Yesterday, the National Marine Fisheries Service (NMFS) issued a final rule governing the Navy’s “take” of whales and dolphins during training activities in the Gulf of Alaska. While the final rule sounds very official and substantial, it rests largely on a piece of fiction.
Under the federal law that protects whales and dolphins, NMFS must authorize the Navy’s unintentional “take” (in these cases “take” largely manifests as significant behavioral harassment, but sometimes it can be temporary or permanent injury or even death) of marine mammals if it finds that the Navy’s use of sonar and explosives in the Gulf of Alaska will have a “negligible impact” on the area’s marine mammals. So far, so good; the Navy asks NMFS to authorize its use of sonar and explosives in the Gulf of Alaska, the Navy and NMFS analyze the impacts sonar and explosives will have on the whales and dolphins found in the area, and, based on this analysis, NMFS gives the Navy the thumbs up on its training.
But here’s the rub: this time, the Navy and NMFS are operating in the dark. They do not have adequate density, distribution, and abundance data on marine mammals in the training area – an area the size of the New York state. The minimal evidence that does exist shows that the area is rich habitat for whales and dolphins and lies over important migration routes for blue, fin, gray, humpback, and North Pacific right whales, many of which are listed as endangered under the Endangered Species Act. So when it comes to the impacts sonar and explosives will have on these species and others, NMFS and the Navy are basically guessing. Do 1,000 Cuvier’s beaked whales live in the area or 5,000? Or maybe 10,000 or 200? Nobody knows. Nonetheless, yesterday NMFS authorized 2,312 takes of Cuvier’s beaked whales by the Navy and found that these takes would have a negligible impact on the whales.
How did they come up with this number of takes and determine whether the impact would be negligible? Pure speculation. Now, it certainly was an educated guess – they did not literally pull the numbers out of a hat – but they may as well have given the level of confidence the public should have in the analysis. The Navy and NMFS relied upon a handful of surveys conducted in non-training nearshore areas for nearly all marine mammals occurring in the training areas, the overwhelming majority of which falls at least 75 nautical miles from shore.
Perhaps recognizing the lack of data, the Navy commissioned a survey in the training area that took place in 2009. The survey lasted 10 days and was plagued by challenges, including limited survey time, a large survey area, inclement weather, and lack of necessary equipment. Nonetheless, throughout its final rule, NMFS repeatedly waves around the results of this study. But the agency doth protest too much, methinks. Are we really supposed to believe that NMFS and the Navy can adequately characterize the incidence of marine mammals over 42,000 square nautical miles after a 10-day survey? If so, that’s one magical survey.
This is not a case of holding the Navy and NMFS to too high of a standard, demanding that they have perfect and complete information before proceeding. But the law requires them to do more when they recognize a lack of data and it is feasible for them to get it. And here, we know it is feasible because NMFS details in great length all of the future research that is planned for the area. But that is not how the law works. Agencies are not allowed to knowingly make blind decisions with the promise of doing necessary research after the fact. And this is not a last-minute emergency situation; the Navy has been planning for this training for at least three years.
We should expect and demand more from our government than a figurative shrug and sigh and an apparent cynical reliance that they can get away with doing less than the law requires until someone forces them to do more.