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.