After years of sometimes bitter legal and public relations wranglings, the U.S. Navy and a group of animal and environmental organizations recently hammered out an agreement that will prevent harm to untold numbers of marine animals.

The two sides, parties to an August 2002 lawsuit over the Navy's proposed use of Low Frequency Active (LFA) sonar in the world's oceans, agreed October 13 to drastically limit the areas where the surveillance technology can be deployed. The parties negotiated an agreement whereby the Navy will scale back deployment from 75% of the world's oceans to approximately 1% of that area.

The timing of the announcement couldn't have been better. Only days earlier, the scientific journal, Nature, published a report finding that mid-frequency active sonar may kill certain marine mammal species by giving them decompression sickness or "the bends." The report was based on an examination of 10 of 14 whales, mostly beaked, who were recently stranded in the Canary Islands after the Spanish navy conducted nearby maneuvers involving mid-frequency sonar.

Despite the good news, though, the Navy hasn't exactly given up on its demand for wider use of LFA sonar. The Department of Defense is seeking exemptions and amendments to the Marine Mammal Protection Act through the DOD's authorization bill, which is currently in conference committee. Passage of these exemptions and amendments could render key provisions of the October 13 accord moot. (To lend your voice to this important issue, click to page 2 and scroll down to "What You Can Do.")

The Background

The HSUS and other environmental and animal protection groups have contended for years with the U.S. Navy on its development and deployment of a new, low frequency active sonar technology. Unlike passive sonar, which merely listens for sound, active sonar emits a sound and listens for its echo to detect objects in the ocean.

Surveillance Towed Array Sensor System Low Frequency Active sonar (SURTASS LFA) uses extremely loud sound to detect "quiet" submarines at great distances. It could kill animals that stray too close to the sound source, but even at hundreds of miles, it could disrupt vital behaviors or displace animals from important habitat.

The principal concern regarding LFA sonar is that low frequency sounds travel remarkably efficiently in water. The higher the frequency of a sound, the faster it grows quiet away from the sound source. Hence, the low frequencies of LFA can still be rock concert loud more than a hundred miles from the transmitting ship.

Many scientists believe that blasting such intense sounds over large expanses of the ocean could harm entire populations of marine mammals, turtles, and fish, especially those who hear best at these low frequencies like many endangered species of large whales. However, accumulating research shows that direct damage to marine mammal ears is perhaps the least concern. Other impacts—on air spaces in the body or on gas dissolved in tissues—may be far more serious, leading to disorientation, stranding, and death.

Despite these concerns, the National Marine Fisheries Service (NMFS), the Department of Commerce agency responsible for implementing the Marine Mammal Protection Act (MMPA), issued a "small take" permit to the Navy in early 2002 to harass marine mammals while using LFA. Even though The HSUS and other groups tried to ensure that NMFS followed the appropriate laws before granting the permit, the agency did not. It violated key requirements under the MMPA, the National Environmental Policy Act, and the Endangered Species Act.

The HSUS joined with the Natural Resources Defense Council and others in filing a lawsuit in August 2002 to overturn the permit. U.S. Magistrate Judge Elizabeth Laporte issued a "narrowly tailored" preliminary injunction against the defendants in October 2002, limiting deployment of LFA to a small part of the south Pacific Ocean during this past year.

After careful consideration of the record, she made a final ruling in August 2003 for the plaintiffs, concluding among other things that "if LFA sonar is operated in areas that [endangered species] frequent&the marine environment that supports the existence of these species will be irreparably harmed." Judge Laporte ordered the defendants and plaintiffs to negotiate an agreement to determine where LFA can be deployed to minimize impacts on marine life.

The Tenuous Accord

Under the terms of the October 13 agreement, the Navy will limit use of the new sonar system to specific areas along the eastern seaboard of Asia (around North Korea and China), including portions of the Sea of Japan, the East and South China Seas, and the Philippine Sea.

The agreement does not allow LFA sonar in the waters off the Hawaiian Islands, an area originally included in the Navy's peacetime deployment plans. In addition to geographical limits, the Navy agreed to certain seasonal exclusions, which The HSUS and the co-plaintiffs believe will protect critical whale migrations, as well as to coastal exclusions ranging from 30 to 60 nautical miles. (The Navy's original permitted exclusion distance was 12 nautical miles). None of these restrictions apply during war or heightened threat conditions.

The proposed agreement comes as the Department of Defense is lobbying Congress for exemptions to key provisions of the MMPA. If granted, the exemptions could allow the Navy to test LFA (and other active sonar systems) virtually anywhere, and could reduce safeguards that prevent the oil, gas and other industries from harming the marine environment with intense noise. The HSUS has been working within a diverse coalition of groups to prevent these damaging amendments to the MMPA.

The European Connection

The European Parliament has been considering a petition, submitted earlier this year and signed by The HSUS and 60 other international environmental organizations, that calls for limited deployment of low frequency active sonars until a global assessment of their cumulative environmental effects can be prepared. Noise in the oceans is an international problem—international agreements must be developed to control its negative impacts.

The petition also asks countries to immediately mitigate the effects of mid-frequency active sonar, far more widely used than low frequency sonars, which are still considered somewhat experimental. The danger to marine life from mid-frequency sonar, whose sound does not travel as far as LFA, is clearly documented. Mass stranding and mortality associated with its use have occurred over the last decade off the Canary Islands, Greece, the U.S. Virgin Islands, and more recently in the Bahamas, off Madeira, and in Puget Sound, off Washington state.

LFA sonar is also in development by U.S. allies, including Canada, France, Germany, Austria, the United Kingdom, and the Netherlands. In fact, the British Royal Navy plans to deploy at least 12 low frequency sonar systems in the near future. The HSUS hopes the international push at the European Parliament and with the North Atlantic Treaty Organization, which has just received a similar petition, may limit the harm inflicted on the marine environment and its inhabitants by the cumulative impacts of these sonars.

The Evidence Mounts

The agreement and the petition submission came only days after the scientific journal Nature published a report finding that intense, active sonar may kill certain marine mammal species by giving them decompression sickness or "the bends," the same illness that can kill scuba divers who surface too quickly from deep water.

The international team of scientists examined the carcasses of 10 of 14 beaked whales that recently stranded in the Canary Islands after the Spanish navy conducted nearby maneuvers involving mid-frequency sonar. The authors said compressed nitrogen apparently formed large bubbles in the tissue of whales exposed to intense active sonar, probably causing intense pain and damaging their vital organs. The pain alone could have caused the animals to strand, dooming them to die even if their injuries were sub-lethal.

Dr. Naomi Rose, marine mammal scientist for The HSUS and its international arm, Humane Society International, welcomes the Nature study, pointing out that "the evidence is mounting against the use of active sonar."

Rose notes that the study confirms "something many scientists have long suspected: That the whales and porpoises we've seen stranded on shore are only the visible symptom of a problem affecting entire populations of marine life." She adds: "The more we learn about the threat of active sonar, the more it appears we've seen only the tip of the iceberg."

What You Can Do:

The DOD authorization bill is in conference right now to reconcile the differences between the House and Senate versions of the legislation. The Senate version has no MMPA language; the House version has the exemptions and changes sought by the DOD.

Please immediately call Senator John Warner, chairman of the Armed Services Committee, and tell him that you do not support the Department of Defense being exempted from key provisions of the MMPA. The MMPA is one of the nation's most successful environmental laws, and the recent court decision on LFA and the negotiated agreement demonstrate that the law does not prevent our military forces from being prepared. The Navy will be able to test and train with LFA, but in a way that limits harm to marine mammals.

You can reach Senator Warner at 202-224-2023.

More information in PDF Format

Testimony on LFA Sonar

Commentary on Draft Environmental Impact Statement on SURTASS LFA Sonar

Commentary on the Proposed Rule Regarding Taking of Marine Mammals During SURTASS LFA Sonar Operations

Presentation at Acoustical Society of America Conference

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