New beluga estimate sparks lawsuit to stop Hilcorp's seismic surveys

ANCHORAGE (KTUU) - Three days after NOAA Fisheries released its latest abundance estimate showing a decline in the endangered Cook Inlet beluga whale, two environmental groups have filed a notice of intent to sue the federal agency over its decision authorizing Hilcorp to conduct seismic activities that would impact marine mammals.

NOAA biologists used an updated methodology to analyze data collected during abundance survey flights flown in 2018 and applied the methodology to data from previous years. The organization's new best estimate for 2018 is 279 whales, but the range could be from 250 to 317.

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"It also revised our 2016 number down quite a bit. Whereas previously we were saying 328 for 2016, now we're saying a much lower number as well," said Paul Wade, a researcher fisheries biologists for NOAA Fisheries who led the abundance estimate report. "The main thing it did was change the overall trend over the last 20 years, showing in particular a much steeper decline over the last 10 years than we previously had. And that's the thing that's most concerning is not necessarily the absolute number of whales, but the fact that they're having this decline of more than 2 percent."

NOAA Fisheries is responsible for evaluating proposed projects that would create incidental take of marine mammals. The consultation is required for activities that would have incidental take ranging from construction projects, military exercises to scientific research projects.

Last summer, NOAA Fisheries authorized a five-year plan for Hilcorp's operations in Cook Inlet. The authorization allows Hilcorp to use seismic surveys in the Lower Cook Inlet during certain times, and requires mitigation activities such as required monitoring to detect marine mammals before beginning activities and shutting down activities under certain circumstances to minimize injury of marine mammals.

Cook Inletkeeper and The Center for Biological Diversity sued NOAA Fisheries in September over the authorization seeking to stop Hilcorp's seismic blasting. The two non-profits filed a separate notice of intent to sue NOAA Friday given the new information released in the latest abundance estimate.

"It was the recognition that NMFS (NOAA Fisheries) has been using a methodology that they're now questioning for many years which led to an overestimation of the number of whales," Cook Inletkeeper Advocacy Director Bob Shavelson explained as the reason for the additional lawsuit. "So now to find out that actually the population level is much smaller, that has some serious implications for projects like Hilcorp's seismic blasting in the Lower Cook Inlet."

Cook Inletkeeper is seeking the authorization issued to Hilcorp this summer to be revoked while NOAA Fisheries reassesses the company's request for an incidental take authorization.

"All these things need to be looked at in the lens of a much smaller beluga whale population," Shavelson said.

Re-initiating a consultation for a project can happen, but Verena Gill, Cook Inlet beluga recovery coordinator for NOAA Fisheries, says that a new abundance estimate is not a factor that will prompt a revisited consultation.

"We always use the best available science when we're evaluating any kind of regulatory document," Gill said. "Sometimes there are reasons to re-initiate a consultation. If there's a project that's happening that has a significant change in that particular project, so if somebody decides to use much larger piles than they thought they would have to for example when they're pile driving, then the consultation will re-initiate and we'll use the best available science. But we don't go back to projects that have been finished or projects that haven't changed significantly and apply this new number."

Gill says that even though the estimated number of whales is lower and declining faster than previously thought, the limitations and provisions NOAA Fisheries issued Hilcorp are the most appropriate way to protect marine mammals.

"We know they're critically endangered, so what we know now hasn't changed what we thought a year ago," Gill said. "We knew they were declining a year ago, we know they're declining now albeit a little faster than we thought, so the same provisions and mitigation that we put in a year ago would be the same things we'd think about now. Our ultimate goal is to protect Cook Inlet belugas and that hasn't changed. We're not going to tighten up anything because we felt like we were doing the best mitigation we could, spatially and temporally, for Cook Inlet belugas a year ago that we do now."

Gill emphasized that the definition of "take" in the Marine Mammal Protection Act is broad.

"There are different levels of take, and I think a lot of people may misunderstand that when people ask for a 'take' under the Marine Mammal Protection Act they're asking for kill an animal or injure animals," Gill said. "Most of the time a take really means, it could mean harassment, it could mean a behavioral change as slight as looking up at an airplane that's flying over for a project, or moving away from an activity."

Channel 2 requested an interview with Hilcorp, but the company has not yet returned that request.

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