While nobody seems to disagree that the orcas that live around the San Juan Islands are in trouble, there’s an ongoing clash between environmental groups and the federal government about what to do about that.

Last Thursday the National Marine Fisheries Service took a step that has some orca supporters cautiously optimistic. The agency published a proposed rule in the Federal Register indicating its intent to designate the southern resident orcas as “depleted” under the federal Marine Mammal Act.

“I’m encouraged,” said Susan Berta of the Whidbey-based Orca Network, “that basically the depleted status is resulting in the same kind of process that would have happened under the (Endangered Species) Act.”

The Orca Network, a group that keeps tabs on the southern resident pods of orcas that swim and feed in the waters off Whidbey Island, hosted a meeting Wednesday night at which people from the fisheries service spoke about what the designation means, ongoing scientific research and the status of the whale population.

The message from Brent Norberg, marine mammal coordinator for the Northwest Region of the Fisheries Service, was that the actual effect of the “depleted designation” depends on community input, scientific findings and federal funding.

“If you saw the State of the Union (address) last night, ” Norberg said, “you know that we’re competing with other priorities to get funding right now.”

Berta was part of a coalition that filed a petition with the federal government in 2001 to list the orcas under the Endangered Species Act. In a controversial ruling, the fisheries service found that orcas do not qualify for protection under the Endangered Species Act, though the agency conceded that orcas do face extinction in the next century.

The question over the newly proposed rule is whether the southern resident orcas, the group of living mainly in the around the San Juan Islands and in Puget Sound, are a distinct enough population. Orcas, also called killer whales, live all over the world and have the broadest distribution of any mammal. Yet the southern residents are genetically different from other orcas and do not interbreed or interact with whales outside their own group.

The bad news is that the southern resident population declined by 20 percent in the last six years, reaching a low point of 80 orcas. Norberg said historic data puts the normal population size at between 140 to 200 animals. Extremely high levels of toxins, especially PCBs, were found in dead orcas.

In the ruling on the Endangered Species Act, Berta said the fisheries service found that the southern residents were a discreet, but not a distinct, population.

“It came down to a technicality between discreet and distinct,” Berta said.

In other words, the service found that the extinction of the particular “stock” of whales would not affect the worldwide population of orcas. The agency even predicted that other orcas may take over the Puget Sound territory when the southern residents are gone.

Efforts continue for ‘endangered’ status

But there is hope for those who want to protect the orcas. A coalition, not including the Orca Network, is suing the Fisheries Service over the decision not to list the southern residents as endangered. The Orca Network and many other groups have petitioned to have three pods of whales listed as endangered under the state law.

With the recent announcement, National Marine Fisheries is moving ahead with plans to list Puget Sound’s declining resident orca population as “depleted” under the Marine Mammal Act. The act differs from the ESA in that it doesn’t allow for third-party lawsuits — such as suing a polluter on behalf of the orcas.

Norberg said the next step will be a 60-day comment period on the proposal to designate the orcas as depleted. He said the agency expects to publish the final rule on the southern residents’ status by the end of June. After that, the agency is required, under law, to create a conservation plan “as soon as possible.”

Norberg said the fisheries service plans to hold a series of public meetings to gather input for the conservation plan.

Berta said she hopes the plan includes public education, stricter laws regarding industrial pollution, as well as strong measures to expedite the cleanup of polluted underwater sediment.