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Petition Calls For Delisting Killer Whales Off NW Coast; Says Population Not Distinct From Others
Posted on Friday, August 03, 2012 (PST)

A petition filed Thursday with NOAA Fisheries asks that the so-called “southern” population of orcas – killer whales – be dropped from the listing under the Endangered Species Act.

“… there is no scientific basis for treating them as part of a separate subspecies that is distinct from other Orcas, which may be the most widely distributed mammals on the planet and are found in all parts of the oceans and in most seas from the Arctic to the Antarctic,” according to the Pacific Legal Foundation, which filed the petition on behalf of the Center for Environmental Science, Accuracy & Reliability -- a nonprofit organization “dedicated to assuring scientific rigor in environmental regulations” – and two farms in northern California’s San Joaquin Valley.

The petitioners say the orcas listing is unjustified and threatens access to water for agriculture.

Water deliveries for irrigation from the Sacramento-San Joaquin Delta are “threatened as a result of an ESA biological opinion that was issued for the orca along with several species of fish, including salmon and steelhead, that are part of the orca’s food supply and that are found in the Delta,” according to a PLF press release.

The petition was submitted to the U.S. Department of Commerce and NOAA Fisheries. It says that federal officials violated legal and scientific principles by putting the orca on the ESA list. The document filed by PLF says that NOAA erred by declaring the killer whale aggregations that reside in the Pacific Ocean off of the Northwest coast as a distinct population of a subspecies.

“…the ESA allows the listing only of species and distinct populations of species, not distinct populations of subspecies,” the PLF says.

“Our delisting petition is about ensuring that environmental regulations are based on sound science,” said Damien M. Schiff, PLF principal attorney. “When a species as a whole isn’t endangered, government can’t invent a justification for ESA regulations by arbitrarily carving out a single geographical area and focusing only on the species’ numbers in that narrow zone.

“In fact, however, there’s no scientifically significant difference between the orca in that region and anywhere else. There is no taxonomically significant distinction in genetics, biology, or behavior,” Schiff said.

NOAA Fisheries listed the population of killer whales knows as the “southern residents” as endangered in November 2005. Following a standard five-year ESA review, the agency determined in March 2011 that no change was needed in that listing status.

The federal agency will now review the petition and has 90 days to determine whether the petition is warranted, i.e. worthy of further consideration. If it decides it is, NOAA would have another nine months to issue a final determination.

NOAA Fisheries spokesman Brian Gorman said that the petition does not seem to present a biological argument (whether or not the designated population is in dire straits), but rather puts forth legal arguments about whether or not the ESA listing process should focus on the world’s orca population as whole.

These southern orcas spend several months of the summer and fall each year in Washington’s Puget Sound. The population is composed of three family groups of whales that have been named J, K and L pods. Individual animals are identified by a number based on pod membership and birth order, according to NOAA Fisheries.

The Southern Resident population has fluctuated considerably over the 30 years that it's been studied. All three Southern Resident pods were reduced during 1965-75 because of captures for marine parks. In 1974 the group comprised 71 whales, peaked at 97 animals in 1996, and then declined to 79 in 2001. The population now numbers in the 80s, according to NOAA Fisheries.

There is a limited number of reproductive-age Southern Resident males, and several females of reproductive age are not having calves.

“The factors causing the decline of Southern Residents are not well known, and are likely to continue until we learn more about what needs to be done to reverse this trend. Some of the possible causes of decline are: reduced quantity and quality of prey; persistent pollutants that could cause immune or reproductive system dysfunction; oil spills; and noise and disturbance from vessels,” according to data posted on NOAA Fisheries’ Northwest Region web page, http://www.nwr.noaa.gov/Marine-Mammals/Whales-Dolphins-Porpoise/Killer-Whales/ESA-Status/Index.cfm

The “Petition to Delist the Southern Resident Killer Whale Distinct Population Segment Under the Endangered Species Act” may be found at Pacific Legal Foundation’s website:www.pacificlegal.org

The PLF is a donor-supported (www.pacificlegal.org) organization that litigates for limited government, property rights, and a balanced approach to environmental regulation, in courts across the country.

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