U.S. Seeks to Limit Conservation Law
Would Allow Pipelines, Ocean Dumping & Sonar Without Review

KATHARINE Q. SEELYE / NY Times 10aug02

 





The sonar system, known as Surveillance Towed Array Sensor System Low Frequency Active sonar (or "SURTASS LFA") relies on extremely loud, low frequency sound to detect submarines at great distances. According to the Navy's own studies, the LFA system generates sounds capable of reaching 140 decibels more than 300 miles away. Scientists claim that, during testing off the California coast, noise from a single LFA system was detected across the breadth of the North Pacific Ocean.

"One of the truly disturbing aspects of this system," said Joel Reynolds, senior attorney and director of NRDC's Marine Mammals Protection Project, "is its unprecedented power and geographic scope. If the Navy deploys LFA, tens of thousands of square miles of ocean habitat would be saturated with extremely loud and dangerous sound. The Navy has illegally been given a blank check to deploy LFA in 75 percent of the world's oceans."

Over the last few years, scientists have been increasingly alarmed about undersea noise pollution from high-intensity sonar systems. There are two types of sonar: passive and active. Passive sonar listens for ambient noises in the water. Active sonar sends out a signal and waits for a response. Scientists are particularly concerned about active sonar, which has the potential to harm and even kill whales and other marine mammals.

The mass stranding of multiple whale species in the Bahamas in March 2000 intensified these concerns. Many of the beached whales died. A federal investigation determined that the strandings were caused by a U.S. Navy mid-frequency active sonar system. Meanwhile, a number of whales that lived in the waters off the Bahama coast disappeared. Scientists believe that they either abandoned their habitat or died at sea.

"From a scientific point of view, there is very little question that, given the right set of circumstances, active sonar can kill marine life," said Naomi Rose, a marine mammal scientist with the Humane Society of the United States, one of the coplaintiffs. "The frightening thing about LFA is that we're flying blind, because the Navy has never seriously applied the lessons from previous strandings to its LFA system."

"The decision [last month by the National Marine Fisheries Service,] to authorize and deploy the LFA system cannot be justified under federal law," said Andrew Sabey, a partner with the international firm of Morrison & Foerster, which is representing the plaintiffs. "The National Marine Fisheries Service has issued the Navy a so-called 'small take' permit, which in reality authorizes the Navy to injure, harass and disturb marine mammals on a stunningly large scale throughout the world's oceans."

"The ocean is a precious resource shared by all the world's peoples," said Jean-Michel Cousteau. "The LFA system poses an unacceptable risk to our oceans and our children's heritage."

 - NRDC 7aug02

WASHINGTON, Aug. 9 — The Bush administration is arguing that a major environmental law does not apply to the vast majority of oceans under United States control, a move that environmentalists say could allow military maneuvers, oil and gas pipelines, commercial fishing, ocean dumping and scores of other activities to escape public environmental review.

In a federal court case in Los Angeles that involves the testing of a new type of sonar system by the Navy, the Justice Department said that the National Environmental Policy Act of 1969 — landmark legislation that requires federal agencies to review the environmental implications of their projects — did not apply beyond the nation's territorial waters, which traditionally extend three miles from shore.

That view is being challenged by the Natural Resources Defense Council, which asserts that in addition to the territorial waters, the act covers all activity within the nation's "exclusive economic zone," which extends 200 miles from shore.

A decision in the case is expected later in the summer.

Environmentalists say that barring application of the act in these zones would open up the oceans to unregulated activity that could damage them and destroy marine life.

In addition to the sonar project, which they say could disorient and kill whales and dolphins, they say other unregulated activity would include commercial fishing for depleted species, proposals for liquified natural gas plants and pipelines, and other energy projects.

Offshore oil and gas drilling would not be affected by the administration's position because another law, the Outer Continental Shelf Lands Act, specifically requires that the environmental law apply to such activity.

At issue is the National Environmental Policy Act, often referred to as the Magna Carta of environmental law. Signed by President Richard M. Nixon on Jan. 1, 1970, the act requires all federal governmental actions to be reviewed and analyzed for their effect on the environment.

In an indication of the importance of the matter, the White House Council on Environmental Quality convened with ranking officials from five agencies and departments to discuss the implications of the Justice Department's position both before the department filed its brief and then again this week, administration officials said. They plan to discuss it further in September.

Administration officials said there was little disagreement at the meeting, which was first reported today by The Times-Picayune of New Orleans, about the administration's approach. And the Justice Department has argued in the sonar case that federal agencies should decide case by case whether to apply the National Environmental Policy Act in the oceans.

But e-mail messages written before the meeting suggested that officials from the National Oceanic and Atmospheric Administration disagreed with the Navy.

One message written by a Navy official hailed the "good news" that the Justice Department agreed with the Navy, "over NOAA objection," that the environmental law "does NOT extend beyond the limits of our territorial waters."

Administration officials said that the Justice Department position and the meeting did not represent a change of policy, but environmentalists disagreed.

"This is a major policy change," said Andrew Wetzler, a lawyer with the Natural Resources Defense Council in Los Angeles. "For the first time, the White House is considering stepping in and seeking to impose the Navy's restrictive view of the statute on the entire federal government."

The Navy has long believed that the act does not extend to activities conducted within the nation's "exclusive economic zone," which stretches 200 miles off all coastal waters and thus covers more than one million square miles off all American coasts, including those of Alaska and Hawaii. The Navy appears to be the driving force behind the Bush administration's discussion of whether to apply that concept to all federal activity in the zone.

Administration officials believe that the environmental act is too restrictive, that it spawns nettlesome lawsuits and that most ocean activity is already regulated by an executive order signed in 1979 by President Jimmy Carter, according to administration officials and internal e-mail correspondence that was obtained by environmental groups opposing the administration's view.

Environmental groups assert that the Carter executive order is too weak to guarantee enforcement. They say it does not provide for lawsuits or public review, meaning that an array of damaging activities could take place far out at sea without public knowledge or recourse.

Michael Jasny, a senior policy analyst at the Natural Resources Defense Council in Los Angeles, said that the National Environmental Policy Act "depends on public comment and public scrutiny and judicial review for its effectiveness, and if you do away with it, all of that would be lost — we'd have no public accountability" about military and industrial activities in the oceans.

Tim Eichenberg, a lawyer with Oceana, a group in San Francisco dedicated to preserving the oceans, called the executive order "a very poor cousin" to the policy act.

"The executive order doesn't provide for public input or any analysis of alternatives and it doesn't allow for judicial review — there is no recourse for the public," he argued.

Administration officials said that their position in the California case did not represent a change of policy. They said that the National Environmental Policy Act, signed into law before the United States established its exclusive economic zones, was never intended to apply to the ocean beyond the territorial waters and did not apply now.

But an internal Navy document contradicts that view, noting that the Justice Department and the Council on Environmental Quality in the Clinton administration "pressed to apply N.E.P.A. worldwide."

Senator John Kerry, the Massachusetts Democrat and chairman of a subcommittee on oceans and fisheries, issued a statement saying: "I am incredulous that the Bush administration may actually be considering rolling back central environmental protections of our oceans and marine environment. The National Environmental Policy Act is the cornerstone of protection for our citizens and natural resources — and new limits on the law would have profound impacts on coastal issues from fisheries management to marine protection to ocean dumping."

Effect of Anthropogenic Low-frequency Noise 
on the Foraging Ecology of Balaenoptera Whales 

Animal Conservation 2000

Donald A. Croll, Institute of Marine Sciences, University of California, Santa Cruz, CA;
Christopher W. Clark, Cornell Laboratory of Ornithology, Bioacoustics Research Program, Ithaca, NY;
John Calambokidis, Cascadia Research Collective, Olympia, WA;
William T. Ellison, Marine Acoustics, Inc., Litchfield CT; and 
Bernie R. Tershy, Institute of Marine Sciences, University of California, Santa Cruz, CA. 

Abstract

The human contribution to ambient noise in the ocean has increased over the past 50 years, and is dominated by low-frequency (LF) sound (frequencies <1,000 Hz) from shipping, oil and gas development, research, and defense-related activities. Mysticete whales, including six endangered species, may be at risk from this noise pollution because all species produce and likely perceive low-frequency sound. We conducted a manipulative field experiment to test the effects of loud, LF noise on foraging fin (B. physalus) and blue (Balaenoptera musculus) whales off San Nicolas Island, California. Naive observers used a combination of attached tracking devices, ship-based surveys, aerial surveys, photo-identification, and passive monitoring of vocal behavior to examine the behavior and distribution of whales when a loud LFS source (U.S. Navy SURTASS LFA) was and was not transmitting. During transmission, 12 - 30% of the estimated received levels in the study area exceeded 140 dB re 1 µPa. However, whales continued to be seen foraging in the region. Overall, whale encounter rates and diving behavior appeared to be more strongly linked to changes in prey abundance associated with oceanographic parameters than to LF noise transmissions. In some cases, whale vocal behavior was significantly different between experimental and non-experimental periods. However, these differences were not consistent and did not appear to be related to LF noise transmissions. At the spatial and temporal scales examined, we found no obvious responses of whales to a loud, anthropogenic, LF sound. We suggest that the cumulative effects of anthropogenic LF noise over larger temporal and spatial scales than examined here may be an important consideration for management agencies. 

source: http://birds.cornell.edu/BRP/Abstracts/DAC_LFnoise_AnCon_00.html 10aug02

 

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