES). The transfer of authority for permitting, compliance, and enforcement of the section 402 program to the ADEC includes an implementation plan that transfers the administration of specific program components from EPA to the ADEC in phases over a multi-year period. Phases I–III have successfully transferred from EPA to ADEC. Transfer of the final phase, Phase IV, was scheduled for October 31, 2011. In March 2011, ADEC proposed a one year extension of the transfer of Phase IV. ADEC assumed full authority to administer the wastewater and discharge permitting and compliance program for Alaska on October 31, 2012.
Section 404 prohibits the discharge of dredged or fill material into the waters of the U.S., including wetlands, without specific authorization from the Federal Government. Section 404 of the CWA describes how such discharge is to be regulated and authorized. A primary goal of this section is the preservation of the nation’s wetlands. The EPA is responsible for general oversight of the program, while the Corps issues the permits authorizing discharge of dredged or fill materials into navigable waters of the United States, including wetlands. The EPA may authorize states to issue 404 permits (but the EPA/Corps still retain section 404 authority in the State of Alaska). All authorized discharges must avoid and minimize, to the extent practicable, adverse impacts to wetlands, streams, and other aquatic resources. If impacts are unavoidable, then the Corps may require the permittee to replace the loss of the function of that wetland or resource in the form of compensatory mitigation.
In Alaska, NMFS provides direct consultations to the EPA and the Corps regarding impacts to marine mammals, fish, and their habitats as a result of proposed activities and methods for avoiding such impacts.
Treaty Trust Responsibilities
The NMFS must also consider treaty trust responsibilities to recognize the rights and authorities of tribes related to the ESA and CI beluga recovery. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) outlines the responsibilities of the Federal Government in matters affecting tribal interests. In addition, Secretarial Order “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” outlines NMFS’s responsibilities regarding Indian tribal rights and federal trust responsibilities when implementing the ESA.
State of Alaska Protections
In addition to the State of Alaska’s involvement under the federal laws previously discussed, the State also has regulatory protections in place to protect the habitat of belugas, as well as other fish and wildlife populations. Article 8 of the Alaska Constitution (“Natural Resources”) outlines the framework for management of Alaska’s renewable resources and emphasizes Alaska’s regard for its natural resources.
The ADF&G is responsible for determining and maintaining a list of endangered species in Alaska under Alaska Statute 16.20.190. A species or subspecies of fish or wildlife is considered a State of Alaska endangered species when the Commissioner of ADF&G determines that its numbers have decreased to such an extent as to indicate that its continued existence is threatened. The State Endangered Species List does not currently include CI belugas, although ADF&G has designated the belugas in Cook Inlet as a “species of special concern.” This designation provides ADF&G with management responsibility and authority that includes: habitat management and guidelines; monitoring; information gathering and dissemination; management research on beluga prey species including Pacific salmon; and the recommendation and imposition of mitigation requirements on state-regulated activities. Because the species of special concern list has not been reviewed or revised since 1998, as of August 15, 2011, ADF&G instead uses the Alaska Comprehensive Wildlife Conservation Strategy (a.k.a. the Wildlife Action Plan) for management of species with conservation concerns, including CI belugas. The Wildlife Action Plan, finalized in August 2005 and updated since, contains conservation measures, including co- management with Alaska Native populations and cooperation with other government agencies for the protection and conservation of wildlife, including CI belugas. The Plan also provides the basis for the development of stipulations or conditions on State-issued permits to protect belugas and their habitat.
More than 15 million acres of protected land surrounding Cook Inlet, including State game refuges, critical habitats, and special legislated management areas, support healthy populations of fish on which belugas prey. Each of these protected areas has a detailed management plan in effect that incorporates management guidelines, regulations, and permit stipulations implemented by Alaska’s resource conservation agencies.
Many of the municipal governments of the communities within the Cook Inlet watershed have also enacted laws and regulations affecting land use, development, and other matters providing important local protection.
The Convention on International Trade in Endangered Species of Wild Fauna and Flora
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is a voluntary international agreement among governments. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival. The CITES was drafted as a result of a resolution adopted in 1963 at a meeting of members of the International Union for the Conservation of Nature and Natural Resources (IUCN) and finalized in 1975.
Countries that have agreed to be bound by CITES are known as Parties. The treaty now has 166 Parties, including the United States. Although CITES is legally binding on the Parties, it does not take the place of national laws, but instead provides a framework to be respected by each Party, which has to adopt its own domestic legislation to ensure that CITES is implemented at the national level. All import, export, re-export, and introduction of species covered by the Convention has to be authorized through a licensing system.
The structure of CITES is similar to the ESA, in that species are listed in appendices according to their conservation status. However, listed CITES species must also meet the test that trade is at least in part contributing to their decline. The CITES regulates international trade in species of animals and plants according to their conservation status, and does not protect species from other factors that may contribute to a species’ decline, as would the ESA.
CITES lists the species covered in three appendices according to the degree of protection needed. CITES Appendix I includes species threatened with extinction. Trade in specimens of these species is permitted only in exceptional circumstances. CITES Appendix II includes species not necessarily threatened with extinction, but in which trade must be controlled in order to avoid utilization incompatible with their survival. CITES Appendix III contains species that are protected in at least one country that has asked other CITES Parties for assistance in controlling the trade. Countries may unilaterally list species for which they have domestic regulation in CITES Appendix III at any time. Decisions concerning CITES Appendix I and II species listings and resolutions are made at meetings of the Conference of the Parties, which are convened approximately every two years.
For the United States, the USFWS is the lead agency for implementation of the Convention since the bulk of CITES-listed species are under USFWS jurisdiction. However, many species under the jurisdiction of NMFS are also listed, either on CITES Appendix I or II. CI belugas are listed in CITES Appendix II.
The International Union for the Conservation of Nature and Natural Resources
The International Union for the Conservation of Nature and Natural Resources, commonly referred to as the IUCN or World Conservation Union, is the oldest and largest global environmental organization. The IUCN is composed of over 1,200 member organizations, of which more than 200 are government groups, including NOAA. The IUCN Red List assesses the extinction risk of species with the overall aim “to convey the urgency and scale of conservation problems to the public and policy makers, and to motivate the global community to work together to reduce species extinctions.”
The IUCN classified CI belugas as “critically endangered” in 2006 having met IUCN criterion C2a(ii): “The population is estimated to number 207 mature individuals. There is a 71% probability that the growth rate of the population is negative, with the best estimate indicating that the population is declining by 1.2% per year. All of the mature individuals are in one subpopulation.”
Management Measures Implemented by NMFS
The following discussion describes several of the protective management measures implemented by NMFS for CI belugas. See Appendix A. for a summary of federal regulations specifically related to CI belugas.
Subsistence Harvest Management
The MMPA authorizes NMFS, acting on behalf of the Secretary of Commerce, to implement subsistence harvest limits through regulation of depleted marine mammal stocks, following an administrative hearing on the record. In accordance with Public Laws 106–31 (1999) and 106– 553 (2000), the annual subsistence harvest of CI belugas is allowed only under cooperative management agreements between NMFS and affected Alaska Native organizations. On October 4, 2000, NMFS proposed regulations to limit the beluga harvest in Cook Inlet, Alaska. An administrative hearing was held in December 2000 and interim harvest regulations for 2001 to 2004 were developed and published in the Federal Register in 2004. These interim harvest regulations allowed for a limited harvest (1–2 belugas annually), regulated the use of beluga products, and established requirements for the harvests within a co-management agreement. With the collection of more information pertaining to CI belugas, a second administrative hearing was held in August 2004 to determine the long-term harvest regime (2005 and subsequent years, until the population recovered).
Following the long-term harvest plan as recommended by the administrative law judge, NMFS signed a co-management agreement with CIMMC in 2005 and 2006 for the harvest of CI belugas, which resulted in two belugas harvested in 2005. NMFS published the Cook Inlet Beluga Whale Subsistence Harvest Final Supplemental Environmental Impact Statement in June 2008 (NMFS 2008b; 73 FR 60976), in which four harvest alternatives were considered. A Record of Decision and harvest regulations were published in October 2008, and provide a subsistence harvest plan for Alaska Natives until the CI beluga stock recovers.
CIMMC was disbanded by unanimous vote by the CIMMC member Tribes’ representatives on June 20, 2012. CIMMC was the only Alaska Native organization to obtain a co-management agreement with NMFS for CI beluga subsistence harvest. Currently, NMFS has no co- management agreements with any Alaska Native organization pertaining to CI belugas. This lack of a co-management agreement for CI belugas precludes the authorization of subsistence harvest of this stock.
Project Review, Environmental Analyses, and Mitigation Identification
Any action that may “take” a CI beluga requires authorization from NMFS under the MMPA and ESA (i.e., via an Incidental Harassment Authorization [IHA] or Letter of Authorization [LOA] as per the MMPA, or by an Incidental Take Statement [ITS] as per the ESA). MMPA authorizations for take can only be granted if an activity, by itself or in combination with other activities, would not cause a significant adverse impact on the stock. ESA authorization for take can only be issued if such take does not jeopardize the continued existence of the species or destroy or adversely modify designated critical habitat. NMFS works with agencies and applicants to determine whether their actions could harm CI belugas or damage habitats essential to their survival and to identify measures to avoid or minimize possible adverse effects. In addition to MMPA and ESA reviews, activities with authorized takes are analyzed under the National Environmental Policy Act (NEPA).
Research projects may be conducted at federal, state, and/or private levels. Any research that may take a CI beluga requires authorization under the MMPA and ESA. NMFS will continue to provide specific recommendations under its authorities provided by the MMPA, ESA, and FWCA to minimize and mitigate effects of anthropogenic actions in an effort to conserve CI belugas.
From what is known about the hearing sensitivity of belugas and the movements, distribution, and habitat use of CI belugas, the ESA and MMPA require steps be taken to minimize the likelihood of noise adversely impacting these whales and to minimize the possibility of injury or possible abandonment of critical habitats. NMFS regularly reviews and comments on applicable permits and recommends specific conditions to reduce or avoid potential impacts from noise. Mitigation measures may be incorporated into project permits to avoid incidental taking of belugas. Such taking is prohibited by the MMPA and ESA, unless authorized by NMFS. NMFS has developed comprehensive guidance on sound levels likely to cause injury to marine mammals through onset of permanent and temporary threshold shifts (PTS and TTS; Level A harassment) (81 FR 51694; August 4, 2016). NMFS is in the process of developing guidance for behavioral disruption (Level B harassment). However, until such guidance is available, NMFS uses the following conservative thresholds of underwater sound pressure levels, expressed in root mean square (rms), from broadband sounds that cause behavioral disturbance, which is referred to as Level B harassment under section 3(18)(A)(ii) of the Marine Mammal Protection Act (MMPA): 120 dB re 1μParms for continuous sound or 160 dB re 1 μParms for impulsive sound. Under the PTS/TTS Technical Guidance, NMFS uses thresholds for underwater sounds that cause injury, which is referred to as Level A harassment under section 3(18)(A)(i) of the MMPA (NMFS 2016). These acoustic thresholds are presented using dual metrics of cumulative sound exposure level (LE) and peak sound level (PK) for impulsive sounds and LE for non-impulsive sounds (see NMFS 2016).