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Navy, NMFS slammed by judge over training permits

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The Navy and NMFS suffered a stunning legal defeat over the latest 5-year EIS and permits governing training exercises in Hawaii, California, and waters in between.  In marked contrast to other recent court rulings, which found fault with some procedural issues but largely backed the Navy and NMFS’s collaborative planning results (see detailed AEI summaries of 2014 rulings on the Pacific Northwest training range and global low-frequency sonar permits), US District Court Judge Susan Moki Olway vehemently rejected several key aspects of the permitting for the Hawaii-Southern California Training and Testing (“HSTT”) Study Area. (Note: while sonar has been the focus of most public concern, these trainings also involve live ammunition, explosions, etc., that are responsible for most of the anticipated behavioral disruptions and nearly all the injuries and deaths.)

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The primary target of the legal challenges was the National Marine Fisheries Service (NMFS), which issues the permits (Letters of Authorization) and the Biological Opinion that underly the permit conditions and take numbers. The Navy’s Environmental Impact Statement (EIS) was not directly challenged (a Supreme Court ruling has left the Navy with broad discretion and little room for legal challenges), but the EIS is accepted as sufficient by NMFS, and Judge Olway made a point of chastising NMFS for being too quick to simply adopt much of the Navy’s reasoning about both the impact on animal populations and the practicality (or lack thereof) of keeping training activities out of some areas.

The ruling seems to call for a fairly substantial revision of the EIS, the Biological Opinion, and the take numbers authorized by the permits; still, it may be likely that these documents can indeed be revised to fix the shortcomings identified by the Court, without substantially reducing the training activities being planned.  Also, an appeal to a higher court is possible, or likely, given the broad implications of the ruling.

UPDATE, September 2015: As it turned out, the Navy and NRDC negotiated a settlement, adding a few exclusion zones for the duration of the current five-year authorization. It remains to be seen how the larger issues raised by the ruling may affect the next round of Navy EIS and NMFS authorizations.

Nonetheless, this ruling is the most fundamental challenge to the current Navy and NMFS planning process since the original lawsuits that helped trigger the Navy to begin producing EISs and NMFS to issue permits.  Among the key issues that were successfully challenged:

  • For the first time, a court agreed with environmental groups who have long bemoaned the Navy’s unwillingness to set at least some biologically important areas off-limits to training exercises.  Judge Olway ruled that NMFS did not give this the requisite “hard look” required by the relevant statutes; indeed, she strongly implied that it should have been added as a formal alternative to be considered, due to the many public comments suggesting its importance, and in places her opinion echoed the incredulous tone of the critiques from environmental advocates (see final quote below).  In particular, the judge ruled that NMFS failed to adequately meet the statutory requirement of “least practicable impact” on animal populations, in part by not considering more exclusion zones.

Note: As I recall, there was some discussion in the preliminary documents I reviewed earlier of the relatively small benefit in total “takes” that would accrue from exclusion zones; this was due in part to the very long ranges over which behavioral takes occur (most are in the 37-75km range, or 23-46 miles), and in part to the very close range in which injuries occur (100-1200m), making the Navy confident they will see animals and hold off on exercises when they’re that close.  It appears that this discussion is either insufficient to the judge or was not directly referenced to her satisfaction in the final permitting documents.

  • In addition, the court looked askance at the EIS’s “no action alternative,” which was simply the continuation of status quo training activities from the previous five year permits; she rejected the NMFS’s argument that not issuing the permits serves as a true “no action” alternative as required by law.
  • The court also deemed the NMFS finding of “negligible impact” on animal stocks to be arbitrary and capricious, noting in particular that some species do not have sufficient population data to make that claim, and that for others, the permitted Authorized Annual Mortality numbers exceed the local populations’ Potential Biological Removal (PBR) levels (the maximum number of animals that can be lost without impacting overall population health).

The PBR levels were not included in the Navy and NMFS documents, though NMFS says they were discussed; their omission led the judge to agree that NMFS had thus neglected the requirement to consider “the best scientific information available.”  The permits were issued based on the assumption that actual deaths would be fewer, if any (see next bullet).

The population data ruling is tricky—we simply don’t have reliable stock estimates for all species, and a “negligible impact” determination is generally required to issue take authorizations; does this ruling imply that NMFS cannot issue permits for any takes at all for these stocks? In addition to several species of marine mammals, for which NMFS did authorize specific numbers of takes, the judge also ruled that permits for “an unspecified number” of turtles (for which there is also insufficient population data), was likewise arbitrary and capricious; this leaves a very murky picture about how to proceed with regard to these less-studied populations.

  • The court ruled that NMFS permitting decisions must be based on the Authorized Take numbers, not on the “anticipated” take numbers.  Recent Naval training permits have authorized huge numbers of behavioral disruptions (millions over the five years) and disturbingly high incidences of injury including hearing loss (hundreds to thousands), and deaths (dozens to hundreds); yet these numbers are generated using extremely conservative thresholds, so that both the Navy and NMFS have maintained that actual likely impacts would be much smaller, all the way down to not expecting any mortality at all (see this very detailed AEI summary of this paradox; especially note bullet points near end).  Judge Olway repeatedly stressed the legal absurdity of “authorizing” takes that may be untenable, based on an “anticipation” of less impact.

This also sets up some difficulties for the Navy and NMFS, in that its “Authorized” take numbers are based on the best, yet still relatively simple, modeling available, which cannot account for animals moving away from sound, or for the natural variations in animal densities across large ranges, or even for times when animals are seen close by and training activities are paused—all among the factors in permits being based on these lower expected or anticipated impacts. Again, see the link just above for more on this question.

  • The court also took NMFS to task for several instances of blanket statements that impacts will be negligible, or that additional mitigations or exclusion zones would be impractical, without providing detailed reasoning behind these statements.

In sum, all this adds up to an unprecedentedly broad critique of the Navy and NMFS methods of analyzing impacts.  Prior to the ruling, the Navy and NMFS were engaged in a “consultation” to “reconsider their analyses, while giving careful consideration to issues . . . recently raised in litigation.”  It’s not yet clear whether the results of this process, which were due to be completed in early April, will form the basis of any new documents, or whether this ruling’s breadth and vehemence will render those efforts moot.   The two other rulings issued this year that were more favorable to the agencies (though also containing some notable setbacks) came from a different district court, in California, and it’s not hard to imagine the agencies seeing this new ruling as an outlier that will be vigorously challenged in higher courts.

 

A few key excerpts of the ruling:

…if an agency bases its finding on the anticipated take but can then authorize a far greater take than is anticipated, the authorized take could end up having no basis at all. Suppose, for example, that the Navy anticipated that a particular exercise would kill one sperm whale in a certain stock of that endangered species, and NMFS found that to be a negligible impact. Under Defendants’ reasoning, NMFS could then authorize the killing of any number of sperm whales, just because only one killing was anticipated. It makes no sense for NMFS to be able to authorize ten, fifty, or a hundred killings once it finds that the anticipated killing of one whale will have a “negligible impact.” The impact of taking the additional nine, forty-nine, or ninety-nine whales would not have been considered at all before being authorized.

…the court cannot determine from the pages Defendants cite why NMFS concluded, for example, that the fifteen large whale mortalities authorized will have a negligible impact on the whale species affected. This failure is especially puzzling in light of NMFS’s recognition that “[t]he death of a female of any of the large whale species would result in a reduced reproductive capacity of the population or species.”

…NMFS authorized an annual mortality for the Hawaii stock of endangered sei whales of 3, which was 30 times the PBR level of 0.1. NMFS authorized an annual mortality of 8 for the Hawaii Island stock of bottlenose dolphins, which was nearly 9 times the PBR level of 0.9. Confusingly, the number 8 was the same number of deaths authorized for the Oahu stock of bottlenose dolphins, which had a PBR of 3.9.

….Defendants appear to think that they satisfy the statutory “least practicable adverse impact” requirement with a “negligible impact” finding….But if one could conflate the two, the “least practicable adverse impact” requirement would become no reqirement at all. …  This court is not here ruling that time/area restrictions are necessarily required to meet the “least practicable adverse impact” provision of the MMPA. But, whether with or without time/area restrictions, something more than a refusal to consider mitigation measures and an unexplained assertion that further mitigation is not practical is needed. That “something more” is lacking here.

…NMFS acknowledged that there was evidence “suggesting that several resident populations of marine mammals may be present off the leeward side of Hawaii.” NMFS’s response was that, given the very low historical level of Navy activities in the area, time/area restrictions “would not further reduce the likelihood or magnitude of adverse impacts” and “are not necessary at this point.” … This is not a response consistent with the requirement that NMFS set forth regulations for the “least practicable adverse impact.” In the first place, a history of low Navy activity does not demonstrate that time/area restrictions or, for that matter, other restrictions, in that area are impractical. … NMFS does not explain why, if the Navy’s activity level in the area was low, NMFS did not impose restrictions that would have been unlikely to affect the Navy, instead of freeing the Navy to increase its activities.

…NMFS acknowledged that the SOCAL Range Complex contains important areas for fin and blue whales, but said that “these areas are . . . adjacent to the Navy’s only west coast underwater instrumented training range” and that the Navy “indicated that establishment of a time-area closure within this region is not practical.” … NMFS must explain its conclusion as to why a “time-area closure within this region is not practical.” NMFS only summarizes the Navy’s indication of impracticality without analyzing it at all. NMFS cannot just parrot what the Navy says. If NMFS is accepting the Navy’s position, NMFS must articulate a rational basis for that decision. NMFS does not meet the “least practicable adverse impact” requirement when it just repeats the Navy’s position.

…NMFS’s obligation to impose measures ensuring the “least practicable adverse impact” applies with equal force to endangered and unendangered species and stocks. The HSTT Study Area covers millions of square nautical miles, and the court has a hard time assuming that absolutely no other time/area restriction is practicable in that vast area. … if time/area restrictions are indeed practicable and NMFS chooses not to impose them when the Navy proposes to engage in, for example, sonar exercises, then NMFS must consider measures of equivalent effect, given the “weight of scientific evidence point[ing] to avoidance of marine mammal habitat as the most effective means of minimizing sonar-related injury to marine mammals.” … No one is saying that every adverse impact must be avoided. But the “least practicable adverse impact” requirement is part of “a stringent standard” that Congress deliberately imposed on agencies like NMFS. Evans, 279 F. Supp. 2d at 1159. “Although the agency has some discretion to choose among possible mitigation measures, it cannot exercise that discretion to vitiate this stringent standard.” Id. NMFS treats the standard as if it requires almost no effort at all. This reads the words “least practicable adverse impact” out of the MMPA and is therefore arbitrary and capricious.

….Thus, for example, the FEIS says that limiting training and testing to specific locations would be impractical, as if, out of an ocean area bigger than the land mass occupied by the entire United States, it is simply not feasible to say that there is even a single square mile outside of the Humpback National Marine Sanctuary that the Navy could possibly avoid using for any period without reducing military readiness. This cannot be anything but pure hyperbole. … Similarly, the FEIS says that “[t]raining and testing activities require continuous access to large areas consisting potentially of thousands of square miles of ocean and air space.”  This assertion assumes that because training may require access to large areas covering thousands of miles, the Navy must have access to millions of miles … No restriction of any kind is even hypothesized. Again, the breathtaking assertions allow for no limitation at all, but this makes no sense given the size of the ocean area involved. … The court is not presuming to set a certain number of square miles or weeks that the Navy must confine its activities to. Nor is the court selecting areas or species that the Navy must avoid entirely. But the court is saying that the Navy’s categorical and sweeping statements, which allow for no compromise at all as to space, time, species, or condition, do not constitute the “hard look” required by NEPA.

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