A U.S. federal agency has renewed the U.S. Navy's ability to harass, harm, and in some cases, accidentally kill marine mammals over the next seven years during training and testing activities off the Pacific Coast from California to Alaska.
As part of its exercises, the navy uses sonar and detonates bombs at sea weighing more than 450 kilograms. These can kill, disturb, injure or strand marine mammals, including killer whales, which are very sensitive to noise.
According to the National Marine Fisheries Service (NMFS), the navy's testing and training activities qualify as military readiness activities pursuant to the Marine Mammal Protection Act.
When military activities affect marine mammals, the NMFS, a division of the National Oceanic and Atmospheric Administration (NOAA), has to authorize what it calls "incidental takes."
Incidental takes can be anything from disrupted behaviour to injury or death, although the navy says in the case of the southern resident killer whales, all their incidental takes are expected to be behavioural disruptions which can include everything from feeding to migrating to breeding.
With the previous licence period about to expire, the navy reapplied for authorization last year and increased the number of animals that may be affected by its activities.
The NMFS released the proposed rule this summer, allowing incidental takes for nearly 30 species of marine mammals numbering in the hundreds of thousands, including whales, dolphins and seals. The new rule allows for many more incidental takes of southern resident killer whales from two per year to 51 per year.
The agency requested comments from the public before making a final decision. Several organizations and citizens weighed in asking for more mitigation measures.
In response, the NMFS said the navy is required to institute shutdowns and delay its activities if marine mammals are sighted within certain distances, as well as limiting sonar in geographic areas that are important for certain behaviours such as feeding.
The authorization went into effect on Monday, Nov. 9, as per the NOAA's final rule .
No improvement for killer whales
Michael Jasny, the Vancouver-based director of the U.S.-based environmental organization Marine Mammal Protection Project, says there are no "meaningful changes" between the proposed and final authorization.
"There is some improvement at the margins, some mitigation that was added, but not enough to affect the main problems, which is the enormous amounts of takes, the enormous amount of harm that the rule authorizes and the particular danger that the navy's activities pose to the southern residents orcas," Jasny said.
Each incidental take "represents a significant impact on a vital behaviour," according to Jasny.
The U.S. Marine Mammal Protection Act says behaviours that could be affected by what it terms Level B harassment, such as the navy's incidental "takes," include migrating, breathing, nursing, breeding and feeding "to a point where such behavioural patterns are abandoned or significantly altered."
The new rule says the U.S. navy expects to cause up to 51 incidental takes per year among the southern killer whale residents alone, and up to 243 incidental takes over the seven-year period. Researchers estimate there are only 74 southern resident killer whales that remain.
'A canary trying to manage a gorilla'
"It's deeply disturbing," Jasny said of the decision.
The law requires incidental takes to have a "negligible impact" on the affected species — a standard the NMFS applies liberally, according to Jasny.
"This office has never found that an impact would be greater than negligible. It's never made that finding," he said.
Jasny says the problem speaks to the agency's regulatory issues.
"The way that I think of it is this office trying to regulate the U.S. Navy is like a canary trying to manage a gorilla," he said.
Washington state Gov. Jay Inslee has written the NMFS calling the level of "takes" permitted under the new rule "unacceptable," specifically referencing the potential for sonar exposure and vessel strikes.
Inslee is calling for the "no use" range for sonar to be expanded to just short of a kilometre from any killer whale, seasonal limitatons on its use in traditional whale foraging areas, a real-time whale alert system and manned spotter systems onboard navy vessels.
Protecting an endangered population
Fisheries and Oceans Canada says it is collaborating with the NOAA on this issue.
"We need to continue our combined efforts to mitigate potential impacts to marine species and their habitat, including the iconic southern resident killer whale," Fisheries and Oceans Canada said by email.
"We will continue to work closely with our U.S. partners on actions we can each take to protect them."
The NRDC, meanwhile, is currently evaluating the U.S. agency's decision and has yet to decide whether it will take it to court.
"We're certainly considering what options exist for protecting the southern residents and other species off the coast," Jasny said.