Whales and dolphins and caring people are not winning the war of human noise in the ocean. Despite publicity, investigation and even ridicule the noisemakers have persisted, ignoring criticisms and logic, to press for approval of whatever noises they want to make. The National Marine Fisheries Service (NMFS), underfunded, overworked, and pressed on all sides, wants to approve permits based on rules substantiated by scientific data. NMFS has made an extraordinary effort to make good rules for defining the approvable levels of sound, just short of where injuries and significant biological responses might occur in marine mammals. The experts, having inadequate data, have been unable to give NMFS the numbers it needs. So, in the absence of rules, and looking for ways to reduce the pressure, NMFS is reported to have quietly adopted a policy of approving applications to make continual noises (longer than 1 second) with a received level of 180 decibels with respect to 1 micropascal. Surprise! That is the basic level demanded by the U.S. Navy's Low Frequency Active Sonar (LFA) Draft Environmental Impact Statement (DEIS). This winning by default is what CSI predicted years ago, but it can be prevented. The LFA Final EIS is expected almost any day, NMFS may approve it, and a legal battle will begin to sort the wheat from the chaff.

Noisemakers, such as the Navy, persist in touting evidence that whatever they want to do has not been demonstrated to harm anything. Wait a minute! Who said that regulators or concerned citizens should bear the burden of proof for harm? The noisemaker, or any permit applicant, has to prove that their action will not do harm. This unsubtle and disastrous shift in emphasis is being extended across a spectrum of environmental issues. Watch for it. It must not be allowed to succeed. The push is on to reduce the workload on NMFS with the reauthorization of the Marine Mammal Protection Act (MMPA). While some changes make sense, CSI has considerable concern with watered-down levels of harassment (simply to reduce paperwork) and some co-management policies with indigenous peoples. There will be much more on the MMPA in coming months.

For a variety of reasons, good, bad and ludicrous, scientific research has not demonstrated reliably when marine organisms are significantly impacted by noise. The National Research Council's (NRC) Marine Mammals and Low Frequency Sound, Progress since 1994 (National Academy Press, 2000), is an understated and constrained condemnation of many acoustic projects, including many in the Marine Mammal Research Program (MMRP), which was supposed to provide adequate data to substantiate the Acoustic Thermometry of Ocean Climate (ATOC) project.

The NRC recommends, if research remains inadequate, "management of sound in the ocean should remain conservative (and should incorporate management of all human-generated noise in the sea, including industrial sources), in the absence of required knowledge". This is the oft-quoted Precautionary Principle. Until NMFS knows enough to proceed, this principle should be the standard, but instead it is being ignored.

We need data. How do we get it? How does NMFS manage and regulate human noises in the sea if we don't know when we do harm? How do we study the harmful point without doing harm? How can we take one example, perhaps of a dying whale stranded on a beach, and extend that to encompass the entire species? And of course, even if we knew all the facts with certainty, how would we force commercial shipping, military sources, and a host of other noisemakers into becoming quieter? The answer may lie in improved tools and techniques, but only if the research is humane.

Can adequate noise research be done without infringing on ethical, humane issues? Consider this: In 1981 I spent nine days and nights with a sick, stranded sperm whale nicknamed "Physty". Few scientists came to study this whale; he was expected to die. Physty recovered and swam free, having offered many days of possible research opportunities. If that same event occurred today, and a recent permit application is approved, a special team of U.S. Navy scientists might try to strap electrodes to the whale's head, and generate ever-louder sounds in an attempt to make the whale temporarily deaf. If all went "well", and "there was time" (the whale didn't die) they would measure the evoked potential of neural responses, indicating sensory inputs to the brain from the sounds. All humane aspects aside, the logic of using any data from a stressed, suffering, disabled cetacean to quantify the temporary threshold shift (TTS) for an entire species, or all large whales, seems unsound. For regulators to seize on that value as the definition of the maximum allowable received level of human-generated sound demonstrates only how desperate people are to know what effects human noise is having. Some Navy scientists have questioned whether TTS is actually an injury, by the way, trying for even higher limits. The permit, now being considered, includes work on entrapped cetaceans, which brings to mind the net-bound humpbacks and porpoises, or rope-trailing whales increasingly found near shore. The word "humane" was not included in the sparse announcement of this permit application, and CSI would be surprised to find it as part of the protocol, at least as normally defined. Almost in secret this Navy team attempted the TTS work on "JJ", the juvenile gray whale rehabilitated by Sea World in San Diego, very early on several days, before the public arrived. "JJ" fought the gadgets violently. They didn't work well either. Nothing was learned. For a while Sea World denied this project, perhaps because of the public relations quagmire.

Meanwhile, the Delaware Bay High Frequency Acoustic Experiment (see last Whales Alive!) began in early September, despite concerns that the sounds could harm infant bottlenose dolphins and sea turtles as they were preparing to migrate. University of Delaware scientists said that they were convinced that this would not happen, but did not add that they would follow up to make certain, because they won't.

And ATOC is back, under a new name, with a permit entitled "Taking Marine Mammals Incidental to Operation of a Low Frequency Sound Source by the North Pacific Acoustic Laboratory" (NPAL). NPAL's permit application public comment period also closed in late September. Using the ATOC seabed power cable and sound source near Kauai, Hawaii, a 75 Hz, 260 watt, 195 decibel (with respect to 1 micropascal) signal would be transmitted over six 20-minute periods every fourth day. A Draft Environmental Impact Statement was prepared by the Office of Naval Research, and Marine Acoustics, for the Scripps Institution of Oceanography, which also has established the threshold for risk of harm as a single ping at 180 decibels, defined further as the onset of TTS, and Level A harassment under the current MMPA. The language is reminiscent of the LFA's, using the same formula of assertive guesswork. The permit uses the MMRP to substantiate claims, without acknowledging the NRC's critique of the MMRP (above). How bad is it? Professor Paul K. Anderson, a Member of the ATOC MMRP Advisory Board, released a public statement entitled "Another 5 years of ATOC: Science Under False Pretenses?" You don't have to guess what it says. It's available upon request from CSI.

With several noise-related permits and at least one EIS pending, NMFS is under enormous pressure. Without facts to stand on, constrained by workload and budget limits, squeezed by politics and power plays, NMFS has many opportunities to give in to the noisemakers. CSI is grateful for the skill and expertise of the NMFS staff at the epicenter of this issue. We urge everyone concerned with the welfare of marine mammals to call for and support strong, enlightened NMFS decisions based on the best science, and above all, the Precautionary Principle.