(CN) - The 11th Circuit approved the U.S. Navy's plan to build an underwater submarine training range in the only known calving grounds of the endangered North Atlantic right whale.
The U.S. Navy seeks to build an Undersea Warfare Training Range to (USWTR) train personnel in shallow-water anti-submarine warfare.
The site it has chosen for the range is 50 nautical miles off the coast of the Florida-Georgia border, in waters adjacent to the only known calving grounds of the endangered North Atlantic right whale, one of the most endangered whale species in the world.
Only 300 to 400 North Atlantic right whales exist today, and females return each fall to the waters of Georgia and Florida to give birth to their calves before migrating north to the coast of Maine in the spring.
The Navy chose this site given the Atlantic fleet's concentration in Florida waters, and the climate, which will allow year-round training.
The range will consist of underwater fiber optic cables that will cover a 500-square nautical mile area, with up to 300 nodes to transmit and receive acoustic signals from ships that will allow monitoring of real-time positions of training participants. Construction is set to begin in 2014, and the range is projected to be fully functional in 2023.
The National Marine Fisheries Service's biological opinion on the effects of the Navy's proposed range approved the project, stating that "We have concluded that anti-submarine warfare training activities the U.S. Navy plans to conduct on [the] USWTR are likely to adversely affect endangered whales, but [are] not likely to jeopardize the continued existence of those whales."
A coalition of environmental groups challenged the biological opinion as arbitrary and capricious, especially as portions of it "appear to be cut-and-pasted from the biological opinions of the Navy's other anti-submarine warfare training projects along the eastern seaboard," the judgment says.
The Navy admitted that the opinion incorporated analyses of the environmental impact from existing opinions on the Navy's anti-submarine warfare training in the Jacksonville area.
But U.S. District Judge Scott Coogler, sitting by designation on a three-judge panel of the 11th Circuit, found that these inclusions did not undermine the biological opinion.
"In the biological opinion's actual conclusions, it discusses impacts to listed species from operations on the USWTR itself. The section of the biological opinion entitled 'Integration and Synthesis of Effects' contains ultimate conclusions of the analysis as to each listed species. For right whales, it notes that the Navy has likely overestimated the number that will be exposed to sonar because of the 'relatively short duration' of the planned exercises on the USWTR, 'the small number of surface and submarine vessels' associated with the training and the 'very small probabilities [of right whales] occurring in any particular 500 square mile area,'" the judge said.
Furthermore, plaintiffs cannot object to the Navy's decision to move ahead with construction before seeking authorization under the Marine Mammal Protection Act to commence training activities.
"In appellants' view, the Navy prejudiced its future decision to approve operations on the USWTR by proceeding with the $127 million construction of the USWTR prior to an ROD [record of decision] approving operations. Once construction starts, appellants argue, the Navy's future NEPA [National Environmental Protection Act] process will become nothing more than an attempt to 'rationalize or justify decisions already made,'" Coogler said. "But appellants have presented no authority mandating that an agency must authorize all stages of a project in one ROD."
Agencies have administrative discretion to decide the best way for them to fulfill their obligations under the law, which the court declined to second-guess. "If anything, it appears that the Navy's future consultation with the NMFS [National Marine Fisheries Service] regarding operations on the USWTR will ensure that any adverse impacts to listed species will be considered closer in time to when operations will actually commence," the court concluded.
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