Tag Archives: Natural Resources Defense Council

Two-for-one executive order on regulations headed for showdown

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from toxic chemicals, despite an executive order from President Trump that requires two existing regulations to be repealed for every new regulation approved.

Photo: André Künzelmann, Wikimedia commons

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 Encyclopedia 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.

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Agency failing to protect marine mammals from the Navy — Joel Reynolds

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 Council.

Joel Reynolds
Joel Reynolds

But the blame cannot be placed entirely on the Navy, Joel says in a blog entry he wrote for the Huffington Post.

“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 unwelcome answers.

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.

In January 2015, I reviewed the book (“My take on the book…,” Water Ways, Jan. 10, 2015), and I also interviewed the author for his inside story (“A discussion with author Joshua Horwitz,” Jan. 11, 2015).

USS Shoup, a Navy destroyer based in Everett. U.S. Navy photo
USS Shoup, a Navy destroyer based in Everett.
U.S. Navy photo

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 right track.

“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 limitations.

“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 to bear.”

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 officers.

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 common sense.

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 opinion.)

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 in yesterday’s Courthouse News, which includes these further comments from Joel:

“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’ movie takes us to the underwater world of sound

“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.

Michael Jasny
Michael Jasny

“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.”

Ken Balcomb
Ken Balcomb

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.”

Chris Clark
Chris Clark

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 greater degree.

“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.

Will new guidance reduce hearing loss in whales and dolphins?

A new controversy is beginning to rumble over the potential injury to marine mammals from sounds transmitted in the water.

Transient killer whales Photo: Kitsap Sun
Transient killer whales // Photo: Kitsap Sun

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.

Proposed noise guidance

The new “Draft Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing” is a major revision from guidance in effect since the late 1990s. The document is currently going through its third public comment period since the end of 2013, having been updated and reviewed by three expert panels.

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 NOAA Fisheries.

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 be experienced.

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 porpoises.

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 NOAA Fisheries’ website.

“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.

USS Shoup, a Navy destroyer based in Everett. U.S. Navy photo
USS Shoup, a Navy destroyer based in Everett. // U.S. Navy photo

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 been revealed.

“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 other, location.”

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.

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).

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.

USS Shoup, a Navy destroyer based in Everett. U.S. Navy photo
USS Shoup, a Navy destroyer based in Everett.
U.S. Navy photo

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.”

Humpback whales, an endangered species. NOAA photo by Dr. Louis M. Herman
Humpback whales, an endangered species.
NOAA photo by Dr. Louis M. Herman

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.”

Southern Resident killer whale, an endangered species. NOAA photo
Southern Resident killer whale, endangered.
NOAA photo

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.

‘War of the Whales’ : A discussion with author Joshua Horwitz

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.”

Joshua Horwitz
Joshua Horwitz

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 into perspective.

“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 said.

“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 ranges.”

As recently as April, a mass stranding of beaked whales was observed during a training exercise involving the U.S., Greek and Israeli navies. Check out a report by Greek Reporter and a blog post by Michael Jasny of Natural Resources Defense Council.


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 said.

“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 marine mammals.

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.

“War of the Whales” can be ordered from the Center for Whale Research, which gets a share of the proceeds, or visit the book’s webpage, “War of the Whales.”

‘War of the Whales’ :
My take on the book by Joshua Horwitz

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 world.


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 whales.

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 describes it.

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 success.

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.

Joel Reynolds, left, and Ken Balcomb at the Center for Whale Research on San Juan Island, September 2013. Photo by Joshua Horwitz
Joel Reynolds, left, and Ken Balcomb at the Center for Whale Research on San Juan Island, September 2013.
Photo by Joshua Horwitz

“Ken was such an extraordinary character,” Horwitz told me in a telephone interview. “He was a reluctant activist. Activism wasn’t Ken’s thing.”

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 whales.”

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 life.

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 the book.

“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 retired officers.

“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 life.

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.

The book can be ordered from the Center for Whale Research, which gets a share of the proceeds, or visit the book’s webpage, “War of the Whales.”

Navy analysis shows higher risk to marine mammals

An Associated Press story came out even before the Navy officially published its environmental impact statement in the Federal Register.

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.

So what caused these increased estimates of injury and death, and what are the implications for the Northwest Training and Testing Range Complex in Washington state?

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.

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Mystery of orca’s death only deepens with new info

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.

In 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 Sea.

Check out three letters submitted to the navies involved, including one from U.S. and Canadian scientists:
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Environmental groups will boycott Navy meetings

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 Northwest.

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.

Navy's Northwest testing and training ranges. Click to enlarge.
Map by U.S. Navy

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.

Between now and 2015, Navy officials will describe and study the effects of various activities on marine life and update existing mitigation with new research findings. See my initial story in the Kitsap Sun, Feb. 27, and a related post in Water Ways, March 6. Also, you may review the official notice in the Federal Register.

Back to the letter, which states in part:

“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.”

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