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Legal challenges mount to new round of Navy training permits

Effects of Noise on Wildlife, Ocean, Sonar Add comments

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.

ShoupImmediately 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.

I note that press coverage continues to tend to overstate the severity of some of the impacts being cited. For example, the LA Times piece linked above speaks of the nearly 10 million behavioral takes as “disruptions of vital behaviors,” whereas the vast majority of the disruptions are modest and very temporary. Likewise, blue whales are described as “flee(ing) foraging grounds,” whereas the recent study being referenced noted only that one blue whale stopped feeding for one hour, while others showed shorter or lesser reactions. That said, the concerns are valid, even if not as dire as often presented; for example, biologists are concerned that repeated behavioral disruptions could present risks for blue whale recovery rates, which lag behind those of other large whales.

An interesting aspect of the new legal challenges is the charge that NOAA has failed to consider the most recent “best available science” as it issues initial five year rules and ongoing one-year updates authorizing Navy activities. Of course, every year there are many new studies released that continue to move our understanding forward, bit by bit (e.g., the blue whale study noted above, which included tags on a dozen Blue whales and two Cuvier’s beaked whales; these small numbers tend to make biologists cautious about considering them to be solid evidence of widespread impact). NOAA appears to be adapting to this challenge by including explicit consideration of new research during annual reviews; how, or whether, they revamp their take estimates based on new studies will likely be closely watched by the plaintiffs. (Generally, the Navy and NOAA do extensive EIS’s every 5 years, with annual permitting documents containing less fresh analysis.) The courts will be asked to weigh in on whether this is sufficient to meet the requirements of the MMPA and NEPA.  The PacNW suit mentioned above also led to a ruling that the 5-year timeline of considering possible cumulative impacts was too short, and it’s unclear so far whether this challenge is also included in the new suits.

See this link for all AEInews coverage of Navy noise issues.

UPDATE, 2/10/14: An article from Nature World News features a striking set of dueling quotes from the Navy and NRDC:

“The Navy will operate its most powerful sonar systems for nearly 60,000 hours over the next five years, more than triple the number of hours it was authorized to use these systems in the last five years,” the lawsuit against the Navy states. “There is no dispute that the Navy’s use of mid-frequency sonar can kill, injure, and disturb marine mammals. Both the Service and the Navy acknowledge that the use of mid-frequency sonar during Navy exercises has contributed to mass strandings of whales and other marine mammals. During the next five years, the Navy will also detonate more tha 250,000 explosives. At least 7,000 of these detonations will be more powerful than the charge that killed at least three dolphins during a Navy training exercise in southern California in 2011.”

“The Navy’s analysis indicates that while large numbers of marine mammals may be affected by sonar and explosives activities, over 99.9 percent of the animals affected will experience only temporary behavioral effects that do not result in injury,” Rear Adm. Kevin Slates, the energy and environmental readiness division director for the Navy, said in a statement made in August.

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