FRANK HARTZELL, Fort Bragg Advocate News, November 27, 2009
California’s regulatory system, designed to protect whales from science vessels will get some rethinking, following controversy over the October 19, 2009 death of a blue whale off Fort Bragg, a state official said.
The incident has highlighted an inconsistent and controversial regulatory system for which change was blocked by funding cuts due to the state budget crisis.
When the survey vessel Pacific Star struck the whale, it did not have a federally-approved whale spotter on board as required by the terms of its permit that this newspaper obtained from the California State Lands Commission.
Ship owner Fugro Pelagos, Inc. says both they had a valid permit and that they didn’t need one for the mapping being done when the whale was killed.
“There was no official whale observer on board because the work that was being done at the time did not require it,” said said James Hailstones of Fugro Pelagos. However, it contradicts a previous statement where he said an observer was present, as is required on all commercial vessels.
“The permit to which you refer pertains specifically to geophysical surveys, defined by state regulations as operations that measure and record physical properties of subsurface geologic structures,” said Hailstones.
“These are usually associated with mineral exploration and underwater resource development, and require higher-powered equipment than those aboard the Pacific Star. Instead, the vessel was conducting hydrographic survey work that is designed to simply measure the water depth above sea floor’s surface,” Hailstones said.
The permit states that Fugro is required to have “at least one person on board during survey operations that is a National Oceanic and Atmospheric Administration (NOAA) approved marine wildlife monitor,…” during geophysical work.
A review of the permit confirms that it does apply to geophysical work as described by Hailstones and raises questions as to the efficiency of the regulation system.
Fugro, the largest company in the business the permit was created for, has never found a situation where the permit was needed. As evidence of that, the State Lands Commission permit demands a marine wildlife contingency plan be filed, which specifies information about interactions with marine mammals and reptiles. That plan has been completed but not filed because it isn’t needed, according to the current rules.
“A draft plan exists and is ready for use when we perform a geophysical survey. However, a tailored plan was not filed because there is no requirement to do so for the work that was being conducted,” Hailstones said.
Controversy over the incident and the permit has been stirred by Steve Sullivan, whose family operates Sea Surveyor, Inc., which competes with the larger Fugro Pelagos for surveying contracts. He says the permit was intended to apply to all types of mapping and surveying work.
Sullivan has been predicting for several years that lax and inconsistent regulation would lead to whale kills, state records show.
In interviews and letters broadcast on local radio and the Internet, Sullivan claimed that Fugro didn’t have a permit when it struck the whale.
This was refuted by Sheila Semans, a staff member of the Ocean Protection Council through the California Coastal Conservancy.
“[Fugro] did have a valid geophysical permit. I am told by the company that they have had a geophysical permit since they were required. What Mr. Sullivan fails to point out is that the permit that was issued on October 22, 2009 was effective starting Oct. 1, 2009,” Semans said.
She went on to explain that the permit was issued retroactively because of a series of delays, that were not the fault of Fugro.
Hailstones said the company had a permit issued October 1st, which was not issued retroactively.
How the work Pacific Star was doing at the time of the whale strike may or may not fit into the intent of the permit is a topic in an investigation into the whale strike by NOAA.
Scientists generally believe that the kind of sonar the Pacific Star was using isn’t harmful to whales and some believe they can’t even hear it. However, all say more study is needed.
One study says whales, which can hear for long distances, are becoming confused due to the increasing noise level in the oceans caused by all human activity.
Publicity following the death of the blue whale may revive efforts killed by the state budget crisis to clarify and expand permits and the understanding of the effects of all types of sonar on whales.
“Because of the confusion and disagreement about what the geophysical permit should cover, State Lands has asked [ the Ocean Protection Council] to fund further investigation into any potential impacts from passive equipment’ such as the sonar use for seafloor mapping,” Semans said.
“We have not been able to fund any new projects since December 2008 so discussions have stopped. But I’d imagine this incident will resurrect those discussions once we can spend money again,” she said.
Sullivan argues that the permit was required when the strike happened but says there is a larger issue.
“That’s just paperwork, my main complaint for the past few years is they and others up and down the coast are not taking the precautions needed and required to protect marine mammals,” he said
Sullivan says the Department of Fish and Game itself, along with study vessels operated by universities, operate such surveys without following permits and without complying with regulations designed to protect marine mammals.
He says he first confronted the State Lands Commission, then found that body had no meaningful enforcement power. Recently, he appeared before the Ocean Protection Council in an effort to cut funding to the efforts until marine mammal concerns could be met, a meeting video shows.
Sullivan said that because of the way modern hydrography works, those involved are using only a narrow beam of sonar, which would be unlikely to detect whales.
“The captain is not looking out the window anymore. That’s why you need the special spotters. You don’t see a whale unless you are looking for them,” Sullivan said.
Hailstones said Fugro keeps an eye out for whales, along with other marine hazards.
“Personnel onboard the bridge of the Pacific Star are always on watch for dangers to navigation, other vessels, crab and lobster pot buoys and marine mammals and obviously try to avoid such incidents,” said Hailstones.
The 176-foot Pacific Star completed its mapping work for the state and is now back in drydock in Seattle, Hailstones said.
Sullivan thinks the size of the vessel may have been a contributing cause to the whale strike. He said the work only requires a 50-foot vessel and says use of such a large ship in whale migratory waters is irresponsible. He said a larger ship makes it much harder to see whales and more likely for a strike to be fatal.
“Being experts in our field, we utilize the correct vessel for the application,” Hailstones said.
“The Pacific Star is similar in size to others used in safely conducting offshore and coastal hydrographic surveys. Much larger vessels than the Pacific Star sail California waters every day and do so at far greater speeds than the 6.5 miles per hour the Pacific Star was doing at the time of the incident,” Hailstones said.
Hailstones said the whale apparently surfaced under the propellers in the rear section of the boat and was not struck by the bow.
Sullivan says the propellers of his survey vessels are protected by screens that would keep them from inflicting a fatal wound should there ever be a whale strike.
“The Pacific Star — like 99.9% of the world’s ships — does not have screens surrounding their screws,” said Hailstones.
“Not only would this be impractical to retrofit for the majority of vessels, but the possible negative consequences far outweigh the positives,” Hailstones said. “Screens would offer a large surface area for marine growth to flourish or even water borne garbage to accumulate, it wouldn’t be long before a vessel’s ability to make way would be severely hampered as a screw relies on the ability of large volumes of water to pass by unobstructed.”
Hailstones said the greatest nemesis for a vessel propeller is rope in the water.
“A screen would pose a great catch’ mechanism for rope and often, when rope gets caught in a vessel screw, the vessel is dead in the water, which poses a great risk to the human life onboard,” Hailstones said
One thing Hailstones and Sullivan agree on is that this incident is a first time in anyone’s memory that a survey vessel has reported striking and killing a whale.
“Our company and our sister companies utilize hundreds of vessels in thousands of miles of oceans and seas worldwide to conduct such operations, and are proud of our long-standing safety record. In the company’s 45-year history, Fugro (including Fugro Pelagos) has never been involved in such an unfortunate incident before,” Hailstones said.