Record of Decision for Shock Testing the Seawolf Submarine

DEPARTMENT OF DEFENSE

Department of the Navy

Record of Decision for Shock Testing the Seawolf Submarine

SUMMARY: The Department of the Navy (Navy), pursuant to Section

102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42

U.S.C. 4321 et seq.; the regulations implementing NEPA issued by the

Council on Environmental Quality (CEQ), 40 Code of Federal Regulations

(CFR) Parts 1500-1508; Navy regulations implementing NEPA procedures

(31 CFR 775); and Executive Order 12114, ``Environmental Effects Abroad

of Major Federal Actions''; hereby announces its selection of the area

of the Atlantic Ocean offshore of Mayport Naval Station, Jacksonville,

Florida for the SEAWOLF submarine shock test. NEPA sets out the

procedures Federal agencies must follow in analyzing environmental

impacts of major Federal actions within U.S. territory. Executive Order

12114 sets out the procedures Federal agencies must follow in analyzing

environmental impacts of major Federal actions occurring outside U.S.

territory in the global commons or within the territory of another

nation. The Department of the Navy was the lead agency and the National

Marine Fisheries Service (NMFS) was a cooperating agency for the

Environmental Impact Statement (EIS).

The SEAWOLF submarine would be shock tested in a manner consistent

with the alternative ``Shock Testing The SEAWOLF At An Offshore

Location'', described in the Final Environmental Impact Statement

(FEIS) as the proposed action. The FEIS analyzed in detail two

alternative areas offshore of Mayport, Florida and Norfolk, Virginia.

The submarine would be subjected to a series of five 10,000 pound

explosive charge detonations sometime between April 1, 2000 and

September 30, 2000. Testing offshore of Mayport would be conducted

between May 1 and September 30, 2000 to minimize the risk to sea

turtles which may be more abundant in the Mayport area during April.

The series of five detonations would be conducted at a rate of one

detonation per week to allow time to perform detailed inspections of

the submarine's systems prior to the next detonation.

The two areas were evaluated with respect to operational criteria

and environmental impacts. Both were determined to meet all of the

Navy's operational requirements. In choosing the Mayport area, Navy

determined that while most environmental impacts of shock testing would

be similar at both locations, the risk of mortality and injury to

marine mammals is about five to seven times lower at Mayport.

The Navy has determined that shock testing in the Mayport area will

have the least environmental impact. This Record of Decision leaves the

selection of a single primary and two secondary test sites within the

Mayport test area to be made based on aerial surveys of marine mammals

and turtles done three weeks prior to the shock test. One of these

three sites will be selected as the final test site based on marine

mammal and turtle surveys performed two to three days before each

detonation.

Background

The USS SEAWOLF is the first of a new class of submarines being

acquired by the Navy. The class consists of three submarines, with the

second and third currently under construction. SEAWOLF class submarines

are the largest and most capable fast attack submarines in the fleet.

Features include reduced acoustic and electromagnetic signatures,

improved speed, greater maximum operating depth, greater ordnance

capacity, and other technological improvements reflecting the state-of-

the-art in submarine design.

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Section 2366, Title 10, United States Code (10 U.S.C. 2366),

provides that a covered system, such as a submarine, cannot proceed

beyond initial production until realistic survivability testing for the

system is complete. Realistic survivability testing means testing of

the vulnerability of the system in combat by firing munitions likely to

be encountered in combat with the system configured for combat. This

testing is commonly referred to as ``Live Fire Test & Evaluation''

(LFT&E). Consistent with 10 U.S.C. 2366, the Navy has established a

LFT&E program to complete the survivability testing of SEAWOLF Class

submarines. The SEAWOLF LFT&E program includes a ship shock test. A

ship shock test is a series of underwater detonations that propagate a

shock wave through a ship's hull under deliberate and controlled

conditions. Shock tests simulate near misses from underwater explosions

similar to those encountered in combat.

The purpose of the project is to shock test the SEAWOLF so that the

resultant data can be used to assess the survivability of the

submarine. Computer modeling and component testing on machines or in

surrogates does not provide adequate information to fully assess the

survivability of the submarine. Testing the manned submarine with the

appropriate systems operating provides the best information to support

an assessment of the survivability of the ship. Shock tests have proven

their value as recently as the Persian Gulf War when ships were able to

survive battle damage and continue their mission because of ship

design, crew training, and survivability lessons learned during

previous shock tests.

The SEAWOLF was christened in June 1995 and delivered to the Navy

in the summer of 1997. Because of the long series of at-sea testing

that must be completed by the lead ship of a class, shock testing did

not occur in 1997 as originally planned. Therefore, the Navy

rescheduled the shock test for the spring/summer of 2000.

The delay of the SEAWOLF shock test from 1997 to 2000 is addressed

in the environmental analysis provided in the FEIS. The impacts

identified and the mitigation developed were based on the time of year

that the test is conducted, and no impacts were identified that were

variable other than seasonally each year. Therefore, the methodology

for determining impacts remained valid and the Navy decided to issue

the FEIS even though the planned year of the test had changed. During

1997, the Navy conducted additional aerial surveys of the Mayport area

to further confirm and validate the marine mammal and sea turtle

population density data obtained during the 1995 aerial surveys. These

additional data were incorporated into the FEIS.

To begin the NEPA process, Navy published a Notice of Intent in

March 1995 in the Federal Register (60 FR 12748) and five newspapers

(Washington Post, Virginian Pilot, Florida Times Union, Beaches Leader,

and Southeast Georgian), announcing that Navy would prepare an EIS. A

30-day public scoping period was established for identifying issues to

be addressed in the Draft Environmental Impact Statement (DEIS). Navy

held scoping meetings jointly with NMFS on March 23, 1995 in Silver

Spring, Maryland; on March 28, 1995 in Norfolk, Virginia; and on March

29, 1995 in Atlantic Beach, Florida. Written and oral comments were

received during the public meetings. All comments were reviewed to

ensure that all issues were addressed in the DEIS.

The notice of availability for the DEIS was published in the

Federal Register (61 FR 30232) on June 14, 1996. Navy distributed the

DEIS to Federal, State, and local agencies, elected officials, special

interest groups, and interested persons. Navy held public hearings

jointly with NMFS to receive written and oral comments on the DEIS on

August 19, 1996 in Silver Spring, Maryland; August 20, 1996 in Norfolk,

Virginia; and August 21, 1996 in Atlantic Beach, Florida. The public

comment period on the DEIS ended on September 17, 1996. Federal, State,

and local agencies, and the general public commented on the DEIS. These

comments and Navy's responses were incorporated in the FEIS, which was

distributed to the public on June 5, 1998, for a review period that

concluded on July 6, 1998.

Coordination and Consultation With the NMFS

The NMFS has two regulatory roles in the SEAWOLF project. First,

the NMFS is responsible for administering the Endangered Species Act as

it applies to sea turtles and most marine mammals. The DEIS served as

the Biological Assessment which the Navy submitted to the NMFS,

requesting formal consultation under Section 7 of the Endangered

Species Act (ESA), (16 U.S.C. 1531 et seq.). The NMFS subsequently

issued a Biological Opinion, dated December 12, 1996, which completed

the consultation process under ESA.

The NMFS also has a regulatory role under the Marine Mammal

Protection Act (MMPA) (16 U.S.C. 1361 et seq.). When the DEIS was

published, the Navy submitted a separate application to the NMFS for an

``incidental take authorization'' under section 101(a) (5) (A) of the

MMPA. The NMFS published a Proposed Rule in the Federal Register on

August 2, 1996 (61 FR 40377) and participated in joint public hearings

with the Navy (see dates above) to receive comments. The Proposed Rule

specified mitigation, monitoring, and reporting requirements for the

shock test. A Final Rule must be issued by NMFS before shock testing

can proceed.

The NMFS was also a cooperating agency with the Navy in preparing

the EIS. Because of its regulatory responsibilities under the ESA and

the MMPA, the NMFS limited its role in preparation of the EIS to

providing review and comment.

Alternatives

NEPA requires Navy to evaluate a reasonable range of alternatives

for implementing a proposed Federal Action. The alternatives evaluated

in the FEIS were no-action and shock testing the SEAWOLF at an offshore

location. Alternative offshore areas for shock testing were compared

from operational and environmental perspectives. A preferred

alternative was identified based on these comparisons.

Under the ``No Action'' alternative, no new activities affecting

the physical environment would be conducted to predict the response of

SEAWOLF class submarines to underwater detonations. This alternative

would avoid all environmental impacts of shock testing. Navy has

established an LFT&E program to demonstrate the survivability of

SEAWOLF class submarines. The program consists of three major areas

that together provide the data necessary to assess the SEAWOLF's

survivability: computer modeling and analysis, component and surrogate

testing, and a shock test of the entire ship. The SEAWOLF LFT&E program

already includes the maximum reasonable amount of computer modeling and

component testing. Testing the manned submarine with the appropriate

systems operating provides the best information to support an

assessment of the survivability of the ship. The ``No Action''

alternative would prevent the Navy from being able to make the best

survivability assessment.

The remaining alternative discussed in the FEIS was the proposed

action, to shock test the SEAWOLF at an offshore location. The

submarine would be subjected to a series of five 10,000-pound explosive

charge detonations. The series of five detonations would be

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conducted at a rate of one detonation per week to allow time to perform

detailed inspections of the submarine's systems prior to the next

detonation. The series of detonations would occur sometime between

April 1, and September 30, based on the Navy's operational

requirements.

A location on the east coast best meets operational needs as that

is where the SEAWOLF will be homeported and where all sea trials will

occur. Scheduling the test on the West Coast or in the Gulf of Mexico

would increase the time the ship is away from the homeport, complicate

or prolong repairs, and further delay deployment. Under Navy Personnel

Tempo (PERSTEMPO) regulations, a ship is required to spend a day in

homeport for every day it is away from homeport for purposes of crew

quality of life and efficiency (OPNAVINST 3000.13A, 21 December 1990).

A shock test conducted away from the homeport is typically a 3.5 to 4

month deployment, including time spent having special equipment

installed at the shore support facility, completing test runs and

training, and conducting the actual shock testing. Scheduling the test

away from the East Coast would maximize time spent away from the

homeport and minimize the SEAWOLF's availability for deployment as part

of fleet resources.

The Navy screened possible East Coast shock testing areas according

to operational criteria. Potential areas were first defined as

locations having a water depth of 152 m (500 ft) that are within 185 km

(100 nmi) of a naval station support facility and a submarine repair

facility. This water depth is sufficient to minimize the effect of a

bottom reflected pressure wave on the submarine and shallow enough to

allow mooring of the operational vessel with the test array. This depth

would also permit recovery of the crew and submarine in the unlikely

event of a control failure. Other criteria include proximity to an

ordnance storage/loading facility and Navy assets (ships and aircraft)

necessary to support test needs. There must also be little or no

shipping traffic in the area. Finally, calm seas and good visibility

are needed for the test.

Five east coast areas were identified that could potentially meet

the Navy's operational requirements: Mayport, Florida; Norfolk,

Virginia; Groton, Connecticut; Charleston, South Carolina; and Key

West, Florida. Charleston was eliminated because of the closure of the

Charleston Naval Base under the Base Closure and Realignment (BRAC)

process (i.e., facilities and vessels to support the test would not be

available). The water depth of 275 m (900 ft) at the Key West area is

too great for the planned shock testing. In addition, the Key West area

lacks the industrial base to support submarine repairs or drydocking,

and there is no surface vessel homeport nearby that could provide Navy

assets (ships and planes) to support the test. Key West was, therefore,

eliminated from further consideration.

The FEIS further analyzed Mayport, Norfolk, and Groton according to

the operational criteria. The areas were scored against the operational

criterion, with Mayport and Norfolk having nearly identical scores,

whereas Groton scored substantially lower. Groton scored poorly on

criteria for incidence of fog, visibility, and proximity to Navy

assets. Mayport, Florida and Norfolk, Virginia were the areas

determined to meet all of the Navy's operational criteria and therefore

were the focus of detailed environmental analysis in the FEIS.

The FEIS evaluated the Mayport and Norfolk areas with respect to

environmental considerations. Possible test sites were first defined as

any point along the 152 m (500 ft depth contour within 185 km (100 nmi)

of a naval station support facility and a submarine repair facility.

Environmental features near each area were mapped, including marine

sancturaries, artificial reefs, hard-bottom areas, shipwrecks, ocean

disposal sites, and critical habitat for endangered or threatened

species. Buffer zones were then developed to avoid impacts to these

areas and associated biota, excluding portions of the 152 m depth

contour. Features such as several shipwrecks, potential hard bottom,

and the proposed Norfolk Canyon Marine Sanctuary were excluded from the

area of consideration at Norfolk. All points along the 152 m depth

contour off Mayport were considered potential shock testing sites.

To supplement historical information and better understand the

potential impacts the SEAWOLF shock test might have on marine mammals

and turtles, Navy conducted monthly aerial surveys during the six-month

period from April through September 1995. These surveys, for both

Mayport and Norfolk, were done to assist in determining density and

distribution of marine mammals and turtles. Significantly higher

numbers of marine mammals were sited off Norfolk. A total of 4,438

individuals representing at least 14 species of marine mammals were

seen at the Norfolk area during the 1995 aerial surveys while a total

of 1,303 individuals representing at least seven species were seen at

Mayport. The total number of sea turtles seen in the two areas was 48

at Norfolk and 138 at Mayport. During the month of April, 61 turtles

were seen at Mayport while 0 were seen at Norfolk, accounting for a

large portion of the difference between the two areas. Additional

aerial surveys were conducted at Mayport during the five-month period

May through September 1997. During the 1997 surveys 1,485 individuals

representing at least eight species of marine mammals and 240 sea

turtles were seen.

Most environmental impacts of shock testing were determined to be

similar at Mayport or Norfolk. However, the two areas differ

significantly with respect to potential impacts on marine mammals and

sea turtles. The most significant environmental difference between the

areas is the much lower risk of impacts to marine mammals at the

Mayport area. Using the 1995 survey data from both areas as the most

appropriate basis for comparison, the risk of mortality and injury of

marine mammals is about 5 to 7 times lower at Mayport than at Norfolk,

whereas the risk to sea turtles is about the same at the two areas.

This comparison strongly favors Mayport as the preferred alternative.

If the 1997 Mayport survey data are compared with the Norfolk 1995

data, the risk of marine mammal mortality and injury would be 3.5 to 5

times lower at Mayport, but the risk to sea turtles would be 2 times

lower at Norfolk. This comparison also indicates that Mayport has the

lowest overall risk of significant environmental impacts. Considering

all components of the physical, biological, and socioeconomic

environment, potential impacts would be less at the Mayport area.

Based on the evaluation of criteria, the preferred alternative is

to shock test the SEAWOLF submarine offshore of Mayport, Florida.

Testing will not occur during the month of April when turtle densities

may be higher. This alternative meets the project purpose and need,

satisfies operational criteria, and minimizes environmental impacts.

The Norfolk area also meets the project purpose and need and satisfies

operational criteria; however the density of marine mammals in the area

could increase the risk of impacts.

Environmental Impacts

In the FEIS Navy analyzed the potential impacts of shock testing

the SEAWOLF at the Mayport, Florida offshore area. Impact discussion

was separated into separate subsections to distinguish between those

aspects of the proposed action evaluated under NEPA and those evaluated

under Executive Order (EO) 12114. NEPA applies to activities and

impacts within U.S. territory, whereas EO 12114 applies to

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impacts outside territorial seas. The proposed action includes

operations that will occur both within and outside U.S. territory.

Shock testing and associated mitigation will occur at least 87 km (47

nmi) offshore at the Mayport area, well outside U.S. territorial seas.

No impacts from the actual test (detonation of explosives) will

occur in U.S. territory. The only operations that will occur within

territorial limits are shore support activities and vessel and aircraft

movements in territorial waters (i.e., transits between the shore base

and the offshore shock-testing site). These shore support activities

and vessel and aircraft movements are not unusual or extraordinary and

are part of the routine operations associated with the existing shore

bases. This Record of Decision focuses on the impacts that will likely

result from implementing the proposed action, detonation of explosives

outside of U.S. territorial seas.

Shore support operations and movement of vessels and aircraft

within territorial limits are not unusual or extraordinary and are part

of the routine operations associated with the existing shore bases.

Under NEPA, impacts of these existing operations on the physical

environment, specifically geology and sediments, air quality, and water

quality are minimal. Impacts of these existing operations on the

biological environment, marine biota, including plankton, pelagic fish,

marine mammals, sea turtles, benthic organisms, and seabirds are

minimal. Impacts of these existing operations on the socioeconomic

environment, commercial and recreational fisheries and ship traffic,

are also minimal.

The impacts of detonation of the explosive charge on the physical

environment are evaluated under EO 12114. Calculations based on the

size of the explosive (4,536 kg or 10,000 lb), the depth of burst (30 m

or 100 ft), and the total water depth (152 m or 500 ft) indicate there

will be no cratering of the seafloor. The shock wave will reach the

seafloor and be reflected from it, but will have no significant impact

on bottom structure or form.

The test area is well offshore in an area not classified for

priority pollutants under the Clean Air Act. It is estimated that 90%

of the gaseous explosion products will become airborne. These products

include carbon dioxide, carbon monoxide, ammonia, ethane, propane,

hydrogen cyanide, methane, methyl alcohol, formaldehyde, acetylene, and

phosphine. Because of the low initial concentrations and rapid

dispersion of the explosion products, there will not be any risk to

human health or marine life at the test site. 100% of the solid

explosion products and 10% of the gases will remain in the water. All

products have predicted concentration levels well below permissible

concentrations, indicating no hazard to marine life.

The impacts of detonation of the explosive charge on the biological

environment are also evaluated under EO 12114. The impacts are

evaluated for several categories of marine life. Plankton would be

affected mainly by the physical force of the shock wave from the

detonations. No lasting impacts on plankton communities due to

cavitation or chemical products are expected. The detonations could

have two main effects on pelagic fish. First, fish within a certain

radius will be killed or injured by the resulting shock waves. The

predicted 10% mortality range for fish (i.e., a distance beyond which

at least 90% of fish would survive) ranges from 22 m (73 ft) for non-

swimbladder fish to over 914 m (3,000 ft) for some of the small swim-

bladder fish. A large fish kill is not expected because detonation

would be postponed if large schools are observed within 1.85 km (1 nmi)

of the detonation point. Secondly, fish at greater distances may react

behaviorally to sound impulses from the blast. It is expected that any

behavioral responses to low-frequency sounds from the underwater

explosions would be short term and reversible.

The detonation of the explosive charge on marine mammals may have

two types of potential impacts. First, marine mammals, if they are

present and are not detected during pre-test monitoring within about

1.85 km (1 nmi) of the detonation point, may be killed or injured.

Second, marine mammals at greater distances [up to 15.7 km (8.5 nmi)

for odontocetes and 23.5 km (12.7 nmi) for mysticetes] may experience

auditory effects such as temporary threshold shift (TTS). At still

greater distances, some marine mammals may hear the detonations and

exhibit a momentary, minor behavioral response. Criteria for marine

mammal lethality, injury, and harassment were developed through

extensive literature review and modeling and were fully discussed in

the FEIS.

Because the proposed action may result in mortality, injury, or

harassment of marine mammals, the Navy submitted a request for

``incidental take'' authorization from the NMFS concurrently with the

release of the DEIS. The MMPA allows the incidental (but not

intentional) taking of marine mammals upon request if the taking will

(1) have a negligible impact on the species or stock(s); and (2) not

have an unmitigable adverse impact on the availability of the species

or stock(s) for subsistence uses. In response to the Navy's incidental

take request, the NMFS published a Proposed Rule in the Federal

Register on August 2, 1996 (61 FR 40377). A Final Rule must be issued

before shock testing can proceed. In addition, because listed

(endangered and threatened) species of marine mammals and sea turtles

may occur at the Mayport area, formal consultation with the NMFS was

required under the ESA. The DEIS served as the Biological Opinion

submitted to the NMFS. The NMFS issued a Biological Opinion taking into

account the cumulative impacts of all activities potentially affecting

listed marine mammal and turtle populations which concluded that, with

mitigation included in the proposed action, shock testing is not likely

to jeopardize the continued existence of endangered or threatened

species or result in destruction or adverse modification of their

critical habitat.

To provide numbers for the incidental take request submitted to the

NMFS, it was necessary for Navy to estimate numbers of potentially

affected animals. The analysis performed by the Navy deliberately

overestimated numbers of affected animals in order to provide an upper

bound on potential impacts. The number of marine mammals potentially

killed, injured, or harassed as a result of the proposed detonations

was estimated using a series of steps and assumptions described in the

FEIS. Maximum ranges for mortality, injury, and harassment were defined

using criteria developed in the FEIS. The mortality and injury criteria

were based on tests conducted with terrestrial mammals, the harassment

criterion was based on temporary threshold shift (TTS) in bottlenose

dolphins. Mean densities of each species were multiplied by the area of

the mortality, injury, and harassment ranges to estimate the number of

mammals and turtles affected ``without mitigation''. The mitigation

effectiveness was then estimated for each species, taking into account

the probability of detection by aerial and surface observers and

passive acoustic monitoring. For mortality and injury, the ``without

mitigation'' numbers for each species were then multiplied by (1 minus

mitigation effectiveness), which is the probability of not detecting

that species during pre-detonation monitoring. The resulting values are

the expected number of undetected animals of each species within the

mortality and injury range. For harassment, the ``with mitigation''

numbers were assumed to

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be equal to the ``without mitigation'' numbers, because only a small

proportion of the harassment radius is within the Safety Range.

The criterion by which the mortality range was defined in the FEIS

was onset of extensive lung hemorrhage. The range varies depending on

mammal weight, with the smallest mammals having the greatest range. The

maximum predicted range for a small marine mammal (a calf dolphin) was

1.1 km (0.6 nmi). The FEIS analysis assumed that 100% of the marine

mammals within this radius would be killed, even though the probability

of mortality from the onset of extensive lung hemorrhage was estimated

to be only 1% at the outer edge of this range.

The measure of non-lethal injury used in the FEIS to define the

injury range was 50% probability of eardrum rupture. The greatest

range, calculated for a mammal at the bottom, was 1.85 km (1 nmi). The

FEIS assumed that 100% of marine mammals within this radius would be

injured even though the probability of eardrum rupture at the outer

edge of this range is only 50% (and less in near-surface waters).

The 1994 amendments to the MMPA defined harassment, but do not

define threshold sound levels sufficient to cause it. The NMFS has not

formally defined a threshold for harassment, but has cited temporary

threshold shift (TTS) as an example (FR 60[104]:28379-28386, 31 May

1995). TTS is a change in the threshold of hearing (the quietest sound

that an animal can hear), which could temporarily affect an animal's

ability to hear calls, echolocation sounds, and other ambient sounds.

In the FEIS, TTS was used as the criterion for acoustic harassment of

marine mammals. Based on the results of TTS experiments in bottlenose

dolphins, an energy density TTS criterion of 182 dB re

1Pa\2\.sec was used. Separate ranges were calculated for

odontocetes and mysticetes based on their differing sensitivity to low

frequencies. For odontocetes, which are ``high frequency specialists,''

all frequencies greater than or equal to 10 Hz were included. The

harassment range is predicted to be 15.7 km (8.5 nmi) for odontocetes

and 23.5 km (12.7 nmi) for mysticetes.

Detailed calculations of range distances, estimates of marine

mammal densities, and mitigation effectiveness can be found in the

FEIS. While the Navy does not anticipate any lethal or injurious takes

will result from the five-detonation shock test, the theoretical

calculations based on the previously described criteria indicate the

potential for 1 lethal take, 5 injurious takes, and 1,788 harassment

takes of marine mammals. These numbers have several levels of

conservatism built into them. Calculations were done using data from

both the 1995 and 1997 surveys with the largest resulting numbers being

chosen. The numbers were then compared to the results from the DEIS

method of calculation, with the largest numbers again being selected.

There is comparatively little experimental or theoretical data upon

which to base mortality and injury ranges for sea turtles. Therefore,

the FEIS used the corresponding ranges for marine mammals. While these

ranges were based on experiments with mammals, it is reasonable to

assume sea turtle lungs and other gas-containing organs would be

similarly affected by shock waves. Calculations indicate the maximum

potential for 8 mortalities, 30 injuries, and 1,679 harassments.

Calculations in the FEIS were done using data from both the 1995 and

1997 surveys with the largest resulting numbers (1997) being chosen.

The numbers were then compared to the results from the DEIS method of

calculation, with the largest numbers again being selected. Loggerheads

and leatherbacks, listed as threatened and endangered respectively, are

the two species that may potentially be killed or injured. Loggerheads

make up most of the population and are the species most likely to be

killed or injured. The three other sea turtle species (green,

hawksbill, and Kemp's ridley) are also endangered or threatened, but

are primarily inshore species which were not seen during the 1995 or

1997 aerial surveys. Therefore, no mortalities or injuries of these

species are expected.

Navy also analyzed the impacts on minority and low-income

populations pursuant to Executive Order 12898, Federal Actions to

Address Environmental Justice in Minority Populations and Low-Income

Populations, reprinted in 42 U.S.C. 4321. The proposed action would not

have any adverse impacts on the human population and would not have a

disproportionately high effect on any minority or low-income group.

Mitigation

Mitigation, as defined by the Council on Environmental Quality,

includes measures to minimize impacts by limiting the degree or

magnitude of a proposed action and its implementation. The shock test

at Mayport includes the following mitigation measures: (1) A schedule

shift to avoid high densities of sea turtles; (2) a vessel exclusion

zone for operational security; (3) measures to deal with unexploded

ordnance in the unlikely event of a misfire, and (4) a marine mammal

and sea turtle mitigation plan to minimize the risk of impacts to these

animals.

The schedule shift will allow testing at Mayport only between May 1

and September 30. No testing will occur in April when turtle densities

are highest. This mitigation measure is based on the results of aerial

surveys conducted between April and September 1995. Based on the 1995

data and the likely concentration of loggerhead turtles in offshore

waters prior to nesting season, exclusion of April from the test

schedule is considered a reasonable precaution.

An exclusion zone of 9.3 km (5 nmi) radius will be established

around the detonation point to exclude all non-test ship, submarine,

and aircraft traffic. Any traffic within an 18.5 km (10 nmi) radius

will be warned to alter course or will be escorted from the site.

Notices to Airmen and Mariners will be published in advance of each

test. An immediate HOLD on the test will be ordered if any unauthorized

craft enters the exclusion zone and cannot be contacted. The HOLD will

continue until the exclusion zone was clear of unauthorized vessels.

The size of the exclusion zone is necessary to ensure that commercial

ships have no impact on operational security and to allow large vessels

sufficient time to change course.

The probability of a charge not detonating during a test is remote.

Should a charge fail to explode, the Navy will attempt to identify the

problem and detonate the charge (with all marine mammal and sea turtle

mitigation measures in place as described below). If these attempts

fail, the Navy will recover the explosive and disarm it. Only in case

of an extreme emergency or to safeguard human life, will the Navy

dispose of the charge at sea. The possibility of disposing the

explosive charge at sea is very remote. However, if disposal at sea is

necessary, the charge will be disposed in a manner that will not pose a

hazard to the public.

A detailed marine mammal and sea turtle mitigation plan has been

developed to reduce or eliminate the effects of shock testing on these

animals. The plan includes the same type of monitoring and mitigation

efforts successfully used during the shock trial of the USS JOHN PAUL

JONES in 1994 off the coast of southern California where marine mammal

densities are about 25 times higher than at Mayport. The mitigation

plan would build upon previous efforts to avoid or reduce potential

environmental impacts (i.e., choice of Mayport based on the lower

density of marine mammals). The mitigation plan is designed to address

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mitigation requirements specified by the NMFS.

The NMFS Biological Opinion included reasonable and prudent

measures and terms and conditions to minimize the impact of the take on

listed species as a result of the proposed action. The measures

include: (1) aerial surveys must be conducted in sea states having

conditions no greater than 33-50% whitecaps on the surface and wave

height of 2-3 feet; (2) the charge shall not be detonated if visibility

is less than 3 nmi; (3) detonations must not occur within 2 nmi of

large sargassum rafts or aggregations of jellyfish. If sargassum rafts

persist within the safety zone and cannot be avoided, the Navy should

attempt to collect hatchlings from observed rafts; (4) the Navy must

use satellite telemetry images of sea surface temperature and aerial

survey indicators to identify the western wall of the Gulf Stream.

Detonations must be confined to waters within the Gulf Stream, no

closer than 2 nmi of the western boundary; (5) detonation would be

postponed if a Northern Right Whale is sighted within the safety or

buffer zone; (6) if listed marine mammals (other than the Northern

Right Whale) are detected within the buffer zone and subsequently

cannot be detected, sighting and acoustic teams will search the area

for 2\1/2\ hours before assuming the animal has left the buffer zone;

and (7) if during post-detonation monitoring any sea turtles or marine

mammals are observed in the safety area immediately after detonation,

the Navy must review its pre-detonation monitoring procedures with NMFS

prior to the next detonation. To minimize impacts to endangered marine

mammals, the Navy should implement all mitigation, monitoring and

reporting requirements outlined in the final rule to authorize the

taking of a small number of marine mammals incidental to the underwater

detonation of conventional explosives in the waters off Mayport (50 CFR

216.161-216.166), in compliance with section 101(a)(5) of the MMPA.

Additional requirements may also be specified in a Letter of

Authorization issued under these regulations.

Integral to the mitigation plan is the concept of a Safety Range.

For the SEAWOLF shock test, a 3.7 km (2 nmi) radius Safety Range will

be established around the detonation point. The Safety Range takes into

consideration the estimated ranges for various levels of injury and/or

mortality associated with detonation of a 4,536 kg (10,000 lb)

explosive. Based on analyses presented in the FEIS, the maximum

distance for injury (50% probability of eardrum rupture) to a marine

mammal or turtle is 1.85 km or about 1 nmi from the detonation. The 50%

eardrum rupture range has been doubled to established a 3.7 km (2 nmi)

Safety Range. The probability of eardrum rupture is believed to be less

than 10%.

For mitigation monitoring purposes, a 1.85 km (1 nmi) Buffer Zone

will be added to the 3.7 km (2 nmi) Safety Range to accommodate the

possible movement of marine mammals and turtles toward the Safety

Range. Specifically, the area encompassed within a 5.6 km (3 nmi)

radius from the detonation point would be monitored in an effort to

detect any marine mammals or turtles approaching the 3.7 km (2 nmi)

Safety Range.

The mitigation plan includes three components: (1) aerial surveys

and monitoring; (2) shipboard monitoring from the operations vessel and

the Marine Animal Recovery Team (MART) vessel; and (3) passive acoustic

monitoring using the Marine Mammal Acoustic Tracking System (MMATS).

Aerial and shipboard monitoring teams would identify and locate

cetaceans and turtles on the surface, whereas the acoustic monitoring

team would detect and locate calls from surfaced and submerged

cetaceans. All mitigation team members will be qualified, experienced

professionals. Specific minimum qualifications were outlined in the

FEIS.

The mitigation plan consists of three phases: specific test site

selection surveys, pre-detonation monitoring, and post-detonation

monitoring. The specific test site selection surveys begin three weeks

prior to detonation, when an aerial survey will be flown to select one

primary and two secondary test sites, based primarily on the lowest

relative abundance of marine mammals and turtles. An aerial survey will

be conducted at the three sites two to three days prior to each

detonation in order to rank the sites by scarcity of marine mammals.

Through the comparison of data collected during this survey, the

selection of the primary and two secondary sites will be confirmed.

The pre-detonation monitoring will ensure the site is free of

visually or acoustically detectable marine mammals, as well as visible

sea turtles, large sargassum rafts, large jellyfish concentrations,

large schools of fish, and large flocks of seabirds. The morning of a

test day, a mitigation team comprised of 12-15 observers, experienced

in marine mammal survey or acoustic detection will assist the Lead

Scientist in evaluating test site conditions. The Lead Scientist will

have the flexibility to move the test site should the mitigation team

find unacceptable levels of marine life in the area. Beginning two and

one half hours prior to and up to detonation, the mitigation team will

monitor the safety range for the presence of marine mammals and sea

turtles or large concentrations of sargassum, jellyfish, fish, or

seabirds. The Lead Scientist will have the authority to hold the

detonation or recommend moving to one of the secondary sites if the

presence of marine life persists within the safety range.

Post-detonation monitoring will be conducted by the MART vessel for

48 hours after each detonation where a subsequent detonation is

planned. Aerial and shipboard monitoring are intended to locate and

identify any dead or injured animals. The MART vessel will be assisted

by the aerial mitigation team for up to three hours per day during the

48-hour period. After the last detonation, monitoring by the aerial

team and the MART will continue for seven days to detect any

potentially injured or dead animals moving in the predominant direction

and speed of the Gulf Stream. Coordination with stranding networks and

necropsy specialists will be maintained through the SEAWOLF test period

as well as after.

Comment Received on the FEIS

After the Final Environmental Impact Statement (FEIS) was

distributed to the public for a 30-day review period ending on July 6,

1998, the Navy received seven comment letters. One letter came from a

regulatory agency, and six from individual citizens. The comments did

not raise any new issues concerning the environmental analysis or

discuss any mitigation measures other than those addressed in the FEIS.

Generally, concern centered on the perception that a better way to

accomplish the objectives of this test must exist. However, all

alternatives offered had been previously considered.

The U.S. Environmental Protection (EPA) Region Four letter

commented on the extensive efforts that will be employed by the Navy to

reduce risk to mammals and turtles as well as significant

concentrations of other marine biota. EPA further commented that while

the mitigation appeared impressive, its efficacy will become apparent

only after the first detonation has been evaluated. For that reason,

they continue to have some environmental concerns and await with

interest the outcome of the test.

Six letters from individuals were also received. All six

individuals expressed opposition to the test as currently planned. The

letters recommended that

[[Page 3286]]

alternative methods, location, or time be chosen for the test. Concerns

were also expressed about the impacts to marine life that might occur.

These concerns focused on stress, loss of hearing, and loss of life,

particularly among endangered species. Each of these concerns is

considered and evaluated in the FEIS.

Regulations Governing the Testing Decision

The proposed action, shock testing the SEAWOLF submarine at an

offshore site is consistent with Section 2366, Title 10, United States

Code (10 U.S.C. 2366), which states that a covered system, such as a

submarine, cannot proceed beyond initial production until realistic

survivability testing of the system is completed. Realistic

survivability testing means testing for the vulnerability of the system

in combat by firing munitions likely to be encountered in combat with

the test system configured for combat.

The National Environmental Policy Act (NEPA) of 1969 and Executive

Order 12114, ``Environmental Effects Abroad of Major Federal Actions''

require full evaluation of the impacts resulting from major federal

actions. NEPA applies to federal actions within U.S. territory while

Executive Order 12114 applies to activities and impacts outside

territorial seas. The FEIS was prepared in accordance with NEPA and

Executive Order 12114.

Executive Order 12898, ``Federal Actions to Address Environmental

Justice in Minority Populations and Low-Income Populations'' is

intended to identify and address disproportionately high and adverse

human health or environmental effects on members of minority or low-

income populations. Shock testing and associated mitigation operations

will occur well offshore and would result in minor and/or temporary

impacts to the test site with no significant direct or indirect impacts

on the human population.

The Endangered Species Act (ESA) of 1973 prohibits jeopardizing

endangered and threatened species or adversely modifying critical

habitats essential to their survival. Section 7 of the Act requires

consultation with the NMFS and the U.S. Fish and Wildlife Service

(USFWS) to determine whether any endangered or threatened species under

their jurisdiction may be affected by the proposed action. No formal

consultation with USFWS was required because USFWS determined that

there are no species or critical habitat under their jurisdiction that

could be affected. Formal consultation with NMFS was completed when the

NMFS issued a Biological Opinion on December 12, 1996.

The Marine Mammal Protection Act (MMPA) of 1972 establishes a

national policy designed to protect and conserve marine mammals and

their habitat. Section 101(a)(5) of the MMPA allows, upon request, the

incidental (but not intentional) taking of marine mammals if certain

findings are made and regulations issued. Permission may be granted if

the taking will have a negligible impact on the species or stock and

not have an unmitigable adverse impact on the availability of the

species or stock for subsistence uses. Concurrent with the release of

the DEIS, the Navy submitted an incidental small take application to

the NMFS. Based on this application, the NMFA published a Proposed Rule

on August 2, 1996 (61 FR 40377) and participated in joint public

hearings. The Proposed Rule specified take limits as well as

mitigation, monitoring and reporting requirements. A Final Rule must be

issued before the shock test can proceed.

The Marine Protection, Research and Sanctuaries Act (Ocean Dumping

Act) of 1972 makes it illegal for any person to transport material from

the U.S. for the purpose of dumping it into ocean waters. The term

``dumping'' as defined under the Act does not include intentional

placement of any device in ocean waters for a purpose other than

disposal.

Conclusion

Shock testing the SEAWOLF submarine in an area offshore of Mayport,

Florida is the alternative that best meets the project purpose and

need, satisfies operational criteria, and minimizes environmental

impacts. Potentially significant direct impacts resulting from the test

include mortality, injury, and acoustic harassment of marine mammals

and sea turtles. While numbers have been calculated to define the

potential lethal, injurious, and harassment take that might occur, it

is expected that the mitigation and monitoring program will minimize

the risk to marine mammals and sea turtles. Therefore, while the Navy

has submitted an application for incidental take as previously

discussed, no mortalities or injuries are expected to occur.

The alternative to performing the shock test at an area offshore of

Mayport, Florida is to perform the test at an area offshore of Norfolk,

Virginia. Most environmental impacts of shock testing were determined

to be similar at Mayport or Norfolk. However, the two areas differ

significantly with respect to potential impacts on marine mammals and

sea turtles. The most significant environmental difference between the

areas is the much lower risk of impacts to marine mammals at the

Mayport area. This comparison also indicates that Mayport has the

lowest overall risk of significant environmental impacts. Considering

all components of the physical, biological, and socioeconomic

environment, potential impacts would be less at the Mayport area.

The ``No Action'' alternative would avoid all environmental impacts

of shock testing. It does not, however, support the development of the

best assessment of the survivability characteristics of the submarine.

For that reason, it was dropped from further consideration.

Accordingly, the Navy selects the area off Mayport, Florida for the

shock test of the SEAWOLF submarine. The SEAWOLF submarine would be

shock tested in a manner consistent with the requirements stated by the

NMFS and the description of the test in the FEIS. However, the

Department of Defense Appropriations Act, 1999 (H.R. 4103) deletes the

funding necessary to support shock testing in FY00. In light of this

development, the Navy must reassess when, if ever, the shock test can

be budgeted and conducted.

Dated: January 11, 1999.

H. Lee Buchanan,

Assistant Secretary of the Navy (RD&A).

[FR Doc. 99-1308 Filed 1-20-99; 8:45 am]

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