Will the Navy extend whale protections
to other regions?

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 the news release (PDF 548 kb).
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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 reproduce.

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 science.”

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 vague.

“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 proposed actions.”

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 systems).

“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 NRDC and 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 news 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 Northwest.

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 needs.”

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 permit.”

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 operations.

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