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

last no more than ninety minutes, and that these short-term behavioral disruptions are unlikely to cause meaningful problems for ocean life. The suit, filed in US District Court in San Francisco, seems targeted to the question of whether the Navy is sufficiently evaluating cumulative impacts, or repeated short-term exposures over many months or years, in its consideration of whether their activities may cause biological harm. It focuses on whether certain critical habitats, such as breeding or feeding grounds, should be off-limits at least seasonally; the concern is that whales may leave these important areas, temporarily or permanently, in response to naval activities. The Olympic Coast National Marine Sanctuary is one of several areas the plaintiffs feel should be protected from sonar activity.  According to Courthouse News Service, a consortium of Native American tribes who are co-plaintiffs are also raising issues about the lack of government-to-goevernment that it is entitled to. “The Sinkyone Council has not received a letter, phone call or any other communication from the Navy … nor has NMFS communicated with the council regarding tribal consultation,” according to the complaint.  (Note: Several years ago, NOAA changed the name of the National Marine Fisheries Service to simply NOAA Fisheries Service, but the old acronym, NMFS remains in use, including in the Fisheries Service url.)

The suit does not ask the Navy to halt current activities; rather, it asks the court to require NOAA to re-examine the permits it issued in 2010, and to order some biologically rich areas off-limits, at least seasonally.  It appears that the new suit may be aiming to formally address this question of excluding biologically important areas from training, so that the next round of permits might impose such restrictions rather than duplicating the approach taken in the first round of training range permitting. The goal may be to encourage the courts to weigh in on this question before the next round of permits is finalized, or to raise the heat on the Navy and on NOAA Fisheries as they move through the new process. The agreement reached three years ago between NRDC and the Navy established a several-month period after the issuance of any permits, during which the Navy and NRDC would engage in dialogue intended to avoid the need for legal challenges. Apparently, the NRDC and it allies feel that their concerns about establishing spatio-temporal restrictions have not been addressed in these discussions. In early 2010, NOAA Administrator Jane Lubchenko announced a series of sweeping new initiatives regarding ocean noise that seemed sympathetic to the concerns raised by NRDC, including a direct acknowledgment the protection of key habitat is widely recognized as the most effective mitigation to prevent harm to marine life, though permits issued since then have maintained the previous status quo.

In any case, the new lawsuit will shine fresh light on the question of whether the sound from sonars, heard at distances far greater than currently regulated to prevent injury, may cause significant enough behavioral responses to warrant more diligent regulatory oversight. This question is part of a larger theme that has been at the center of recent scientific discussion of ocean noise: chronic and repeated exposure to moderate noise is seen as the dominant impact of noise on marine life, with routine behavioral disruption coming to be considered a more substantial threat to marine life than occasional injuries sustained at very close range to noise sources.  It’s a much harder question to craft regulations around, since behavioral responses are often subtle or short-term, and there is usually a wide variation between individuals in response to similar sounds (with some being disrupted by fairly soft or distant noise, and others apparently quite tolerant).  Researchers have attempted to come up with ways of quantifying the wide range of responses, in order to create a framework for determining how “biologically significant” the wide range of behavioral responses may be; however, the idea of simply reducing noise impacts in biologically rich areas offers a simpler way to try to minimize problems.  As ever, the argument comes down to whether the activities taking place are causing enough problems to require stronger protection.

The current lawsuit was filed by a consortium of groups, including the National Resources Defense Council, Earthjustice, People for Puget Sound, and the InterTribal Sinkyone Wilderness Council, which represents ten Northern California Indian Tribes.