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    Drones Would Revolutionize Oceanic Conservation, If They Weren't Illegal

    Written by

    Andrew David Thaler

    Image: Simon Bisson/Flickr

    A small, remote-controlled quadcopter lifts from the deck of a skiff. As it rises into the air, a gray whale breaches on the horizon. Slowly, the drone cruises towards the whale, now revealed to be a mother and calf. It climbs higher, offering a breathtaking view of a moment few will ever witness. The whales, undisturbed, continue their long migration up the California coast.

    This interaction seems ideal--we get an unparalleled view of an ocean giant while the whales barely notice the buzzing aircraft above. But this flight could cost the drone pilot his equipment and his freedom.

    As drones become more affordable and reliable, amateur drone enthusiasts are taking to the sea, photographing whales and dolphins and producing incredible videos of marine mammals in their natural environment. The advantages offered by drones are clear. These small vehicles are less obtrusive than whale watching boats and allow a large audience to observe whales, dolphins, and other marine mammals while maintaining a safe and respectful distance.

    Autonomous drones have also proven themselves effective tools for marine mammal research. Wayne Perryman of NOAA’s Southwest Fisheries Science Center has been using drones to track sperm whales and even sample the chemical and microbial constituents of whale exhalations. But Perryman argues that the regulatory agencies are still playing catch-up to new technologies.

    Whales and other marine mammals are protected by the Marine Mammal Protection Act (MMPA), a series of regulations that limit and restrict human activities when marine mammals are present. Scientists like Perryman must go through an extensive permitting process to get authorization to interact with marine mammals.

    These regulations, which treat drones the same as full-sized aircraft, appear woefully out-of-step with technological development. For example, the guidelines for applying for a Commercial or Educational Photography Permit encourages applicants to “submit your application electronically on a 3.5” floppy disk” for “faster processing.”

    The MMPA doesn’t just protect cetaceans like whales and dolphins, but also manatees, seals, sea lions, sea otters, walruses, and polar bears. These animals are protected whether in water or on land. As all currently extant species are endangered, sea turtles also receive nearly identical protection under the Endangered Species Act. Some states, such as North Carolina, confusingly lump sea turtles—which are assuredly not mammals—and marine mammals together under marine mammal enforcement. Dead marine mammals receive many of the same protections as living ones.

    While the MMPA doesn’t have regulations specifically for drones, it does have broad regulations for traditional aircraft. Until the Marine Mammal Commission explicitly outlines guidelines for drones, prudent pilots would be wise to treat their machines as Chinooks, rather than minnows. Fortunately, NOAA has clear guidelines for aircraft pilots. Unfortunately, these guidelines make viewing marine mammals via drone nearly impossible.

    An Aerotestra Hugo UAS outfitted for water quality sampling, chilling in Lake Merritt, Oakland. Image: Andrew David Thaler

    Aircraft are required to maintain an altitude of at least 1000 feet for all whales and 1500 feet for North Atlantic Right Whales. The FAA advises drone pilots to fly below 400 feet. These conflicting guidelines means that that it is currently impossible for a drone pilot to be 100 percent confident that their whale flight is legal, regardless of how little it impacts the animal’s behavior. 

    Boats, on the other, hand may approach within 300 feet of a whale pod (150 feet for dolphins), with their big outboards humming, but cannot place themselves in the animal’s path and must proceed at the slowest possible speed. An airboat in the Florida Everglades, whose unmuffled fans can crank at 130 decibels, can come closer to a manatee than a two pound quadcopter hovering 300 feet above.

    Amateur drone pilots often exist in a legislative gray area. Following an incident in which a drone forced young bighorn sheep away from their flock, the National Park Service grounded these aircraft in all national parks, pending review.

    Commercial drone guidelines are just as murky, if not even more restrictive, with both the FAA and MMPA banning almost all commercial drone use. Though Amazon made waves earlier this year with a plan for drone-based delivery, they remain grounded. Only BP has permission to fly commercial drones on US public land. We won’t see the Tacocopter anytime soon.

    The MPAA is a particularly challenging piece of legislation. Drone enthusiasts may find themselves in violation of this complex legal document, a position that comes with steep fines, loss of equipment, and even jail time. Unfortunately, the status of drones with regard to the MMPA is undefined, so marine mammal observers eager to use drones to track and record sea life must proceed with caution. According to Perryman, both the Marine Mammal Commission (which oversees the MMPA) and the FAA are “trying to catch [drone pilots] as best they can.”

    The Marine Mammal Protection Act forbids the "taking" of marine mammals in national waters, but the term ‘take’ is misleading. A take is defined as any action to “harass, hunt, capture, kill or collect, or attempt to harass, hunt, capture, kill or collect.” Loosely defined, anything that affects the natural behavior of a marine mammal in any way is a take.

    Takes can include actions that have the potential to injure a marine mammal but also actions that might alter a marine mammal’s behavior or cause stress. This includes obvious actions like chasing or touching wild animals, but also less intuitive actions, like approaching too closely, feeding, or even disturbing a sleeping seal with the high pitched buzz of a low-flying quadcopter.

    Even seasoned marine biologists run afoul of the Marine Mammal Protection Act, as orca researcher Nancy Black discovered when she was charged and found guilty of violating the act by baiting cameras to attract whales; she had a permit for the cameras, but not the bait.

    After a long legal battle, she was found guilty, forced to pay $12,500 and placed on 3 years probation. Jean-Michel Cousteau’s Ocean Futures Society, who was on site filming during Black’s infraction and whose footage was ultimately used as the key evidence to convict Black, was forced to forfeit their $50,000 vessel.

    Enforcement is at the discretion of federal and state regulators, and responsible drone pilots have a strong argument in their favor. However, given the ambiguity of current regulations, and the fact that no drone pilots have faced prosecution for MMPA violations (yet), enthusiasts need to be familiar not only with existing regulations, but also understand why those laws exist and how marine mammal behavior can be affected by their devices.

    Whales and dolphins are particularly sensitive to sound; it is their primary tool for both navigation and communication. The presence of conventional aircraft can alter the behavior of sperm whales and grey whales. Although drones are much smaller, even the smallest quadcopter can produce high-frequency, high-decibel noise which can alarm whales basking at the surface. The presence of a small flying object nearby can also stress the animals, as seagulls have been observed harassing southern right whales to the point of disrupting feeding.

    Drones can provide a low-impact, unobtrusive platform to observe marine mammals in the wild. But the MMPA has not caught up to the state of the art.

    There are also actions that are clearly illegal under the MMPA. Landing a drone on, or otherwise coming into direct contact with a marine mammal, either intentionally or accidentally, is an unambiguous violation of the MMPA, as is placing your vehicle in a position when direct contact could occur—regardless of whether it’s a drone, a boat, or a person. Drone pilots should avoid positioning their aircraft in such a way that it could potentially collide with any wildlife.

    Chasing a marine mammal is also a clear violation, especially if it is apparent that the animal has noticed the drone and is attempting to avoid it. Accidental interactions may be given more leeway, but the waters become murkier if the drone pilot’s intent is to film marine mammals.

    The simplest step that drone pilots can take is to avoid making animals aware of their presence and learn to recognize behaviors that indicate an animal is becoming agitated. Stressed seals and sea lions may bark frequently and retreat to sea. Female humpback whales will shield their calves from perceived threats. Agitated dolphins will slap their tails and leap out of the water. Careful, responsible piloting and approaching no closer than is necessary can minimize potential disturbances.

    Drones are a natural fit for marine mammal research and observation. Compared to outboard motors, fixed-wing aircraft, or helicopters, they are much less disruptive. Rotors can be muffled, flight plans can be easily altered, and videos can be recorded with as little interaction with the subject as possible. When properly used, drones can provide a low-impact, unobtrusive platform to observe marine mammals in the wild.

    But the MMPA has not caught up to the state of the art, and it only takes one unfortunate incident to permanently restrict the use of drones for marine mammal observation. Drone pilots who want to use their aircraft to view marine mammals must work within the existing regulatory framework while pushing for greater clarity within the Marine Mammal Protection Act, or risk the future of the practice.