Tip o’ the hat to longtime partner in crime Ocean Conservation Research for catching this insult to the ears of whales, seals, fish, and crustaceans. As part of its hatchet-wielding rampage through America’s regulatory arena, the Trump administration has gone beyond “merely” making plans to re-open the Arctic to drilling and issue new permits for seismic surveys off the Atlantic coast (both of which will doubtlessly engender legal challenge). Now they’ve also come for us!

The recent Presidential Executive Order Implementing an America-First Offshore Energy Strategy explicitly calls for the Secretary of Commerce to “take all steps permitted by law to rescind or revise” NOAA’s Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing.  This planning document was the result of many years of collaboration among regulators, research scientists, environmental organizations, and the primary ocean noise-makers (oil and gas interests and the Navy).  As OCR’s Michael Stocker notes, “All of this work threatened with a stroke of a pen…”

There’s nothing in the NOAA Guidance document that would stop, or even slow, current oil and gas exploration or Navy testing and training activities. It more or less serves as a formal declaration of the current state of the science and a framework within which further research can be prioritized and carried out. Most importantly, the Guidance provides a one-stop source for physical and behavioral thresholds that are used to determine noise impacts when applying for new permits. Indeed, wiping it from the books would do little more than complicate the compliance efforts of the Navy and oil and gas industry as they plan future activities, as well as NOAA’s legally-mandated environmental assessments. Yet another case of the bull in a china chop approach to governing.

UPDATE, 6/3/17: Here’s an article with some good quotes from scientists involved in creating the Technical Guidance that is being targeted.

In yet another unforeseen consequence of global warming, scientists have begun charting the extent of a new underwater sound channel in the Beaufort Sea north of Alaska. As recently as the 1970’s, the water here was coldest just below the ice, but in recent decades two warmer layers have developed, one in the first 50 meters of water, and the second at around 200 meters deep.  Since sound in water tends toward the coldest layers, it used to be dissipated by the rough bottom side of the ice, but now it’s reflected between the warm layers and travels much farther. Research in 2014 and 2016 documented sound transmission across 400 kilometers (250 miles), four times farther than before the emergence of this channel, dubbed the Beaufort Lens.

The near-surface has been warmed by an increased flow of meltwater from rivers and by larger ice-free areas exposed to the sun; this slightly warmer surface water has long been present in summer, but used to disappear in winter.  Meanwhile, warmer waters entering the Beaufort from the North Pacific through the Bering Strait (and perhaps even from the Atlantic, through northern Canada) have contributed to the growth of the deeper warm layer. As is the case for most ocean noise research, the US Navy is a key funder; they’re interested in how increased noise transmission might “dramatically impact the effectiveness of sonar operations.”

The full extent of the Beaufort Lens sound channel is not yet known; further research is planned in the spring of 2018. The area affected is likely to vary with annual changes in the influx of warmer waters and to expand over time as longer-term climate change progresses. Increased shipping traffic is projected to be a major factor in rising ocean noise levels in the Arctic over the coming decades; oil and gas exploration could add to the din if the offshore oil industry rethinks its abandonment of these waters in recent years. In addition, general background noise in some areas could also increase thanks to longer-range transmission of whale calls, which have always been one of the primary sources of ambient sound in these waters.

AEI lay summary of:  Blair HB, Merchant ND, Friedlaender AS, Wiley DN, Parks SE. 2016. Evidence for ship noise impacts on humpback whale foraging behaviour. Biol. Lett. 12: 20160005. http://dx.doi.org/10.1098/rsbl.2016.0005

A new study looks for the first time at the impact of human noise on an important type of humpback whale foraging activity, bottom-feeding on sand lance.  The research took place in the Stellwagen Bank National Marine Sanctuary in the southern Gulf of Maine, where humpback whales routinely do deep dives at night, rolling to their sides when they reach the bottom to forage for the small fish.

To assess the whales’ responses to human noise, D-Tags were placed on ten individuals over the course of two years.  These temporary suction-cup tags record received sound levels that the animal is hearing, as well as tracking the details of their dives.  The tagged whales made 218 dives, 83 with ship noise exposure and 135 without ships nearby.

Here’s an example of the sort of picture that the D-tags can provide:

The results show a 29% decrease in the number of “bottom side-roll feeding events” as the received level of the ship noise increased, as well as a 13-14% decrease in both the descent and ascent rate of the dives.  Interestingly, the increase in received noise level was rather small overall (received level was higher when ship noise was present, but not statistically significantly higher), perhaps indicating that the ships were, on average, not all that close.  As is typical, the team used advanced statistical techniques to tease out modest effects from the subtle and varied data. (In case you’re wondering, they used “linear mixed-effects models” with data “square root transformed to approximate normality,” then calculated effects by “summing Akaike weights of all models.” Sounds good to me!)

The raw numbers put the effects into some more straightforward perspective.   Read the rest of this entry »

A new court ruling could fundamentally change the standards that the Navy and National Marine Fisheries Service have been using to regulate Navy sonar, by requiring more areas to be set aside as off-limits to the Navy’s routine peacetime operations.  A federal appeals court has ruled that simply determining that Navy activities will have “negligible impact” on populations is not sufficient; regulators must also, and separately, set standards for sonar use that assure the “least practicable adverse impact” on marine mammals and their habitats.  (Download the ruling; it’s only 35 pages, not a bad read!)  As those who have been following the evolution of the NMFS’s ongoing cycle of five-year authorizations for Navy activities will know, the routine procedure has been to dutifully tally the numbers of animals that may be affected—generally they predict relatively few injuries or deaths (more when explosives training is involved), as well as behavioral effects on millions of animals—and then to determine that the long term effects on each species’ population levels will be negligible.  This negligible-impact finding then allows NMFS to issue permits allowing for the predicted effects.

NMFS has been presuming that negligible impact is sufficient to also satisfy the requirement for “least practicable impact.”  Their basic argument was that you can’t get a lower impact than negligible.  However, there were a couple of flaws in this approach.  First, the threshold for population-level effects in this permit was presumed to be 12% of the regional population of any given species being able to hear, and have their behavior potentially changed, by sonar transmissions; clearly, there IS room to reduce this degree of impact.  But more importantly to this court, the NMFS’s approach to determining what areas are “biologically important,” and so worthy of some protection from routine sonar operations, was found to violate the “least practicable impact” standard—and it appears that designating more protected habitat will be essential to meeting this standard.

Note: This court case concerns the SURTASS-LFA low-frequency active sonar, currently deployed on four US surveillance vessels, rather than the mid-frequency active sonar that has been the focus of most of the previous legal wrangling.  This LFA lawsuit challenged routine, peacetime use of the sonar worldwide; by contrast, all the mid-frequency challenges up til now have only sought to constrain testing and training activities in Naval training ranges off the US coasts, not its widespread routine use by over a hundred Navy ships around the world.  So this case has a limited immediate scope, though the underlying theme of setting aside more areas as off-limits is a core element of all the sonar and naval training legal challenges, and this new clarification by the courts on the separate requirement for “least practicable impact” could apply to all NMFS permitting.  

This court ruling does not prescribe a new management plan; it merely found that the current one does not meet the letter of the law.  This case is now remanded back to the district court for further deliberation.  However, we are approaching the end of the 5-year authorizations that have been challenged here (2012-2017), so the most likely consequence of this ruling is that the NEXT round of authorizations, due in 2017, will need to take more care in meeting the “least practicable impact” standard, either by expanding the areas off-limits to sonar, or by more adequately justifying why NMFS feels they are meeting this standard in other ways.

An apparently deciding factor in the court ruling was a 2010 white paper written by four NMFS “subject matter experts,” Read the rest of this entry »

After being slammed by a federal judge in March, the US Navy has agreed to keep sonar training and explosives testing and training out of several biologically important areas off the California and Hawaii coasts.  This week, settlement talks with NRDC, Earthjustice, and other plaintiffs resulted in a final order, which will remain in effect through 2018, when the current round of permits expire.  This is a substantial victory for the environmental groups, the first legal affirmation of a long-standing argument that the Navy can and should keep its loudest activities out of areas where whales and other sea creatures congregate.  It’s especially notable after losing a similar case targeting the Northwest Training Range Complex last year, in which the judge ruled that the Navy had suitably considered the question of whether exclusion zones would reduce harm to animals.  This time, a different federal judge was much more amenable to the fundamental idea that the Navy can achieve its training mission without totally unfettered access to all corners of the seas.

While mid-frequency active sonar has received the most attention, recent EIS’s and permits for Navy training and testing activities have made it clear that explosives trigger the vast majority of the potential injuries and deaths, as well as a huge number of the behavioral reactions that are also of concern to environmental advocates.  This agreement totally bans in-water explosive testing and training from an area between Santa Catalina and San Nicolas Islands off southern California and from nearly all Hawaiian near-shore areas (the exception being the waters between Hawaii and Maui).  Mid-frequency active sonar “major training exercises” will be excluded from the two of the four zones around Hawaii island and a zone west of Molokai; while both major exercises and small-group or single-boat sonar are banned in a nearshore area off San Diego during the five months each year when Blue whales are present.  Meanwhile, sonar activity will continue as part of large training exercises several times per year in other nearshore Hawaiian waters; waters farther offshore and between the specified exclusion zones will also remain available for sonar and explosives training and testing.

UPDATE, 11/13/15: Unsurprisingly, this recent court ruling did not derail the ongoing finalization of a similar 5-year permit for Navy training in another area, off the Pacific Northwest coast of WA, OR, and northern CA.  NMFS has signaled its approval of Navy plans there; it was a similar NMFS action that triggered the lawsuit and recent settlement in the southern California/Hawaii training range.  It appears that while there are some bombing and live fire exercises planned in the PacNW training range, those activities may be less extensive or intense; no mortalities are predicted to occur.

“This settlement proves what we’ve been saying all along,” said Marsha Green, president of the Ocean Mammal Institute, in a statement. “The Navy can meet its training and testing needs and, at the same time, provide significant protections to whales and dolphins by limiting the use of sonar and explosives in vital habitat.”

It’s not clear how often the exclusion zones have been actively used for these now-banned exercises in the past; the Naval Training Ranges include vast expanses of ocean around Hawaii and off the California coast. We do know that four dolphins died in 2011 after an explosive exercise in the area between the two Californian islands, and presumably routine smaller-unit sonar training has ranged through some of the near-shore waters now off-limits.  The exclusion zones range from 15-30 miles wide around Hawaiian shorelines; the San Diego exclusion zone extends about 15 miles offshore and along 30 miles of coast, while the offshore area between the two Californian islands is nearly 60 miles long and around 15 miles wide.  Within these areas, injuries and deaths should now be generally avoided (though the Navy contends that such incidents are already extremely rare; see this post for a deep dive into the question of the estimated “take” numbers).  However, the large numbers of behavioral reactions, or Level B takes, are unlikely to be reduced much at all by these changes, since they occur at much greater distances (70% of Level B takes occur at 25-50 miles).  Indeed, even the exclusion zones themselves may well experience sound levels high enough to trigger behavioral changes when exercises take place in nearby waters; however, the most disruptive behavioral reactions, such as interruptions in feeding or mating, or disruptions of mother-calf interactions, should be reduced significantly within the exclusion zones.  And, this settlement could set the stage for more exclusion zones in the next round of 5-year impact assessments and permits covering training ranges in waters along most parts of the US coastline.

This week the Indian Navy confirmed its purchase of six low-frequency Active Towed Array Sonar (ACTAS) units, for use in tracking Chinese subs in the Indian Ocean.  With a stated detection range of 60km (37mi), it appears that this system puts out far less sound than low frequency systems used by the US (SURTASS LFAS) or the British (Sonar 2087), both of which are effective to at least 100 nautical miles, and can be detected at much greater distances.  It is remarkably hard to find information about the proliferation of these systems; the German-made ACTAS system is presumably being used elsewhere as well, while the UK Sonar 2087 is deployed on several UK Navy ships, and was recently also purchased by Chilean Navy.  So far, the US Navy has plans to outfit 4 ships with its SURTASS LFA system, and it is used regularly in the western Pacific, monitoring Chinese and North Korean activity. While environmental groups continue to challenge US deployment of LFAS and to add biological safeguards to training programs using mid-frequency active sonar (see AEI coverage of both), these and similar systems continue to spread into waters around the world.

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.)

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:

Read the rest of this entry »

For several years, AEI has been excited about the ever-expanding networks of ocean observatories coming online around the world.  A recent article on LiveScience detailed some of the benefits of the arrays of research stations deployed offshore by Ocean Network Canada, which collect all manner of data: physical, chemical, biological, geological, and acoustic.  Their two networks, the offshore NEPTUNE (left below) and the near-shore VENUS (right below), consist of permanent installations on the floor (“nodes,” shown as orange squares below) as well as mobile moored sensors that may take measurements higher in the water column (yellow dots). A similar US network, dubbed Regional Scale Nodes, is being planned off the coast of Washington and Oregon.

While the observatories are enabling in-depth study of complex process in ways not previously possible (click that link for a glimpse of the amazing topics being explored…yes, do it!), the audio feeds coming from some of the nodes hold special excitement for many researchers. “If you want to study what’s going on in the ocean, the best tool by far is sound,” said Tom Dakin, an acoustic specialist at ONC’s sensors technology development office.”There are all kinds of sounds being made in the ocean, and they all have a telltale signature. . . . If you start putting in a bunch of external man-made noise, [whales] are going to have a hard time communicating,” Dakin said. It’s like trying to have a conversation with somebody at a rock concert — you have to shout, you can’t hold a conversation for very long and you wouldn’t be able to detect different inflections that you would normally be able to hear.  He has been diving when a big ship has gone by, and “it feels like somebody’s whacking you in the chest with a two-by-four,” he said.

But while scientists are keen to hear what the new undersea recordings have to tell us, the US and Canadian Navies are far less enthusiastic.  They’re concerned that the audio feeds, which are freely available to scientists and the public as downloads and via live online feeds, will reveal sensitive information about submarine and ship movements, navy training activities, and even the sound signatures of individual vessels. The two navies have arranged with researchers to have an audio bypass switch that allows them to divert the audio streams into a secured military computer—sitting in a locked cage at the research facility where the data comes ashore—at times when their ships are nearby (and also at some random other times, so that their diversions don’t give away any secrets on their own!).  This article from The Atlantic dug into the way this system works, along with a quick look at naval concerns about sound from as far back as 1918.  The data diversions from Ocean Networks Canada’s system (often triggered by the US Navy) occur several times a month and last from hours to days. As noted by The Atlantic:

While the Canadian military has yet to return a request for comment, the U.S. Navy reminds me that naval ship movements are classified information, and the fact that those movements might potentially be broadcast on the internet is obviously of concern. “The value of having a cabled system is that it releases data live to the internet,” says U.S. Navy oceanographer Wayne Estabrooks. “But there are some times where we want to protect information, so we have to do diversions.”

…

“There’s a long tradition of the ocean being the exclusive domain of the militaries and the fishing community, and we’re more or less interlopers in this world,” says [Kim] Juniper, the microbiologist who showed me the photo of the computer in the cage. “The world is changing. . . It’s going to come to a point in the future where this is no longer going to be feasible for the navies to put resources into sorting all this data,” he later says. The hydrophones alone generate 200 gigabytes of raw data each day, and there are other, similar networks of Internet-connected sensors that already exist, or are soon to come online.

Dakin notes, though, that only 4% of the data is lost, and is returned to the science pipeline, often immediately and nearly always within a week.  The military filters out their ship noise, but leaves the rest of the data intact (at least, whatever data is not also in the frequency range of the navy ships or other sensitive sonic activities). “At end of the day, we hardly miss any data at all,” he says.  You can listen to live streams of ONC acoustic data here, and, since that’s rarely very exciting, to a collection of highlights of images and sounds here.

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.

While recent years have seen an apparent reduction in the number of sonar-related strandings, one of the world’s hot spots for such tragedies saw a rash of strandings in recent days.  Two different stranding events occurred along the southern shore of Crete, the first involving 5-7 Cuvier’s beaked whales along a 16km stretch of coast, and the second occurring a few days later and 48km east, where three members of the same species came ashore.  In both cases, many of the animals were refloated and returned to sea (and unknown fates), while four whales died, including a fetus that was apparently close to term.

A NATO naval exercise, Operation Noble Dina, is ongoing in the area, involving US, Greek and Israeli forces. This part of the Mediterranean has been the site of several previous strandings, as noted by NRDC’s Michael Jasney:

For Greece, none of this is new. In 1996 and again in 1997, dozens of beaked whales of the same species turned up along the Peloponnesian coast; in 2011, they stranded on the island of Corfu as well as the east coast of Italy, across the Ionian Sea. In each case, navies were training with high-powered sonar in the area. Indeed, according to the Smithsonian Institution and International Whaling Commission, every multi-species beaked-whale mass stranding on record everywhere in the world has occurred with naval activities, usually sonar exercises, taking place in the vicinity.

One of the ongoing areas of contention between environmental advocates and the US Navy and federal regulators is whether sonar training (and naval live-fire and explosion exercises creating loud and potentially harmful noise) should be planned to avoid areas with known concentrations of marine mammals, especially those, such as beaked whales, that are especially sensitive to noise.  As it turns out, the area of this stranding is one of a large number of areas recommended as Areas of Special Concern for beaked whales by that the Scientific Committee of ACCOBAMS (Agreement for the Conservation of Cetaceans of the Black and Mediterranean Seas, a consortium of governments in the region).  As reported by a long-time chair of its Scientific Committee, the recommendation fell on deaf ears when presented to the full ACCOBAMS meeting of the parties last year; military preparedness was the explicit reason for the rejection.

In the wake of the two stranding events, Operation Noble Dina continues, but was moved 100km south of Crete—now outside the boundary of the proposed Area of Special Concern, yet apparently still able to complete its military preparedness mission.

In December, the Navy’s current five-year plan for training and testing activities around Hawaii and off the southern California coast were approved by NOAA regulators, covering the years 2014-2018.  The approval authorized incidental takes of marine mammals, including both widespread behavioral changes and close-range injuries and some deaths, as a result of sound exposure from sonar and explosives, as well as ship strikes.

Immediately after NOAA’s approval, environmental organizations filed suit in federal court in Hawaii, and this week, other organizations filed suit in a San Francisco federal court (the Navy pushed back in a brief statement).  It’s unclear from early press coverage how much overlap there is between the two; the Hawaii suit, led by Earthjustice, initially named just NOAA, but has been amended to also name the Navy as a defendant.  The San Francisco suit, led by the NRDC, targets NOAA, charging that federal regulators did not use “best available science” and that their finding of “negligible impact” violates the Marine Mammal Protection Act.

At issue in both suits is the shockingly large numbers of animals that are permitted to be affected, amounting to nearly 10 million behavioral responses, the potential for 2000 permanent injuries (including hearing impairment), and 155 deaths over the course of five years.  “This is an unprecedented level of harm,” Zak Smith, an attorney with the Natural Resources Defense Council, said. “In order to authorize these impacts on marine mammals, the service had to turn its back on the best available science.”

It’s important to note that while sonar has been the focus of most public concern, explosions during testing and training are predicted to cause most of the injuries and deaths.  The Navy and NMFS consider the estimates to be extremely cautious (ie far higher than actual likely impacts) for a number of reasons; see the bullet list in this earlier AEI post for more on why.

NRDC, Earthjustice, and the other plaintiffs continue to stress that the Navy can and should limit its activities in areas and times of particular biological importance to marine species; the lack of such “spatio-temporal restrictions” has been a bone of contention for many years, and this time, as in past rounds of permitting, the Navy and NMFS determined that such restrictions would yield little biological benefit.  A largely similar lawsuit filed in 2012, challenging NOAA permits for Navy training in the Pacific Northwest, ended up in a split decision, with the “best available science” ruling going against NOAA, but the large takes challenge (including the lack of exclusion zones, as well as faulty negligible impact ruling) falling short, with the court approving of NOAA’s analysis and actions.

UPDATE, 2/10/14: See this article from NRDC, outlining their reasons for this lawsuit and how it fits in with their 20-year history of focusing on ocean noise issues.

Read the rest of this entry »

The first ruling is in from the latest round of legal challenges to Naval training permits, and it’s a split decision.  You’ll need to click through to read the full post to get all the details, but here’s a preview of the conclusion you’ll find at the end:

It appears that the places that the court found NMFS falling short are in the details of how they prepare and analyze information, while the end results of the Navy activities and NMFS analysis and permits were upheld as valid. The court did not accept the plaintiff’s core concerns about the huge numbers of animals authorized to be affected (as litigated on the questions of protected habitats, mitigation measures, and cumulative impacts), deferring to the NMFS analysis that deemed even these large numbers to be acceptable, largely because most impacts are minor and temporary. The rulings that went against NMFS each appear to require simply more data analysis, which will then be fed into the same decision-making process that has been upheld as valid. 

In 2012, Earthjustice, NRDC, and others challenged both the 2010 Northwest Training Range Complex permits authorizing five years of mid-frequency active sonar and explosions at sea, and permits authorizing global deployment of low-frequency active sonar through August 2017. While earlier challenges targeted the Navy’s environmental analysis—or originally, the lack thereof—and ran aground when the Supreme Court ruled the Navy has broad discretion to weigh environmental safety against national security interests, this new round of lawsuits is directed at the National Marine Fisheries Service’s regulations and permits for the activities. 

In both cases, the primary focus of the challenges, at least as described in press releases, was insufficient protection of biologically important areas.  For several years, NRDC and others have stressed that Navy training ranges, which stretch along nearly the entire east and west coasts of the US, contain enough area for diverse training while setting aside some seasonal or year-round exclusion zones where training is avoided due to concentrations of marine animals.  Navy estimates of the numbers of animals likely to hear sonar or explosions, leading to either behavioral changes or injury, are alarmingly high, and the plaintiffs suggest that these numbers could be reduced significantly by setting some areas off limits, at least at key times. Unlike in previous challenges directed at the Navy itself, the plaintiffs did not seek any sort of injunction to halt the training exercises; rather, they asked that the court require the NMFS to revisit and revise their previous rules or authorizations in light of any deficiencies the court determined to be present.

As the NWTRC case moved into the argument phase, several specific challenges to NMFS procedures, analysis, and conclusions were raised and addressed. In a ruling issued by US Magistrate Judge Nandor Vadas in late September, the plaintiffs came away with at least a temporary win on several points, while the NMFS prevailed on several other fronts, including on the fundamental arguments about habitat protection and long-term impacts.  As in previous rounds of this legal battle, it appears that the end result will be Navy training continuing pretty much as it was before any of the legal challenges began—though with detailed analysis of potential impacts continuing to be pushed into new realms by the legal challenges.

The court ruled that the NMFS had improperly failed to include some relevant studies from 2010 and 2011 when issuing a 2012 Letter of Authorization and Incidental Take Statement, two years after the initial Five-Year Regulations were issued, and so did not rely on the “best available evidence” and likely underestimated the number of animals affected by Navy activity in its 2012 permitting documents.  In addition, the court ruled that the NMFS should analyze impacts not just over the five years of each planning cycle, but for a longer (unspecified) time period, because Navy training is considered to be a permanent, long-term activity.  Over the next month, NMFS will file a brief describing what they see as an appropriate scope and duration of any order to change their previous documents, and the plaintiffs will file a reply; presumably, the Court will rule shortly thereafter on specific remedies.

However, the NMFS prevailed on several substantial issues, including the primary one and two important related challenges.  On the central question of setting aside exclusion zones to better protect essential habitats, the court ruled that the NMFS had given such exclusions due consideration, and lawfully concluded that such exclusions would not be likely to reduce take numbers significantly.  Likewise, the court ruled that NMFS determination of no significant impact did not rely on insufficient mitigation measures (primarily visual observers) in making its assessment of likely harm; rather, NMFS determined that even before mitigation measures were implemented, the numbers of animals affected and the degree of impact did not pose long-term risks to local populations.  

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AEI lay summary of:
Southall, B.L., Rowles, T., Gulland, F., Baird, R. W., and Jepson, P.D. 2013. Final report of the Independent Scientific Review Panel investigating potential contributing factors to a 2008 mass stranding of melon-headed whales (Peponocephala electra) in Antsohihy, Madagascar.
Download full report or executive summary.
See IWC website for report and all supporting materials 

For the first time, a mass stranding appears to have been triggered by a relatively high-frequency mapping sonar; most previous strandings (though rare) have been associated with mid-frequency military sonars.  An international, independent scientific review panel (ISRP) of five well-known marine mammal researchers has concluded that a 2008 stranding event on the northwest coast of Madagascar was likely precipitated by an avoidance response to a multi-beam echo-sounder system (MBES) being used to map the seafloor.

Over a hundred melon-headed whales, deep-water foragers who normally live far offshore, became trapped in a shallow estuary one day after the MBES was active 65km off the coast; locals and international marine conservation organizations collaborated for three weeks to save floundering whales, with at least 75 confirmed dead.  The ISRP investigated all known possible causes for such events, and concluded that the most likely trigger was that the whales were moving away from the sonar, and became trapped in the unfamiliar surroundings of the narrow La Loza Bay estuary.  There, they found it hard to orient and navigate in the shallow, murky water; lack of food sources, stress/fatigue, and an accumulation of small injuries led to eventual death for most.

Acoustic modeling suggests that the whales would have been able to hear the MBES signals for at least 30km from the survey vessel, to near the island seen on the map to the right, 25km offshore, at which point they apparently continued moving toward shore until straying into the stranding zone.  Why the animals continued moving inshore after the sonar was no longer audible is unclear.  This is a species that normally lives only in deep waters; once the whales moved past the cliff near the survey area and into shallow shelf waters, they may have been quite confused, and further behavioral anomalies (including ending up in the estuary) may be unrelated to the survey sounds.

UPDATE, 10/10/13: This WaPo article includes some skeptical responses, centering on the uncertainties about other factors (before and/or after the MBES sound exposure) that may have contributed to the stranding, and concerns that the strong language of this report could lead to an over-reaction among regulators.  A spokesman for Exxon-Mobil, which helped fund the study and the initial stranding responses, said, “our contract vessel happened to be there in that time frame, but there are so many uncertainties in the area that we’re not sure it’s us.” Still, the company has changed its practices to avoid use of MBES near sharp cliff faces, since the panel speculated that echoes off the cliff may have confused the whales, sending them further inshore.

The ISRP report concludes that “this clearly appears to be an atypical event,” yet also stresses that the MBES system may pose previously unrecognized risks:

It is important to note that these systems, while regularly used throughout the world in hydrographic surveys, are fundamentally different than most other high-frequency mapping or navigational systems (ed. note: or fish-finding sonars). They have relatively lower source frequencies (12 kHz is within the range of likely best hearing sensitivity for all marine mammals), very high output power, and complex configuration of many overlapping beams comprising a wide swath. Intermittent, repeated sounds of this nature could present a salient and potential aversive stimulus.

Click on through for more details on the stranding, the ISRP report, and maps.

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AEI lay summary of:
Goldbogen JA, Southall BL, DeRuiter SL, Calambokidis J, Friedlaender AS, Hazen EL, Falcone EA, Schorr GS, Douglas A, Moretti DJ, Kyburg C, McKenna MF, Tyack PL. 2013 Blue whales respond to simulated mid-frequency military sonar. Proc R Soc B 280: 20130657. http://dx.doi.org/10.1098/rspb.2013.0657 (download here)
and
DeRuiter SL, Southall BL, Calambokidis J, Zimmer WMX, Sadykova D, Falcone EA, Friedlaender AS, Joseph JE, Moretti D, Schorr GS, Thomas L, Tyack PL. 2013 First direct measurements of behavioural responses by Cuvier’s beaked whales to mid-frequency active sonar. Biol Lett 9: 20130223. http://dx.doi.org/10.1098/rsbl.2013.0223 (download here) 

Results from studies off Southern California have quantified for the first time the reactions of Blue whales and Cuvier’s beaked whales to simulations of naval mid-frequency active sonar.  In both cases, scientists found that whales tended to move away from sonar signals, and appeared to suspend feeding activity for an hour or more at times.   

The Cuvier’s beaked whale results marked the first time this species had successfully been monitored during a controlled exposure to sound while wearing a temporary suction-cup “D-TAG” that allows researchers to track animal dive and movement patterns while also recording the sound level of the sonar signal that the animal is hearing. As with similar experiments done on other species of beaked whale, the two whales tagged in this study changed their normal dive patterns, paused or stopped echolocating for food, and waited longer at the surface after the sonar sound ended before they began diving normally again.  The pause in foraging lasted for 6 hours in one whale, and at least 90 minutes for the other.  

The whales’ behavior was changed at sound levels (89-127dB) that are far below the levels typically considered problematic by regulators (typically 160-180dB; though some Navy EIS’s use 120dB for beaked whales, because of their previously observed noise sensitivity).
CORRECTION, 1/31/14: The current round of Navy EISs and NOAA permits consider exposures down to 120dB in their analysis of behavioral “takes” for all species.

Researchers concluded that “The observed responses included vigorous swimming and extended time without echolocation-based foraging, imposing a net energetic cost that (if repeated) could reduce individual fitness.”  While they did not see rapid ascents from dives that would support an early theory that some beaked whales may suffer tissue damage similar to what human divers experience as “the bends,” they suggest that the disruption of normal dive and surface-resting patterns could affect the animals’ dive metabolism in ways we don’t yet understand.  Also of interest in this study was an unexpected period during which a tagged animal was exposed to sound from a distant (over 100km) naval exercise; in that case, the animal showed no response, though received levels were similar (78-106dB); researchers suggest that the animals could tell that these signals were much more distant than the test signals, which were under 10km away.

The Blue whale results were a bit more ambiguous, as there was significant individual variation among the 12 whales that were tagged and exposed to sonar-like sounds. Some whales were foraging at the surface, some were deep-diving feeding, and some were diving but not feeding.  Whales at the surface showed little response, while diving animals reacted more strongly, including some instances of clear avoidance (i.e., swimming away, or “horizontal displacement” in the research parlance).  

While the Blue whale results were not as uniform as the Cuvier’s results, this is the first time that blue whales have been studied to see how they respond to mid-frequency sonar, and the researchers consider even the modest effects to be significant, especially since blue whale populations are not rebounding similarly to other large whales.  As the  researchers conclude: “our results suggest that frequent exposures to mid-frequency anthropogenic sounds may pose significant risks to the recovery rates of endangered blue whale populations, which unlike other baleen whale populations (i.e. humpback, grey and fin whales), have not shown signs of recovery off the western coast of North America in the last 20 years.” 

Using a complex set of measurements of 54 behavioral metrics (including such factors as orientation angle to the sound, change in pitch or angle of descent or ascent, and the number of lunges per dive), and applying a statistical formula that resulted in the average “response” ratings on the left axis of the charts below, researchers found statistically significant changes three key areas.  The chart below shows the clear, yet subtle, changes in dive patterns (a), body orientation (b), and horizontal displacement (c), especially among the deep-feeding animals:

Researchers note that the whale that showed the largest reaction stopped feeding as soon as hearing the sonar signal and swam away from the sound; it did not begin feeding again for an hour, during which time it would have eaten over a ton of krill, which is about the minimum amount a whale needs per day (i.e., it’s a metabolically significant loss).  

The responses noted occurred at average peak received levels of 130-160dB, again, notably lower than most regulatory thresholds for behavioral responses, which range from 160-180dB. CORRECTION, 1/31/14: The current round of Navy EISs and NOAA permits consider exposures down to 120dB in their analysis of behavioral “takes” for all species; in fact, the bulk of behavioral responses for “low frequency cetaceans,” such as blue whales, is expected at exposures similar to those here. There was a large range of response ratings for both dive patterns and body orientation (the chart above shows the average among all individuals); the avoidance responses showed a more modest range of variability, except for the one extreme response noted above.  Overall, the results confirm previously-observed importance of behavioral context: “Since some of the most pronounced responses occurred near the onset of exposure but other, higher level exposures provoked no response, the data suggest that the use of received level alone in predicting responses may be problematic and that a more complex dose – response function that considers behavioural contexts will be more appropriate. Management decisions regarding baleen whales and military sonar should consider the likely contexts of exposure and the foraging ecology of animals in predicting responses and planning operations in order to minimize adverse effects.”

On June 9, 2008, 26 common dolphins, 21 of them infants, stranded and died in river estuaries around Falmouth Bay, as several days of Naval exercises involving over 30 ships wound down (see AIEnews coverage at the time).  A four-year study (read it online) has  concluded that unspecified Naval activities are “the most probable (but not definitive) cause” of the strandings, which involved at least 60 animals in all, with most of the adults re-floated and guided back to sea.  

The study ruled out other common causes of cetacean strandings, including foraging for fish in shallows, attack by orcas, illness, algal toxins, recreational boats, and earthquakes.  However, the researchers also could not identify a likely trigger among the Naval activities taking place on the morning of the strandings or the day preceding the discovery of the struggling animals.  Press reports at the time suggested that locals heard some large explosions on the day before and day of the strandings, though the researchers did not find records to indicate such activity. Mid-frequency sonar transmissions ended four days earlier; that or other ongoing activity is thought to have driven the dolphins into the bay, with unknown further disruptions triggering the fatal strandings early on the 9th.  According to lead author Paul Jepson, “Eyewitnesses described their behaviour as swimming continuously in tight circles, being vocal, fluke-slapping, leaning sideways, and often with one or more individuals attempting to strand.” 

The lack of a clear cause for the final stranding event during a relative pause in Naval activity on the day before the early-morning discovery of the floundering dolphins adds a familiar ambiguity to the situation.  A Naval spokesman noted that they disagreed with the report’s conclusion and stressed their decades of similar exercises in the area without mass strandings, while conservation groups including the NRDC and the UK-based Whale and Dolphin Conservation called for exercises to be redesigned. While cetaceans can often move away from unwanted noise, it’s long been known that strandings can occur when animals become trapped in areas with no escape route, such as apparently happened here.

Despite Naval denials of responsibility, this event did spur some changes that have led to later exercises being temporarily suspended when dolphins appeared on the verge of being trapped in a similar situation.  As detailed in the new study:

Following this MSE (Mass Stranding Event) and recommendations from the organisations involved in the rescue of dolphins in the MSE, the UK Ministry of Defence initiated the Marine Underwater Sound Stakeholders Forum in the UK to regularly meet with all interested stakeholders (scientists, other Government Departments like Defra and a range of non-Governmental organisations) to discuss these issues in some detail. A direct line of communication was also established after the Falmouth MSE to facilitate rapid exchange of information between cetacean strandings/sightings organisations and Royal Navy Naval Command Headquarters to report groups of pelagic cetaceans seen unusually close to shore and potentially at increased risk of stranding. This was used to report a near-MSE of over 20 common dolphins in the Fal estuary in April 2009 that was seen 15 minutes after RN sonar trials were initiated in the region. The RN immediately modified the naval exercise (including use of active sonars) until the group of dolphins had returned to open sea several hours later. The need to alter training excercises due to the presence of dolphins has not subsequently occurred in this region.

According to the authors, “Such continual improvement of mitigation strategies by the military themselves is probably the best way to limit future environmental impacts of naval activities, including cetacean MSEs.”

The California Coastal Commission has rejected the Navy’s 5-year plan for training and testing activities that recently received provisional approvals from the National Marine Fisheries Service.  In a unanimous vote, CCC members said the Navy’s environmental studies failed to back up its claim that impacts on marine life would be negligible during the years 2014-2019.

The Navy’s studies and permit requests suggest that its activities off Southern California could cause 9 million behavioral impacts, 2000 injuries, and up to 130 deaths, though the Navy and NMFS expect impacts to be far lower, and whatever effects do actually occur to have negligible biological impact on populations.  The CCC wants to see more solid science to back up the Navy’s claim that the large numbers will not reflect actual impacts.  Contrary to the Navy’s claim that their projected impact numbers are much higher than what will actually occur, Michael Jasny of the National Resources Defense Council told Commissioners, “We think these are underestimates.”  (See previous AEInews coverage of the Navy and NMFS assessments: New NMFS Navy “take” permits: outrageous or reasonable?)

During the previous 5-year planning round, the CCC took a similar stand, and a Federal Court agreed to some additional precautionary requirements that somewhat limited Navy operations; that ruling led first to a Marine Mammal Protection Act exemption issued by President Bush, and finally to a Supreme Court ruling granting the Navy broad discretion to make operational decisions, and limiting court oversight.

Mark Delaplaine, a coastal manager for the CCC, noted the difficulty of assessing actual impacts: “I’m just torn between the fact that we haven’t seen strandings in this area, and these very large numbers (in Navy estimates) that are really a cause for alarm,” he said.  Still, he stressed that “you have to have additional precautions….It doesn’t make sense to train where there are large amounts of sea mammals.”

The CCC asked the Navy to voluntarily adopt a set of additional precautions in California waters, including larger safety zones in which they would shut down sonar and explosive operations when animals are nearby, avoiding several designated marine sanctuaries and areas known to host seasonal concentrations of blue, fin, and gray whales, and remaining at least 1km (a bit over a half mile) offshore.  The NRDC concurs with these requirements, and encourages a couple more, including avoiding sonar and explosive activity at night, when nearby animals are much harder to detect, and using the Navy’s instrumented ranges to help detect animals.

The Navy declined these requests. “We understand that the Navy is obligated to be consistent with the state’s coastal zone requirements, to the maximum extent practicable,” said Navy spokesman Mark Matsunaga. “And we believe we are.”

For more details on the hearing, see these articles from the Orange County Register and AP.  For a deeper look at the Navy and NMFS studies, see the AEInews lay summary of the Atlantic and Pacific 5-year plans.

The release of Proposed Rules to govern US Navy training and testing operations in the waters of the Atlantic, Gulf of Mexico, Southern California, and Hawaii from 2014-2019 has put the National Marine Fisheries Service (NMFS) in the crosshairs of an outraged response from environmental groups.  NRDC, the Center for Biological Diversity, and others point to the staggering numbers of “Level B” harassment that will be allowed: over 31 million incidents, along with “Level A” injury predictions including permanent hearing loss numbering in the thousands, capped by several hundred deaths.  These numbers reflect far more than sonar training; also included in these permits are impacts from ongoing training and testing of systems used in live gunnery and torpedo exercises, explosive mine-neutralization, air, surface, and submarine battle exercises, and ship-shock trials (in which large explosives are set off near ships to test their resilience).

“We’re talking about a staggering and unprecedented amount of harm to more than 40 species of marine mammals that should give any federal agency involved, be it the Navy or the National Marine Fisheries Service, pause,” NRDC attorney Zak Smith said in a statement.  The take numbers are generally about twice as high as those in the last round of permitting, which covered a five year period from 2009-2013.

“We absolutely share the concern about protecting marine mammals,” said Alex Stone, an environmental program manager with the Navy’s Pacific Fleet. “We think that the mitigation measures are effective, but it’s true, you’re never going to see every marine mammal that’s there. But in terms of impacts on species, we really haven’t seen any of those after years and years of doing these same types of training and testing activities in these same areas.”

“That’s always been a dubious argument but in light of new information it’s wearing especially thin,” said Michael Jasny of the Natural Resources Defense Council, in a KQED segment. “We now know that beaked whales off California are declining precipitously. We know that blue whales aren’t recovering.” Jasny says the Navy should avoid key areas, like gray whale migration routes and the summer feeding grounds of endangered blue and fin whales. “Southern California is a globally important feeding habitat for them,” said Jasny. “It should be elementary common sense to avoid the core feeding habitat of blue whales. “

How could NMFS sign off on such a seemingly devastating number of permitting takes?  Well, as is often the case, the picture isn’t quite as clear as the headlines may make it seem.  Indeed, we are once again thrust into a funhouse-mirror world of wildly divergent ways of framing the proposed plans.  Press releases and resultant popular press headlines trumpet the NMFS rule as “allowing the Navy to harm whales, dolphins more than 31 million times,” with the permitted incidental takes being described as including “a wide range of harms, including destruction of habitat, physical injury and death.”  The Navy’s statement offers a much more sanguine perspective on the tens of millions of behavioral takes, describing these effects as “e.g., turning head, changing swim direction.”  Huh? What to make of all this?

I dug into the Draft EISs and Letter of Authorization requests developed by the Navy, and the two Proposed Rules announced in January, in order to try to understand how Navy and NMFS biologists could have approved the scary numbers.  I came away far less freaked out, though still disappointed that the Navy and NMFS don’t appear ready or willing to keep noisy Navy activities out of some biologically rich areas.  This has been one of the central points of contention pushed by environmental groups for the past few years, and it remains valid to ask why this practical protective step has not been taken, at least regarding explosive activities with a higher risk of injury. (The vast distances over which some of these sounds travel likely means that exclusion zones to avoid behavioral “takes” may need to extend up to 50-100 miles from the regions of concern in order to provide full protection from noise disruptions; the practicality of such large exclusion zones may be harder to establish, though worthy of discussion.)

After a few hours of reading and digesting several hundred pages of environmental analysis and permitting documents, I was able to distill a few of the key take-aways that may help readers to understand NMFS’s reasoning, as well as the shortcomings of the plans.  Click through for my ten-minute version of what’s in these permits.

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In December, NOAA announced the release of the first large-scale ocean noise maps, which have been in development for the past two years.  The Underwater Sound Field Mapping Working Group modeled many sources of sound occurring within 200 miles of the US coast (including ships, seismic surveys, sonar, pile driving, and oil platform decommissioning), as well as modeling shipping noise in full ocean basins (including the Atlantic, pictured at left).  Data  is compiled in several depths and frequency ranges, to account for the full spectrum of various species’ habitat usage and hearing/vocalization ranges.

Dr. Leila Hatch, co-chair of the Working Group, said too many areas of the ocean surface (where sea mammals and whales spend most of their time) are orange in coloration, denoting high average levels. “It’s like downtown Manhattan during the day, only not taking into account the ambulances and the sirens,” she said. “I’d be happier saying it was like a national park.”

Michael Jasny, a senior policy analyst with the Natural Resources Defense Council, which has sued the Navy to reduce sounds that can harm marine mammals, praised the maps as “magnificent” and their depictions of sound pollution as “incredibly disturbing.”

“We’ve been blind to it,” Mr. Jasny said in an interview. “The maps are enabling scientists, regulators and the public to visualize the problem. Once you see the pictures, the serious risk that ocean noise poses to the very fabric of marine life becomes impossible to ignore.”

NOAA has set up a website where this ongoing work will be made available.  In addition, an 85-page report brings together presentations and recommendations from a two-day symposium held last May, at which the Working Group presented their draft results to a couple hundred other experts from agencies, the Navy, oil and gas industry, academia, and nonprofit groups (I was fortunate to be invited to participate in that meeting).

Equally exciting is a companion project by a Cetacean Density and Distribution Mapping Working Group, also introduced at the May symposium, that is working to compile all known studies of whale and dolphin population distribution.  Tens of thousands of cetacean observations are being compiled into month-by-month distribution charts and maps for various ocean regions around the US.  In addition, seasonally biologically important areas (e.g., for breeding, feeding, or mating) are being compiled as part of this work.

The two mapping projects will provide a robust new foundation for assessing the impacts of noise sources, and hopefully to encourage efforts to reduce human noise, especially in biologically important areas.  A New York Times article introducing the noise mapping project includes encouraging words from Michael Bahtiarian, an adviser to the United States delegation to the International Maritime Organization, which is looking at ways to reduce ship noise and vibrations.  “Right now we’re talking about nonbinding guidelines,” he said  “At a minimum, the goal is to stop the increases.”  See earlier AEInews coverage of the IMO efforts from 2008, 2009, and 2012.

SEE ALSO: Detailed ocean noise maps take this approach further in Puget Sound, BC coastal waters 

2012 is shaping up as the year when the legal battle over the US Navy’s active sonar systems ramped back up to full-scale confrontation.  A 2009 agreement between NRDC and the Navy put legal challenges on the back burner – actually, entirely off the stovetop – in favor of dialogue.  But recent permits issued by NOAA’s National Marine Fisheries Service (NMFS) are now being attacked for the small sizes of the off-limit areas.  NRDC has continued to call, in pubic and presumably in private, for the Navy to keep their sonar activity out of biologically important areas as they move forward with both low-frequency (LFAS) and mid-frequency (MFAS) active sonar deployments.  This week, a new set of rules to govern LFAS was challenged in federal court on the grounds that the exclusion zones are far too limited.  In January, a similar challenge was filed for existing MFAS permits issued by NMFS; see this earlier AEI coverage for details on the MFAS action.

The new suit, like the January one, differs from the initial round of sonar challenges in that the target is the NMFS permits, rather than the Navy’s operations.  As you may recall, the Supreme Court ultimately ruled that Naval priorities deserved wide latitude in the interpretation and implementation of environmental laws.  By challenging NMFS’s analysis of the risks and the mitigations included to protect marine wildlife, these challenges may well take a different path through the legal maze.

The new LFAS rules allow the Navy, for the first time, to operate the high-power sonars in most of the world’s oceans.  The previous 5-year planning process focused on the western Pacific (in part due to the US stategic focus/concern on China and North Korea, and in part due to legal pressure during that round of planning).  A previous AEI post goes into some detail on the new LFAS “letter of authorization,” which covers the first year of the 5-year period (short version: during the first year, operations will remain predominantly in the western Pacific, with a couple of operations north and south of Hawaii).

In a statement, NRDC says:

Because a single LFA source is capable of flooding thousands of square miles of ocean with intense levels of sound, the Navy and NMFS should have restricted the activity in areas around the globe of biological importance to whales and dolphins.  Instead, they adopted measures that are grossly disproportionate to the scope of the plan – setting aside a mere twenty-two “Offshore Biologically Important Areas” that are literally a drop in the bucket when compared to the more than 98 million square miles of ocean (yes, that’s 50% of the surface of the planet) open to LFA deployment.  The apparent belief that there are fewer than two dozen small areas throughout the world’s oceans that warrant protection from this technology is not based in reality.

NRDC also stresses that the LFAS is loud enough to remain at levels that can cause behavioral disruptions at up to 300 miles away.  The Navy has said that take numbers, especially takes for injuries or death, will be low or zero once mitigation measures are implemented, though the permits allow for some of these “Level A” takes; for the first year, they are authorized to kill or injure up to 31 whales and 25 seals and sea lions.

A US District Judge has ruled against NRDC and others who had challenged the Navy’s permit to build an instrumented training range off the coast of Georgia and Florida, claiming that construction should not proceed until the Navy completes the full EIS for the training activities that will take place there.  Construction is slated to begin within a couple of years, with training commencing sometime around 2018; the range would have about 300 sensors installed on the ocean floor over an area of about 500 square miles, and would host training missions involving submarines, surface ships, and airplanes.

The Undersea Warfare Training Range (USWTR) would begin 50 miles offshore, while a key winter birthing and nursing ground for North Atlantic right whales extends out to 20 miles offshore.  Only about 400 North Atlantic right whales remain, with ship strikes being a major concern, along with the effects of any additional stress on mothers or young whales near the Navy’s operations. “We understand that’s the right whale’s critical habitat,” said Jene Nissen, the range’s program director. “We looked at the type of effects that training could have on right whales, and we are confident it will be very minimal.”  Construction will be suspended from November to April, when the whales are migrating and congregating in the birthing grounds, but the Navy has not agreed to suspend training in those months, or to comply with offshore speed limits imposed on private and commercial ships, saying that this would interfere with their ability to carry out realistic and effective training.

The groups that filed the suit in 2010 are considering an appeal; Sharon Young of the Humane Society of the United States stressed that “We certainly would never argue to undermine our national defense, but it’s also reasonable to ask the military not to jeopardize a species that is just barely hanging on.”

See more AEInews coverage of the USWTR here.

In August, the National Marine Fisheries Service issued its Record of Decision that will allow the Navy to operate its Low Frequency Active Sonar systems for the next five years.  NMFS will issue a new Letter of Authorization each year, in order to accommodate new information as needed, but the overall parameters of the permits will remain essentially the same throughout the five years.

While the Final Rule allows the Navy to operate the SURTASS-LFA sonar in most of the world’s oceans (Pacific, Indian, Atlantic Oceans and Mediterranean Sea), the Navy’s operational plans for the first year remain centered in the western Pacific, given its particular focus on tracking Chinese submarines (see previous AEI coverage of tensions with China over LFAS surveillance).  Only four missions are planned in other areas, and all these will take place in north and south of Hawaii. The Navy has four ships outfitted with the SUTASS-LFA sonar; three (USNS Victorious, Effective, and Able, seen at left, appear to be based in the Pacific, and one (USNS Impeccable) in the Atlantic; each ship could operate for up to 240 days and transmit SURTASS LFA sonar for up to 432 hours per year (the ships transmit sound roughly 7.5% of the time they are operating).

The Rule and the Letters of Authorization allow the Navy to cause temporary behavioral effects (a “Level B Harassment,” defined as animals hearing the low-frequency sonar at levels ranging from 120-180dB, possibly changing their behavior) on 94 species, with no more than 12% of any regional stock of each species being exposed to the sonar in any given year.  The Navy anticipates, based on species abundance in each of the eleven designated operational areas for the first year, that for most species, the percentage will be far lower: usually well under 1% and topping out at 3% for a handful of species in the 9 western Pacific operational areas; around Hawaii, several species will see 1-3% of the population having behavioral impacts, with a handful of species topping out at 6-7%.

Few animals are expected to be close enough to be injured, and the Navy and NMFS presume that physical harm (Level A Takes) will be avoided completely thanks to various mitigation measures, including marine mammal observers, passive acoustic monitoring, and power-downs when whales are close.  But given the uncertainties, NMFS is authorizing injurious or lethal takes of up to 31 whales and 25 seals and sea lions.

The previous five-year LFAS permits, issued in 2007, faced a court challenge based largely on the ways that the Navy and NMFS designated offshore biologically important areas (OBIA), and on the idea that nearshore exclusion zones should extend at times beyond the 12 nautical mile zone covered by those permits.  Most designated and potential Marine Protected Areas (340 of 403) are already within 12 nautical miles of coasts, so are protected from high-intensity ensonification; a more thorough examination of the rest led to the inclusion of one additional OBIA in this round of permitting, with two more being monitored for possible inclusion as more research is done in them (many were omitted because the species of concern in those areas are high- and mid-frequency vocalizers, and LFAS sounds will have more of an effect on larger whales that hear lower frequencies).  A total of 22 OBIAs are designated worldwide, some considered important year-round, and some seasonally.  Sonar sounds must be below 180db within an area extending 1km beyond the boundaries of the OBIAs (thus aiming to keep sounds under 175dB within the OBIAs); likewise, the same 180dB maximum will apply at the boundary of the 12 nautical mile coastal zone.  The Federal Register notice of the Final Rule contains many pages of comments from the NRDC, Marine Mammal Commission, and others, along with responses from NMFS.

The US Navy has released its initial Draft Environmental Impact Statements for the next 5-year round of permits it will seek from the National Marine Fisheries Service for its at-sea training activities, and the numbers of animals expected to be affected have skyrocketed.  This is in part thanks to the new EISs combining areas that were dealt with separately in the first round of permitting, which occurred after the NRDC challenged the lack of permits in court.  The new Hawaii-Southern California EIS not only combines these two previous separate areas, but also accounts for impact to animals in waters between Hawaii and California that were previously not considered.  In addition, the new EISs draw on more recent scientific evidence of lower impact thresholds for some species, including beaked whales, and on more advanced models that predict animal concentrations and movements.

While this expanded focus and better data is a valuable step forward, the numbers of animals expected to be injured or to have their behavior affected has increased so much that NRDC termed it “harm of staggering proportions.”  Clearly, attempts to foster more constructive dialogue between the Navy, NMFS, and NRDC during the EIS process has not led to a shared vision or lowered the heat all that much.  The Navy’s estimate of the number of animals whose behavior could be affected has jumped from 770,000 to 14 million, including 2 million cases of temporary hearing impairment, in addition to 2000 animals experiencing permanent hearing loss.  And, the Navy estimates that explosives training and testing could kill 1000 animals. 

But, Navy officials told CNN, these alarming numbers — a result of mathematical modeling — are worst-case scenarios.  “We believe … with our mitigation efforts and the Navy commitment that those injuries and mortalities will be none,” said John Van Name, U.S. Pacific Fleet senior environmental planner in Pearl Harbor, Hawaii. The report also indicated monitoring in 2009-2010 off Hawaii and Southern California showed 162,000 marine mammals with no evidence of distress or unusual behavior during Navy activities.  By comparison, the previous round of EISs estimated injury or death to about 100 animals in Hawaii and California during the five years from 2009-13; to date, two or three dolphins are known to have been killed by explosives testing.

Zak Smith of the NRDC responds that “I am not saying they are not well-intentioned. But I am not sure their choices make them the best environmental stewards they could be.”  In a blog post, Smith elaborates:

While the Navy’s understanding of how much harm it’s activities cause marine mammals has increased, it hasn’t taken any corresponding steps to minimize this staggering level of harm.  It’s mitigation protocol remains largely unchanged, with the Navy refusing to set aside areas of high marine mammal density where sonar should not be used.  This means sensitive breeding and foraging habitats and biologically unique areas within the training area can still be used for sonar and underwater explosives training. We know that safeguarding specific areas of sensitive habitat is the best way to lessen harm to whales and dolphins from sonar and other activities — don’t use the technology in the same areas where whale and dolphin numbers are high or during breeding seasons.  Faced with such incredible numbers and levels of harm, the Navy must do more to identify and set aside portions of its training areas (areas often the size of large states, like California) where it will not conduct training and testing.

For more on the EIS process, see the Navy’s information sites for the Hawaii-Southern California EIS and the Atlantic Fleet EIS.  Comments on both are being accepted through July 10.

A paper recently published in Conservation Biology suggests that current ocean noise regulations are likely not providing sufficient protections against impacts on marine life.  The authors note that current regulations are based on preventing direct physical injury from very close exposure to sound, while considering behavioral impacts to decrease consistently with greater distance, or the “zones of influence” approach to noise impact assessment.  However, some key impacts, such as interruptions in feeding or temporary abandonment of important habitat, are not accounted for.

Rather than fully summarizing the paper here, I’ll turn you over once again to Caitlin Kight of Anthropysis, who has recently been providing excellent coverage of anthropogenic noise issues as part of her larger focus on human impacts in the natural world.  Please see her full post to get the whole story; here’s a teaser:

In a previous study on behavioral responses of marine animals to noise, one of the authors of the current paper found that the “zones-of-influence approach did not reliably predict animal responses.” Furthermore, we know from terrestrial studies that a variety of additional factors–an animal’s past experience and conditioning, current behavioral state, acoustic environment, and type of exposure, to name a few–all affect the extent to which it will be impacted by noise pollution.

…(Studies in terrestrial and ocean environments have shown that) noise can have more subtle, but equally important, effects on wildlife. For instance, abundance and diversity may shift as animals flee from, or learn to avoid, particularly noisy areas; individuals may alter their behaviors in counterproductive or even dangerous ways; and noise may make important acoustic signals difficult to hear, even in the absence of actual deafness. In short, the researchers write, the current marine noise concept “ignores a diverse suite of environmental, biological, and operation factors” that can impact both perception of, and response to, anthropogenic noise. Thus, they argue, it is necessary to overhaul the system and “[incorporate] context into behavioral-response assessment.”

Ellison, W.T., Southall, B.L., Clark, C.W., and Frankel, A.S. 2012. A new context-based approach to assess marine mammal behavioral responses to anthropogenic sounds. Conservation Biology, online advance publication.

A Canadian frigate used its mid-frequency active sonar this week during a training exercise in Haro Strait, north of San Juan Island and south of Vancouver Island.  The sonar emissions from the HMCS Ottowa (right) were picked up by whale researchers at Beam Institute, who raised concerns about sonar use in an area designated by the US as critical habitat for orcas. You can read a detailed report from Beam, including sonograms and MP3 files of the sounds heard, at their website. They note that “the peak power frequency is consistent with the 2-8 kHz frequency range specified for the SQS 510 sonar system, which is manufactured by General Dynamics Canada. Each ping had high intensity receive levels for ~0.5 second duration and pings were separated by about one minute.”

According to the Seattle Times:

The frigate was in Canadian waters at the time, said Lt. Diane Larose of the Canadian navy.  But the Ottawa’s sonar can travel 4,000 yards — more than two miles — and the sound was picked up by instruments in U.S. waters. Larose said the Canadians are well aware of sonar’s potential to hurt killer whales, which communicate by sound at similar frequencies. In 2008, the Canadian Navy adopted a policy requiring the use of radar, passive acoustic systems, underwater listening devices and night-vision goggles to make sure marine mammals aren’t present when sonar is deployed. “We take this very seriously,” Larose said. “It’s a very well-thought-out policy.”

Scott Veirs of Beam Research said that their monitoring network had tracked both transient orcas and endangered southern resident orcas in the area within 24 hours both before and after the incident. “This was a fairly high-risk event as far as we can tell…it’s concerning to me that the U.S. Navy has voluntarily refrained from unnecessary testing and training in the inland waters of Washington state, but the Canadian navy apparently still does,” he said. “The nightmare scenario is that you turn on sonar not knowing they are there and essentially deafen them either temporarily or permanently.”  Ed. note: Beyond this worst-case scenario, the use of this high-intensity sonar in waters close to designated critical habitat goes against the purposes of designating such protected zones; the US has banned all boat activity in some parts of the habitat, with the goal of assuring that the whales are not discouraged from using this region, one of their primary feeding grounds.

Interestingly, a commenter on the Beam Reach website notes that the Canadian Navy’s safety zone for their mid-frequency active sonar is 4000 yards, or over two miles.  Whether they can effectively detect whales at that distance, especially at night, is highly questionable. The Seattle Times clip above mistakenly presumes that the sounds travel only that far. In fact, this is just where they tend to drop below the sound levels considered likely to seriously disrupt behavior; mid-frequency active sonar can be heard for tens of miles, and in the complex underwater landscape of where this event took place, is likely to create dramatic peaks and drops in sound levels as the noise bounces from islands and the seabed, making it difficult for animals to know how to reduce their exposures.

Three years after the NRDC and U.S. Navy reached an agreement that was meant to create avenues for dialogue and collaboration, a new lawsuit filed this week suggests that the hopes both sides held have not been realized. The main sticking point remains the same now as it was then: environmental advocates insist that some biologically rich areas should be entirely off limits to any sonar training activity, while the Navy holds that short-term exercises pose no great risk to wildlife. The final Environmental Impact Statements submitted by the Navy, and the permits issued by the NOAA Fisheries Service (which collaborates closely with the Navy in developing guidelines), allow the Navy full access to extensive training ranges that stretch along most of the coastlines of United States. The suit filed this week challenges NOAA permits issued in 2010 for one of the Navy’s dozen or training ranges, off the coast of Washington, Oregon, and northern California. It differs from an earlier high-profile legal challenge, which reached the Supreme Court, in that the previous suit challenged the Navy’s sonar operational guidelines, whereas this one challenges NOAA’s permits.

The Navy is already beginning work on Environmental Impact Statements that will accompany new permit request for all of its ranges, each of which must receive fresh authorization from NOAA every five years. The Navy has recently completed its first-ever EIS’s for training ranges around the world (a process spurred largely by earlier legal challenges); these 5-year permits were issued for some ranges in 2009, and are due for renewal in 2014 and beyond.  The operating conditions proposed by the Navy and approved by NOAA for the first-round EISs and permits are generally similar to the way the Navy had been doing things for many years. Marine mammal monitoring is maintained on sonar vessels, with sonar intensity reduced when whales are seen nearby, and operations stopped when whales approach very close to boats. The litigants point out that visual monitoring misses 25-95% of whales, and is particularly ineffective in high seas. “We learn more every day about where whales and other mammals are most likely to be found,” said Heather Trim, director of policy for People for Puget Sound, “We want NMFS to put that knowledge to use to ensure that the Navy’s training avoids those areas when marine mammals are most likely there.”

By and large, ocean noise regulations concern themselves only with noise that may be loud enough to cause injury, which occurs only at very close range (under a half mile). More moderate noise, which may cause behavioral changes up to 50 miles away, is assessed in the EIS, but these behavioral changes are generally considered to be of negligible impact to the animals. Recent NOAA permits routinely allow for tens or hundreds of thousands of animals to respond in some way to the sounds of naval maneuvers, with sonars mounted on ships, on floating buoys, and dangled from helicopters being the primary noise source triggering behavioral responses (any behavioral response is considered a “take” in permitting language).

The Navy says that in the Northwest Training Range Complex sonar training exercises typically

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