The National Marine Fisheries Service (NMFS), a division of the National Oceanic and Atmospheric Administration, has issued final regulations governing the U.S. Navy’s interaction with marine mammals during military readiness training and testing activities in specified areas along the Atlantic Coast and in the Gulf of Mexico. 

The regulations, which are effective for 5 years, authorize the incidental and unintentional taking of 42 species of marine mammals.  Under law, the Navy must formally request authorization from the NMFS to take species, and the NMFS is required to authorize takings that will have a negligible impact on species.  Under the action, the Navy will be required to implement specific measures to mitigate any harmful impact its activities might have on the species. 

Harassment

In the context of the rule, a “taking” is defined as either of two levels of harassment.  Level A harassment is any act that injures or has the significant potential to injure a marine mammal or marine mammal stock.  Level B harassment is any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered. 

The rule covers about 300 types of training and testing activities, which are categorized as impulsive (explosive) or non-impulsive (sonar). 

Observers

Mitigation measures the Navy will be required to undertake to minimize effects on marine mammals include:

• Establishing marine mammal mitigation zones around each vessel using sonar;
• Using Navy observers to shut down sonar operations if marine mammals are seen within designated mitigation zones;
• Using mitigation zones to ensure that explosives are not detonated when animals are detected within a certain distance;
• Implementing a stranding response plan that includes a training shutdown provision in certain circumstances and allowing the Navy to contribute in-kind services to the NMFS if the agency has to conduct a stranding response and investigation; and
• Using specific mitigation measures at certain times to reduce effects on North Atlantic right whales.

The final rule also includes an adaptive management component that requires the Navy and the NMFS to meet yearly to discuss new science, Navy research and development, and Navy monitoring results to determine if modifications to mitigation or monitoring measures are appropriate.

Opposition
These measures are insufficient to protect marine mammals, according to the Natural Resources Defense Council (NRDC), which claims to have been fighting to protect marine mammals from dangerous sonar for more than 12 years.  The NRDC states that the millions of instances of harm it has found to whales and dolphins (including habitat abandonment, temporary hearing loss, and in some instances, permanent hearing loss, injury to internal organs, and death) in the regulated area do not constitute “negligible impact” to species.  The lookout requirement is particularly inadequate, says the NRDC, since it has about a  10 percent detection rate “even under the best conditions.”

In September 2013, the NRDC and other environmental groups scored a partial legal victory against NMFS’s approval of naval training exercises in the Pacific Northwest.  A federal district judge ruled that NMFS’s approval of the Navy’s training activities in its Northwest Training Range Complex failed to use the best available science to assess the extent and duration of impacts to species as required by the Endangered Species Act (ESA).  The district judge ordered the NMFS to provide additional information to demonstrate that its authorization is in compliance with ESA’s required protective measures.

NMFS’s final regulations authorizing takings by the Navy in the Atlantic Fleet Training and Testing Study Area