NOAA has agreed to conduct a status review to determine if Puget Sound’s killer whales should remain on the Endangered Species List.

The agency received a petition from the Pacific Legal Foundation, which claims that the three Southern Resident pods should be considered just a part of a larger population of orcas. According to the PLF, the Southern Residents do not meet the legal definition of “species” that qualifies them for listing:

“The term ‘species’ includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”

The 62-page PLF petition (PDF 384 kb) — filed on behalf of three parties, including California farmers — argues from a carefully constructed legal analysis that says NOAA should never have listed the Southern Residents in the first place.

When I first read the petition in August, I believed it was just an effort to rehash the legal arguments that NOAA went through during the listing process, following a federal court order in 2003. But NOAA apparently sees things differently, according to a news release issued yesterday:

“NOAA said the petition presents new information from scientific journal articles about killer whale genetics, addressing issues such as how closely related this small population is to other populations, and meets the agency’s standard for accepting a petition to review.”

NOAA apparently is taking a close look at a 2010 study led by Malgorzata Pilot, which was used by the petitioners to argue that the Southern Residents are not genetically isolated. From the petition:

“The significance of the findings of Pilot et al. (2010) is threefold.

“First, they demonstrate with data that social interactions among killer whale pods do occur in the wild and they occur more frequently than has been reported (i.e., many interactions are simply ‘missed’ by human observers who cannot watch a vast area of ocean to take note of killer whale pod interactions, 24 hours a day, 7 days a week, year round)….

“Second, Pilot et al. (2010) explain why inbreeding is not a problem even though killer whales rarely disperse outside of natal pods….

“Third, Pilot et al. (2010) explain why mtDNA haplotypes (groups of genes that are inherited together by an organism from a single parent) can be highly divergent among ecotypes but not nuclear DNA markers….Therefore, if only mtDNA is considered in an analysis, the loss of mtDNA variation in populations (also referred to as lineage sorting) can give an erroneous appearance of populations (and putative species) being genetically isolated because they are trying to maintain taxonomic differences while at the same time ecotypes and populations are not isolated for nuclear genetic variation.”

Sorry if that’s a little technical, but it shows why NOAA decided to take up to an additional nine months to decide if the petitioners have a case based on arguments about genetic isolation. Are the Southern Residents a distinct population segment of the overall species?

The petitioners argue that NOAA improperly declared the Northern Pacific killer whales (Northern and Southern Residents) as a subspecies, making the Southern Residents a DPS of a subspecies — which, they argue, is illegal under the Endangered Species Act.

In response to NOAA’s status review, the Center for Biological Diversity, which fought the first legal battle over the listing, issued a news release saying that nothing has changed in the realm of science. The population qualifies as a DPS, because it is one of only a few to feed extensively on salmon; it has a unique dialect; and it is genetically unique.

Stated Sarah Uhlemann, an attorney at the Center for Biological Diversity:

“It would be a tragedy to strip Washington’s most iconic species of protections. Only around 85 southern resident killer whales are left, and their Endangered Species Act listing is critical to the population’s recovery in Puget Sound.

“Nothing has changed in the science to show that orcas are faring any better or are somehow suddenly undeserving of endangered species protections. Although the agency’s decision to consider the delisting petition is unfortunate, the species’ status is unlikely to change as a result of the agency’s review, and these irreplaceable killer whales will almost certainly keep their protections.”

Other news stories on NOAA decision to review the listing:

Bill Sheets, The Herald, Everett: “Calif. farms challenge state orcas’ endangered status”

Linda Mapes, Seattle Times, “California farmers want orcas taken off endangered-species list”

Meanwhile, in terms of classifying orcas, there is an ongoing effort to include captive killer whales among the population listed as endangered. See Water Ways, Oct. 24, 2010.

And there’s a new story by Associated Press reporter Dan Joling, who writes about an effort to declare transient killer whales a new species and name them for the late Michael Bigg, a killer whale researcher who developed today’s common method for identifying individual orcas.

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A dozen environmental groups say they will boycott the nine “scoping meetings” the Navy is holding to kick off a new round of studies regarding testing and training activities in the Northwest.

In a letter dated March 13 (PDF 16 kb), the groups said the format of the meetings is not designed to encourage public discussion or even allow public comment. In addition, the Navy and the National Oceanic and Atmospheric Administration have ignored ongoing calls for the Navy to better protect marine wildlife and the environment along the Washington Coast and other biologically important areas, they say.

Navy's Northwest testing and training ranges. Click to enlarge.
Map by U.S. Navy

The Navy will seek a new permit from NOAA for the incidental harassment of marine mammals during testing and training activities. Most of the activities are identical to what is taking place now, but some new activities are added — including the testing of sonar from ships docked at piers.

Between now and 2015, Navy officials will describe and study the effects of various activities on marine life and update existing mitigation with new research findings. See my initial story in the Kitsap Sun, Feb. 27, and a related post in Water Ways, March 6. Also, you may review the official notice in the Federal Register.

Back to the letter, which states in part:

“As you know, the scoping process is the best time to identify issues and provide recommendations to agencies on what should be analyzed in the EIS. However, a process developed for activities with controversial impacts, like those at issue here, that does not provide opportunity for the public to testify or speak to a broader audience, or to hear answers to questions raised by others, and that fails to engage major population centers is not designed to help citizens and organizations effectively participate in agencies’ environmental reviews.”

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I’m willing to stand corrected, but I cannot recall a time when there has been so much activity related to the use and abuse of pesticides around water.

In a story written for Monday’s Kitsap Sun, I reported about the permitting activity to comply with the Clean Water Act at both the state and federal levels. I did not, however, get into some significant and surprising activities related to the Endangered Species Act, which I will discuss here in a moment.

I think it’s becoming fairly well recognized that chemicals successful at killing target plants and animals may have unwanted and uncertain effects on plants and animals that we would like to protect. Unfortunately, state and federal regulations have not always kept pace with scientific findings.
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Changes are in the wind for the powerful Clean Water Act, as officials with the Environmental Protection Agency prepare to step up enforcement to protect the nation’s water supplies.

Regulatory and even legislative changes are in the works, and the law could become a tool in dealing with greenhouse gases related to climate change.

Coming Together

The latest signal that something is afoot is the launch of a new blog this week by the EPA. It is called “Coming Together for Clean Water.”

The EPA is “seeking public input on how the agency can better protect and improve the health of our waters…” according to a news release. “The feedback received on the online forum will help shape the discussion at EPA’s upcoming conference in April, ‘Coming Together for Clean Water,’ where we will engage approximately 100 executive and local level water leads on the agency’s clean water agenda.”

Three topics are mentioned: “The Watershed Approach,” “Managing Pollutants from Nutrients,” and “Stormwater Pollution.”

It is interesting to see how people in various parts of the country are responding to these topics and how local issues play into the national overview. Some folks seem fairly alarmed and are demanding that the EPA take firm actions. Others have responded by spelling out technical solutions or offering case studies about how the EPA has failed in the past.

Enforcement plan

In October, the EPA released what is now called the Clean Water Act Action Plan. It calls for greater and more consistent enforcement nationwide of the clean water law under three strategies:
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Washington state has been established as a test case for regulating greenhouse gases through the federal Clean Water Act.

A lawsuit brought yesterday by the Center for Biological Diversity is the first legal case to assert that the Environmental Protection Agency must take action under a water law to reduce carbon dioxide in the air and ultimately save sea creatures.

“Ocean acidification is global warming’s evil twin,” said Miyoko Sakashita, an attorney with the Center for Biological Diversity in San Francisco. “The EPA has a duty under the Clean Water Act to protect our nation’s waters from pollution. Today, CO2 is one of the biggest threats to our ocean waters.”
Click here to download the legal filing (PDF 192 kb).

Sakashita told me that Washington state was chosen as the first case because studies have revealed particular problems with ocean acidity along the West Coast. Also, the Washington Department of Ecology recently updated its list of impaired water bodies without mentioning the acidity problem. And EPA endorsed that list.

A study published in the journal “Science” suggests that the upwelling of ocean waters along the West Coast could increase acidification faster than other parts of the county.

A separate study in the Proceedings of the National Academy of Sciences confirms links between acidity in the ocean and atmospheric carbon dioxide. That study also describes effects on the ecosystem, including a bleak future for shelled organisms, including mussels.

“Our results indicate that pH decline is proceeding at a more rapid rate than previously predicted in some areas, and that this decline has ecological consequences for near-shore benthic ecosystems,” states a summary of the report.

Scientists have expressed concerns that ocean acidification could have serious consequences for a variety of shelled creatures, including corals, crabs, sea stars, sea urchins and some plankton. High acid levels can prevent the formation of shell material and could disrupt the food web.

For background information, see a EurekAlert from last May. I also discussed the issue in a Water Ways entry in November.

The Clean Water Act requires states to identify impaired waters that fail to meet water-quality standards. In Washington, the Department of Ecology assumes jurisdiction over enforcement of the law. In January, EPA approved Washington’s list of impaired waters, also called the 303(d) list, without mentioning acidification.

“Ocean acidification is not some distant threat that can be shunted off to future decision-makers; it has already arrived, and we have to acknowledge and deal with the problem right now,” said Sakashita in a news release. “EPA has all the evidence it needs to act to begin protecting our waters from ocean acidification. Further delay is simply not justified.”

Sandy Howard, spokeswoman for Ecology, said her agency is not ducking from the issue. In fact, Gov. Chris Gregoire is one of the nation’s leaders on climate change. The problem, she told me, is that the agency never received the precise data to show that the oceans are impaired by acidity.

Ecology’s response to Sakashita’s letter (PDF 16 kb) includes this comment:

“Our state law requires that actual data be used for 303(d) listing purposes, rather than broader studies and assumptions about the status of waters. Ecology reviewed the studies that were submitted in previous correspondence and could find no monitoring data relevant to specific marine water body segments in Washington.”

Some of the more recent studies, which are still fairly general, may not have been available when Ecology completed its list, and ocean acidity is not easy to measure. Howard said Ecology is open to reconsidering the acidity issue for its next impaired waters list.

When a water body is listed as impaired, Ecology normally proceeds to identify the sources of pollution and establish limits for each source or group of sources. In the case of acidity, the state faces a major problem, Howard noted, because many of the sources of carbon dioxide are likely to be in foreign countries, where the state has no authority to act.

Sakashita argues that under the Clean Water Act, the EPA should take steps to limit the amount of carbon dioxide going into the air.

Sakashita’s letter to Ecology — as well as other letters and responses — can be found on a Web page addressing Ecology’s Water Quality Assessment.

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Increasing levels of carbon dioxide in the atmosphere are turning the oceans more acidic, according to scientists who have been raising alarms for years.

The acidity threatens the marine food web, with the most direct effects on the shells and skeletons of shellfish and corals, since their absorption of calcium carbonate is reduced in a more acidic environment.

Let’s take note of a few new milestones, although nobody has a practical idea for responding to the threat without addressing the entire issue of global warming.

First, and none too soon, the first comprehensive national study of ocean acidity was commissioned last month by the National Oceanic and Atmospheric Administration and the National Science Foundation. See Oct. 20 news release.

The study followed an international symposium in early October, called the “Second International Symposium on the Ocean in a High CO2 World.” The meeting’s chairman, James Orr of the International Atomic Energy Agency, had this to say in a prepared statement:

“Since the industrial revolution, the acidity of ocean surface waters has increased by 30 percent. This change is greater and happening about 100 times faster than for previous acidification events experienced in many millions of years…

“Published research indicates that by 2030, the Southern Ocean will start to become corrosive to the shells of some marine snails that swim in surface waters. These snails provide a major source of food for Pacific Salmon.

“If they decline or disappear in some regions, such as the North Pacific, what will happen to the salmon – and the salmon fishing industry? And what will happen as ocean acidification increasingly affects coral reefs, which are home to one-quarter of the world’s fish during at least part of their lifetime, and which support a multi-billion dollar tourist industry?”

Finally, the Center for Biological Diversity today issued a notice to the Environmental Protection Agency saying it intends to sue the federal government for failure to respond to the threat of ocean acidification. Last year, the environmental group filed a formal petition asking EPA to impose stricter pH standards for ocean water quality and to publish guidance to help states protect U.S. waters.

A press release from the center includes these comments:

The federal Clean Water Act requires the EPA to update water-quality criteria to reflect the latest scientific knowledge. Since the agency developed the pH standard back in 1976, an extensive body of research has developed on the impacts of carbon dioxide on the oceans.

“Ocean acidification is global warming’s evil twin,” said Miyoko Sakashita, an attorney with the Center for Biological Diversity’s oceans program. “The EPA has a duty under the Clean Water Act to protect our nation’s waters from pollution, and today, carbon dioxide is one of the biggest threats to our ocean waters.”

It appears the Center for Biological Diversity is launching a flank attack on the global warming issue via the Clean Water Act, which allows citizen lawsuits. A similar flank maneuver involved the effort to get the polar bear protected under the Endangered Species Act as a result of melting ice caused by global warming. See CBD press release.

Clearly, environmental groups are not waiting for a new administration to move into the White House or to see how President Barack Obama might address the threat of global warming.

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