WASHINGTON (CN) – The National Marine Fisheries Service has authorized the Navy to continue harming protected marine mammals with low frequency sonar, despite a court ruling against the practice. The notices for the four Letters of Authorization (LOA), published Thursday, are surprising in that the agency has virtually ignored the July 15 U.S. Court of Appeals’ decision that the Navy’s peacetime use of sonar is not in compliance with the Marine Mammal Protection Act (MMPA).
In the notices, the agency said that the LOAs were for the last year of the five-year sonar rule issued in 2012, which was the subject of the July court decision in an appeal of a district court judgment brought by the National Resources Defense Council and allies against Commerce Secretary Pritzker, the NMFS, and two representatives of the Navy.
The court’s three-judge panel held that the 2012 final rule permitting harm, or “take,” of protected marine species by the Navy’s low-frequency active (LFA) sonar did not meet the “least practicable adverse impact standard” required by the MMPA, and it reversed a previous U.S. District Court ruling that the standard had been met by the NMFS’s “negligible impact” finding.
After briefly acknowledging the appeals court ruling in the notices, the agency went on to say that “the Ninth Circuit had not, however, issued a mandate in that case at the time the LOAs were issued.” The appeals panel had reversed the district court’s summary judgment and remanded the case back to the district court for further proceedings.
“The rationale stated by NMFS is that the court’s mandate hasn’t yet been issued. While technically correct, that rationale elevates process over substance at the expense of whales and other marine life — by the very agency whose duty it is to protect them,” Joel Reynolds, NRDC’s Western Director and senior attorney, told Courthouse News.
The Letters of Authorization (LOAs) also do not conform to the agency’s own technical guidance document on the affects of human-caused sound on marine mammal hearing, finally published just two weeks ago on Aug. 4. In the notices, the agency said that while it was considering implementation of the guidance during a transition period, it needed to “balance the need to consider this new best available science with the fact that some applicants have already committed time and resources to the development of analyses based on our previous guidance and have constraints that preclude the recalculation of take estimates, as well as where the action is in the agency’s decision-making pipeline.” The agency also noted that the Navy needed the authorizations by Aug. 12 to “ensure continuity of operations.”
In response, Reynolds said, “we are astonished to see an LOA issued in the wake of the court of appeals’ decision that the LFA permit is illegal. NMFS is entrusted under federal law to enforce the Marine Mammal Protection Act for the benefit of marine mammals — not for the convenience of the Navy. This capitulation to the Navy’s request to continue ‘business as usual’ under a permit determined by a federal court to be illegal is outrageous.”
According to the court’s analysis, the Navy’s Surveillance Towed Array Sensor System LFA sonar projectors produce sound pulses at an intensity up to 215 decibels in 60 second bursts, which travel hundreds of miles in the water. This level is enough to disrupt hearing and cause physical injury to marine mammals. The LOAs allow take in the Pacific, Atlantic, Indian Ocean and the Mediterranean, for up to 240 days of active operation.
The MMPA defines take levels as either Level A harassment or Level B harassment. Sound pulses at or above 180 decibels constitute Level A harassment, while pulses below 180 are defined as Level B harassment, which involves activities that interfere with the animals’ normal behavior, such as migration, surfacing, nursing, breeding, feeding or sheltering.
The agency’s 2012 rule allows the Navy to take, through Level A, up to six baleen whales, 25 toothed whales and 25 pinnipeds (such as seals and walrus) per year, and through Level B, up to 12 percent of the entire stock of every affected marine mammal species every year, according to the court decision.
The NMFS did not respond to a request for comments.
The authorizations are effective Aug. 15, 2016 through Aug. 14, 2017.
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