Will the Federal Agency Charged with Protecting Whales and Dolphins Stand Up to the Navy?

Yesterday, the National Marine Fisheries Service – the federal agency charged with protecting whales and dolphins – announced that it received requests from the Navy for authorization to take marine mammals incidental to training and testing activities off Southern California, Hawaii, and the East Coast, including the Gulf of Mexico, for the five-year period starting in January 2014.  It all sounds very innocuous until you dig a little deeper and discover that the Navy is asking for authorization to take 33 million (yes, that’s not a typo:  33,000,000) whales and dolphins over the next five years, including more than 5.23 million instances of temporary hearing loss; almost 16,000 instances of permanent hearing loss; almost 9,000 lung injuries; and more than 1,800 deaths.  It’s a staggering and unprecedented amount of harm that should give any federal agency involved, be it the Navy or the National Marine Fisheries Service (“NMFS”), pause.

Yet, the Navy is not pausing, apparently has no plans to go back to the drawing board, and instead continues to rely on a mitigation scheme – centered on the ability of lookouts to detect whales and dolphins and then limit the use of sonar when they get too close – that is demonstrably ineffective and inadequate.  It’s ineffective because, as the Navy admits, lookouts on Navy ships only detect about 9 percent of whales and dolphins in the best of conditions.  It’s inadequate because the Navy’s own analysis shows that some of the most severe impacts, such as permanent hearing loss, will occur well beyond the Navy’s “too close” zone.  How else then does the Navy propose that the harm from its activities can be limited?  It doesn’t.  Its analysis and application to NMFS fail to present decision makers with any alternatives or mitigation measures that would appreciably reduce the harm to whales and dolphins.

So what’s an agency like NMFS to do when the Navy – no small fry in the Executive Branch – comes calling?  Follow.  The.  Law.

Under the Marine Mammal Protection Act, NMFS has a legal obligation to minimize the harm to whales and dolphins from the Navy’s proposed activities.  If the Navy’s application and draft Environmental Impact Statements fail to offer a path forward for minimizing harm – as they do – NMFS is required to develop alternatives and mitigation measures of its own that limit impacts to marine mammals, while still meeting the Navy’s training needs.

Comments to NMFS on the Navy’s application and request are due November 5.  NRDC will be submitting comments urging NMFS to meet its obligations under the MMPA – develop and adopt alternatives and mitigation measures that appreciably reduce the harm to whales and dolphins from the Navy’s activities.

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