Navy Noise: The Crescendo Approaches

By William Rossiter

Your last significant chance to comment on the Low Frequency Active Sonar (LFA) may end on 18 May. This is the deadline for comments regarding the NMFS proposed rule to allow LFA operation, through a "Small Take Permit" Letter of Authorization (LOA). If you have decided that no degree of logic or concern will sway the Navy or NMFS from their goals please understand that the reason for writing has gone beyond that. Your strongest comments are needed for the Administrative Record for possible legal action in the future. Consider your effort to be your opportunity to have something introduced in court. CSI is eager to do whatever we can to provide you with more information. Thanks to the Natural Resources Defense Council (NRDC) what follows is a brief guide to help facilitate your comments.

The proposed rule was born out of the Marine Mammal Protection Act. When it was passed back in 1972, this law set a moratorium on the harassing, hunting, capturing, and killing of marine mammals. It is agreed that the Navy cannot deploy this new technology without obtaining some sort of exemption. Two years ago, the Navy applied for an exemption known as a "small take permit," which is available under the law for activities that harass, hunt, capture, or kill - or, in other words, "take" - a small number of marine mammals, provided that they do so unintentionally.

Not all activities qualify. To grant a "small take permit," NMFS has to find that the activity won't "take" more than a small number of marine mammals within a specified area and won't have more than a negligible impact on any particular species or stock. Even if NMFS decides that the activity meets these standards, the agency must still ensure, using all available means and methods, that it has "the least practicable impact" on marine mammals. It is the Navy's responsibility in this process to ensure that the NMFS has information sufficient to make these judgments.

The proposed rule that has just been issued would, if adopted, grant the Navy a "small take permit" for LFA. NMFS' ability to issue such a permit under these terms is what is at issue. Does it have sufficient information? Can it say that the impact will be negligible? Has it ensured that LFA will have the least practicable impact?

As it stands, the deadline for comments is 18 May. Unfortunately, the agency will not accept comments submitted by email or the Internet.

Comments should be mailed or faxed to: Donna Wieting, Chief, Marine Mammal Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3226. Fax: 301-713-0376.

What should your comments include? The LFA, like any complex issue, raises more than a few questions for discussion and debate, but don't feel that you have to comment on every aspect of the program. The fact is that NMFS, in making its decision, will probably put greater weight on comments that are thoughtful and detailed about a specific topic than on comments that are comprehensive but sketchy. All comments are extremely valuable in demonstrating a strong public interest. In general, comments should relate to the legal standards described above. But here, for example, are a few points to consider: whether there are any species or numbers of species in the areas of operations that NMFS has failed to consider (see the list of species under sec. 216.180 of the proposed rule); whether there are any regions (undersea canyons, seamounts, etc.) within the operations areas that have relatively high densities of marine mammals or of endangered and threatened species; whether there is any information about the impacts of noise (and not just on marine mammals, but on humans, and other terrestrial mammals as well) that NMFS and the Navy haven't considered; whether calculations of "take" are accurate; whether the small take permit is even applicable to a global system.

Is there any additional information available on LFA? Beyond the Notice of Proposed Rulemaking (see below), the main resource to use is the Navy's Final Environmental Impact Statement (FEIS) for the LFA program, which sets forth the Navy's position and which NMFS is planning to adopt as its own. Any comments you write, on just about any topic, would certainly benefit from reading the appropriate section of this impact statement. To obtain a copy, in either hard copy or CD-ROM, please contact Joe Johnson, the Navy's Environmental Program Manager for LFA. He may be reached by email at eisteam@mindspring.com, or by phone at 703-604-7882. Alternatively, you can contact Marine Acoustics, Inc., the private contractor that helped prepare the document. The main number there is 703-465-8404. Please be sure to put in your request as soon as possible, since the document could take more than one week to arrive.

Additional information and updates will be posted on NRDC's website at http://www.nrdc.org. If you have any questions about the comment process, or if you have special expertise in an area you would like to discuss, please feel free to contact Joel Reynolds (at jreynolds@nrdc.org or fax: (323) 934-1210) or Michael Jasny (at mjasny@ucla.edu or fax: 323-934-1210). And, if you can, please copy NRDC on any comments that you send.

There have been many other developments on the ocean noise issue in general, including an explosion of interest in military sonar impacts by many NGOs and the media. There is too much to cover more than a sample here.

Ken Balcomb, of the Bahamas Marine Mammal Station, has defined an issue of grave concern to many scientists and NGOs in his formal comment on that FEIS: He concluded that in certain situations active naval sonar can cause the stranding and death of whales and dolphins.

Ken Balcomb is an internationally recognized researcher of orcas and beaked whales. As reported widely last year, he was engaged in a long-term study of beaked whales in the Bahamas when individuals in his study population suddenly stranded and died close to his research station. Through his rapid and professional action considerable scientific evidence has been accumulated. It is important to recognize that the LFA was not transmitting concurrent to that stranding event, but medium frequency operational sonars were. Some of his points are: The U.S. Navy and NATO have known the resonance frequency of airspaces in Cuvier's beaked whales since 1998; The resonance frequency of these whales' airspaces almost precisely matches the frequencies of LFA and powerful mid-range sonars; Cuvier's beaked whales exposed to high intensity sonar at their airspace resonance frequency can experience life threatening hemorrhaging and disorienting pain; Military sonars exposed the whales in the Bahamas stranding and the 1995 Mediterranean stranding to low frequency sonar noise at received levels well below 180 dB, the sound level asserted to be "safe"; The lethal impact on some marine mammals from this sonar can extend over 20 kilometers away from the source, well beyond the range of any possible mitigation procedures.

Balcomb believes it is probable that the naval sonar killed all Cuvier's beaked whales in the region. Before the Bahamas stranding Balcomb's researchers sighted beaked whales a dozen or more times a year in the area. In the year after the Bahamas stranding only two beaked whales were seen on one occasion, probably new arrivals to the area.

And last, for now, in late January NMFS closed a public comment period for a Letter of Authorization (LOA) to allow the Navy to take a "small number of marine mammals" incidental to shock testing the USS Winston S. Churchill (DDG-81). Ship shock trials test new hull designs by calibrated detonations of 10,000-pound charges at specific distances. Over the years the Navy has reduced the number of explosions significantly, and attempted to make the tests in areas and during times that would minimize harm to marine mammals. In official, dry language the notice declares "to authorize the take, NMFS must determine that the taking will have no more than a negligible impact on the affected species and stocks of marine mammals". It is mind numbing to see expected numbers of cetaceans harmed by the thousands are considered negligible impact.