Bahamas stranding and U.S. Navy (fwd)

From: Mike Williamson (pita@www1.wheelock.edu)
Date: Thu Mar 23 2000 - 08:43:26 EST


---------- Forwarded message ----------
Date: Wed, 22 Mar 2000 22:34:50 -0500
From: william rossiter <william_rossiter@compuserve.com>
To: ECS <ECS-all@mailbase.ac.uk>
Subject: Bahamas stranding and U.S. Navy

For those interested in the potential acoustical link between the recent
multiple cetacean strandings in the Bahamas and concurrent U.S. Navy
exercises the following information specifies many details. It should be
noted that at this writing the Navy is proceeding with these tests, and may
continue to deny any connection. It may be appropriate and necessary for
experts to express their professional opinions on this matter. The letter
is addressed to those who may benefit from expert opinions.

Thank you,
William W. Rossiter
President
Cetacean Society International
P.O.Box 953, Georgetown, CT 06829 USA
ph/fx 203-431-1606
william_rossiter@compuserve.com
http://elfi.com/csihome.html

>>>>>>>>>>>>>>>>>>>>

>text of letter sent by
>Natural Resources Defence Council
>
>By Certified Mail and Facsimile
>Return Receipt Requested
>
>March 21, 2000
>
>Hon. Richard Danzig
>Secretary of the Navy
>United States Department of the Navy
>United States Pentagon
>Rm. 4E-686
>Washington, DC 20350
>FAX (703) 614-3477
>
>Hon. Steven Preston
>General Counsel
>United States Department of the Navy
>1000 Navy Pentagon
>Washington, DC 20350-1000
>FAX (703) 693-7560
>
>Ms. Ivonna Sustersic
>Counsel
>Office of Naval Research
>United States Department of the Navy
>800 North Quincy Street
>Arlington, VA 22217
>FAX (703) 696-6909
>
> Re: Littoral Warfare Advanced Development (LWAD) 00-1 Sea Test
>
>
>Dear Sirs and Madam:
>
> On behalf of the Natural Resources Defense Council (“NRDC”) and the
>Humane Society of the United States, and our over 7.4 million members
>and constituents, we write to express our serious concern about the
>Littoral Warfare Advanced Development (“LWAD”) Sea Test, program number
>00-1, currently under way off the southeast coast of the United States,
>and to urge that this Sea Test and all future LWAD Sea Tests be
>immediately suspended pending an investigation into the mass stranding
>of cetaceans that occurred March 15 and 16, 2000, within its vicinity.
>
> Managed by the Office of Naval Research, the LWAD Program is intended
>to provide at-sea testing of advanced technologies in the field of
>littoral warfare. Sea Test 00-1, the first of several such LWAD
>operations scheduled to run this year, appears to have been designed to
>test technologies with active acoustic components. These systems
>include the AN/SQQ-89(V) Echo Tracker Classifier, the Channel Probe
>Pulse Program, Environmentally Adaptive Sonar Technology, GenAcoustic
>Inversion, the Light Weight Sound Source, the Littoral Sea Mine, the
>Multipulse Airgun, the Shallow Water Active Detection/Classifier, and
>the Shallow Water DICASS. Adding to the din produced by these sources
>is a mid-frequency active sonar system used by a participating
>destroyer, as well as aircraft flyovers and other activities incidental
>to systems testing and data collection.
>
>Sea Test 00-1 was scheduled to unfold in three broad areas of
>operation. Area “A”, where tests began on March 15, extends from Cape
>Canaveral in the north to the Bahamas in the south, approximately 100 nm
>east of Florida; Areas “B” and “C”, where tests are slated to continue
>through March 22, track the eastern seaboard approximately 50 nm off the
>coast of South Carolina. Future tests are apparently scheduled for
>sometime in late May/early June (LWAD 00-2) and late September/early
>October (LWAD 00-3).
>
>Not long into the first round of testing, however, with activities
>focused near the Bahamas in the southern portion of Area “A”, reports of
>an extraordinary event began to surface: cetaceans of multiple species
>were stranding themselves en masse along the coast of Grand Bahama and
>the Abacos chain. Among the stranded animals were two species of beaked
>whale, Blainville’s beaked whale (Mesoplodon densirostris) and Cuvier’s
>beaked whale (Ziphius cavirostris); one unidentified species of spotted
>dolphin; and two mysticete species, including one Minke whale
>(Balaenoptera acutorostrata) and one unidentified balaenopterid, either
>a fin or a Bryde’s whale. Precise numbers at this stage are difficult
>to fix: at least four fatally stranded beaked whales were recovered and
>necropsied by a response team led by Dr. Darlene Ketten of Harvard
>Medical School; Reuters wire service has reported that at least nine
>other beaked whales beached on Grand Bahama were pushed back to sea;
>and accounts have circulated of an unknown additional number of beaked
>whales being buried by Bahamian authorities a short time after
>discovery. It is possible that other beached or stranded animals may be
>located by researchers from the National Marine Fisheries Service, who
>have begun a more extensive survey of Grand Bahama and the surrounding
>islands.
>
>As you are well aware, concern over the adverse impacts of anthropogenic
>ocean noise has risen substantially within the scientific community over
>the last ten years. Sound has been shown to divert bowhead and gray
>whales and other whales from their migration paths, to cause sperm and
>humpback whales to cease vocalizing, and to induce a range of other
>disturbances varying from agonistic behavior to panic. A mass
>stranding of beaked whales off the west coast of Greece in 1996 was
>identified as a possible impact of a low-frequency active sonar system
>operated by NATO.
>
>Given this precedent, and given the extraordinary nature of the events
>we have witnessed in the Bahamas, one would have expected the Navy to
>immediately suspended Sea Test 00-1 pending an investigation—yet
>astonishingly it has continued operations, moving up the coast into
>critical habitat occupied by the endangered Northern right whale.
>
>The Navy’s failure to suspend Sea Test 00-1 only adds to a list of legal
>violations and other inadequacies through which its project initially
>received authorization. To our knowledge, it obtained neither an
>incidental harassment authorization nor a small take permit, as the
>Marine Mammal Protection Act requires for species “take.” 16 U.S.C. §
>1371(a)(5). Nor did it engage in formal consultation with the National
>Marine Fisheries Service or obtain an Incidental Take Permit, as
>regulations implementing the Endangered Species Act demand of actions
>that may “adversely affect” endangered or threatened species. 50
>C.F.R. § 402.14. Nor, finally, did it prepare an environmental impact
>statement (EIS) for United States waters or the “global commons,” as the
>National Environmental Policy Act and Executive Order 12114 respectively
>require; the environmental assessment (EA) that the Navy did prepare
>under the executive order is now plainly inadequate. 42 U.S.C. §
>4332(2)(C) and (E); Exec. Order No. 12114, 44 Fed. Reg. 1957 (1979),
>reprinted in 42 U.S.C. § 4321.
>
> In order to cure these legal infirmities the Navy must comport with the
>following requirements:
>
> First, the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §§ 1361 et
>seq., requires all federal agencies to obtain a permit or other
>authorization from the National Marine Fisheries Service or U.S. Fish
>and Wildlife Service prior to any “take” of marine mammals, whether on
>the high seas or in waters under U.S. jurisdiction. The Navy is not
>exempted from this requirement. See, e.g., Natural Resources Defense
>Council v. United States Department of the Navy, 857 F. Supp. 734 (C.D.
>Ca. 1994).
>
> Second, the federal Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531
>et seq., requires the Navy to enter into formal consultation with the
>National Marine Fisheries Service (“NMFS”) or U.S. Fish and Wildlife
>Service and receive a legally valid Incidental Take Permit prior to its
>“take” of any endangered or threatened marine mammals or other
>threatened or endangered species, including fish, sea turtles, or birds,
>or its “adverse modification” of critical habitat. See, e.g., 16 U.SC.
>1536(a)(2); Romero-Barcelo v. Brown, 643 F. 2d 835 (1st Cir. 1981),
>rev’d on other grounds, Weinberger v. Romero-Barcelo, 456 U.S. 304, 313
>(1982). Under NMFS’ regulations, formal consultation must be requested
>by the Navy (or by NMFS) and reinitiated where “new information reveals
>effects of the action that may affect listed species or critical habitat
>in a manner or to an extent not previously considered.” 50 C.F.R. §
>402.16.
>
> Third, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §
>4332(2)(C) and (E), establishes mandatory procedures for objective
>disclosure and analysis of a project’s individual and cumulative
>impacts, consideration of alternatives, and identification of feasible
>mitigation to ensure that the project will not needlessly or carelessly
>destroy or harm the affected environment or species. See, e.g., Tongass
>Conservation Society v. Cheney, 924 F. 2d 1137 (D.C. Cir. 1991); Natural
>Resources Defense Council, 857 F. Supp. at 738-39. By Executive Order,
>these procedures also apply to federal actions that take place outside
>U.S. jurisdiction. See Exec. Order No. 12114, 44 Fed. Reg. 1957 (1979),
>reprinted in 42 U.S.C. § 4321; 32 U.S.C. § 187 (implementing
>regulations). In light of the mass strandings potentially caused by Sea
>Test 00-1, the Navy is required, at a minimum, to prepare a supplemental
>EA for this, and all future Sea Tests. Oregon Natural Resources Council
>v. Lyng, 882 F.2d 1417, 1421 (9th Cir. 1989). Indeed, based upon the
>information at our disposal, we believe that the preparation of an EIS
>is necessary. When preparing that EIS, the Navy should not evaluate the
>Sea Tests in isolation, but rather prepare a programmatic EIS for all
>scheduled LWAD Sea Tests. City of Tenakee Springs v. Clough, 915 F.2d
>1308, 1313 (9th Cir. 1990).
>
>
> Each of these statutes is applicable to LWAD Sea Tests, and each
>imposes permitting or other administrative review requirements. Under
>these circumstances, we believe that further testing cannot legally be
>undertaken without compliance with the MMPA, ESA, NEPA, and other
>applicable federal and international laws.
>
> Accordingly, NRDC hereby requests that you immediately suspend the
>current LWAD Sea Test and postpone upcoming LWAD Sea Tests—two of which
>are scheduled for May and September—until all required permits have been
>obtained, legally adequate Biological Opinions have been issued, an
>environmental impact statement (including an analysis of reasonable
>alternatives and feasible mitigation) has been prepared and properly
>noticed, and a thorough, independent, and transparent investigation has
>been made into the recent mass stranding of cetaceans off the Bahamian
>coast.
>
>In order to avoid the necessity of NRDC taking further action in this
>matter, we urge you to contact our office as soon as possible and
>confirm that the Navy has suspended the LWAD Sea Test program and
>discuss the appropriate steps that should be taken by the Navy before
>future tests are allowed to proceed. We look forward to hearing from
>you.
>
>
> Very truly yours,
>
>
> Joel R. Reynolds
> Senior Attorney
> Director, Marine Mammal Protection Program
> National Resources Defence Council
> Ph: 323-934-6900
> jreynolds@nrdc.org
>
> Dr. Naomi Rose
> Marine Mammal Scientist
> Humane Society of the United States
> Ph: 301-258-3048
> Fx: 202-745-2827
> nrose@hsus.org
>
>
>cc: Mr. John W. Twiss, Executive Director
> U.S. Marine Mammal Commission
> 4340 East-West Highway
> Bethesda, MD 20814
> FAX (301) 504-0099
>
>Ms. Donna Wieting, Chief
> Marine Mammal Conservation Division
> Office of Protected Resources
> National Marine Fisheries Service
> 1315 East-West Highway
> Silver Spring, MD 20910-3326
> FAX (301) 713-0376
>
> Dr. Roger Gentry
> Office of Protected Resources
>National Marine Fisheries Service
>1315 East-West Highway
>Silver Spring, MD 20910
>FAX (301) 713-0376



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