Eighteen months after a lawsuit challenged the latest 5-year authorization for the US Navy’s SURTASS-LFA low-frequency active sonar system, Federal Judge Elizabeth Laporte ruled in the Navy’s favor on nearly all counts. And last week, the Navy agreed to do a Supplemental Environmental Impact statement that will address the key point on which she found in favor of the plaintiffs.
As reported here earlier, the Navy was authorized to deploy LFA sonar on four ships, though initially only two were so equipped, both generally deployed in the western Pacific, monitoring North Korean and Chinese vessels (in 2009, their presence spurred a multi-month spat with China). The legal challenge addressed here, filed in late 2012 by the NRDC and several allies, targeted both the Navy’s EIS and the National Marine Fisheries Service’s five-year incidental take regulations. In her ruling last March, Judge Laporte sided with the Navy and NMFS on most counts. Most centrally, Judge Laporte ruled that the relatively limited set of Offshore Biologically Important Areas (OBIAs) that should be avoided by LFA sonar was justified by the science, and was not, to use the legal-standard terms, arbitrary and capricious (by contrast, NRDC charged that the 22 OBIAs were “literally a drop in a bucket” within the 50% of the earth’s oceans open to LFAS deployment). In addition, several specific ways in which the Navy and NMFS limited OBIA protections were ruled valid, including using only seasonal OBIAs to protect sperm whales, and omitting harbor porpoises and beaked whales from OBIA protections because the sonar’s frequencies do not overlap their hearing ranges. And, in several areas, Laporte also rejected claims that the Navy failed to use the most recent available evidence (this is a new angle of attack, one that Laporte showed some openness to in a related suit on the Navy’s mid-frequency active sonar plans). In addition, she ruled that the Navy and NMFS did not fail to consider alternatives to LFAS, and did not fail to “take a hard look” at effects on non-marine-mammal species such as fish.
UPDATE, July 2016: A federal appeals court has overturned much of this ruling, suggesting that the NMFS failed to meet the “least practicable impact” standard by choosing to include only those 22 OBIAs as exclusion zones. See details here.
However, in one area, Laporte found that the Navy’s EIS fell short: it failed to update its stock estimates for bottlenose dolphins around Hawaii based on a new study (released after the initial impact assessments were done, but before completion of the final EIS) that showed more bottlenose dolphins in waters around Hawaii than previously estimated (two exercises with the Pacific LFA ships occur near Hawaii). Thus, the Navy’s impact estimates, using the old numbers, are too low. In a final agreement approved by Laporte in late May, the Navy agreed to re-run its estimates in a Supplemental Environmental Impact Statement, to be completed by February 2015; if past is prologue, the Navy will run its new numbers and find that the impact is still negligible. However, the LFA plan aims to impact no more than 12% of any regional stock of each species, and it may not yet be clear whether the new numbers will push impacts above that threshold (the earlier estimates peaked at 6% of the stock of Hawaiian bottlenose dolphins in offshore pelagic waters).
If that’s not enough legal reporting for ya, then click over to this post from January 2014 detailing the most recent round of lawsuits, filed against new 5-year permits for Navy training areas in US offshore waters.