The Environmental Protection Agency is moving forward to protect
people’s health from toxic chemicals, despite an executive order
from President Trump that requires two existing regulations to be
repealed for every new regulation approved.
On Tuesday, the EPA will hold a public hearing to help develop
rules for controlling the use of 10 chemicals evaluated under the
revised Toxic Substances Control Act. (See
EPA Public Workshop.) As I described in
Water Ways, Dec. 1, these high-hazard chemicals could be banned
or significantly restricted in their use. Seven of the first 10
under review have been found in drinking water at various sites
across the country.
Preliminary information about the chemical risks and the
evaluation process can be found on
EPA’s TSCA website.
The revised Toxic Substances Control Act received overwhelming
bipartisan approval in Congress. Even the chemical industry
supported the law, in part because it would limit what states can
do to ban chemicals on their own. Check out my story in the
of Puget Sound.
We have yet to see how Trump’s executive order on controlling
regulations will affect upcoming rules for toxic chemicals, but the
order is already causing some confusion. It has been ridiculed as
“nonsensical” by environmental groups, which filed a lawsuit this
week seeking to overturn the order. More than a few Republicans say
they don’t know how it will work.
After more than a decade of losing court battles, the U.S. Navy
still refuses to fully embrace the idea that whales and other sea
creatures should be protected during Navy training exercises, says
Joel Reynolds, senior attorney for the Natural Resources Defense
But the blame cannot be placed entirely on the Navy, Joel says
in a blog entry he wrote for the
“In fact, much of the blame lies with the government regulatory
agency whose mandate it is to protect our oceans,” he writes. “It
lies with the failure of the National Marine Fisheries Service to
do its job.”
Joel has been at the forefront of the legal effort to get the
Navy to change its ways — and the effort has been successful to a
large degree. At least we now have a much greater understanding
about the effects of sonar on whales and other marine animals.
Legal challenges forced the Navy to acknowledge that it didn’t
really know what damage its activities were doing to the oceans.
The result was to develop studies, which turned out to provide some
Joel’s latest frustration comes this week in the wake of new
authorizations by NMFS to sanction Navy activities found to be
unacceptable by the U.S. Ninth Circuit Court of Appeals.
Joel’s life story and that of Ken Balcomb, who I call the dean
of killer whales in Puget Sound, are described in intriguing detail
in the book “War of the Whales” by Joshua Horwitz. The book
documents their personal and legal battles to hold the Navy
accountable for its impacts on whales.
The Navy would never have found itself on the losing side of
these sonar lawsuits if the National Marine Fisheries Service
(sometimes called NOAA Fisheries) had been doing its
congressionally mandated job of protecting marine mammals, Joel
says. For the agency, that would mean approving “take” permits only
when the Navy has done its best to reduce the risk of injury during
training exercises — which everyone agrees are important.
“Rather than exercising the oversight required by law, the
Service has chosen in effect to join the Navy’s team, acquiescing
in the omission of common-sense safeguards recommended even by its
own scientific experts,” Joel writes in his latest blog post.
After reading his post, I asked Joel by phone yesterday what it
would take to get the National Marine Fisheries Service on the
“I don’t have an easy answer for that,” Joel told me, noting
that he recently held a related discussion with Sylvia
Earle, renowned oceanographer and formerly chief scientist for
the National Oceanic and Atmospheric Administration.
“She is very familiar with the problems of NMFS,” Joel said.
“She said NMFS is an agency responsible for killing fish.”
That said, the agency has a lot of dedicated researchers and
experts who know what needs to be done, especially at the regional
level. But they are hamstrung by federal politics and by budget
“The Pentagon is essentially able to dictate every part of
government,” Joel said. “The financial implications are very real,
because the military is so powerful. If NMFS gives them trouble,
they call their contacts on Capitol Hill, and pressure is brought
The Navy has spent decades operating at its own discretion
throughout the world’s oceans. The notion that another federal
agency or some upstart environmental groups should limit its
activities just doesn’t sit well among established Navy
The problem is so entrenched in government that any resolution
“is going to take some focused attention under the next
administration,” according to Joel.
If Hillary Clinton is elected, Joel said he might look to John
Podesta to untangle the mess. Podesta served as chief of staff
under President Bill Clinton and was instrumental in opening up
long-held but arguably unnecessary government secrets. He currently
serves as chairman of Hillary Clinton’s campaign.
“John Podesta understands these things,” Joel told me. “If we
can’t get him (to do something), we can’t get anyone. I think it
would take a reorganization. The way NMFS is set up, they are in
the business of authorizing ‘take’ instead of issuing permits based
on the protections that are needed.”
Joel wasn’t clear how a regulatory agency might be organized to
hold its own against the Navy, but the idea should be on the table,
he said. Until then, the NRDC and other environmental groups will
continue to battle in the courts, where judges are able to use some
Meanwhile, NOAA has developed an “Ocean Noise Strategy
Roadmap,” which promises to find ways to control harmful
man-made noise. The roadmap is based, in part, on scientific
studies about the hearing capabilities of marine mammals. Review my
Water Ways post on the “draft guidance”
Water Ways, March 26, 2016.
These steps have been encouraging — at least until this week
when NMFS issued
letters of authorization for the Navy to keep operating under
its 2012 plan, which the Ninth Circuit Court of Appeals had
declared a failure to meet requirements for the “least practicable
adverse impact.” (Read
The agency chose to move ahead because the court had not yet
issued its mandate — a formal direction to a lower court — by the
time the letters of authorization were issued.
“The Navy has a robust and practicable monitoring and mitigation
program that we believe is very effective in reducing the
likelihood of injury,” according to an
explanation from NMFS.
Check out Ramona Young-Grindle’s story about this latest finding
Courthouse News, which includes these further comments from
“We are astonished to see an LOA issued in the wake of the court
of appeals’ decision that the LFA (low frequency active sonar)
permit is illegal. NMFS is entrusted under federal law to enforce
the Marine Mammal Protection Act for the benefit of marine mammals
— not for the convenience of the Navy. This capitulation to the
Navy’s request to continue ‘business as usual’ under a permit
determined by a federal court to be illegal is outrageous.”
“Sonic Sea,” which will air Thursday on Discovery Channel, will
take you down beneath the ocean waves, where sounds take on new
meaning, some with dangerous implications.
Humans spend most of their time in air, a medium that transmits
light so well that we have no trouble seeing the shapes of objects
in a room or mountains many miles away. In the same way, water is
the right medium for sound, which shapes the world of marine
mammals and other species that live under water.
The hour-long documentary film reveals how humpback whales use
low-frequency sounds to communicate with other whales across an
entire ocean and how killer whales use high-frequency sound to
locate their prey in dark waters.
“The whales see the ocean through sound, so their mind’s eye is
their mind’s ear,” says Michael Jasny of the Natural Resources
Defense Council, an environment group that produced the film with
the help of the production company Imaginary Forces.
“Sonic Sea” opens with Ken Balcomb, dean of killer whale
research in Puget Sound, telling the story of how he learned about
16 beaked whales that had beached themselves in the Bahamas, where
he was doing research in 2001.
“Animals that I had grown to know over a 10-year period were now
dead,” Ken says during the movie, recalling the horrifying day when
one whale after another was discovered dead or dying. “They were
trying to get away. I was driven to find out why.”
Thanks to Ken’s presence during that stranding incident, experts
were able to prove that Navy sonar could be deadly. It took two
years for Navy officials to overcome their denial.
As I watched the film, I wondered if people would identify with
the idea that hearing to marine mammals is like sight to humans.
Would people see how much humans have invaded the underwater world
with noise from ship traffic, oil exploration, military training
and shoreline construction?
“I listen to the world, and to me song is life,” said Chris
Clark, a bioacoustics expert at Cornell Lab of Ornithology,. “It is
the essence of who we are, and it joins us all. The problem is, in
the ocean, we are injecting enormous amounts of noise, so much so
that we are acoustically bleaching the ocean. All the singing
voices of the planet are lost in that cloud of noise.”
This type of human invasion is different from wiping out habitat
as new construction changes the land, but the effect can be equally
devastating to some species.
In September of 2001, a group of researchers on the East Coast
were collecting fecal samples from right whales to check for stress
hormones. Stress levels were running high among the whales, except
for a few days when the levels dropped dramatically. That happened
right after Sept. 11, when ship traffic in the area was shut down
following the bombing of the World Trade Center. It still isn’t
clear what that constant stress is doing to the animals, but it
can’t be good. See
Duke University press release.
The good news, the film tells us, is that ships can be made
quieter, with an important side benefit: Quieter ships are more
efficient, which makes them cheaper to operate. Ships can also
reduce noise by going slower, saving on fuel. Beyond shipping,
people can find ways to operate in the ocean with less sonic harm
to sea life.
The Navy’s viewpoint, as represented in the film, appears to be
a more enlightened approach that I have seen until now. Of course,
protecting Navy ships against enemy attacks is the priority, but
the need to accommodate marine life seems to be recognized to a
“It comes down to what we value,” Clark said. “We value a living
ocean. We are putting the ocean at risk. And if you put the ocean
at risk, you are putting all of us at risk.”
The first video on this page is the trailer to “Sonic Sea” as
provided by the producers of the film. The second is the trailer
provided by Discovery Channel.
A new controversy is beginning to rumble over the potential
injury to marine mammals from sounds transmitted in the water.
The National Marine Fisheries Service, also called NOAA
Fisheries, is moving closer to finalizing new “technical guidance”
for assessing temporary and permanent hearing loss in whales and
dolphins caused by human activities — including Navy sonar, seismic
explorations and underwater explosions. The guidance will be used
for approving “take” permits under the Marine Mammal Protection Act
and Endangered Species Act.
Meanwhile, in another development, Navy officials have
acknowledged that Navy personnel made a mistake by using sonar in
Puget Sound without getting approval through the chain of command.
I’ll describe the circumstances of that event in a moment.
The new guidance is focused on hearing loss rather than how the
behavior of marine mammals might change in the presence of loud
noise. Since foraging and social activity are essential among
whales and dolphins, further guidance is expected to assess how
animals may be affected in other ways by noise.
The new guidance does not include mitigation measures for
minimizing the effects of sound. In some cases, the new information
may lead to additional protections for the animals, but in other
cases protections may be reduced, according to information from
Currently, regulators use a single noise threshold for cetaceans
(whales and dolphins) and a single threshold for pinnipeds (seals
and sea lions). They do not account for the different hearing
abilities within the two groups or how different types of sound may
The new acoustic threshold levels divide sounds into two groups:
1) impulsive sounds lasting less than a second, such as from
airguns and impact pile drivers, and 2) non-impulsive sounds, in
which the sound pressure rises and declines more gradually, such as
from sonar and vibratory pile drivers. Measures account for both
peak sound pressure and cumulative sound exposure.
Marine mammals also are divided into groups based on their
general range of hearing. There are the low-frequency cetaceans,
including the large baleen whales; the mid-frequency cetaceans,
including the dolphins; and the high-frequency cetaceans, including
The pinnipeds are divided into two groups. The eared seals,
including sea lions, have a somewhat wider hearing range than true
seals, including harbor seals.
After years of covering the effects of sonar and other noise,
I’m just beginning to understand the complexity of how sound is
measured and the mathematics used to calculate levels at various
locations. At the same time, the guidelines are growing more
complex — as they should to model the real world. New thresholds
account for the duration of sound exposure as well as the
intensity, and they somewhat customize the thresholds to the
animals affected. For additional information, see NOAA’
Fisheries webpage on the guidance.
Despite incorporating new studies into the guidelines, some
acoustics experts are finding serious problems with the methods
used to arrive at the new thresholds, according to Michael Jasny of
the Natural Resources Defense Council. The NRDC, an environmental
group, has a long history of battling NOAA Fisheries and the Navy
over sound exposures for marine mammals.
“This is an extremely technical subject,” Michael said, noting
that he relies on experts who have provided comments on the
methodology. “By and large, NMFS has drunk the Navy’s Kool-Aid with
the exception of low-frequency effects, even though the Navy’s
science has been sharply criticized.”
The statistical analyses leading to the guidelines are so flawed
that they call into question how they could be used to protect
marine mammals, Michael said, pointing to a paper by
Andrew J. Wright of George Mason University.
“These are high stakes we are talking about,” Michael said. “We
are talking about damaging the hearing of endangered species that
depend on their hearing to survive.”
The effects of sound on behavior, which are not described in the
new guidelines, may be just as important, he said, since too much
noise can impede an animal’s ability to catch prey or undertake
social behavior that contribute to the perpetuation of the species.
NOAA Fisheries needs to move forward to raise the level of
protection, not just for injury related to hearing but for other
effects, he said. One can review a series of related studies on
“If these guidelines are not improved, at least to address
fundamental statistical errors, then it is easy to imagine that
they might be legally challenged — and they would deserve to be,”
Michael told me.
Sonar in Puget Sound
As for the Navy’s mistake with sonar, the story goes back to
Jan. 13 of this year, when acoustics expert Scott Veirs of Beam
Reach Marine Science picked up the sound of sonar on hydrophones in
the San Juan Islands. About the same time, Ken Balcomb of the
Center for Whale Research was observing transient killer whales to
the south in Haro Strait.
At first, Scott believed the sonar may have been coming from the
Canadian Navy ship HMCS Ottawa, but Canadian officials were quick
to deny it. His suspicions shifted to the U.S. Navy. He was
disturbed by that prospect since the Navy stopped using sonar
during training exercises in Puget Sound shortly after the USS
Shoup incident in 2003. For a reminder of that incident, check my
story in the
Kitsap Sun, March 17, 2005.
Later, the requirement for approval from the Pacific Fleet
command became an enforceable regulation when it was added to the
letter of authorization (PDF 3.4 mb) issued by NOAA Fisheries.
The letter allows the Navy a specific “take” of marine mammals
during testing and training operations.
Within days of this year’s sonar incident, Scott learned from
observers that two Navy ships had traveled through Haro Strait
about the time that sonar was heard on a nearby hydrophone. Navy
Region Northwest confirmed the presence of Navy vessels.
Later, Scott received an email from Lt. Julianne Holland, deputy
public affairs officer for the Navy’s Third Fleet. She confirmed
that a Navy ship used sonar for about 10 minutes at the time of
Scott’s recording. The ship was identified as a guided missile
destroyer — the same type as the Shoup — but its name has never
“The Navy vessel followed the process to check on the
requirements for this type of use in this location, but a technical
error occurred which resulted in the unit not being made aware of
the requirement to request permission,” according to Lt. Holland’s
email to Scott. “The exercise was very brief in duration, lasting
less than 10 minutes, and the Navy has taken steps to correct the
procedures to ensure this doesn’t occur again at this, or any
Because no marine mammals appeared to be injured, the story kind
of faded away until I recently contacted Lt. Holland to tie up some
loose ends. She ignored my questions about whether disciplinary
actions had been taken against any Navy personnel. “The Navy has
taken appropriate action to address the issue, including reissuance
of specific guidance on the use of sonar in the Pacific Northwest.”
The memo was sent to “all units in the Northwest.”
After I reopened the discussion, Scott did some acoustic
calculations based on figures and graphs he found in a Navy report
on the Shoup incident. He located published estimates of the source
levels and concluded, based on NOAA’s old thresholds, that marine
mammals within 10 kilometers (6.2 miles) would experience noise
levels likely to change their behavior (level B harassment).
Based on the data available, Scott could not conclude whether
the transient killer whales in Haro Strait were within that range,
but he said it was encouraging that Ken Balcomb did not notice any
changes in their behavior. It was also helpful that the sonar was
used for a relatively short time.
“It was a little nerve racking to hear the Navy was making
mistakes,” Scott said, “but we can give them a pat on the back for
doing the exercise during the day” when lookouts on the ship at
least have a chance to spot the animals.
UPDATE, Oct. 2, 2015
The Navy has released its
final environmental impact statement on Northwest testing and
training operations. The document does not consider an option for
avoiding “biologically significant areas” when using sonar or
explosives, as in the legal settlement for operations in California
and Hawaii. It is yet to be seen whether National Marine Fisheries
Service will add new restrictions when issuing permits for
incidental “take” under the Marine Mammal Protection Act. Here is
news release (PDF 548 kb).
A legal agreement approved this week to limit the Navy’s use of
sonar and explosives in “biologically important areas” of Southern
California and Hawaii represents a “sea change” in the Navy’s
protection of marine mammals, says Michael Jasny of the Natural
Resources Defense Council.
Encouraged by the cooperative effort to reach an out-of-court
settlement with the Navy, Michael said the deal could have
implications for future Navy activities in the Northwest and
throughout the country.
The NRDC and seven other environmental groups filed suit over
Navy plans to train with sonar and explosives in Southern
California and Hawaii with no specific geographic limitations. The
environmental groups argued that one good way to reduce injury and
death to marine mammals is to avoid areas where large numbers of
whales and dolphins congregate to feed, socialize and
A federal judge ruled in favor of the environmental groups,
saying “it makes no sense” for the Navy to insist that its training
exercises require the use every square mile of ocean. The ruling
drew the Navy into settlement negotiations.
“This settlement resulted from a constructive good-faith effort
on all sides,” Michael Jasny told me by phone. “That, in itself,
represents a real change in the way the Navy has interacted with
the conservation community. It took litigation to create this
window of opportunity to advance policy to be consistent with
Michael said research by the Navy and other groups has shown how
marine mammals are killed and injured by Navy sonar and explosives.
As the science has evolved, so have the tools to reduce impacts —
such as maps showing where marine mammals hang out, maps that can
help the Navy reduce its harm to many species.
Michael said it has been shameful to watch the National Marine
Fisheries Service — the agency charged with protecting marine
mammals — stand by and issue permits that allow the Navy to do
whatever it wants. Now, he added, the negotiations between the Navy
and environmental groups provide a blueprint for how NMFS can
better live up to its mission of protecting marine mammals.
“Frankly, after years of fighting about these issues, we are
seeing folks on both sides very willing to find solutions,” Michael
said. “Folks on the Navy side have generally been willing to come
to the table. The Navy would not have entered into this agreement
if it believed these measures prevented it from achieving their
military readiness objective.”
For its part, the Navy tends to downplay the significance of
this week’s settlement.
“After a federal court ruled in favor of plaintiffs’ claims, the
Navy faced the real possibility that the court would stop
critically important training and testing,” said Lt. Cmdr. Matt
Knight, spokesman for the Pacific Fleet. “Instead, NMFS and the
Navy negotiated in good faith with the plaintiffs over five months
to reach this agreement.”
In a written statement, Knight said the Navy’s existing
protective measures are “significant” and the agreement increases
restrictions in select areas. Those restrictions will remain in
place until the current permit expires on Dec. 24, 2018.
“It is essential that sailors have realistic training at sea
that fully prepares them to prevail when and where necessary with
equipment that has been thoroughly tested,” Knight said in the
statement. “This settlement agreement preserves critically
important testing and training.”
In an email, I asked the Navy spokesman how the agreement might
translate into special protections in other areas, particularly the
Northwest where we know that Navy ships cross paths with many
different kinds of whales and dolphins. His answer was somewhat
“The Navy continues to work with NMFS to develop necessary and
appropriate measures to protect marine mammals,” he wrote back.
“The Navy’s current protective measures afford significant
protections to marine mammals. That said, the Navy will not
prejudge what measures will be appropriate to address future
The Navy is about to complete an environmental impact statement
that outlines the effects of its testing and training operations in
Puget Sound and along the Washington Coast. In comments on the
draft EIS and proposed permit, environmental groups again called
attention to the need to restrict operations in places where large
numbers of marine mammals can be found. For example, one letter
signed by 18 conservation groups addresses the operational details
in the Northwest Training and Testing Range:
“Despite the vast geographic extent of the Northwest Training
and Testing Study Area, the Navy and NMFS have neither proposed nor
adequately considered mitigation to reduce activities in
biologically important marine mammal habitat. Virtually all of the
mitigation that the Navy and NMFS have proposed for acoustic
impacts boils down to a small safety zone around the sonar vessel
or impulsive source, maintained primarily with visual monitoring by
onboard lookouts, with aid from non-dedicated aircraft (when in the
vicinity) and passive monitoring (through vessels’ generic sonar
“The NMFS mitigation scheme disregards the best available
science on the ineffectiveness of visual monitoring to prevent
impacts on marine mammals. Indeed, the species perhaps most
vulnerable to sonar-related injuries, beaked whales, are among the
most difficult to detect because of their small size and diving
behavior. It has been estimated that in anything stronger than a
light breeze, only one in fifty beaked whales surfacing in the
direct track line of a ship would be sighted. As the distance
approaches 1 kilometer, that number drops to zero. The agency’s
reliance on visual observation as the mainstay of its mitigation
plan is therefore profoundly insufficient and misplaced.”
Even before this week’s out-of-court settlement, environmental
groups were urging the Navy and NMFS to delay completion of the EIS
until they fairly evaluate new studies about the effects of sonar,
explosives and sound on marine mammals. Measures to protect whales
and other animals should include restrictions within biologically
important areas, they say.
This week’s out-of-court settlement included limitations on the
use of sonar and explosives in the BIAs of Southern California and
Hawaii. For details, check out the
signed order itself (PDF 1.5 mb) with associated maps,
or read the summary in news releases by
Earthjustice. Not all BIAs that have been identified are
getting special protection under the agreement.
Biologically important areas for whales, dolphins and porpoises
include places used for reproduction, feeding and migration, along
with limited areas occupied by small populations of residents. For
a list of identified BIAs, go to NOAA’s Cetacean
and Sound Mapping website. For additional details, see NOAA’s
release on the subject.
Michael Jasny said he is encouraged with the Navy’s
acknowledgement that it can adequately conduct testing and training
exercises while abiding by restrictions in specified geographic
areas. He hopes the Navy uses the same logic to protect marine
mammals on the East Coast, including Virginia where seismic
exploration increases the risk; portions of the Gulf of Mexico; the
Gulf of Alaska; the Mariana Islands; and, of course, the Pacific
Zak Smith, an NRDC attorney involved with Northwest sonar
issues, said the settlement in California and Hawaii should
encourage the National Marine Fisheries Service to apply the same
mitigation to testing and training to waters in Washington, Oregon,
California and Alaska.
“I would hope when they come out with a final rule that the
Fisheries Service would have engaged with the kind of management
approach that we did in the settlement,” he said. “The Fisheries
Service and the Navy should sit down and review biologically
significant areas against the Navy’s training and testing
Clearly, if you read through the comments, environmental groups
are dismayed about the Navy’s potential harm to marine mammals and
its failure to address the problem:
“The sonar and munitions training contemplated in the Navy’s
NWTT Draft Environmental Impact Statement is extensive and details
extraordinary harm to the Pacific Northwest’s marine resources….
Even using the Navy and NMFS’s analysis, which substantially
understates the potential effects, the activities would cause
nearly 250,000 biologically significant impacts on marine mammals
along the Washington, Oregon, Northern California, and Southern
Alaska coasts each year – more than 1.2 million takes during the
5-year life of a Marine Mammal Protection Act incidental take
I’m not sure it is necessary for me to point out that without
significant changes to the Navy’s current plans, we are likely to
see another lawsuit over routine testing and training
The title of the book “War of the Whales” comes from the
“cultural war” between the Navy, which is primarily interested in
national security, and environmental advocates trying to protect
whales, according to author Joshua Horwitz.
“You have these two groups that care about the whales but for
different reasons,” Josh told me in a telephone interview. “One
group is trying to save the whales; the other is trying to get a
leg up on the Cold War.”
As I described yesterday in
Water Ways, “War of the Whales” is really several stories woven
into an exquisitely detailed narrative. I found the biography of
Ken Balcomb, who served in the Navy, especially compelling within
the full context of the Navy’s involvement with marine mammals.
Horwitz was successful in interviewing retired Navy officers,
who explained anti-submarine warfare and put the Navy’s viewpoint
“I have a lot of respect for the Navy,” he said. “None of these
guys are villains. This is a totally different story from
‘Blackfish.’ The Navy is a lot more complicated.”
While SeaWorld, the subject of Blackfish, and other aquariums
exploit marine mammals for commercial purposes, the Navy has our
national interest at heart, Josh said, adding that some Navy
officials failed to understand the full implications of the harm
they were doing.
“They hate to see their reputation sullied as good stewards of
the environment,” he noted. “They do care, and it almost tears them
up that they have gotten a black eye.”
Through a series of lawsuits, the Navy was forced to confront
the effects of its testing and training exercises with sonar, Josh
“I think the Navy has come a long way on what they do on ranges
on our coasts,” he said. “They are taking the process much more
seriously now. But they still aren’t doing that on the foreign
New lawsuits have been filed by NRDC based on potential impacts
to marine mammals, as revealed in a series of environmental impact
statements dealing with the effects of Navy training.
“I really do feel that it is important to keep the pressure on
the Navy and the government on all fronts,” Josh said. “There is a
limit to what the courts can do. And there are enough good actors
inside the Navy.”
One lawsuit, which Horwitz followed closely in “War of the
Whales,” focused on violations of environmental and administrative
law — until the Navy pulled out its “national security card.” The
U.S. Supreme Court seemed reluctant to put a hard edge on its
ruling, thus allowing uncertain security threats to trump potential
harm to marine life.
Josh contends that responsible parties from all sides should sit
down together and work out reasonable procedures for Navy training.
They should include exclusionary zones for the deployment of sonar
and live bombing in areas where whales go, at least during times
when whales are likely to be there.
More could be done with computer simulations to train Navy
personnel, he said. The other armed services are doing much more in
terms of simulating and responding to conditions that may be
encountered in real life.
“I have heard from well-placed people in the Navy that there is
room for vastly increasing the amount of simulation training,” he
“We know you can’t land an aircraft on a carrier (with
simulation), but if you can reduce the amount of live training, it
would be a win for everybody,” he added.
Simulations would not only reduce the impact on the marine
ecosystem, it would reduce the Navy’s cost of training, its use of
energy and its overall carbon footprint.
One thing is for sure, he said. Government oversight into the
Navy’s operations is nothing like the oversight into private
business. The National Marine Fisheries Service is so outgunned by
the Navy in terms of “political muscle” that the agency is
relegated to approving practically anything the Navy wants to do.
“I hope that comes through in the book,” he said.
Meanwhile, the Navy has developed the technology that could help
quiet commercial ships and reduce the noise and stress on marine
life throughout the world, he said.
“The Navy could take the lead and wear the white hat and save
the ocean from noise pollution,” Josh told me. “When you mitigate
for noise, the pollution goes away. It’s not like plastic pollution
that will still be there for a very long time.”
At the start, Horwitz was not sure what kind of story would
develop. It began with a meeting with Joel Reynolds, the lead
attorney for NRDC. At the time, Josh had just taken his 13-year-old
daughter on a whale-watching trip to Baja, Mexico. Like many of us,
he got sucked into one whale story after another, and he came to
learn about the Navy’s long and complicated relationship with
Horwitz has been involved in the publishing industry since the
1990s. He calls himself a kind of “midwife” for new books, which
involves putting writers together with characters who have a great
story to tell. He initially planned to “package” the story of the
whales by working with a professional journalist, but his wife
encouraged him to forge his passion into a book of his own.
Josh had co-written a handful of books in his life, including
some children’s books, after he graduated from film school at New
York University. But this was the first time he had tackled a
project with the breadth and depth of the story that became “War of
the Whales.” The project took seven years to research, write and
craft into a full-length, hard-bound book. Now, a paperback version
is in the works.
During the early part of the project, Josh continued part-time
with his publishing business. Over the final two years or so, he
devoted his full effort into the writing and follow-up research. To
pay the bills, he supplemented his publisher’s advance with money
raised through The Ocean Foundation.
By the time the writing was done, several editors who originally
expressed interest in the book were no longer in the business, he
said. As luck would have it, one interested editor had risen in the
ranks to publisher and was able to help him complete the project
and get the book into print.
Josh and his wife, Ericka Markman, live in Washington, D.C.,
with their three daughters, ages 20, 18 and 13.
In the book “War of the Whales,” author Joshua Horwitz reveals,
in exquisite detail, how Ken Balcomb played a central role in
showing how Navy sonar was killing and injuring whales around the
Ken, who we know as the dean of orca research in Puget Sound,
has not been alone, of course, in the quest to get the Navy to
better protect marine mammals. Horwitz introduces us to a variety
of people, each with his or her own interest in saving the
Frankly, I was surprised at how much I learned from the book,
given that I have been covering these same issues as a reporter for
many years. What really gained my admiration for Horwitz was how he
was able to weave scientific and historical aspects of the story
into a gripping tale that reads like a detective thriller.
I consider this book to be several stories woven into one.
First, there are the personal biographies of two key players in
this conflict with the Navy. The lives of Ken Balcomb, of the
Center for Whale Research, and Joel Reynolds, of the Natural
Resources Defense Council, became intertwined with each other after
the NRDC sued the Navy over its use of sonar around whales.
Next, we are given the history of the Navy’s sonar technology,
developed to track stealthy submarines. We meet many of the Navy
officials involved, including some who became emotionally involved
with marine mammals, flipping to the other side, as Horwitz
The Navy has long controlled much of the research involving
marine mammals — the original models for sonar. At times, whales
and dolphins were even trained as military combatants, with mixed
Last, but not least, we are shown the legal arguments related to
environmental law versus the need for national security. As a
result, we see how the Navy has become more open today about the
risks to whales from its testing and training procedures.
Horwitz paints intimate portraits of many of the characters,
especially Balcomb, the biologist, and Reynolds, the lawyer. He
sees the pair coming together from different backgrounds and
uniting in their effort to protect the whales against the Navy’s
single-minded approach to national security.
“Ken was such an extraordinary character,” Horwitz told me in a
telephone interview. “He was a reluctant activist. Activism wasn’t
The story begins in the Bahamas, where Balcomb was doing
research when a mass stranding of beaked whales took place,
practically at his doorstep. Navy sonar had been suspected of
killing whales in other areas of the world, but Balcomb was able to
secure fresh tissues — essential evidence to understand how their
injuries were caused by sound waves. Balcomb also observed that the
Navy was conducting exercises in the Bahamas at the same time, and
he made the connection to the dead whales.
From there, other researchers and policy officials became
involved, but Balcomb kept pushing to keep the incident from being
swept under the rug.
“Ken’s investment was immediate,” Horwitz explained. “One night
the Navy just plowed through and decimated this population of
We learn from the book about Ken’s serendipitous life. As a
young biologist, he collected whale lungs for research by going to
a commercial whaling station still operating in California. He
later signed onto a research crew as a dishwasher, but his skills
with a shotgun earned him the lead job of tagging whales.
Balcomb joined the Navy during the Vietnam War and became a
pilot. A series of circumstances led him into Fleet Sonar School
and the Navy’s highly secretive Sound Surveillance System, or
SOSUS. At the same time, his compatriots in graduate school became
some of the top marine mammal experts for the Navy and the National
Marine Fisheries Service. His later interactions with these folks
revealed something about their past and present positions in
Horwitz ties all these pieces of the story together in a
compelling narrative that kept offering me new and surprising
tidbits of information. It took the author seven years to complete
“He kept asking over and over the same questions,” said Ken,
somewhat amused when I asked him about it. “I didn’t know if he had
confused notes or what.”
Horwitz was seeking an extraordinary level of precision and
accuracy, so that his telling of this true and controversial story
could not be assailed.
Balcomb said he could find no errors, except for the conscious
decision by Horowitz and his editors to describe two overflights by
Balcomb in the Bahamas as a single event.
Most surprising of all was the account from Navy officials,
whose story about underwater warfare has rarely been told, except
perhaps in novels by Tom Clancy and others. Horwitz said
active-duty military officials were no help to him, but he got to
know retired Admiral Dick Pittenger, who opened doors to other
“He (Pittenger) was a total career Navy guy, but he was
skeptical about the way the Navy was handling some of these
matters,” Horwitz said, noting that the admiral spent days helping
him understand anti-submarine warfare.
Pittenger wanted the story told right, and he must have been
satisfied with the result, since he offered this comment in
promotional materials for the book:
“‘War of the Whales’ is an important book about a major
post-Cold War problem: the often conflicting goals of national
security and environmental protection. The author presents this
very complex and multidimensional story with great clarity.
“I’m certain that no one who has been involved with this issue
will agree with everything in this book (I don’t). But the topic
is, by its nature, so emotionally charged and controversial that I
doubt anyone can read it without a strong personal response. The
importance of this book is that it tells the ‘inside’ story to the
wide reading public in a compelling way.”
In my mind, Horwitz did a remarkable job of capturing the
relevant facts for this complicated story. He then seamlessly
joined the pieces together into a coherent and dramatic story — one
especially important to those of us living in an area where the
Navy maintains a strong presence among an abundance of marine
Check back to “Watching Our Water Ways” tomorrow, when I will
describe more of Josh Horowitz’s personal views about his book and
what he learned along the way.
An Associated Press story came out even before the Navy
officially published its environmental impact statement in the
The EIS predicted that 200
deaths and 1,600 instances of hearing loss would be suffered by
marine mammals in the Navy’s testing and training ranges in Hawaii
and California, reported
AP writer Audrey McAvoy.
The old Navy analysis, she said, listed injuries or deaths to
about 100 marine mammals.
It turns out that the causes are multiple and the implications
many, as I reported in a story in
Sunday’s Kitsap Sun.
In both California-Hawaii and the Northwest, the greatest
effects come from the use of sonar and explosives, which the Navy
considers essential to proper training and testing. By far, the
greatest number of injuries and deaths are to dolphins. But the
higher numbers do not mean that the Navy will be changing its
operations to a great degree. If one doesn’t read this carefully,
the higher numbers are easy to get confused.
The unusual death of L-112, a young female orca apparently
killed by “blunt force trauma,” continues to fuel discussions about
what may have killed her and what should be done about it.
Kenneth Hess, a Navy public affairs officer,
posted a comment today on the recent blog entry
“Balcomb wants to know if young orca was bombed.” In his
comment, Hess repeats that the Navy did not conduct any training
with sonar, bombs or explosives in the days preceding L-112’s
death. He called it “irresponsible and inaccurate” to blame the
Navy for “blowing up” the whale.
Another new development today is an e-mail I received from Lt.
Diane Larose of the Canadian Navy, responding to my inquiry about
any explosive devices used in the days before L-112 was found dead
on Feb. 11.
Read the e-mail (PDF 16 kb) I received:
“On February 6, 2012 HMCS Ottawa was operating in the Straits of
Juan de Fuca, specifically in Constance Bank, conducting Work Ups
Training including a period of sonar use and two small under water
charges as part of an anti-submarine warfare exercise. These small
charges were used to get the ships’ company to react to a potential
threat or damage to meet the necessary training requirement.”
In talking to experts involved in the investigation, it seems
unlikely that L-112 could have been injured or killed in the Strait
of Juan de Fuca and then wash up dead on Long Beach five days
later. So the mystery continues.
tomorrow’s Kitsap Sun, I’m reporting that environmental groups
on both sides of the Canadian border are calling on their
respective navies to disclose all the specific activities during
the 10 days leading up to the discovery of L-112’s carcass at Long
Beach on Feb. 11. The groups also are calling for a complete
cessation of sonar use for training and testing in the Salish
Check out three letters submitted to the navies involved,
including one from U.S. and Canadian scientists: Continue reading →
A dozen environmental groups say they will boycott the nine
“scoping meetings” the Navy is holding to kick off a new round of
studies regarding testing and training activities in the
In a letter dated March 13 (PDF 16 kb), the groups said the
format of the meetings is not designed to encourage public
discussion or even allow public comment. In addition, the Navy and
the National Oceanic and Atmospheric Administration have ignored
ongoing calls for the Navy to better protect marine wildlife and
the environment along the Washington Coast and other biologically
important areas, they say.
The Navy will seek a new permit from NOAA for the incidental
harassment of marine mammals during testing and training
activities. Most of the activities are identical to what is taking
place now, but some new activities are added — including the
testing of sonar from ships docked at piers.
“As you know, the scoping process is the best time to identify
issues and provide recommendations to agencies on what should be
analyzed in the EIS. However, a process developed for activities
with controversial impacts, like those at issue here, that does not
provide opportunity for the public to testify or speak to a broader
audience, or to hear answers to questions raised by others, and
that fails to engage major population centers is not designed to
help citizens and organizations effectively participate in
agencies’ environmental reviews.”