Sea trials this week for the newly repaired submarine USS San Francisco in the Strait of Juan de Fuca once again raises the question of whether the Navy can lessen its harm to marine life while adequately training for warfare.

USS San Francisco after underwater collision, Guam, Jan. 8, 2005. U.S. Navy photo

Check out my story in today’s Kitsap Sun, where I recount some of the history of this debate, which isn’t about to end soon.

We’ve covered this question many times in Water Ways. (Just put “sonar” into the search engine of this blog to go back more than a year.) The Navy won the first round in the legal theater when the U.S. Supreme Court (PDF 308 kb) reversed lower federal courts and decided that it would not second-guess the Navy until more studies are done.

I know there are many people who believe it’s an open-and-shut case, that the debate should be over, that the Navy’s mission is too important to allow interference by environmentalists, lawyers, courts or politicians.
I believe, however, that the debate is worthwhile, provided we bring knowledge to the table, though it may be uncomfortable at times.

As a result of the Shoup incident in 2003, the Navy stopped using sonar in Puget Sound except on rare occasions, such as this week. It appears the move was good for whales and dolphins, and I have not heard of any profound regrets from the Navy.

The Navy has undertaken a great deal of research about the impacts of whales on sea life, as it should, and Navy commanders have committed to making the information public. From that, scientists can debate what is and is not safe. In the process, we all can learn.

OK, there are also debates within the debate — such as whether the studies are independent enough of Navy influence — but that’s another question.

While the public does not need to know all about Navy tactics and capabilities, I believe everyone is served by discussions that can lead to either 1) better protections for the environment, or 2) knowing what environmental sacrifices we are making to protect our country.

Maybe it’s my training and experience as a reporter, but I don’t believe any one person in this debate is totally right. I believe, however, that even folks with an extreme point of view can learn from this debate and contribute something to the discussion.
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In closing, I’d like to respond to those who have criticized my stories for not containing enough “facts” or else brushing lightly over the details.

In the first case, I have a relatively good relationship with Navy officials, but (as anyone involved with the Navy knows), the Navy is very cautious about the information it releases, so often my stories are not as complete as I would like. If something is speculation or opinion, I try to label it as such.

The issue of details is often a judgment call. Looking back on my early career, I often filled my stories with details that left the average reader behind while satisfying a limited number of experts. Now, I tend to go the other way, trying to put things in context and leaving out a lot of details. Over the past year and a half, I have been fortunate to write this blog, Watching Our Water Ways, where I can post links to documents and Web sites for those who like to dig deeper. I hope that satisfies more people in the long run.

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Jim Cummings of the Acoustic Ecology Institute has once again packed a lot of interesting information about ocean noise — and particularly effects on marine mammals — into a special report released today.

The 29-page report, titled “Ocean Noise 2008: Science, Policy, Legal Developments,” covers many aspects of Navy sonar and other kinds of ocean noise that have become a concern among environmentalists and some marine mammal experts. I’m impressed with Cummings’ ability to get to the heart of these matters.

He summarized the report in an e-mail, which I have included at the end of this post. His bullet points about the past year are these:

• Behavioral impacts clearly replaced strandings and deaths as the key issue for marine mammals encountering human noise.The legal tussles over mid-frequency and low-frequency active sonars continued, and the Supreme Court decision does not put an end to the controversy.
• The legal tussles over mid-frequency and low-frequency active sonars continued, and the Supreme Court decision does not put an end to the controversy.
• Shipping noise is moving very quickly to the forefront of international concerns about rising ocean noise.
• The scientific community appears to be entering a new phase in its engagement with ocean noise, a natural result of the increasing emphasis on these issues over the past five years.

Cummings lists “interesting things to watch” in 2009. Again, read to the end of this post for his complete summary, headed by these bullet points:

• The Navy and NRDC (Natural Resources Defense Council) will be “test-driving” their recent agreement on mid-frequency active sonar.
• In Alaska, Shell Oil will be challenging a recent ruling by the 9th Circuit Court of Appeals that revoked their permits to conduct seismic surveys, using a line of argument very similar to that which prevailed for the Navy before the Supreme Court.
• How will the Obama administration approach new offshore oil exploration and development on the US Outer Continental Shelf?
• The possibility that noise causes stress responses in marine life is under increasing scrutiny, and could fundamentally alter the equation that is central to ocean noise regulation: if and how noise may contribute to long-term, population-level impacts.

The following is the full summary, but you can find more details in the report itself at the home page of the Acoustic Ecology Institute.
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The ongoing legal battle over the Navy’s use of mid-frequency sonar was ended with an out-of-court settlement while I was on vacation over Christmas break.

An Associated Press report by Audrey McAvoy, carried by several newspapers, covered only the Navy’s perspective, because the Navy announced the agreement on a Saturday.

Read on down below for the story I wrote for Wednesday’s Kitsap Sun.

If you’d like to peruse the settlement agreement (PDF 2.5 mb), you can download a copy from the Kitsap Sun’s Web site, although I’m told it will eventually be posted on the Web site of the Natural Resources Defense Council.

To understand the context, check out the Navy’s news release as well as a news release from NRDC.
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Navy officials and attorneys with the Natural Resources Defense Council, which brought the sonar lawsuit, offered these responses to today’s U.S. Supreme Court ruling.

For further details about the ruling, see the entry below in Watching Our Water Ways.

Navy Secretary Donald C. Winter:
“This case was vital to our Navy and Nation’s security, and we are pleased with the Supreme Court’s decision in this matter. We can now continue to train our Sailors effectively, under realistic combat conditions, and certify our crews “combat ready” while continuing to be good stewards of the marine environment.”

Admiral Gary Roughead, chief of Naval Operations:
“We are pleased with the Supreme Court’s decision on this case of vital importance to our National Security. We will continue to train realistically and certify the Sailors and Marines of our Navy strike groups in a manner that protects our nation’s security and the precious maritime environment.”

Lt. Sean Robertson, media relations action officer, CHINFO
“Without the crippling restrictions contained in the preliminary injunction, our Sailors can train realistically and the Navy is able to certify our forces are ready for Anti-Submarine Warfare, reducing risk to our Sailors and national security, while simultaneously protecting the environment. The Navy appreciates the careful consideration and prompt review the Court gave this important case involving national security.”

Rear Adm. James A. Symonds, commander of Navy Region Northwest
“Although this decision does not directly affect the Puget Sound, some SONAR training does occur on a smaller scale in the Northwest training ranges. It is important that our Sailors are able to train as they would be called to fight, in a realistic environment.

“When Sailors train, they adhere to the 29 protective mitigation measures whenever mid-frequency active SONAR is needed to minimize potential harm to marine mammals. This includes posting lookouts, power-down and shut-down requirements. The Navy is preparing an environmental impact statement to comprehensively analyze the effects of all Navy activities in the Northwest training ranges.”

Joel Reynolds, senior attorney and director of NRDC’s marine mammal program:
“The Supreme Court held that the lower courts did not properly balance the competing interests at stake, and struck down two significant safeguards that reduce harm to whales from high-intensity sonar training.

“The decision places marine mammals at greater risk of serious and needless harm. However, it is a narrow ruling that leaves in place four of the injunction’s six safeguards. It is significant that the court did not overturn the underlying determination that the Navy likely violated the law by failing to prepare an environmental impact statement.”

Richard Kendall, NRDC co-counsel:
“It is gratifying that the court did not accept the Navy’s expansive claims of executive power, and that two thirds of the injunction remains intact.”

See the full press release from NRDC

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The U.S. Supreme Court has lifted restrictions imposed by a federal district judge on the use of sonar around marine mammals. The syllabus of the court decision includes this:

The preliminary injunction is vacated to the extent challenged by the Navy. The balance of equities and the public interest—which were barely addressed by the District Court—tip strongly in favor of the Navy. The Navy’s need to conduct realistic training with active sonar to respond to the threat posed by enemy submarines plainly outweighs the interests advanced by the plaintiffs.

And this:

A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and consider the effect of granting or withholding the requested relief, paying particular regard to the public consequences… Military interests do not always trump other considerations, and the Court has not held that they do, but courts must give deference to the professional judgment of military authorities concerning the relative importance of a particular military interest….

The use of MFA (mid-frequency active) sonar under realistic conditions during training exercises is clearly of the utmost importance to the Navy and the Nation. The Court does not question the importance of plaintiffs’ ecological, scientific, and recreational interests, but it concludes that the balance of equities and consideration of the overall public interest tip strongly in favor of the Navy. The determination of where the public interest lies in this case does not strike the Court as a close question.

The court said, in an opinion supported by six justices, that any restrictions should come after an environmental impact statement, and it warned that permanent court restrictions of similar nature would be an “abuse of discretion.”

This Court does not address the underlying merits of plaintiffs’ claims, but the foregoing analysis makes clear that it would also be an abuse of discretion to enter a permanent injunction along the same lines as the preliminary injunction. Plaintiffs’ ultimate legal claim is that the Navy must prepare an EIS, not that it must cease sonar training.

Review the sonar decision (PDF 308 kb) for yourself and take a look at this Associated Press story by Mark Sherman, which was posted soon after the decision came out.

Updated story by the AP Writer Pete Yost

Stay tuned for reactions and further discussion.

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I didn’t catch a notable New York Times editorial the week the U.S. Supreme Court heard a case that could decide the limits of presidential authority in overriding environmental laws.

Immediately after the hearing, which involved Navy sonar and marine mammals, I posted an entry on Watching Our Water Ways and later listed numerous news reports about the hearing and what the justices had to say.

In an editorial Oct. 11, the New York Times commented:

We hope the Supreme Court has the sense to assert its authority over military activities that can cause environmental harm far from any battlefield. Some of the justices’ comments this week sounded as though they were feeling far too deferential to the military…

It was dismaying to hear Justice Stephen Breyer assert that “I don’t know anything about this. I’m not a naval officer.” It was discouraging that Justice Samuel Alito found it “incredibly odd” that a district court judge had concluded that her restrictions would not compromise the Navy’s training when the Navy claimed they would…

Few justices are truly expert in most of the issues they confront. Yet they have no qualms about ruling on cases that involve complex political, social, economic, scientific or medical issues… Surely the Supreme Court has the ability to judge whether the military should be allowed to flout environmental laws with a dubious claim of national security.

I believe, as I’ve said before, that this issue rests on a balance between the needs of the Navy to train adequately and the needs of marine mammals to live and thrive. The Navy has come a long way in protecting the environment, and I’m not saying the restrictions imposed by a federal judge are the right ones. However, the military does not function outside of our government, which depends on checks and balances at all levels.

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The power of the U.S. president to override environmental laws is a central issue in the sonar case before the U.S. Supreme Court.

In a story posted shortly after noon today on the Kitsap Sun’s Web site, Mark Sherman of the Associated Press reported that Justice David Souter ridiculed the idea that the administration could declare an emergency to try to get around complying with environmental laws. The Navy opted not to conduct a more rigorous environmental impact study before beginning the long-planned exercises, Souter said.

“If there’s an emergency, it’s one the Navy created simply by failing to start EIS preparation in a timely way,” he said.

The Bush administration has taken the position that the president has the authority to override environmental laws during emergencies. He essentially declared an emergency to make sure the Navy could adequately train to locate enemy submarines, an issue related to national security.

Justice Samuel Alito suggested that he found little evidence in the court record that marine mammals would be harmed by the sonar use proposed by the Navy, Sherman reported.

Alito also said there was “something incredibly odd” that a single federal judge, who issued the first order against the Navy in this case, would be able to force changes in the exercises.

Warren Richey of the Christian Science Monitor lays out the background of the case in a story yesterday.

“Call this story ‘save the whales’ meets ‘The Hunt for Red October,’ Richey writes.

“The case doesn’t simply pit the environment against national security,” he continues. “It is also a major clash over power – the power of judges to order environmental compliance versus the power of the president and the executive branch to defend the nation. But at its most basic, the case is about whales and warfare.”

HERE ARE SOME ADDITIONAL STORIES ABOUT TODAY’S SUPREME COURT HEARING
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The U.S. Navy is going through a public process to expand its testing ranges at Keyport, in Dabob Bay and off Quinault in the Pacific Ocean.

Navy officials say they will go to considerable lengths to avoid harming marine mammals when testing sonar and other equipment, but some harassment or injury is possible. As a result, they are seeking an incidental take permit from the National Marine Fisheries Service.

Four public hearings have been scheduled for this week. Each will begin with an open house from 5 to 6:30 p.m., followed by a public hearing at 7 p.m.

They will be:
Wednesday at the Naval Undersea Museum in Keyport,
Thursday at North Mason High School,
Monday at Grays Harbor Fire District No. 8,
And Oct. 7 at the Quilcene School multipurpose room.

Comments can be made verbally or in writing by Oct. 27.

For information, check out the Kitsap Sun story by Ed Friedrich or peruse information posted on the Navy’s Web site.

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Jim Cummings, who founded the Acoustic Ecology Institute in Santa Fe, N.M., has stepped up to become an unofficial moderator in the sonar debate between the U.S. Navy and the Natural Resources Defense Council.

Cummings’ report, called “AEI FactCheck: Navy/NRDC Sonar Debate,” finds fault with both the Navy and the environmental group for over-stating or under-stating the actual impacts of sonar. I don’t have the expertise to judge his judgment, but I am encouraged by his ability to weigh the two viewpoints. As I’ve said before, this whole issue has been a balancing act.

If you are interested in the issue of underwater noise, I encourage you to dig down into the AEI Web site.

The following is a sample of Cummings’ analysis to show how he discusses some controversial questions, including whale mortalities, behavioral changes, the Navy’s needs, and so on. This one deals with Level B harassment, which occurs when a marine mammal changes its behavior or experiences temporary hearing loss:

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The Navy has agreed to limit its use of low-frequency active sonar during testing and training exercises for the next five years. See the Associated Press story by Marcus Wohlsen in the Kitsap Sun.

LFA sonar involves loud blasts of low-frequency sound, which travel long distances in the ocean. It’s safe to say that advancements in this new technology are still being made, and this settlement is far from the end of the story. Most of the news reports I’ve seen have missed the point that this is a five-year permit under the Marine Mammal Protection Act, and the issue will come up again and again.

Years ago, the Navy planned to deploy LFA sonar on many of its ships, and it could return to those plans one day. For now, the Navy is planning to use it on four ships.

The story is complicated because it goes back to the original permit issued by the National Marine Fisheries Service. The permit, challenged by the Natural Resources Defense Council, would have allowed deployment of LFA over 75 percent of the world’s oceans. This settlement (PDF 360 kb) limits the deployment for testing, training and routine surveillance to the Western Pacific Ocean near Japan and The Philippines plus areas north and south of the Hawaiian Islands.

While it limits locations for testing and training, the agreement does not limit the use of LFA sonar during conditions of combat, potential combat or heightened threat conditions.

The settlement remains a trade-off, because there is no guarantee that marine mammals won’t be present in the areas of testing or training. One thing that would help is more research on the movement of whales and marine mammals, so the Navy can plan their operations with the least risk to sea life. With better understanding of both the technology and its effects of marine animals, the Navy could reasonably expect to expand its use of this technology to protect the nation’s interests. For details, check out the Navy’s LFA page.

Another issue worthy of attention is the proliferation of LFA sonar by other countries, including Canada, France and Great Britain.

Michael Jasny, an attorney with the Natural Resources Defense Council, said he would like to see the U.S. State Department work out agreements with other countries about when and how potentially damaging acoustic transmitters would be deployed.

“We’ve been trying to involve regional seas agreements, conventions and processes that would have guidelines for these systems,” Jasny told me. “In the Mediterranean, for example, habitat has been established for marine protected areas. What we’ve been advocating is the formulation of guidelines that would identify where sonar training should not occur. It would be ‘soft law” and would not impose an affirmative duty, but it would be a huge step in the right direction.”

To make sure there’s no confusion. LFA sonar is different from the mid-frequency sonar used by many ships since World War II. Mid-frequency sonar has been implicated in the deaths of whales, but the effects are much more localized. Mid-frequency sonar remains the subject of a lawsuit between NRDC and the Navy now before the U.S. Supreme Court.

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