Taking and Importing Marine Mammals; U.S. Navy’s Atlantic Fleet Active Sonar Training (AFAST)

12 November, 2008 To: Michael Payne, Chief Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East West Hwy. Silver Spring, MD 20910-3225 Re:: Taking and Importing Marine Mammals; U.S. Navy's Atlantic Fleet Active Sonar Training (AFAST); Proposed Rule Dear Sir: The Ocean Mammal Institute (OMI) and the Animal Welfare (AWI) appreciate the opportunity to submit the following comments on the Taking and Importing Marine Mammals; U.S. Navy's Atlantic Fleet Active Sonar Training (AFAST); Proposed Rule 50 CFR Part 216 (Docket No. 0080724897-8900-01) Although this comment letter is primarily limited to the AFAST impacts on the beaked whale it does not imply that OMI and AWI believe that impacts described in the AFAST will be benign to all the other marine mammals affected by this technology. The Navy's Compliance with the National Environmental Policy Act and NMFS's Responsibility Enacted by Congress in 1969, NEPA establishes a national policy to "encourage productive and enjoyable harmony between man and his environment" and "promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." 42 U.S.C. § 4321. In order to achieve its broad goals, NEPA mandates that "to the fullest extent possible" the "policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with [NEPA]." Id. § 4332. Therefore the US Navy (Navy) is required to employ rigorous standards of environmental review, including a fair and objective description of potential impacts of the range, a comprehensive analysis of all reasonable alternatives, and a thorough delineation of measures to mitigate harm. Unfortunately, the AFAST document released by the Navy falls far short of these standards. Additionally, the National Marine Fisheries Service is charged with enforcing the Marine Mammal Protection Act. By allowing the death of 10 beaked whales over five years due to sonar and by allowing the possibility of hundreds of whales (including the highly endangered right whale) and dolphins suffering temporary injuries from sonar (according to the Navy's submitted analysis) NMFS is abdicating its responsibility to protect marine mammals. Also, the wording in the proposed authorization is too vague and transfers too much responsibility to the Navy. For example, it states that the Navy will operate sonar at the lowest practicable level "except as required to meet tactical training objectives". Another section says that during right whales' migration season, Navy vessels would practice "increased vigilance" to avoid coming into contact with the creatures. These statements contain statements that are not adequately defined or enforceable. The vague language makes them basically meaningless. Modeling The Navy's analysis of acoustic impacts to marine mammals is through modeling based on abundance estimates which were largely determined from aerial surveys, a difficult way to count marine mammals, especially relatively small animals and those that dive for prolonged periods such as beaked whales – the very animals thought to be most susceptible to anthropogenic ocean noise. Modeling based on estimates is an inexact science that cannot accurately predict every eventuality in the real world. However, using its modeling, the Navy predicts that for its preferred alternative, each year its active sonar use in the preferred action will cause: over 2 ½ million marine mammals to be behaviorally impacted; over 20,608 to experience temporary deafness; and 120 to be exposed to active sonar at levels sufficient to cause permanent deafness (a deaf cetacean is a dead cetacean). The Navy claims that its modeling predictions are before mitigation measures are put in place, but the proposed mitigation measures are severely flawed as outl…