Whale Advocates Fighting Navy Sonar Win Appeal

     SAN FRANCISCO (CN) — Military sonar activity will necessarily harm marine life, but the United States has not shown that it did enough to mitigate that impact, the Ninth Circuit ruled Friday.
     Artificial underwater noise like sonar has been linked to hearing loss in marine mammals. It can also make them abandon habitats and impede their ability to navigate, communicate and catch prey.
     The Navy uses sonar, however, to detect enemy submarines as part of peacetime training. It claims that its existing system is the only one that can fulfill its needs. The system is called Surtass LFA, short for surveillance towed array sensor system low frequency active sonar.
     In 2012, the National Marine Fisheries Service approved the Navy’s plan to deploy 18 deepwater loudspeakers in the Atlantic, Pacific and Indian Oceans, plus the Mediterranean Sea, over a five-year period.
     Among other things, the plan mandates that no more than 12 percent of any species of marine mammal can face level B harassment, or disruptions to breeding, feeding and migration. In regulatory speak, such harassment is a form of “taking.” To mitigate this risk, the plan also includes off-shore biologically important areas (OBIAs) and requires the Navy to keep operations at least 12 nautical miles from coastal exclusion zones.
     The Ninth Circuit held a hearing this past March to consider claims by environmental groups like the National Resources Defense Counsel that the mitigation measures laid out in the 2012 final rule were not enough to protect marine mammals from being hurt by blasts of sonar.
     Though a federal judge had found the measures sufficient, a three-judge panel reversed summary judgment Friday.
     “The final rule gave only cursory attention to the requirement that the impact to marine mammals caused by the Navy’s military readiness activities be reduced to the least level practicable,” U.S. Circuit Ronald Gould wrote for the court.
     Gould added that regulators “should have considered whether additional mitigation measures were necessary to achieve the least practicable adverse impact on marine mammals, and also whether these mitigation measures would be practicable in light of the Navy’s need for effective military readiness training.”
     Critical to the ruling is a provision of the Marine Mammal Protection Act that says activities that can harm marine mammals are only allowed if the incidental take is “negligible” and mitigation measures are deployed to limit harm to the “least practicable adverse impact.”
     Gould said the negligible impact and least practicable adverse impact requirements must both be satisfied to authorize incidental take, but that regulators here erroneously combined the two requirements and satisfied only the first one.
     “While NMFS’s finding that LFA sonar operations will have a ‘negligible impact’ on marine mammal populations is a required element for approval of incidental take, it is not a substitute for an analysis of whether the proposed mitigation measures in the 2012 Final Rule reduce the impact of incidental take on marine mammals to the lowest level practicable,” the 35-page opinion states. “Compliance with the ‘negligible impact’ requirement does not mean there was compliance with the ‘least practicable adverse impact’ standard during rulemaking.”
     Gould further held that the fisheries service failed to protect biologically diverse areas of the world’s oceans when designating marine protected areas – one of its mitigation measures.
     The agency has designated only 73 of these areas because of a lack of data on marine-mammal distribution and density in many parts of the ocean, despite warnings from its own scientists not to equate an absence of data for a certain area with an absence of animals in that area.
     Other mitigation measures include turning off the sonar equipment when marine mammals are detected in the area and designating coastal exclusion zones in all areas of the ocean not designated as protected.
     Judges John Noonan and Michelle Friedland joined the opinion.

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