Active Sonar and Marine Mammals: Chronology with References

Active Sonar and Marine Mammals: Chronology with References

Order Code RS22158
Updated June 22, 2005
CRS Report for Congress
.Received through the CRS Web
Active Sonar and Marine Mammals:
Chronology with References
Kori Calvert
Information Research Specialist
Knowledge Services Group
Eugene H. Buck
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
Summary
The deployment of active sonar by the U.S. Navy and its potential impacts on
marine mammals has been an ongoing issue of intense debate; regulatory, legislative,
and judicial activity; and international concern. This report provides a chronology of
significant events and documents since 1994. It will be updated as events warrant.
The Marine Mammal Protection Act (MMPA) of 1972 (16 U.S.C. §§1361, et. seq.)
established a moratorium1 on the “taking” of marine mammals in U.S. waters and by U.S.
nationals on the high seas.2 However, the MMPA does allow U.S. citizens to apply for
and obtain authorization for taking small numbers of mammals incidental to certain
activities (e.g., offshore oil and gas exploration and development), if the taking would
have a negligible impact on any marine mammal species or stock, and monitoring
requirements and other conditions are met.
Various parties have sought to regulate the use of military sonar under these MMPA
provisions due to concerns that high-intensity sound from active military sonar3 operates
1 Although the MMPA (16 U.S.C. §1371) refers to this action as a “moratorium,” some consider
this action a ban or prohibition because it was (and is) permanent.
2 Under the MMPA, in 16 U.S.C. §1362(13), take means “to harass, hunt, capture, or kill, or
attempt to harass, hunt, capture, or kill.”
3 Active sonar creates a pulse of sound, often called a “ping”, after which operators of such a
system listen for reflections or echoes of the transmitted pulses. Passive sonar involves listening
without transmitting a pulse of sound.
Congressional Research Service ˜ The Library of Congress

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at frequencies used by cetaceans (e.g., whales, dolphins, and porpoises)4 and may travel
long distances in the ocean. Current sonars in widespread use are primarily mid-
frequency sonars, while low-frequency sonar is being developed to detect quieter
submarines at greater distances. Low frequency active (LFA) sonar operates below 2
KHz, with most operation between 600 and 1500 Hz. Mid-frequency active sonar
operates between 2 and 20 KHz, with most current systems using 3-5 KHz and 7-10 KHz.
When transmission power is high in intensity, there is concern that active sonar
transmissions may damage hearing in cetaceans or cause them to modify their behavior
in ways that are detrimental.
This short report provides a chronology of recent legal/political events related to
active sonar and marine mammals. Prior to the late 1990s, concerns focused primarily on
the use of underwater sound as a research tool.5 While strandings and mortality of marine
mammals, primarily beaked whales, have been observed in concurrence with mid-
frequency sonar operation, controversy has focused on the development of LFA sonar.
This report summarizes more recent events as concern shifted increasingly to focus on
military sonar. Additional information and background can be obtained from the Navy’s
website at [http://www.surtass-lfa-eis.com/], from the National Oceanic and Atmospheric
Administration’s (NOAA) “Ocean Acoustics Program” website at [http://www.nmfs.
noaa.gov/pr/acoustics/], and from the University of Rhode Island’s “Discovery of Sound
in the Sea” website at [http://www.dosits.org/]. Four National Research Council reports
cited in the chronology provide substantial technical background and summarize the
scientific progress in understanding these interactions.
03/00/1994 – The National Research Council published Low Frequency Sound and
Marine Mammals: Current Knowledge and Research Needs.6
07/23/1999 – The U.S. Navy released for public comment a draft environmental impact
statement on the world-wide deployment of its Surveillance Towed Array
Sensor System (SURTASS) LFA sonar system.
08/12/1999 – The U.S. Navy submitted an application for a Letter of Authorization from
NOAA to harass marine mammals incidental to operating SURTASS LFA
sonar.7
00/00/2000 – The National Research Council published Marine Mammals and Low
Frequency Sound: Progress Since 1994.8
03/16/2000 – Mass stranding of multiple whale species in the Bahamas and simul-
taneous disappearance of the region’s population of beaked whales
4 For example, baleen whales produce underwater sounds at frequencies ranging from 12 Hz up
to 8 KHz, although predominantly below 1 KHz.
5 For background on early research concerns, see archived CRS Report 95-603 ENR, Acoustic
Thermometry of Ocean Climate: Marine Mammal Issues, available from the author.
6 [http://www.nap.edu/books/0309050251/html/].
7 [http://www.surtass-lfa-eis.com/docs/Request%20for%20LOA%2012%20Aug%201999.pdf].
8 [http://books.nap.edu/books/030906886X/html/index.html/].

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occurred during and following the time when the U.S. Navy used its mid-
frequency active sonar system.
04/06/2000 – The U.S. Navy submitted a revised application for a Letter of Authori-
zation from NOAA to incidentally harass marine mammals incidental to
operating SURTASS LFA sonar.9
01/00/2001 – The U.S. Navy released its final environmental impact statement.10
10/11/2001 – The House Resources Subcommittee on Fisheries Conservation, Wildlife,
and Oceans held a hearing on the MMPA, including a panel on SURTASS
LFA.11
12/00/2001 – The National Marine Fisheries Service (NMFS) and the U.S. Navy
completed a Joint Interim Report — Bahamas Marine Mammal Stranding
Event of 15-16 March 2000.12
06/10/2002 – The General Accounting Office (GAO) issued a report entitled Testing
Needed to Prove SURTASS/LFA Effectiveness in Littoral Waters.13
07/16/2002 – NOAA published a final rule authorizing the U.S. Navy to harass marine
mammals incidental to operating SURTASS LFA sonar.14
07/23/2002 – The U.S. Navy published its record of decision on the world-wide deploy-
ment of its SURTASS LFA sonar system.15
08/07/2002 – Five environmental groups and a concerned individual filed a lawsuit in
federal district court in San Francisco seeking to halt Navy deployment of
SURTASS LFA sonar (Natural Resources Defense Council v. Evans).
10/31/2002 – U.S. Magistrate Judge Elizabeth LaPorte granted a preliminary injunction
halting Navy deployment of SURTASS LFA after finding NOAA
Fisheries issued the Navy a permit that likely violated federal law.16
11/15/2002 – U.S. Magistrate Judge Elizabeth LaPorte approved a temporary agreement
between the Navy and environmental groups allowing limited testing of
9 [http://www.surtass-lfa-eis.com/docs/Request%20for%20LOA%206%20Apr%202000.pdf].
10 [http://www.surtass-lfa-eis.com/docs/FEIS%20Vol%20I.pdf].
11 [http://frwebgate.access.gpo.gov/cgi-bin/useftp.cgi?IPaddress=162.140.64.21&filename=75
640.pdf&directory=/diskc/wais/data/107_house_hearings].
12 [http://www.nmfs.noaa.gov/prot_res/overview/Interim_Bahamas_Report.pdf].
13 [http://www.gao.gov/new.items/d02692.pdf].
14 67 Fed. Reg. 46712-46789.
15 67 Fed. Reg. 48145-48154; [http://www.surtass-lfa-eis.com/docs/LFA%20EIS%20ROD.pdf].
16 NRDC press release at [http://www.nrdc.org/media/pressreleases/021031.asp], visited May 6,
2005. Natural Resources Defense Council v. Evans, N.D. Cal., No. C-02-3805, 232 F. Supp. 2d
1003 at [http://www.animallaw.info/cases/caus232fsupp2d1003.htm].

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SURTASS LFA while the federal court considered the lawsuit challenging
deployment.17
02/10/2003 – The National Research Council published Ocean Noise and Marine
Mammals.18
08/26/2003 – U.S. Magistrate Judge Elizabeth LaPorte issued a permanent injunction to
restrict the Navy’s use of SURTASS LFA.19
10/13/2003 – Conservation and animal welfare groups announced a settlement
agreement with the U.S. Navy.20
11/24/2003 – President Bush signed P.L. 108-136, the National Defense Authorization
Act for FY2004; §319 amended the MMPA to exempt military readiness
activities from “specified geographical region” and “small numbers”
requirements.
12/11/2003 – The Marine Mammal Commission, an independent federal agency,
announced establishment of an Advisory Committee on Acoustic Impacts
on Marine Mammals.21
01/29/2004 – U.S. District Judge Samuel Conti denied a permanent injunction to block
testing of a lower power, high frequency (above 20 KHz) sonar off the
California coast.22
02/09/2004 – NOAA Fisheries announced release of preliminary report investigating
the acoustic exposure of stranded porpoises in Haro Strait, WA, finding
no conclusive link between Navy sonar testing and porpoise deaths.23
02/09/2004 – The U.S. Navy released its report on the U.S.S. Shoup/Haro Strait porpoise
incident.24
06/03/2004 – U.S. Navy submitted an annual report to NOAA on SURTASS LFA sonar
operations.
17 [http://www.ens-newswire.com/ens/nov2002/2002-11-18-06.asp].
18 [http://www4.nationalacademies.org/news.nsf/isbn/0309085365?OpenDocument].
19 Natural Resources Defense Council v. Evans, N.D. Cal., No. C-02-3805, 279 F. Supp. 2d 1129.
20 [http://www.nrdc.org/media/pressreleases/031013.asp].
21 68 Fed. Reg. 69089-69090.
22 [http://www.whalesafety.net/OPINION.pdf]. Australians for Animals v. Evans, N.D. Cal., No.
C-04-0086, 310 F. Supp. 2d 1114. This sonar was designed for shallow water use, to detect
subsurface whales before they came too close to potentially risky situations, such as harbor
blasting or LFA.
23 [http://www.nwr.noaa.gov/mmammals/cetaceans/necropsypage.htm].
24 [http://www.cpf.navy.mil/news_images/special_projects/shoup/SHOUP%20Final%20REP
ORT%209%20Feb%2004(1530).pdf].

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06/16/2004 – NOAA received an application from the U.S. Navy for two Letters of
Authorization for taking marine mammals by harassment incidental to
deploying the SURTASS LFA sonar system.25
06/29/2004 – NOAA published a proposed rule to amend its July 16, 2002 final rule and
regulations to implement the provisions of P.L. 108-136.26
08/24/2004 – NOAA published a notice that two one-year Letters of Authorization have
been issued to the U.S. Navy to take marine mammals by harassment
incidental to operation of the SURTASS LFA sonar system.27
10/20/2004 – The 9th Circuit Court of Appeals affirmed that marine mammals do not
have standing to sue the government over the Navy’s testing of SURTASS
LFA.28
10/28/2004 – The European Union’s (EU) Parliament passed, 441-15, a non-binding
resolution urging EU member states “... to adopt a moratorium on the
deployment of ... LFAS [low frequency active sonar] until a global
assessment of its cumulative environmental impacts on whales, dolphins,
fish and other marine life is completed.”29
11/00/2004 – At the second meeting of the parties to the Agreement on the Conservation
of Cetaceans of the Black Sea, Mediterranean Sea and contiguous Atlantic
Area (ACCOBAMS; Nov. 9-12, 2004, in Palma, Majorca), the 16 member
nations adopted Resolution 2.16 addressing man-made ocean noise,
including naval sonar, and guidelines for its use.30
11/00/2004 – The 3rd IUCN-World Conservation Union Congress (Bangkok, Nov. 17-
25, 2004) passed a resolution encouraging governments to reduce
undersea noise, restrict military active sonar training to low-risk areas and
develop “... international standards that regulate its use.”31 The United
States abstained from voting on this resolution.
25 [http://www.nmfs.noaa.gov/prot_res/readingrm/MMSURTASS/NavyLFALOA_32004Appl
ication.pdf].
26 69 Fed. Reg. 38873-38876.
27 69 Fed. Reg. 51996-51998.
28 Cetacean Community v. Bush, U.S. District Court of Appeals for the Ninth Circuit, No. 03-
15866, 386 F.3d 1169.
29 [http://www.europarl.eu.int/meetdocs/2004_2009/documents/RE/540/540103/540103en.pdf].
30 [http://www.accobams.mc/Accob/Wacco.nsf/Fram5Gb!OpenFrameSet].
31 [http://www.iucn.org/congress/members/WCC_Res_Recs_ENGLISH.pdf].

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11/11/2004 – The National Research Council published Marine Mammal Populations
and Ocean Noise: Determining When Noise Causes Biologically
Significant Effects.32
02/10/2005 – A coalition of international conservation organizations petitioned NATO
to modify active sonar naval exercise protocols to lessen potential harm
to whales and other marine mammals.33
06/01/2005 – The Natural Resources Defense Council filed suit in U.S. District Court
(Manhattan) seeking the release of documents by NMFS relating to mass
strandings and deaths of marine mammals.
06/08/2005 – A coalition of more than 120 environmental organizations urged the
United Nations to take steps to protect cetaceans from increasing human-
generated underwater sound.34
32 [http://books.nap.edu/catalog/11147.html].
33 [http://www.nrdc.org/media/pressreleases/050210b.asp] and [http://www.nrdc.org/media/docs/
050210a.pdf].
34 “Coalition Urges UN Curbs on Harmful Ocean Sounds,” Reuters, June 8, 2005.