Active Military Sonar and Marine Mammals: Events and References

Order Code RL33133

Active Military Sonar and Marine Mammals:

Events and References

Updated February 11, 2008

Eugene H. Buck

Specialist in Natural Resources Policy

Resources, Science, and Industry Division

Kori Calvert

Information Research Specialist

Knowledge Services Group

Active Military Sonar and Marine Mammals:

Events and References

Summary

The deployment of active sonar by the U.S. Navy and its potential impacts on

marine mammals has been an ongoing issue of intense debate; regulatory, legislative,

and judicial activity; and international concern. Some peacetime use of military

sonar has been regulated under the Marine Mammal Protection Act (MMPA) and

other statutes due to concerns that active military sonars are operated at frequencies

used by some cetaceans (i.e., whales, porpoises, and dolphins), and their highintensity sound pulses may travel long distances in the ocean. There is also concern

that sonar transmissions of sufficiently high intensity might physically damage the

hearing in cetaceans or cause them to modify their behavior in ways that are

detrimental. Although mid-frequency sonar has been implicated in several beaked

whale strandings, there is scientific uncertainty surrounding the totality of the effects

active sonar transmissions may have on marine mammals.

This report summarizes legal and political events related to active sonar and

marine mammals since 1994. Prior to the late 1990s, concerns focused primarily on

the use of underwater sound as a research tool. While strandings and mortality of

marine mammals, primarily beaked whales, have been observed in concurrence with

mid-frequency sonar operation, additional controversy has focused on the

development of low-frequency active (LFA) sonar. Environmental interests are

concerned with LFA sonar because low-frequency sound travels farther than midfrequency sound and is closer in frequency to those known to be used by baleen

whales.

Additional questions involve how to balance obligations of the military to

comply with MMPA provisions (as well as provisions of the National Environmental

Policy Act and the Endangered Species Act) with national security concerns. In

2003, Congress passed P.L. 108-136, wherein §319 amended the MMPA to authorize

exemptions from restrictions on harassing and otherwise taking marine mammals for

“national defense.”

Generally speaking, concern about the environmental effects of ocean noise is

now principally focused on three activities — military sonar exercises, oil and gas

exploration, and commercial shipping. This report summarizes some of the more

significant recent events pertaining to active military sonar, in particular.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Additional References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Active Military Sonar and Marine Mammals:

Events and References

Introduction

The Marine Mammal Protection Act of 1972 (MMPA; 16 U.S.C. §§1361, et

seq.) established a moratorium1 on the taking of marine mammals in U.S. waters and

by U.S. nationals on the high seas. Under the MMPA, take means “to harass, hunt,

capture, or kill, or attempt to harass, hunt, capture, or kill.”2 In addition, harassment

encompasses both behavioral disruption and physical injury, short of death.3

However, the MMPA does allow U.S. citizens to apply for and obtain authorization

for taking small numbers of mammals incidental to certain activities (e.g., offshore

oil and gas exploration and development), if that taking would have no more than a

negligible effect on any marine mammal species or stock, and mitigation and

monitoring requirements and other conditions are met.

Some peacetime use of military sonar has been regulated under the MMPA and

other statutes due to concerns that active military sonars4 operate at frequencies5 used

by some cetaceans6 and may travel long distances in the ocean. Current sonars in

widespread use are primarily mid-frequency sonars. Mid-frequency active sonar

operates between 2 and 20 KiloHertz (KHz), with most current systems using 3-5

KHz and 7-10 KHz. Low-frequency sonar is being developed to detect quieter

submarines at greater distances.7 Low-frequency active (LFA) sonar operates below

2 KHz, with most operation between 600 and 1500 Hz, except the U.S. Navy’s

1

Although the MMPA (16 U.S.C. §1371) refers to this action as a “moratorium,” some

consider this action a ban or prohibition because it was (and is) permanent.

2

16 U.S.C. §1362(13).

3

16 U.S.C. §1362(18).

4

Active sonar involves the transmission of various sounds (pulses, tonal signals, or bands

of acoustic energy) and the interpretation of received echoes as a way of sensing the

environment. Passive sonar involves listening without transmitting these sounds. Nonmilitary active sonars, such as the Integrated Marine Mammal Monitoring Protection System

(IMAPS) active tracking system and high-frequency bathymetric mapping sonars, are not

the primary focus of this report.

5

Frequency is expressed as the number of cycles or completed alternations per unit time of

a sound wave, most often measured in Hertz (Hz).

6

Baleen whale sounds are usually below frequencies of 500 Hz and predominantly below

100 Hz; exceptionally some clicks can reach 3000 Hz. Toothed cetaceans, such as sperm

whales, beaked whales, dolphins, and porpoises, are characterized by their higher frequency

sounds, from 400 Hz to as high as 8000 Hz.

7

The U.S. Navy committed to developing a low-frequency active sonar system in the late

1980s.

CRS-2

Surveillance Towed Array Sensor System (SURTASS) which operates between 100

and 500 Hz. When the transmission power is sufficiently high in intensity,8 there is

concern that sonar transmissions could physically damage the hearing in cetaceans

or cause them to modify their behavior in ways that are detrimental to their wellbeing, invoking the requirements of the MMPA moratorium on taking. Although

mid-frequency sonar has been implicated in several beaked whale strandings, there

is scientific uncertainty surrounding the totality of the effects active sonar

transmissions may have on marine mammals.

This report summarizes administrative, legal, and political events related to

active sonar and marine mammals. Prior to the late 1990s, concerns focused

primarily on the use of underwater sound as a research tool.9 While strandings and

mortality of marine mammals, primarily beaked whales, have been observed in

concurrence with mid-frequency sonar operation, additional controversy has focused

on the development of LFA sonar. Environmental interests are concerned with LFA

sonar because low-frequency sound travels further than mid-frequency sound and is

closer in frequency to those known to be used by baleen whales. Additional

questions involve how to balance the obligations of the military to comply with

MMPA provisions (as well as provisions of the National Environmental Policy Act

and the Endangered Species Act) with national security concerns. Generally

speaking, concern about the environmental effects of ocean noise is now principally

focused on three activities — military sonar exercises, oil and gas exploration, and

commercial shipping. This report summarizes some of the more significant recent

events pertaining to active military sonar, in particular.

Additional information and background can be obtained from the Navy’s

website at [http://www.whalesandsonar.navy.mil/], from the National Marine

Fisheries Service’s (NMFS, National Oceanic and Atmospheric Administration, U.S.

Department of Commerce) “Ocean Acoustics Program” website at [http://www.

nmfs.noaa.gov/pr/acoustics/], and from the University of Rhode Island’s “Discovery

of Sound in the Sea” website at [http://www.dosits.org/]. Detailed information on

the Navy’s SURTASS-LFA sonar system is available at [http://www.surtasslfa-eis.com/]. Four National Research Council reports provide substantial technical

background and summarize the scientific progress in understanding these

interactions. The concerns of environmental interest groups are summarized by the

Natural Resources Defense Council at [http://www.nrdc.org/wildlife/marine/sonar.

8

Sound intensity is measured in decibels; a decibel (dB) is a unit used to express the

intensity of a sound wave, equal to 20 times the common logarithm of the ratio of the

pressure produced by the sound wave to a reference pressure (typically 1 micropascal at 1

meter, in water; 20 micropascals at 1 meter, in air). Thus, direct numerical comparisons of

noise intensity from sources in air and sources underwater cannot be made without taking

into account the differences in reference pressure. For example, a sound intensity of 235

dB underwater is equivalent to 209 dB in air. For additional background, see [http://www.

atlantic.drdc-rddc.gc.ca/factsheets/elusive_decibel_e.shtml].

9

For background on early research concerns, see out-of-print CRS Report 95-603 ENR,

Acoustic Thermometry of Ocean Climate: Marine Mammal Issues, by Eugene H. Buck,

available from the author.

CRS-3

asp] and in their 2005 report Sounding the Depths II: The Rising Toll of Sonar

Shipping, and Industrial Ocean Noise on Marine Life.10

Events

03/00/1994 —

The National Research Council published Low Frequency Sound

and Marine Mammals: Current Knowledge and Research

Needs.11

05/12-13/1996 — A mass stranding of 12 Cuvier’s beaked whales occurred in the

Kyparissiakos Gulf, Greece, coincident with a NATO Shallow

Water Acoustic Classification research exercise.12

07/18/1996 —

The U.S. Navy published a notice of intent to prepare

environmental impact statements for deployment of its

SURTASS LFA sonar.13

01/31/1997 —

The Marine Mammal Commission (MMC), an independent

federal agency, noted significant concerns in its annual report

that marine mammals could be affected by SURTASS LFA

deployment and recommended that uncertainties in

understanding potential impacts be addressed.14

06/15-17/1998 — The SACLANTCEN (Supreme Allied Commander, Atlantic,

Undersea Research Center) Bioacoustics Panel met in La Spezia,

Italy, to investigate the May, 1996 mass stranding.

07/23/1999 —

The U.S. Navy released for public comment a draft

environmental impact statement on the world-wide deployment

of its SURTASS LFA sonar system.

08/12/1999 —

The U.S. Navy submitted an application for a Letter of

Authorization from NMFS to harass marine mammals incidental

to operating SURTASS LFA sonar.15 NMFS subsequently

asked the Navy to modify its application.

10

[http://www.nrdc.org/wildlife/marine/sound/sound.pdf].

11

[http://www.nap.edu/books/0309050251/html/].

12

[http://www.pelagosinstitute.gr/en/pelagos/pdfs/Frantzis%202003%20Active%20Sonar

%20Workshop.pdf].

13

61 Fed. Reg. 37452-37453.

14

U.S. Marine Mammal Commission, Annual Report to Congress, 1997 (Bethesda, MD),

p. 168-170.

15

[http://www.surtass-lfa-eis.com/docs/Request%20for%20LOA%2012%20Aug%20199

9.pdf].

CRS-4

10/04/1999 —

The Navy submitted a request to NMFS for formal consultation

on SURTASS LFA pursuant to §7 of the Endangered Species

Act.

10/22/1999 —

NMFS gave advance notice of proposed rulemaking and

requested public comment on the Navy’s application.16

03/03/2000 —

The National Research Council published Marine Mammals and

Low Frequency Sound: Progress Since 1994.17

03/15-16/2000 — Mass stranding of multiple whale species in the Northeast and

Northwest Province Channels of the Bahamas coincident with

tactical mid-frequency active sonar training exercises by the

U.S. Navy. Mortalities included five Cuvier’s beaked whales

and one Blainville’s beaked whale.

04/06/2000 —

The U.S. Navy submitted a revised application for a Letter of

Authorization from NMFS to incidentally harass marine

mammals incidental to operating SURTASS LFA sonar.18

05/09-10/2000 — Three Cuvier’s beaked whales stranded at Madeira Island,

Portugal, coincident to the NATO Linked Seas 2000 exercise.

The pattern of injury to the auditory system of the stranded

whales was consistent with that observed in the Bahamas

strandings.

01/26/2001 —

The U.S. Navy released its Final Environmental Impact

Statement for the SURTASS LFA system.19

03/19/2001 —

NMFS published a proposed rule authorizing the U.S. Navy to

harass marine mammals incidental to operating SURTASS LFA

sonar.20

06/05/2001 —

The MMC commented to NMFS that its proposed rule was

insufficient to be confident that the proposed action would affect

only small numbers of marine mammals and have only

negligible effects on the affected species and stocks. In

addition, MMC viewed proposed monitoring and mitigation

16

64 Fed. Reg. 57026-57029.

17

[http://books.nap.edu/books/030906886X/html/index.html/].

18

[http://www.surtass-lfa-eis.com/docs/Request%20for%20LOA%206%20Apr%202000.

pdf].

19

[http://www.surtass-lfa-eis.com/docs/FEIS%20Vol%20I.pdf].

20

66 Fed. Reg. 15375-15394.

CRS-5

programs as insufficient to confirm the validity of

assumptions.21

09/00/2001 —

The Natural Resources Defense Council and a coalition of

environmental groups sued the U.S. Navy to force the

preparation of a programmatic Environmental Impact Statement

on the Navy’s Littoral Warfare Advanced Development

(LWAD) program.22

10/11/2001 —

The House Resources Subcommittee on Fisheries Conservation,

Wildlife, and Oceans held a hearing on the MMPA, including

Panel V on SURTASS LFA.23

12/20/2001 —

NMFS and the U.S. Navy completed a Joint Interim Report —

Bahamas Marine Mammal Stranding Event of 15-16 March

2000.24 The stranding was attributed to the Navy’s intensive use

of multiple tactical mid-frequency sonar units over an extended

period of time and contributory factors, including the presence

of a strong surface duct, unusual underwater bathymetry, and a

constricted channel with limited egress.

05/30/2002 —

NMFS issued a biological opinion for SURTASS LFA in

accordance with §7 of the Endangered Species Act.

06/10/2002 —

The General Accounting Office (GAO, now Government

Accountability Office) issued a report entitled Testing Needed

to Prove SURTASS/LFA Effectiveness in Littoral Waters.25

07/16/2002 —

NMFS published a final rule authorizing the U.S. Navy to harass

marine mammals incidental to operating SURTASS LFA

sonar.26 This final rule became effective on August 15, 2002,

and remains in effect until August 15, 2007.

21

U.S. Marine Mammal Commission, Annual Report to Congress, 2001, Bethesda, MD,

Mar. 31, 2002, p. 175.

22

LWAD’s purpose is to develop and test techniques and technology, including several

operational and new experimental active sonars to detect and track submarines in shallow

coastal waters where SURTASS LFA would be ineffective.

23

[http://republicans.resourcescommittee.house.gov/archives/107cong/fisheries/2001oct11/

agenda.htm].

24

[http://www.nmfs.noaa.gov/pr/pdfs/acoustics/bahamas_stranding.pdf].

25

[http://www.gao.gov/new.items/d02692.pdf].

26

67 Fed. Reg. 46712-46789.

CRS-6

07/23/2002 —

The U.S. Navy published its record of decision on the worldwide deployment of its SURTASS LFA sonar system.27

08/07/2002 —

Five environmental groups and a concerned individual filed a

lawsuit in federal district court in San Francisco seeking to halt

Navy deployment of SURTASS LFA sonar (Natural Resources

Defense Council v. Evans).

08/30/2002 —

NMFS announced that a one-year Letter of Authorization had

been issued to the Navy authorizing the taking of specified

marine mammals within specified areas of operation.28

09/19/2002 —

The Federal District Court (Central District of California,

Western Division) found that the National Environmental Policy

Act (NEPA) applies to LWAD activities, but that the LWAD

program, as distinct from its component parts, is not subject to

programmatic challenge under NEPA or the Endangered Species

Act.29

09/24/2002 —

At least 14 beaked whales of three species were stranded on the

Canary Islands of Fuerteventura and Lanzarote coincident with

NATO naval exercise Neo Tapon 2002.

10/31/2002 —

U.S. Magistrate Judge Elizabeth LaPorte granted a preliminary

injunction limiting Navy deployment of SURTASS LFA after

finding NMFS issued the Navy a permit that likely violated

federal law.30

11/15/2002 —

U.S. Magistrate Judge Elizabeth LaPorte approved a stipulated

agreement between the Navy and environmental groups

allowing limited testing of SURTASS LFA while the federal

court considered the lawsuit challenging deployment.31

01/17/2003 —

Because NMFS granted authorization on a categorical exclusion

for research rather than on an environmental assessment, U.S.

District Judge Samuel Conti granted a temporary injunction to

block testing of a low-power, high-frequency (above 20 KHz)

civilian whale-finding sonar (the Integrated Marine Mammal

27

67 Fed. Reg. 48145-48154; [http://www.surtass-lfa-eis.com/docs/LFA%20EIS%20ROD.

pdf].

28

67 Fed. Reg. 55818.

29

NRDC v U.S. Department of the Navy, No. CV-01-07781 CAS (C.D. Cal. Sept. 19, 2002);

2002 U.S. Dist Lexis 26360.

30

NRDC press release at [http://www.nrdc.org/media/pressreleases/021031.asp]. Natural

Resources Defense Council v. Evans, N.D. Cal., No. C-02-3805, 232 F. Supp. 2d 1003 at

[http://www.animallaw.info/cases/caus232fsupp2d1003.htm].

31

[http://www.ens-newswire.com/ens/nov2002/2002-11-18-06.asp].

CRS-7

Monitoring Protection System or IMAPS) off the California

coast.32

02/10/2003 —

The National Research Council published Ocean Noise and

Marine Mammals.33

02/13/2003 —

Language in the conference report on H.J.Res. 2 (P.L. 108-7),

providing FY2003 omnibus appropriations, directed the MMC

to fund an international conference, or series of conferences, to

share findings, survey “acoustic threats” to marine mammals,

and develop means of reducing those threats while maintaining

the oceans as a global highway of international commerce.34

03/08/2003 —

A workshop on Active Sonar and Cetaceans was held at Las

Palmas, Gran Canaria, Canary Islands, immediately before the

start of the 17th Annual Conference of the European Cetacean

Society.35

05/05/2003 —

Fourteen harbor porpoises were found beached and killer whales

were videotaped showing behavioral reaction to sonar

coincident with U.S.S. Shoup transit of Haro Strait, WA, while

using tactical mid-frequency sonar.

08/20/2003 —

NMFS announced that two one-year Letters of Authorization

had been issued to the Navy authorizing the taking of specified

marine mammals within specified areas of operation.36

08/26/2003 —

U.S. Magistrate Judge Elizabeth LaPorte issued an opinion concluding that the NMFS marine mammal take authorization to the

U.S. Navy had violated several federal laws and ordered the

parties to meet and confer on the terms of a permanent

injunction that would allow the Navy to operate SURTASS LFA

in a limited fashion.37

32

Hawaii County Green Party v. Evans, C-03-0078-SC (N.D. CA 24 January 2003). This

sonar was designed for shallow water use, to detect subsurface whales before they came too

close to potentially risky situations, such as harbor blasting or LFA. For additional

information on IMAPS, see [http://www.scisol.com/imaps.htm].

33

[http://books.nap.edu/openbook.php?record_id=10564&page=R1].

34

H.Rept. 108-10, p. 777; [http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=

108_cong_reports&docid=f:hr010.108.pdf].

35

[http://www.mail-archive.com/bioacoustics-l@cornell.edu/msg00315.html].

36

68 Fed. Reg. 50123-50124.

37

Natural Resources Defense Council v. Evans, N.D. Cal., No. C-02-3805, 279 F. Supp. 2d

1129.

CRS-8

10/08/2003 —

The parties to the LFA litigation filed a stipulation regarding the

permanent injunction, which the court entered as an order on

October 14, 2003.38

11/00/2003 —

The United Kingdom’s Ministry of Defence released “Sonar

2087 and the Environment” to consider and address public

concerns about active sonar.39

11/24/2003 —

President Bush signed P.L. 108-136, the National Defense

Authorization Act for FY2004, wherein §319 amended the

MMPA to exempt military readiness activities from “specified

geographical region” and “small numbers” requirements, and to

modify the definition of “harassment” applicable to military

readiness activities.40

12/11/2003 —

The MMC announced the establishment of an Advisory

Committee on Acoustic Impacts on Marine Mammals.41

01/29/2004 —

After NMFS prepared an environmental assessment, U.S.

District Judge Samuel Conti denied a permanent injunction to

block IMAPS testing off the California coast.42

02/09/2004 —

NMFS announced release of preliminary report investigating

the acoustic exposure of stranded porpoises in Haro Strait, WA.

Although no conclusive link between Navy sonar and porpoise

deaths was found, the possibility of acoustic trauma as a

contributory factor in the mortalities was not ruled out. Killer

whales experienced acoustic levels likely to induce behavioral

reactions but insufficient to cause either temporary or permanent

hearing loss.

02/09/2004 —

The U.S. Navy released its report on the U.S.S. Shoup/Haro

Strait porpoise incident.43

38

[http://www.nrdc.org/media/pressreleases/031013.asp].

39

[http://www.oceannet.org/medag/reports/IACMST_reports/underwater_noise/S2087%

20NGO%20document%20issue%202%20Adobe.pdf].

40

For more information on these amendments, see pp. 20-22 of CRS Report RL32183,

Defense Cleanup and Environmental Programs: Authorization and Appropriations for

FY2004, by David M. Bearden.

41

68 Fed. Reg. 69089-69090; see also [http://www.mmc.gov/sound/].

42

Australians for Animals v. Evans, 301 F. Supp. 2d 1114 (N.D. CA 2004), see [http://www.

whalesafety.net/OPINION.pdf].

43

[http://www.cpf.navy.mil/news_images/special_projects/shoup/SHOUP%20Final%20

REPORT%209%20Feb%2004(1530).pdf].

CRS-9

04/13-16/2004 — The MMC convened a workshop in Baltimore, MD, to discuss

the vulnerability of beaked whales to anthropogenic sound.44

06/03/2004 —

U.S. Navy submitted an annual report to NMFS on SURTASS

LFA sonar operations.

06/16/2004 —

NMFS received an application from the U.S. Navy for two

Letters of Authorization for taking marine mammals by

harassment incidental to deploying the SURTASS LFA sonar

system.

06/29/2004 —

NMFS published a proposed rule to amend its July 16, 2002

final rule and regulations on SURTASS LFA sonar to

implement provisions of P.L. 108-136 related to a military

readiness activity.45

06/00/2004 —

The MITRE Corporation’s JASON Program Office completed

a study for the Office of Naval Research, seeking, in response to

whale strandings, to recommend modifications of the sonar

waveform as a mitigation strategy. The study’s conclusion was

that not enough was known about the damage mechanism and

the chain of causation for an engineering solution to be

developed to address this problem.46

07/03/2004 —

Coincident with joint U.S.-Japan military exercises involving

tactical mid-frequency sonar, 150 to 200 melon-headed whales

were observed milling in Hanalei Bay, Kauai, HI.

07/00/2004 —

The Standing Working Group on Environmental Concerns of

the International Whaling Commission’s Scientific Committee

held a Mini-Symposium on Acoustics and reported that the

accumulated evidence is very convincing and appears

overwhelming, associating mid-frequency military sonar with

atypical beaked whale mass strandings.47

07/14/2004 —

The Natural Resources Defense Council and three other environmental groups sent a letter to Secretary of the Navy Gordon R.

England requesting a review of naval actions involving midfrequency active sonar.48

44

[http://www.mmc.gov/sound/beakedwhalewrkshp/pdf/bwhale_wrkshpsummary.pdf].

45

69 Fed. Reg. 38873-38876.

46

[http://www.fas.org/irp/agency/dod/jason/sonar.pdf].

47

[http://www.iwcoffice.org/_documents/sci_com/SCRepFiles2004/56annexk.pdf].

48

[http://www.nrdc.org/media/docs/040714.pdf].

CRS-10

08/24/2004 —

NMFS published a notice announcing issuance of two one-year

Letters of Authorization to the U.S. Navy to take marine

mammals by harassment incidental to operation of the

SURTASS LFA sonar system.49

09/28-30/2004 — The U.S. MMC and the U.K. Joint Nature Conservation

Committee held an international workshop in London, UK, on

the policy on sound and marine mammals.50

10/00/2004 —

NMFS published a final report on the necropsy analysis of

stranded porpoises in Haro Strait, WA. Although the

examinations did not reveal definitive signs of acoustic trauma

in any of the porpoises examined, the multidisciplinary team

noted that lesions consistent with acoustic trauma can be

difficult to interpret or obscured, especially in animals in

advanced postmortem decomposition.51

10/20/2004 —

The 9th Circuit Court of Appeals affirmed that marine mammals

do not have standing to sue the government over the Navy’s

testing of SURTASS LFA.52

10/28/2004 —

The European Union’s (EU) Parliament passed, by a vote of

441-15, a non-binding resolution urging EU member states “...

to adopt a moratorium on the deployment of high-intensity

active naval sonars until a global assessment of their cumulative

environmental impact on marine mammals, fish and other

marine life has been completed.”53

11/12/2004 —

At the second meeting of the parties to the Agreement on the

Conservation of Cetaceans of the Black Sea, Mediterranean Sea

and contiguous Atlantic Area (ACCOBAMS; Nov. 9-12, 2004,

in Palma, Majorca), the 16 member nations adopted Resolution

2.16 addressing man-made ocean noise, including naval sonar,

and guidelines for its use.54

11/24/2004 —

The 3rd IUCN-World Conservation Union Congress (Bangkok,

Thailand, Nov. 17-25, 2004) passed a resolution encouraging

governments to reduce undersea noise, restrict military active

49

69 Fed. Reg. 51996-51998.

50

[http://www.mmc.gov/sound/internationalwrkshp/internationalwrkshp.html].

51

[http://www.nmfs.noaa.gov/pr/pdfs/acoustics/porpoise.pdf].

52

Cetacean Community v. Bush, U.S. District Court of Appeals for the Ninth Circuit, No.

03-15866, 386 F.3d 1169.

53

[http://www2.europarl.eu.int/omk/sipade2?PUBREF=-//EP//NONSGML+MOTION+B

6-2004-0089+0+DOC+PDF+V0//EN&L=EN&LEVEL=2&NAV=S&LSTDOC=Y].

54

[http://www.accobams.mc/Accob/Wacco.nsf/Fram5Gb!OpenFrameSet].

CRS-11

sonar training to low-risk areas and develop “... international

standards that regulate its use.”55 The United States abstained

from voting on this resolution.

11/11/2004 —

The National Research Council published Marine Mammal

Populations and Ocean Noise: Determining When Noise Causes

Biologically Significant Effects.56

01/21/2005 —

NMFS published a technical analysis of acoustic exposures to

killer whales in Haro Strait, WA.57

01/15/2005 —

A multispecies mass stranding event occurred in North Carolina,

associated in time and space with naval activity using midfrequency active sonar, but with no gas emboli lesions

(considered diagnostic of sonar-associated strandings) apparent

in stranded animals.58

02/00/2005 —

The International Council for the Exploration of the Sea59

released an assessment of the impact of sonar on cetaceans.60

02/10/2005 —

A coalition of international conservation organizations

petitioned NATO to modify active sonar naval exercise

protocols to lessen potential harm to whales and other marine

mammals.61

02/28/2005 —

The United States was reported to be drafting a policy position

stating strong opposition to any international regulatory

framework addressing military use of active sonar because of the

potential to restrict the ability of individual nations to balance

the relevant security and environmental interests.62

55

[http://www.iucn.org/congress/2004/members/Individual_Res_Rec_Eng/wcc3_res_068.

pdf].

56

[http://books.nap.edu/catalog/11147.html].

57

[http://www.nmfs.noaa.gov/pr/pdfs/acoustics/assessment.pdf].

58

[http://www.nmfs.noaa.gov/pr/pdfs/health/umese0501sp.pdf].

59

Created by the 1964 Convention for the International Council for the Exploration of the

Sea, this organization coordinates and promotes marine research in the North Atlantic

among its 19 Member nations.

60

[http://www.ices.dk/advice/Request/EC/DG%20Env/sonar/agisc05.pdf], [http://www.ices.

dk/advice/cetaceans/sonaradvice.pdf], and [http://www.ices.dk/advice/Request/EC/DG%20

Env/sonar/sonaradvice.asp].

61

[http://www.nrdc.org/media/pressreleases/050210b.asp] and [http://www.nrdc.org/media/

docs/050210a.pdf].

62

[http://www.washingtonpost.com/wp-dyn/articles/A58339-2005Feb27.html].

CRS-12

06/01/2005 —

The Natural Resources Defense Council filed suit in U.S.

District Court (Manhattan) under the Freedom of Information

Act, seeking the release of documents by NMFS relating to mass

strandings, deaths of marine mammals, and the impacts of midfrequency active sonar on marine life.63

06/08/2005 —

At the sixth meeting of the United Nations Open-Ended

Informal Consultative Process on Oceans and the Law of the Sea

(UNICPOLOS), a coalition of more than 120 environmental

organizations urged that steps be taken to protect cetaceans from

increasing human-generated underwater noise as a largely

unregulated form of pollution.64

07/05/2005 —

The parties to the SURTASS LFA sonar litigation filed an

amendment to the stipulation regarding the permanent injunction

with Judge Elizabeth LaPorte, agreeing to expand the

operational area to include most of the Pacific between Japan

and Hawaii. Judge LaPorte approved this amendment on July

8, 2005.

08/25/2005 —

NMFS announced that two one-year Letters of Authorization

had been issued to the Navy authorizing the taking of specified

marine mammals within specified areas of operation.65

09/20-22/2005 — The MMC’s expert panel on marine mammals and acoustics

met.66

10/03/2005 —

The Coast Guard announced the availability of a Draft

Programmatic Environmental Assessment on an Integrated AntiSwimmer System, potentially based on sonar, to be deployed to

enhance security at U.S. ports.67

10/19/2005 —

The Natural Resources Defense Council and four other

environmental groups filed suit against the U.S. Navy, alleging

violation of environmental laws in mid-frequency sonar testing

and training.68

63

NRDC v. NMFS, Civ. Action No. 05-CV-5172 (S.D. NY), see [http://www.nrdc.org/

media/docs/050601.pdf].

64

“Coalition Urges UN Curbs on Harmful Ocean Sounds,” Reuters (June 8, 2005); see also

[http://www.earthisland.org/project/genPage2.cfm?generalID=211&pageID=196&sub

SiteID=51].

65

70 Fed. Reg. 49914-49915.

66

[http://www.mmc.gov/sound/].

67

70 Fed. Reg. 57612-57613.

68

[http://www.nrdc.org/media/docs/051019.pdf].

CRS-13

10/21/2005 —

The U.S. Navy released its Draft Environmental Impact

Statement on a proposed sonar training range about 50 miles off

the NC coast.69

11/16/2005 —

The U.S. Navy announced public hearings on its Draft

Supplemental Environmental Impact Statement providing

supplemental analyses for the Navy’s use of SURTASS LFA

sonar systems.70

04/24/2006 —

NMFS sought public comment on the U.S. Navy’s application

for an Incidental Harassment Authorization to harass marine

mammals during summer 2006 Rim of the Pacific (RIMPAC)

anti-submarine warfare training events, using mid-frequency

sonar in the U.S. Navy’s Hawaiian Operating Area.71

05/12/2006 —

NMFS received the Navy’s application requesting authorization

of taking marine mammals incidental to deploying its

SURTASS LFA sonar system for military readiness activities.

06/27/2006 —

NMFS issued an Incidental Harassment Authorization to the

U.S. Navy, authorizing the small take of marine mammals

incidental to mid-frequency sonar use during RIMPAC

exercises, effective through August 15, 2006.72

06/28/2006 —

In response to the NMFS authorization, the National Resources

Defense Council and other environmental groups filed a lawsuit

to block sonar use during RIMPAC.73

06/30/2006 —

In response to the lawsuit filing, the Department of Defense

granted the U.S. Navy a six-month national defense exemption

from MMPA regulations for use of sonar during military

exercises on established ranges and operating areas.74

07/03/2006 —

Ruling that the national defense exemption did not cover NEPA,

U.S. District Court Judge Florence-Marie Cooper issued a

69

Marc Kaufman, “Navy Moves Forward on Sonar Facility Despite Concerns About

Whales,” Washington Post, Oct. 23, 2005, p. A9.

70

70 Fed. Reg. 69526; see also [http://www.surtass-lfa-eis.com/Impactstate05.htm].

71

71 Fed. Reg. 20986-21003.

72

71 Fed. Reg. 38710-38738 (July 7, 2006).

73

[http://docs.nrdc.org/water/wat_06062801A.pdf]

74

[http://www.defenselink.mil/Releases/Release.aspx?ReleaseID=9706] and [http://www.

nmfs.noaa.gov/pr/pdfs/permits/rimpac_biop.pdf].

CRS-14

temporary restraining order to block (until a July 18th hearing)

Navy use of sonar during RIMPAC exercises.75

07/10/2006 —

The Navy and environmental groups reached an agreement to

settle the pending lawsuit, allowing use of sonar in RIMPAC

exercises, with the Navy prohibited from using sonar within 25

miles of the Northwestern Hawaiian Islands Marine National

Monument and required to use a variety of methods to monitor

and report the presence of marine mammals.76

07/24/2006 —

U.S. Ninth Circuit Court of Appeals dismissed the

Administration’s request to overturn an October 2003 lower

court decision limiting the peacetime deployment of SURTASS

LFA sonar.77

09/28/2006 —

NMFS published notice of the Navy’s application to take marine

mammals incidental to deploying SURTASS LFA sonar and

requested public comment.78

11/14/2006 —

NRDC was reported as intending to expand its lawsuit against

Navy use of mid-frequency active sonar, based on claims of

violations in additional training exercises.79

01/00/2007 —

The Navy released its report on operation of its SURTASS LFA

sonar system from August 2002 through August 2006.80

01/11/2007 —

The California Coastal Commission voted to approve naval

exercises off California for two years, with certain modifications

(“conditions”) protective against mid-frequency sonar.81

01/23/2007 —

The Department of Defense granted the Navy a two-year

exemption from MMPA requirements for use of sonar during

military exercises off all U.S. coasts.82

02/12/2007 —

In response to the California Coastal Commission, the Navy

stated that it was unable to agree to 12 of the 14 conditions

75

[http://www.nrdc.org/media/docs/060703.pdf].

76

[http://www.nrdc.org/media/pressreleases/060707.asp].

77

[http://www.nrdc.org/media/docs/060726.pdf].

78

71 Fed. Reg. 56965-56968.

79

“Environmentalists Eye Expanded Lawsuit Over Navy Sonar Impacts,” Defense

Environment Alert, v. 14, no. 23 (Nov. 14, 2006).

80

Available at [http://www.nmfs.noaa.gov/pr/pdfs/permits/surtass_lfa_final_report.pdf].

81

[http://documents.coastal.ca.gov/reports/2007/1/W10b-1-2007.pdf].

82

[http://www.defenselink.mil/Releases/Release.aspx?ReleaseID=10427].

CRS-15

outlined by the commission regarding the use of mid-frequency

active sonar.83

03/22/2007 —

The California Coastal Commission and an environmental

coalition led by NRDC filed separate lawsuits against planned

Navy use of mid-frequency active sonar off the Southern

California coast.84

05/00/2007 —

The Navy released a Final Environmental Impact Statement on

its SURTASS LFA sonar system.85

05/16/2007 —

Earthjustice filed suit in Hawaii federal district court on behalf

of a coalition of environmental organizations seeking to halt use

of mid-frequency active sonar by the Navy in Hawaiian waters.86

06/07/2007 —

NMFS announced an international research effort in the

Bahamas to study how marine mammals respond to underwater

sound, including active sonar.87

07/09/2007 —

NMFS published proposed regulations governing the

unintentional taking of marine mammals incidental to Navy

operation of the SURTASS LFA sonar system though August

2012.88

07/27/2007 —

The Navy release a draft environmental impact statement for

sonar exercises in Hawaiian waters.89

08/03/2007 —

Federal Judge Florence-Marie Cooper of the Central District of

California ruled against Navy use of mid-frequency active sonar

during exercises off the California Coast through December

2009.

08/21/2007 —

NMFS issued regulations governing the unintentional taking of

marine mammals incidental to Navy operation of the SURTASS

LFA sonar system through August 15, 2012.90

83

[http://www.coastal.ca.gov/fedcd/sonar/navy-response-sonar-3-22-2007..pdf].

84

Available at [http://www.coastal.ca.gov/fedcd/sonar/ccc-v-navy-2-22-2007.pdf].

85

Available at [http://www.surtass-lfa-eis.com/docs/lfaseis0507.pdf].

86

Available at [http://www.earthjustice.org/library/legal_docs/complaint-against-navysonar-in-hawaii-05-16-07.pdf].

87

See [http://www.nmfs.noaa.gov/mediacenter/docs/MMBehStudiesPR_07.pdf].

88

72 Fed. Reg. 37404-37418.

89

Available at [http://www.govsupport.us/navynepahawaii/EIS.aspx].

90

72 Fed. Reg. 46846-46893.

CRS-16

08/23/2007 —

The Navy announced its decision to employ as many as four

SURTASS LFA sonar systems.91

08/31/2007 —

The 9th Circuit Court of Appeals granted the Navy a stay on the

District Court’s preliminary injunction restricting the use of

mid-frequency active sonar off the California coast, pending

appeal.92

11/13/2007 —

The 9th Circuit Court of Appeals reversed its stay, ordering the

Navy not to use mid-frequency active sonar in training exercises

off the California coast until questions concerning marine

mammal protection could be resolved, and ordered the District

Court to impose restrictions on Navy exercises sufficient to

adequately safeguard the environment.93

01/03/2008 —

The U.S. District Court for the Central District of California

issued a preliminary injunction imposing a 12-nautical mile nosonar exclusion zone and other mitigation measures along the

California coast for Navy use of mid-frequency active sonar.94

01/11/2008 —

The Secretary of Commerce submitted a written request to the

President that the Navy be exempted from compliance with the

federal Coastal Zone Management Act during Southern

California Operating Area Composite Training Unit Exercises

(COMPTUEX) and Joint Task Force Exercises (JTFEX) for use

of mid-frequency active sonar.

01/16/2008 —

President Bush, for national security reasons, exempted the

Navy from compliance with the federal Coastal Zone

Management Act for use of mid-frequency active sonar during

COMPTUEX and JTFEX.95

02/04/2008 —

U.S. District Court order reaffirms its January injunction,

requiring the Navy to reduce harm to whales and other marine

mammals from sonar training, finding that no emergency exists

warranting an exemption.96

91

72 Fed. Reg. 48269. A copy of the Navy’s Record of Decision is available at [http://

www.surtass-lfa-eis.com/docs/FSEIS_ROD__8-15-07.pdf].

92

Available at [ ht t p: / / www.ca9.uscourts.gov/ca9/Documents.nsf/

4aedeb59128b486888257242007e1223/a1a0c2a7d488458b8825731e00030a0a/

$FILE/0756157o.pdf].

93

See [http://docs.nrdc.org/water/wat_07111301A.pdf].

94

See [http://docs.nrdc.org/water/wat_08010301A.pdf].

95

See [http://www.whitehouse.gov/news/releases/2008/01/20080116.html]; also see [http://

www.globalsecurity.org/military/library/news/2008/01/mil-080116-dod01.htm].

96

See [http://docs.nrdc.org/water/wat_08020401A.pdf].

CRS-17

02/06/2008 —

The U.S. District Court for the Northern District of California

issued a preliminary injunction limiting the area where the U.S.

Navy may train using SURTASS-LFA sonar systems.97

Additional References

A. Fernandez, et al. “Pathology: Whales, Sonar and Decompression Sickness,”

Nature, v. 428 (2004): 1-2.

A. Frantzis, “Does Acoustic Testing Strand Whales?” Nature, v. 392 (1998): 29.

A. Frantzis and D. Cebrian, “A Rare, Atypical Mass Stranding of Cuvier’s Beaked

Whales. Cause and Implications for the Species Biology,” in European

Research on Cetaceans - 12, Proc. 12th Ann. Conf. ECS, Monaco, 20-24

January, 1998, p. 332-335.

John Hildebrand, Impacts of Anthropogenic Sound on Cetaceans, International

Whaling Commission, Scientific Committee, IWC/SC/56/E13, (Sorrento,

Italy:2004).98

P.D. Jepson, et al., “Gas-Bubble Lesions in Stranded Cetaceans: Was Sonar

Responsible for a Spate of Whale Deaths after an Atlantic Military Exercise?”

Nature, v. 425, no. 6958 (Oct. 9, 2003): 575-576.99

P.J.O. Miller, et al., “Whale Songs Lengthen in Response to Sonar,” Nature, v. 405

(2000): 903.

C.A. Piantadosi and E.D. Thalmann, “Pathology: Whales, Sonar and Decompression

Sickness,” Nature, v. 428 (2004): 1.

W. John Richardson, et al., Marine Mammals and Noise (San Diego, CA: Academic

Press, 1995), 576 p.

Mark Schrope, “Whale Deaths Caused by US Navy’s Sonar,” Nature, v. 415 (Jan.

10, 2002): 106.

M. Simmonds and L.F. Lopez-Jurado, “Whales and the Military,” Nature, v. 337

(1991): 448.

97

See [http://docs.nrdc.org/water/wat_08020601A.pdf].

98

Available at [http://cetus.ucsd.edu/projects/pubs/SC-56-E13Hilde.pdf].

99

Available at [http://www.eurocbc.org/Gas-bubble%20lesions%20in%20stranded%20

cetaceans.pdf].

CRS-18

U.S. Dept. of Commerce, Report of the Workshop on Acoustic Resonance as a

Source of Tissue Trauma in Cetaceans (Washington, DC: National Marine

Fisheries Service, Nov. 2002).100

Jon M. Van Dyke, et al., “Whales, Submarines, and Active Sonar,” in Ocean

Yearbook, v. 18 (2004): 330-363.101

M. T. Walsh, et al., “Mass Strandings of Cetaceans,” in CRC Handbook of Marine

Mammal Medicine, L.A. Dierauf and F.M.D. Gulland, eds. (2001), pp. 83-96.

100

Available at [http://www.nmfs.noaa.gov/pr/pdfs/acoustics/cetaceans.pdf].

101

Available at [http://www.mmc.gov/sound/internationalwrkshp/pdf/vandykeetal.pdf].