A robotic seagull and confusion around the current drone regulations
In January, 2015 I boarded a whale-watching boat in Dana Point, California. During the trip we followed a gray whale migrating towards the lagoons in Baja de California, Mexico. We were not the only boat following this individual whale. There were two boats following directly behind the whale, while we travelled parallel with the whale as it hugged the coast. The interesting part of the trip was when I noticed a white seagull traveling directly above the gray whale. This caused me to raise up my camera to get a good view of the bird and what it was doing.
I was well into my study reviewing the best practices of whale-watching from Canada to Mexico following the gray whale migration. This was the first time I had seen a seagull traveling directly above a whale. As I looked closer, it turned out this seagull was robotic, it was a drone.
At this point in time I knew the regulations for using drones over marine mammals were unclear and without going through the traditional manned airplane pilots licensing training there was not a legal way to fly drones. This struck my curiosity and began my investigation into drone stewardship and marine wildlife
In two years we have seen a significant rise in drones flying along our coastline in California. We have also seen an increase of drones used on whale-watching boats among the California fleet and globally drones are becoming more popular for marine mammal research. In July 2016, the Federal Aviation Administration (FAA) approved a pathway for a drone pilot to become licensed under Part 107.
FAA requires anyone who is going to make money from the use of a drone to obtain a license, but does not require recreational pilots to obtain a license. This means anyone can legally purchase a drone and fly it without understanding airspace regulations or wildlife stewardship. The FAA does not consider wildlife protections when developing or enforcing airspace regulations. Not to worry there are regulations to protect wildlife.
But here is where it gets tricky.
Drones used for marine mammal research are increasing in value and interest. Researchers are making certain their research drones are not causing disturbance to wildlife. Researchers who use drones conduct their studies within the approved parameters established by permits that are required by the Marine Mammal Protection Act of 1972 (MMPA), while recreational and commercial drone pilots are not required to operate under a MMPA permit.
45 years ago, drones were not used for marine mammal research or available to the public. This means the MMPA regulatory body falls behind the current integration and accessibility of drones in our world today, and how they may impact wildlife.
However, other aircraft (manned planes and helicopters) are known to cause disturbance to all types of marine animals, so regulations to decrease marine wildlife disturbance were added to theses regulatory bodies: MMPA, the Endangered Species Act, and Migratory Species Act. And scientists have found that drones cause disturbance to marine wildlife.
Therefore, current regulatory bodies have lumped drones into the same category as other traditional aircraft.
Specific Overflight Zones were created in National Marine Sanctuaries to prevent harassment that is the result of aircraft flying at low altitudes directly over critical habitat. The regulation states that aircraft are prohibited from flying below 1,000 feet altitude in Overflight Zones.
Although there are protective zones, the entire U.S. coastline is not a designated Overflight Zone. For instance, in Monterey, California the entire bay is a National Marine Sanctuary with four designated Overflight Zones. This means in the four Overflight Zones aircraft are prohibited from flying under 1,000 feet, while the rest of the sanctuary may have flights under 1,000 feet.
The questions remains … is the drone causing disturbance?
The MMPA clearly outlines what is illegal and we know that landing a drone on a marine mammal or any contact with a marine mammal either intentionally or accidentally is a violation of the MMPA. Chasing marine mammals is also a clear violation, especially if the animal has noticed the drone or demonstrates avoidance behavior.
Monterey is a beautiful tourist destination with six different whale-watching operations. Within the local fleet, individual operators own multiple boats that they take out daily. Collectively, the industry has decided to integrate drones into their marketing and tours.
This is one of many examples of why people are questioning how to integrate stewardship of drones so we ensure responsibly and safe flights to protect wildlife in the marine environment. Without establishing conservation parameters the increased use of drones may have a cumulative impact to the whales and other animals photographed or videoed while using a drone.
Cumulative impact is when “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.”
For example, a researcher who is permitted to use a drone for her study is flying close to the animal for a specific purpose. The drone may cause disturbance to an individual or group of animals while collecting photographs. In a photogrammetry study, she may take a photo of a mother whale and calf, this is within the permit parameters, but she may only be allowed to photograph those individuals once every three days. This is intended to reduce human-induced stress to the whale(s). By providing the break the natural behavior of nursing and resting will happen while eliminating the mother’s need to protect her calf.
Where as whale-watching boats may take different tours throughout the day to see a specific group of foraging humpbacks, not allowing periods of time for the whales to recover from tours throughout the day or from previous days of concurrent viewing. Not only are the whales potentially impacted by drone use, but also by acoustic noise pollution from the boat’s engine noise. They never really get a break.
Why are cumulative impacts important to address?
We know that if animals are not able to forage and rest properly they will get sick. Like humans, if we do not properly care for ourselves we tend to get sick as well. Allowing ample recovery time between our interactions with wildlife will make us better stewards of the natural environment and provide conservation measures for marine wildlife.
Here are a few takeaways:
1. Creating a general awareness campaign is a simple step that drone pilots can take to avoid making marine wildlife aware of their presence and learn to recognize avoidance behaviors of the animals that will be in the designated flight path.
2. Sea lions, seals, seabirds, sea otters, and other wildlife are sensitive to drones in rookeries and nesting sites. Be aware of the animals and their seasonal habits.
3. If you’re a drone enthusiast know that the MMPA is a complex legal document that comes with steep fines, loss of equipment, and even jail time if a violation is enforced.
4. Drones are more affordable and reliable, they capture amazing photographs of marine wildlife and provide a new perspective. Drones are less intrusive than boats and allow a larger audience to observe wildlife in their natural habitats.
5. We know researchers have rigorous permitting processes, while others do not.
6. Be a steward of the technology and the habitat you’re flying in. Work within the existing regulatory framework.
7. It only takes one unfortunate incident to permanently restrict the use of drones for marine mammal and wildlife observation.