Issues: Wildlife

SUMMARY ANALYSIS

Among the environmental provisions offered for the Defense Authorization Bill of FY 2004 are amendments to the Marine Mammal Protection Act (MMPA). The Defense Department claims that its proposals would merely "clarify" the MMPA (as it also would the Clean Air Act and other critical statutes) and achieve a "balance" between military needs and environmental protection. In fact, its proposals -- which would alter one of the Act's core definitions, write loopholes into the permit process, and allow for broad, categorical exemptions to all of the Act's requirements -- would severely impair protections for marine mammals in a way that the record does not justify and the American public would not find acceptable.

The Marine Mammal Protection Act is our nation's leading instrument for the conservation of whales, dolphins, sea otters, and other significant but vulnerable species, and it remains vital today.

• Of approximately 120 known marine mammal species, 22 are considered endangered or threatened throughout all or a significant portion of their range; an additional five are considered depleted.



• These species include the northern right whale, which, with only 300 individuals remaining, is the most endangered species of large whale in the world; the southern sea otter, a mascot of central California whose population has been in recent decline; and the blue whale, the largest mammal ever to live in our planet's history.



• DoD operations areas extend across 700,000 square miles of ocean off our coasts -- an area roughly three times the size of Texas. Typical of the operations for which authorizations under the MMPA have been received are missile firings, which cause seals hauled out on nearby rocks and beaches to stampede, killing their pups; and ship-shock tests, which involve detonations of thousands of pounds of high explosives.

The enforcement record simply does not justify the dramatic and consequential changes in the law that the Department has proposed.

• The Department's record of environmental review under the MMPA is one of general success, allowing for public participation, scientific analysis, and the prescription of mitigation and monitoring while protecting the military's need for readiness.



• No application submitted to the wildlife agencies by the Defense Department has ever been denied and most have been approved within the expected timeframe, which, in the majority of cases, is less than 120 days.



• The litigation that the Department has cited to justify its amendments are outliers, and even in these few cases, conflicts have generally been worked out through negotiation.



• Over the last decade, through reports of mass strandings and other incidents, the public and the scientific community have become increasingly aware of the adverse impacts Defense Department activities can have on marine mammals. The proposed amendments would engender more, rather than less, public controversy for the Department of Defense.

The Department's proposal to amend the MMPA's definition of harassment would substantially undermine enforcement of the Act.

• The "harassment" definition is one of the core provisions of the Act, establishing the threshold of regulatory concern for activities that disrupt or physically injure marine mammals.



• Adding such terms as "significantly altered" and "abandoned" to the definition would not make it more "scientific"; on the contrary, it would take the Act into a scientific and policy arena that is beset by ambiguity. Harmful activities could simply escape the Act's requirements by relying upon the uncertainty and ambiguity in this new language.



• The changes that the Department has proposed could have a debilitating effect on MMPA enforcement. As the U.S. Marine Mammal Commission has observed, the use of such language "effectively reverses the precautionary burden of proof that has been the hallmark of the Marine Mammal Protection Act since its inception in 1972."



• The arguments that have been made in support of this amendment (e.g., that it is consistent with a recommendation from the National Research Council) simply do not hold up on further inspection.

The Department's proposal to amend the authorization process for military readiness activities would eliminate a number of the Act's key conservation elements.

• It would strike the provision that authorizes take of only "small numbers" of marine mammals. Some impacts are difficult to analyze under the Act's negligible impact standard, creating the risk that adverse, possibly irreversible impacts will occur before they can be assessed; within this context, as Congress indicated, the "small numbers" provision functions as an additional and important safeguard for these species.



• It would strike the requirement that activities take place within a "specified geographical region," a provision critical for determining whether an activity will have a negligible impact on marine mammals and for prescribing mitigation that is appropriately tailored and scaled.



• Nearly all of the Department's activities reviewed under the Act are consistent with the "small numbers" and "specified geographical region" provisions. Even in the case of an exception, the Armed Forces Code (10 U.S.C. § 2014) already provides a rapid mechanism by which the readiness activity can be accommodated; but this mechanism has never been used.

The Department's proposed exemption is exceptionally broad in all its elements, which, working in combination, could render the MMPA's protections for marine mammals virtually meaningless.

• Whereas exemption provisions in other statutes (such as the Clean Air Act and RCRA) give discretion directly to the President of the United States, the language proposed by the Defense Department vests authority entirely in the Secretary of Defense and does not require derogations to be reported to Congress. The effect is to remove any meaningful oversight or accountability from the granting and renewal of exemptions.



• Unlike such provisions in other statutes, the exemption proposed for the MMPA may apply not only to any single action "undertaken by the Department of Defense or its components," but to any "category of actions" as well. Through this language, the provision allows for sweeping application.



• Unlike the exemption provision in the Endangered Species Act, the exemption proposed for the MMPA is not conditioned on an initial stage of environmental review.



• The Department has nowhere addressed the fact that considerable flexibility for readiness activities is already available under the Armed Forces Code. These provisions have never been invoked with regard to the MMPA, presumably because the Department's requests for authorization under the Act have never been denied and because any mitigation prescribed by the wildlife agencies has not been judged to have a significant adverse effect on readiness.

Adopting a substantially flawed change in the harassment definition, dropping critical measures from the incidental take process, and creating an exceptionally broad and ungovernable exemption for Department activities would be disastrous for marine mammals. Scientists, conservation groups, and the military should be given the opportunity to work constructively on alternative approaches before any fundamental changes are contemplated for a complex, important, and popular law. We urge you to defer consideration of these proposals to the committees of jurisdiction, which are set to take up reauthorization of the MMPA during this session of Congress.

DETAILED ANALYSIS

Among the environmental provisions offered for the Defense Authorization Bill of FY 2004 are amendments to the Marine Mammal Protection Act (MMPA).¹ The Defense Department claims that its proposals would merely "clarify" the MMPA (as it also would the Clean Air Act and other critical statutes) and achieve a "balance" between military needs and environmental protection. In fact, its proposals -- which would alter one of the Act's core definitions, write loopholes into the permit process, and allow for broad, categorical exemptions to all of the Act's requirements -- would severely impair protections for marine mammals. We simply do not believe that the record justifies such dramatic and consequential changes in the law or that the American public, which has historically shown strong support for marine mammal protection, would find these weakened provisions acceptable.

I. Background: Marine Mammals and Defense Department Activities

The Marine Mammal Protection Act is our nation's leading instrument for the conservation of whales, dolphins, sea otters, and other significant but vulnerable species. By 1972, when the Act was first adopted, many of these species had been hunted to the verge of extinction, and their habitat had been degraded to such an extent as to impede recovery. Many remain in serious trouble today: Of approximately 120 known species, 22 are considered endangered or threatened throughout all or a significant portion of their range; an additional five are considered depleted. 50 C.F.R. §§ 17.11(h), 216.15. These include the northern right whale, which, with only 300 individuals remaining, is the most endangered species of large whale in the world; the southern sea otter, a mascot of central California whose population has been in recent decline; and the blue whale, the largest mammal ever to live in our planet's history. In enacting the MMPA, Congress recognized that marine mammals were creatures "of great international significance, esthetic and recreational as well as economic," which has only increased with the boom, in the 1980s and 1990s, of the modern whale-watching industry.

Activities conducted by the Defense Department have the potential to affect a vast expanse of marine mammal habitat off our coasts. Its operations areas and ranges, which lie off Washington (Whidbey Island Complex), California (SOCAL Complex), Massachusetts (Boston Area Complex), and other coastal states, extend across 700,000 square miles of ocean -- an area roughly three times the size of Texas. Although the Department has erroneously claimed that the MMPA requires a permit each time a ship causes a sea lion to turn its head, the fact is that its permitted activities present impacts of substantially greater severity. Typical of the exercises for which authorizations have been received are missile firings, which cause pinnipeds hauled out on nearby rocks and beaches to stampede, killing their pups; and ship-shock tests, which involve detonations of thousands of pounds of high explosives.

The Department's record of environmental review under the MMPA is one of general success, allowing for public participation, scientific analysis, and the prescription of mitigation and monitoring while protecting the military's need for readiness. None of the applications submitted to the wildlife agencies by the Defense Department has ever been denied and most have been approved within the expected timeframe, which, in the majority of cases, is less than 120 days. Mitigation measures have been worked out cooperatively; indeed, the Department has never exercised its option under the Armed Forces Code to challenge an agency decision or any element of a decision. Additionally, the DoD and National Marine Fisheries Service are at the point of entering a Memorandum of Understanding that further streamlines the process of environmental review.

It is important to understand that, within this record, the litigation that the Department has cited to justify its amendments are outliers; and that, even in these few cases, conflicts have generally been worked out through negotiation, typically by relocating an exercise within a larger operations area. In 1994, for example, ship-shock trials of the USS John Paul Jones, which were originally slated for a biologically rich area near the Monterey Bay National Marine Sanctuary, in California, were relocated further offshore where the environmental risk was diminished. Subsequent shock trials have been sited to minimize impacts on marine populations while meeting military needs, and have proceeded without challenge. See 63 Fed. Reg. 66,076; 66 Fed. Reg. 22,450. The case of SURTASS LFA -- the one case cited by the Department -- is still pending, but the preliminary injunction was settled in similar fashion. The Department worked out an agreement that, per the court's order, allow it to test and train in a variety of oceanic conditions (covering over 1 million square miles) while reducing the risk to marine mammals and endangered species. 232 F. Supp. 2d 1003, 1054-55 (N.D. Cal. 2002). We believe that the dramatic changes proposed by the Department go far beyond the facts of the record.

There is much at stake in these amendments. Over the last decade, the public and the scientific community have become increasingly aware of the adverse impacts Defense Department activities can have on marine mammals. In March 2000, use of high-intensity sonar in the Bahamas caused a mass stranding of three different species of whales; one of those species, which local biologists had tracked for years, has all but disappeared from the area. Last summer, the Department was found to have been firing live ordnance in the Gulf of Maine at the height of the northern right whale season, putting at risk a species whom scientists, conservation groups, regulators, commercial interests, and the military itself have been laboring to save. We strongly believe that the proposed amendments would engender more, rather than less, public controversy for the Department of Defense and could have disastrous consequences for marine mammal conservation, particularly for species and stocks off the coasts of the United States. Moreover, the longer-term result of these changes could very well have serious implications for private citizens, including fishermen and whale-watch operators, who will be required to shoulder an increased burden for protection of marine mammals, and even conceivably bear the costs of harmful DoD activities.

II. Analysis of the MMPA Amendments Proposed by the Defense Department

The Marine Mammal Protection Act was adopted thirty years ago to ameliorate the consequences of human impacts on marine mammals. Its goal is to protect and promote the growth of marine mammal populations "to the greatest extent feasible commensurate with sound policies of resource management" and to "maintain the health and stability of the marine ecosystem." 16 U.S.C. § 1361(6). A careful approach to management was necessary given the vulnerable status of many of these populations (a substantial percentage of which remain endangered or depleted) as well as the difficulty of measuring the impacts of human activities on marine mammals in the wild. "It seems elementary common sense," the Committee on Merchant Marine and Fisheries observed in sending the bill to the floor, "that legislation should be adopted to require that we act conservatively-that no steps should be taken regarding these animals that might prove to be adverse or even irreversible in their effects until more is known." 1972 U.S. Code Cong. & Admin. News 4149.

Congress sought to achieve broad protection for marine mammals by establishing a general moratorium on their importation and "take." The term "take" means "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." 16 U.S.C. § 1362(13). Under the law, the wildlife agencies may grant exceptions to the take prohibitions, provided they determine, using the best available scientific evidence, that such take would have only a negligible impact on marine mammal populations or stocks.

There are two types of general exemptions available through the MMPA, "small take permits" and "incidental harassment authorizations," for activities that take "small numbers" of marine mammals within a "specified geographical region." Both allow assessment of an activity's potential effects on marine mammals, both afford an opportunity for public comment, and both provide for monitoring plans and mitigation measures intended to reduce biological impacts. Until 1994, the only exemptions available under the Act were "small take permits," which require the wildlife agencies to promulgate regulations specifying permissible methods of taking. In 1994, however, the MMPA was amended to provide a streamlined mechanism by which proponents such as the Defense Department may obtain rapid authorization for projects whose takings are by incidental harassment only. 16 U.S.C. § 1371(a)(5)(D). Under this provision, the responsible agency is required to publish notice in the Federal Register of any authorization request within 45 days of its receipt. Then, after a 30-day public comment period, the agency has 45 days to issue the authorization or deny it. By law, the entire process can run no longer than 120 days.

Within the scheme described above, the definition of "harassment" is a foundational element. It establishes the threshold for regulatory concern and describes the range of impacts (short of lethality) that the wildlife agencies must assess during the authorization process. Also important is the requirement that permits address takes of "small numbers" of marine mammals within a "specified geographical region" -- a requirement that helps ensure that activities have a negligible impact on species and populations and that any mitigation is appropriately tailored and scaled. These key provisions and others would be substantially undermined by the Department's proposals.

A. Amendments to the MMPA Definition of "Harassment" (§ 316(b)(1))

In 1994, Congress amended the MMPA to differentiate between two general types of harassment, a type that has the potential to cause physical injury and a type that has the potential to impact behavior of marine mammals in the wild. This definition was inserted at the specific request of the scientific community, who found themselves subject to unnecessary delays in obtaining research permits from the wildlife agencies. It reads as follows:

The term "harassment" means any act of pursuit, torment, or annoyance which --

(i) has the potential to injure a marine mammal or marine mammal stock in the wild; or

(ii) has the potential to disturb marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.

16 U.S.C. § 1362(18)(A). The "potential to injure" is designated "Level A" harassment; the "potential to disturb" is designated "Level B" harassment. Both are considered "take" under the MMPA.

The Defense Department claims that the current definition is overly broad and somewhat ambiguous. In an attempt to resolve this perceived problem, it has proposed the following language:

For purposes of military readiness activities, the term "harassment" means any act which: (i) injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild; or

(ii)(I) disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavior 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; or

(II) is directed toward a specific individual, group, or stock of marine mammals in the wild that is likely to disturb the specific individual, group, or stock of marine mammals by disrupting behavior, including, but not limited to migration, surfacing, nursing, breeding, feeding or sheltering.

The most salient effect of this language is to raise the threshold of regulatory concern. For Level A harassment, the proposed standard would shift from "has the potential to injure" to "injures or has the significant potential to injure." For Level B harassment, "potential to disturb" would become "disturbs or is likely to disturb"; and an addition would be made to the language governing behavioral impacts, requiring that natural behaviors be "abandoned or significantly altered" to meet the threshold level of concern (emphasis added).²

What primarily concerns us, however, is the uncertainty that this new language would introduce into the Act.

First, regardless of what the Defense Department may claim, adding the term "significant" to these particular clauses of the definition would not make it more "scientific"; on the contrary, it would take the Act into a scientific and policy arena that is beset by ambiguity. NMFS has already struggled for some years with the term and has yet to define it with regard to the "significant adverse impact" clause in the Act's "incidental take" provisions for commercial fishing (16 U.S.C. §§ 1383(g)(2), 1387(g)(4)). Currently, the state of marine mammal science will not yield a practical definition of "significant potential to injure" or of "significantly altered" behavior. For example, as the U.S. Marine Mammal Commission has noted, a disturbance that causes what might appear to be a minor shift in a whale's migratory route could have unforeseen, and possibly significant, consequences by making the animal or its calf substantially more vulnerable to predation. By contrast, the standard in the current definition refers to impacts -- the disruption of well-established behavioral patterns such as migration or breeding -- that are at least reasonably verifiable.

Second, the same is true of the term "abandonment," the meaning of which may vary according to species, gender, time scale, and behavior. Even a temporary abandonment of a nursing bout between an endangered right whale mother and its calf is likely to have more serious consequences than the temporary abandonment of a swimming path by a migrating gray whale -- but it is unclear whether either event would count as "abandonment" under the DoD's analysis. In the past, the Department has discounted the significance of behavioral disruptions (such as disruptions in breeding behavior lasting several weeks) that are less than permanent in their effects.³ The proposed amendment offers no basis on which to make this determination.

Third, the uncertainty produced by adding these ambiguous terms would only be exacerbated by the changes proposed in the standard of probability. In the current definition, the term "potential" is clear and requires no further evaluation of the probability of an activity to injure or disturb. By contrast, the DoD's proposal, in requiring that takes be "likely" or have the "significant potential" to occur, would demand a higher degree of proof than science is currently able to provide for many types of serious impacts, such as reduced calving rates. Furthermore, the emphasis on "significant potential" and "likelihood" would ignore the degree to which many impacts (such as strandings) may be context-dependent, varying by species, gender, behavior, time-scale, and location.

Taken all together, these changes would have a debilitating effect on enforcement. Under the current terms of the Act, the DoD itself would have initial authority to decide whether its activities have the "significant potential to injure" marine mammals or are likely to "significantly alter" marine mammal behavior. A great many activities could simply escape the Act's requirements by relying upon the uncertainty and ambiguity in this new language and not seeking authorization in the first place. For the public or NMFS to enforce the Act in these circumstances would be difficult. In effect, such a change could alter the underlying philosophy of the MMPA, as the Marine Mammal Commission observed in testimony submitted to the House Resources Committee in October 2001:

Even were there a common understanding of these terms, their inclusion appears to be premised on an unrealistically high assessment of our ability to differentiate between biologically significant and insignificant responses. By doing so, the proposed definition effectively reverses the precautionary burden of proof that has been the hallmark of the Marine Mammal Protection Act since its inception in 1972. For example, under existing law, a person seeking to undertake an activity that likely will incidentally take marine mammals is required to obtain an authorization and to demonstrate that the taking will have a negligible impact on the affected marine mammal stocks. Under [the proposed definition], the burden would be switched, such that it would be incumbent upon the regulatory agencies to demonstrate not only that marine mammals are likely to be disturbed, but that the effects of the disturbance of somehow likely to undermine the growth, survivorship, or reproductive success of those animals. Recognizing the limited resources available to the agencies responsible for implementing the Act, and science's limited ability to project the long-term impacts of short-term disruptions, there is a substantial risk that adverse, and possibly irreversible, impacts ( e.g., abandonment of certain areas) might occur before the agencies are to able to [make such a determination].⁴

The practical outcome is that many more marine mammals would be impacted by military activities. Potentially injurious activities that were once assessed, monitored, and mitigated under the Act would no longer enter the permit process. NMFS could not ensure that their impacts on populations or stocks would be negligible, and the possibility that non-negligible impacts will occur would substantially increase. The benefits of mitigation and monitoring -- which have been effective in protecting marine mammal populations while gathering critical information on biological impacts -- would be lost under the proposed definition. Overall, the result is likely to be more injury and death of marine mammals, less mitigation and monitoring of impacts, less transparency for the public and the regulatory agencies, and even more controversy and debate.

A number of arguments have been made by the Defense Department for a change in the definition: the current language is excessively broad; it has spurred a number of lawsuits; the amendment proposed by the Department is consistent with a recommendation made by the National Research Council (NRC). But these arguments simply do not hold up on further inspection and, indeed, only misdirect attention from the actual problem, which is the need for advance planning, improved communications, and appropriations to expedite the permit process as needed. To review these arguments briefly:

The Department claims that the definitions of Level A and Level B harassment added to the MMPA in 1994 are overly broad. To make this claim, it cites the hypothetical case of a sea lion on a buoy who turns its head as a ship goes by, a reaction that, according to the DoD, would constitute harassment under the existing language. But it is clear that the wildlife agencies do not apply the statute in this way. This much can be quickly ascertained from a review of Defense Department permits issued since 1994, which, as noted above, are typically given for missile firings that cause seals to fatally stampede (as at bases in California) or for trials in which tons of high explosives are detonated underwater (as during Sea Wolf shock tests off the east coast). In practice, the wildlife agencies have never applied anything like a de minimus standard to the definition of harassment.

Furthermore, as the Marine Mammal Commission has observed, it is by no means obvious that the current language covers such minor responses as some would claim. Id. at 271. The phrase "disruptions in behavioral patterns," by virtue of its reference to "patterns," does not encompass all modifications of behavior, but only those that actually disturb or have the potential to disturb such well-observed and routinized activities as migration or breeding. Such a conclusion is supported by the recent court decision in the SURTASS LFA case. 232 F.Supp. 2d 1003, 1028-30. Under the MMPA, the wildlife agencies already have discretion to discount such minor, de minimus effects and regularly do so.

It is important to understand, therefore, that contrary to the statements made by at least one witness during the 13 March hearing, recent litigation against ocean noise activities has nothing to do with the harassment definition per se.⁵ The Ewing case, which was brought against a seismic mapping project that biologists from the Scripps Institution and NMFS believed may have caused a stranding of beaked whales, was less about behavioral modification or even injury than it was about lethality. The case against Dr. Peter Tyack's research was brought under the National Environmental Policy Act, not the MMPA. Although harassment is an issue in the LFA case, there is no dispute among the parties about that activity's potential (indeed, its likelihood) to cause "significant changes in a biologically important activity." The Department had projected that half the marine mammals exposed to 165 decibels of sound, a level that could be heard as far as 30 miles away, would undergo such a change.⁶ Amending the harassment definition is simply not an appropriate response to recent litigation.

Finally, the Department has argued that its proposal is consistent with the recommendation made by an ad hoc NRC panel to change the definition; but this claim is incorrect and misleading. The NRC recommendation, which appeared in a 2000 report on the effects of ocean noise pollution on marine mammals, does not track the Department's proposed amendment and differs from it in substantial ways. In the first place, unlike the Department, the NRC panel proposed no modifications to the definition of "Level A" or injurious harassment, only to the definition of "Level B". Second, unlike the Department, it declined to raise the standard of probability for "Level B" harassment, retaining the current standard of potentiality. It should also be noted that a more recent NRC report on ocean noise, released just last month, did not include a recommendation to amend the harassment definition and, indeed, did not incorporate the 2000 recommendation in its restatement of earlier reports.⁷ As the Marine Mammal Commission observed in its testimony before the House Resources Committee in 2001, the use of the clause "meaningful disruption" would have adverse regulatory consequences that the earlier panel, not having done a legislative analysis, appears to have overlooked.

As discussed below, we believe that the permit process can be made more efficient by using current provisions in the Act.

B. Amendments to the Permitting Process (§ 316(b)(2))

The Department's second main proposal is to create a separate incidental take authorization process for military readiness activities. Although its language tends to track the Act's existing provisions on small take permits and incidental harassment authorizations, it eliminates a number of key conservation elements from the process.

Current law allows the agencies to authorize the incidental take of only "small numbers" of a marine mammal species or population. Such a requirement is justified by the difficulty of observing most of these species in the field and by our paucity of information about their ecology and population dynamics, as recognized in the Act's preamble. 16 U.S.C. § 1361(3). The recent NRC report on ocean noise describes how even apparently minor effects, such as a decrease in feeding rate, can have deleterious consequences on a population or stock if the numbers affected are large: Such effects "may not be overly significant to an individual animal, but could mark the difference between extinction and recovery for a critically endangered species." (NRC, Ocean Noise at 75.) Unfortunately, these impacts are difficult to analyze under the Act's negligible impact standard, creating the risk that adverse, possibly irreversible impacts will occur before they can be assessed. Within this context, the "small numbers" provision amounts to an "additional and separate safeguard" for the review of activities under the Act. H.R. Rep. No. 228, 97th Cong., 1st Sess. (1981).

Analogously, in requiring that activities take place within a "specified geographical region," Congress intended to provide another layer of protection. Under the current language, regions of operation are drawn as narrowly as possible, no larger than is necessary to accomplish the proposed activity, and environmental review takes place on that basis. H.R. Rep. No. 228, 97th Cong., 1st Sess. 19 (1981). The Defense Department's proposal would strike this requirement -- despite its importance to environmental assessment under the Act and its consistency with sound management practices. Geographic regions themselves serve different biological purposes for marine mammal stocks. Some areas are vital to foraging, others are migratory corridors, and still others are vital to breeding, calving, and reproduction. The fine-grained analysis that this provision requires is critical for determining whether an activity will have a negligible impact and for prescribing mitigation that is appropriately tailored and scaled.

Nearly all of the Department's activities reviewed under the Act are consistent with the "small numbers" and "specified geographical region" provisions. In the case of an exception, the Armed Forces Code (10 U.S.C. § 2014) provides a rapid mechanism by which the readiness activity can be accommodated, as described in further detail below. We believe it is important, both for marine mammal conservation and for the integrity of the MMPA, that the Department, like all other federal agencies and private citizens, proceed on a case-by-case basis rather than eliminate key elements from the permit provisions of the Act.

The Department's proposal contains a number of other changes that would likewise impair the process of environmental review.

First, the Department proposes to modify the Act's provision on mitigation requirements. In issuing a permit or authorization under current law, the wildlife agencies must prescribe mitigation for attaining the least practicable adverse impact on marine mammals, "paying particular attention to rookeries and mating grounds and areas of similar significance." The Department would remove the clause "and areas of similar significance." Though this amendment would not bar the agencies from considering such similarly significant areas as feeding grounds and migratory routes, it would at least tend to prioritize mitigation in a way that conservation science does not justify, further eroding the goals of the authorization process.

Second, and more importantly, the bill would add a provision precluding disclosure of information that has been classified in the interest of national defense. Such an amendment is unnecessary. Executive Orders governing the use of restricted or classified data already apply to any environmental review conducted under the MMPA. The effect of this provision would be to unnecessarily prevent consideration of relevant information -- even in cases where individuals at the wildlife agencies had the requisite clearance to review it or where classified documents essential to a review could be redacted. In this way as well, the ability of the agencies to assess environmental impacts and prescribe mitigation would be diminished.

C. Categorical Exemption for Defense Department Activities (§ 316(b)(4))

The final proposal in the RRPI would allow the Department to grant itself a categorical exemption to the MMPA for any class of activity that may be necessary for national defense. Any exemption issued under this provision would run for a maximum of two years, but would be endlessly renewable for two-year periods by the Secretary of Defense. While provisions in other environmental statutes allow the Department to derogate from its statutory responsibilities, the proposal now before this Committee is exceptionally broad in all its elements, which, working in combination, could render the Act's protections for marine mammals virtually meaningless.

First, whereas exemption provisions in other statutes (such as the Clean Air Act and RCRA) give discretion directly to the President of the United States, the language proposed by the Defense Department vests authority entirely in the Secretary of Defense. See e.g., 42 U.S.C. §§ 7418(b), 9620(j)(1). The force of this phrasing is to remove any meaningful oversight on the granting and renewal of exemptions -- a serious problem that is only compounded by the lack of a Congressional reporting provision, which also may be found in other statutes. Id. Such basic oversight and accountability is vital given that determinations of this type are effectively unchallengeable as a matter of law.

Second, the exemption may apply not only to any single action "undertaken by the Department of Defense or its components," but to any "category of actions" as well.⁸ Its scope is therefore much broader than that of exemptions available under the Endangered Species Act ( cf. 16 U.S.C. § 1536(j)) and other statutes, which are limited to individual activities, technologies, or exercises. Through this language, the provision allows for sweeping application, even to potentially harmful activities that in themselves would not necessitate an exemption but are nonetheless contained within a broader category.

Third, unlike the Endangered Species Act, whose exemption provision ( cf. 16 U.S.C. § 1536(j)) is triggered by consultation with the wildlife agencies and completion of a biological opinion, the exemption proposed for the MMPA is not conditioned on any initial stage of environmental review. Under the DoD's proposal, even activities that are conducted in peacetime and whose mitigation would not have a significant adverse effect on readiness (per 10 U.S.C. § 2014) could drop outside the process, receiving no mitigation, monitoring, or basic analysis.

The Defense Department has nowhere addressed the fact that considerable flexibility is already available under the Armed Forces Code. Under 10 U.S.C. § 2014, the DoD may seek special accommodation and relief from any agency decision that, in its determination, would have a "significant adverse effect on the military readiness of any of the armed forces or a critical component thereof." If the accommodations it seeks are not forthcoming, it may take its case directly to the President. These provisions have never been invoked with regard to the MMPA, presumably because the Department's requests for authorization under the Act have never been denied and because any mitigation prescribed by the wildlife agencies has not been judged to have a significant adverse effect on readiness. The Department has not demonstrated that the accommodations of the Armed Forces Code are insufficient or that the exceptionally broad exemption it now seeks is warranted.

III. Conclusion

Rather than pursue broad legislative change, we believe that the Department should look at non-legislative alternatives to further streamline the administrative process under the MMPA.

For example, NMFS' Assistant Administrator Hogarth, in his testimony before this committee last year, emphasized the value of taking a long-term approach to environmental consultations, improving interagency consultations and ensuring that activities are presented at the earliest possible stages. Such an approach would afford the DoD even more flexibility and would provide NMFS with adequate time to carry out its administrative responsibilities. To the extent this approach is adopted, Dr. Hogarth said, "the implications of the [MMPA] permit process should be minor."⁹ It has been noted that the Department and NMFS are at the point of entering a Memorandum of Understanding that would further streamline review; in addition, the Marine Mammal Commission has been tasked with studying the growing problem of ocean noise, for which additional analysis of regulatory issues would be appropriate. Non-legislative approaches are available that both protect the environment and improve certainty and efficiency, and we would welcome the opportunity to work collaboratively to this end.

Our groups understand the military's need to prepare its forces to protect our country. We do not believe, however, that the Defense Department has demonstrated that the dramatic changes proposed are necessary or that it has utilized the procedural remedies available to it under existing law. By allowing many more military activities to escape vital reviews, monitoring requirements and mitigation measures, these changes would undermine 30 years of progress our nation has made in protecting whales, dolphins, seals, and other marine mammals. The changes would add substantial uncertainty to the MMPA, impede the enforcement efforts of the wildlife agencies, increase the risk of harm to marine mammals, and only raise the level of public controversy and concern. Strandings of marine mammals, similar to the 2000 event in the Bahamas and the 2002 event in the Canary Islands, could become more frequent.

The American people have long supported our nation's environmental and public health statutes and believe government agencies such as the DoD should not be exempt from complying with laws intended to apply equally to all Americans. Scientists, conservation groups, and the military should be given the opportunity to work constructively on alternative approaches before any fundamental changes are contemplated for the MMPA.

The House Resources and Senate Commerce committees are set to take up reauthorization of the MMPA during this session. We urge you to defer consideration of these proposals to the committees of jurisdiction.

Notes

1. These amendments were offered as part of the Department's "Readiness and Range Preservation Initiative" (RRPI), an insert for the authorization bill that would substantially modify five landmark environmental statutes, including the MMPA.

2. The third subparagraph, which establishes a somewhat more conservative standard for behavioral impacts, would apply only to activities that intentionally "take" marine mammals, not to activities that take marine mammals incidental to their operation. ("Directed activities" is a term of art conventionally used to describe whale-watching trips, swim-with programs, and other interactive or observational engagement.) This provision would not cover any of the activities for which the DoD has sought small take permits or incidental harassment authorizations under the MMPA.

3. See, e.g., Department of the Navy, Final Overseas Environmental Impact Statement and Environmental Impact Statement for Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar (Jan. 2001).

4. H.R. Resources Comm., Subcomm. on Fish. Conserv., Wildlife and Oceans, Oversight Hearing on the Marine Mammal Protection Act, 107th Cong., 1st Sess. 277-78 (Oct. 11, 2001). In this passage, the Marine Mammal Commission is commenting on a similar clause -- "meaningful disruption" -- in the National Research Council's proposed amendment of "Level B" harassment, the administration's language not being available at that time. It should be noted that, in all respects other than this clause, the Defense Department's amendment is not consistent with the NRC's proposal. (See below.)

5. A number of misrepresentations about the following cases were made at the hearing by a witness who, though a respected otologist, has no professional expertise in legal analysis.

6. As a process matter, the Department has also claimed that the MMPA has delayed deployment of the system. In fact, only a small part of the delay it describes is directly attributable to the MMPA authorization process; most is due to the time spent by the Navy in producing an Environmental Impact Statement under NEPA. The Navy began developing the LFA system in the early to mid-1980s; it began testing the system at sea in the late 1980s; it formally acquired the system for global deployment no later than 1991 -- and yet it did not agree to prepare an Environmental Impact Statement until 1996, after it had come under pressure from both the scientific and environmental communities. Whatever delay has occurred in this case is at least partly due to the Navy's decision, during the ten years it spent developing and testing LFA, not to satisfy its responsibilities under any environmental statute.

7. National Research Council, Ocean Noise and Marine Mammals (2003).

8. Nor, for that matter, is the exemption restricted to "military readiness activities," itself a broad category that is at least defined in the DoD bill.

9. Available at this time in transcript form from <http://www.house.gov/hasc/openingstatementsandpressreleases/107thcongress/02-03-14hogarth.html>.