Calling out the Cacophony: Sea Shepherd Legal Submits Comments on Proposed Navy Sonar Operations

In the popular imagination, the ocean is synonymous with tranquility.  The crashing noise of a violent storm serves merely to punctuate, throwing into sharper relief the soothing sounds of lapping waves and gentle breeze that we so frequently associate with the sea.

Yet, as marine bioacoustics expert Christopher Clark explains, we deceive ourselves with these quaint notions:

“We look out at the ocean and see this bucolic seascape, and some seagulls flying along the horizon and maybe a sailboat, and we think everything is hunky dory. Well, it isn’t. We are injecting so much noise that we are effectively acoustically bleaching the world’s oceans.” — Prof. Christopher Clark, Cornell University

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Credit: OceanCare

Over the past several decades, marine noise pollution has grown at an exponential rate. Noise from vessel traffic is doubling every decade.  Pile-driving, dredging, and seismic exploration for oil and gas add to the cacophony.  This last source, typically employing “air guns,” may be the worst of all.  As Clark observes, the noise from an air-gun survey is truly mind-boggling:

“It is so loud that when someone is surveying off northern Brazil, I can hear that explosion on a small piece of instrumentation that I deploy 60 miles off the coast of Virginia.”  — Prof. Christopher Clark, Cornell University

On top of all this, the U.S. Navy and other military forces around the world harass marine mammals with sonar, repeatedly blasting them with sound waves that cause severe stress, behavioral changes, masking (i.e., difficulty perceiving important natural sounds), non-auditory injury (i.e., gas bubble formation/rectified diffusion), strandings, and noise-induced loss of hearing sensitivity (a.k.a., “threshold shift”).

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Credit: Collective Evolution

At Sea Shepherd Legal, we are fighting back.  On May 30, we filed a comprehensive document opposing a proposed regulation that would authorize the Navy to harass marine mammals all over the world through sonar training operations.

Harassing, or “taking,” marine mammals in this way is presumptively illegal under the Marine Mammal Protection Act (MMPA).  Nevertheless, by invoking the MMPA’s exception for “incidental take,” the National Marine Fisheries Service (NMFS) proposes to issue regulations authorizing the Navy to harm almost incalculable numbers of marine mammals while conducting training exercises using low-frequency sonar.  The breadth of the proposed rule—and of the underlying activity it would facilitate—cannot be overstated.  This is, quite literally, a rulemaking of global proportions.

NMFS’ proposed rule would authorize “Level B” harassment of more than 100 species and stocks of marine mammals, with the list of potentially impacted species reading like a taxonomist’s index of the world’s cetaceans and pinnipeds.  Level B harassment is no trifling matter.  It is statutorily defined as “any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered.”   16 U.S.C. § 1362(18).

The proposed rule would authorize not just a few Level B takes here and there; it would authorize Level B harassment of up to 12 percent of any of the 100-plus stocks and species every single year, over a five-year period.  And the rule would not limit these takes to a particular region or stretch of ocean; save for polar waters, the Navy would have free reign to harass marine mammals in all of the world’s oceans, including the Mediterranean Sea.

As we explain in our comments, this rule would violate the MMPA because it ignores cumulative impacts and fails to prescribe sufficient mitigation measures.  Worse still, the rule is a slap in the face to the U.S. Court of Appeals for the Ninth Circuit.  Less than one year ago, the Ninth Circuit rebuked NMFS regarding the previous iteration of this same rule (covering the 2012 to 2017 time period).  NRDC, Inc. v. Pritzker, 828 F.3d 1125 (9th Cir. 2016).  Remarkably, just ten months later, NMFS repeats these mistakes, proposing a rule that runs roughshod over the MMPA’s formidable limitations governing “incidental takes.”  If NMFS does not revise the rule to incorporate additional mitigation measures and to properly account for cumulative impacts, the agency will, yet again, violate the MMPA.

To read our full analysis, click here.

To support our efforts to combat marine noise pollution, including ongoing work to address the plight of endangered Cook Inlet beluga whales and to fight against seismic surveys around the world, please consider making a tax-deductible donation.

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