The US National Marine Fisheries Service (NMFS) proposed rule to allow the U.S. Navy an incidental take of Southern Resident Killer Whales (SRKW) as a result of its training and testing activities along North America could bring the already critically endangered Orca species ever closer to extinction.

The U.S. Navy has recently applied for exemption under the Marine Mammal Protection Act (MMPA) for the "incidental take" of marine mammals, in order to carry out training and testing activities in the Pacific Northwest.

The proposed regulations, together with Letters of Authorization (LoAs), would cover training and testing activities for a seven-year period following the expiration of the US Navy’s current MMPA authorization for the Northwest Training and Testing (NWTT) Incidental Take Authorization which expires on 8^th November 2020.

The Navy plans to increase the frequency of several activities, including sonar testing within Southern Resident Orca critical habitat. The planned activity includes the use of non-impulsive (sonar) and impulsive (explosives) sources.

The Navy’s application and NOAA’s proposed rule would allow for 51 instances of level B harassment affecting Southern Resident Orcas every year for the next seven years.

The MMPA defines ‘‘take’’ to mean to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.

The following types of training and testing, which are classified as military readiness activities under the MMPA, would be covered under the regulations and LOAs (if authorized):

• antisubmarine warfare (sonar and other transducers, underwater detonations),
• mine warfare (sonar and other transducers, underwater detonations),
• surface warfare (underwater detonations)
• other testing and training (sonar and other transducers).

In addition to ongoing activities, potential new training activities could include torpedo exercise, submarine training and unmanned underwater vehicle training.

The Navy is also proposing some new testing activities, including:

• at-sea sonar testing
• mine countermeasure and neutralization testing
• mine detection and classification testing
• kinetic energy weapon testing
• propulsion testing
• undersea warfare testing
• vessel signature evaluation, acoustic and oceanographic research
• radar and other system testing
• simulant testing

Currently, the Southern Resident killer whale has critical habitat designated under the Endangered Species Act (ESA) in the NWTT Study Area.

The NMFS has requested comments on its proposal to issue regulations and subsequent LoAs to the Navy to incidentally take marine mammals during the specified activities.

The proposal has been met with a barrage of disapproval in the United States and beyond - impacts from Navy activities have already been recognized as a threat to Southern Resident Orca survival and recovery in both the U.S. and Canada.

“Washington considers the level of incidental takings of marine mammals in the proposed rule to be unacceptable”

On Friday Jay Inslee, Governor of State of Washington, added his voice to the growing chorus of criticism with a submission to the NMFS’s consultation on the proposal which started on 2^nd June.

Writing on behalf of the State of Washington, the Governor said:

“Washington considers the level of incidental takings of marine mammals in the proposed rule to be unacceptable. The number of takes would severely impact the dwindling population of this endangered species with 72 individuals remaining.”

“I recognize the potential for adverse impacts from Navy training and testing and I have enormous concerns about the Navy’s use of sonar equipment adversely impacting the already endangered Southern Residents Orcas.”

“I believe there needs to be more discussion about adverse impacts on the ecosystem, cetaceans and the endangered Southern Resident Orcas before these proposed training and testing activities begin.”

“Approval of such a high level of incidental take without requiring any additional mitigation measures represents gross neglect of the agency’s management responsibilities”

An accompanying and highly critical letter attached to the Governor’s submission from a number of Washington state agencies under executive branch purview points out:

“The amended Navy application and NOAA’s proposed rule now predict and would allow for a vastly increased level of incidental take—formerly 2 takes, now 51 takes—every year. The approval of such a high level of incidental take without requiring any additional mitigation measures represents gross neglect of the agency’s management responsibilities under the Endangered Species Act and the Marine Mammal Protection Act to avoid or mitigate impacts to this highly endangered and iconic species.”

The state agencies are also concerned that “this is the third consecutive authorization period during which the Navy may be approved for such testing and training exercises and that these or similar activities are likely to continue for decades.“

Because SRKWs are so long-lived, and the estimated percentage of take for the population is so high (68%), the effects of take will be compounded over time and may have cumulative effects, such as behavioral abandonment of key foraging areas and adverse, long-term effects on hearing and echolocation, “the letter says, warning:

“Without bold and immediate actions, the SRKWs may become functionally extinct before the end of the century. We urge NMFS to recognize that the repeated exposure of more than half of the SRKW population annually to incidental take does not equate to “negligible harm” in any year—let alone over the course of decades.”

Orca Conservancy warns - for population on verge of extinction, any additional adverse effects will have a long-term consequence

According to the Orca Conservancy, the SRKW population has dropped to 72 individuals. Writing separately to NOAA, the Conservancy said:

“SRKWs who avoid noise in the exercise area, by not crossing through it, lose access to prey within the exercise area and prey on the other side. i.e., whales attempting to pass through the exercise area from the north would lose access to prey not only in the exercise area, but in all of Oregon and California south to Monterey Bay, while they wait for the exercise to end.

“ Whales delayed coming up from the south would lose access to prey in Washington and British Columbia. Due to increasingly depleted salmon stocks currently available, it is unlikely that they would be able to make up for lost foraging opportunities at a later date…..”

“Previous training and testing exercises in the Southern Residents’ habitat, when the whales were nearby, disrupted their normal behavior and caused the whales to flee, indicating they are sensitive to sonar activity.”

“For a population that is on the verge of extinction, any additional adverse effects will have a long-term consequence.”

Even if only one Orca is affected this will result in population level impacts that could “escalate the spiral towards indefinite extinction”

The Orca Conservancy said that the proposed action regarding impacts on Southern Resident killer whales (SRKWs) continues to be inadequate and warned that:

“As of January, 2020, there are 72 remaining SRKWs, therefore, if even one member of the population is affected will result in population level impacts that could escalate the spiral towards indefinite extinction (PBR = 0.72).

“We feel strongly that the USN needs to incorporate better techniques to improve their detection rates of marine mammals, extend their exclusion zones around detected marine mammals, and utilize exclusion zones based on specific areas and times in their mitigation strategies.”

It also draws attention to the fact that the European Parliament has called for its member states to impose a moratorium on military sonars.

In addition, the World Conservation Union, an organization of 70 nations and 400 nongovernmental groups, passed a resolution to limit the use of loud noises until the effects are better understood - the U.S. abstained in that vote. The Conservancy cites the Scientific Committee of the International Whaling Commission as having found "compelling evidence" that entire populations of marine mammals are threatened by underwater noise.

“Without solutions and actions for protection the Southern Resident Orcas will slip into extinction”

Over 35,000 people have now signed a petition asking that the U.S. Navy application for exemption under the Marine Mammal Protection Act for the "incidental take" of marine mammals, in order to carry out training and testing activities in the Pacific Northwest should be refused.

A standard letter drawn up to enable individuals to separately write to the NMFS to express their concerns concludes:

“The Navy and NMFS needs to consider the highly endangered status and consistent decline of the endangered Southern Resident Orcas and that any threat of population and harm to individual orcas will bring catastrophe. Without solutions and actions for protection the Southern Resident Orcas will slip into extinction. We must stop this.”

NMFS “coordinated closely with the Navy in the development of their incidental take application”

The detailed scientific paper made available by the NMFS says that the NMFS “coordinated closely with the Navy in the development of their incidental take application” and that the Service “preliminarily agrees” that the methods put forward by the Navy to estimate the take and the resulting numbers estimated for authorization “are appropriate and based on the best available science.”

Takes would be predominantly in the form of harassment, but a small number of mortalities are also possible. For military readiness activity, the MMPA defines “harassment” as:

Level A Harassment - Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild

Level B Harassment - 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.

According to the NMFAS, the proposed authorized takes by the Navy would primarily be in the form of Level B harassment.

However, it states:

“Although the statutory definition of Level B harassment for military readiness activities means that a natural behavior pattern of a marine mammal is significantly altered or abandoned, the current state of science for determining those thresholds is somewhat unsettled.”

The NMFS proposal document says that the Navy “uses rigorous review processes (verification, validation, and accreditation processes; peer and public review) to ensure the data and methodology it uses represent the best available science.

NMFS has reviewed Navy's “data, methodology, and analysis and determined that it is complete and accurate”

The NMFS said that it has reviewed the Navy's data, methodology, and analysis and determined that it is complete and accurate and that it agrees that the estimates for incidental takes by harassment from all sources requested for authorization are the maximum number of instances in which marine mammals are reasonably expected to be taken.

However, submissions to date clearly take issue with this stance.

Preliminary analysis and negligible impact determination

The NMFS has now preliminarily determined that the proposed authorized take would have a negligible impact on the killer whale stocks.

A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects).

The authorization for incidental takings can be granted if NMFS finds that the taking will have a negligible impact on the species or stocks and will not have an unmitigable adverse impact on the availability of the species or stocks for taking for subsistence uses.

According to the NMFS, “the vast majority” of the predicted exposures (greater than 99 percent) are expected to be Level B harassment (non-injurious TTS and behavioral reactions) from acoustic and explosive sources during training and testing activities at relatively low received levels.

The NMFS consultation document says that procedural mitigation by the Navy, together with mitigation measures would reduce the severity of impacts to Eastern North Pacific Southern Resident (Southern Resident DPS) killer whales by reducing interference in feeding and migration that could result in lost feeding opportunities or necessitate additional energy expenditure to find other good foraging opportunities or migration routes.

NMFS acknowledges small and declining stock size – but harassment effects “unlikely to result in impacts on reproduction or survival”

The NMFS said:

“Even acknowledging the small and declining stock size of the Eastern North Pacific Southern Resident stock, this low magnitude and severity of harassment effects is unlikely to result in impacts on individual reproduction or survival, much less annual rates of recruitment or survival of any of the stocks. “

“Regarding the severity of TTS takes, they are expected to be low-level, of short duration, and mostly not in a frequency band that would be expected to interfere with killer whale communication or other important low-frequency cues, and that the associated lost opportunities and capabilities are not at a level that would impact reproduction or survival.”

“For these reasons, we have preliminarily determined, in consideration of all of the effects of the Navy's activities combined, that the proposed authorized take would have a negligible impact on these killer whale stocks.”

The NMFS, which is part of the National Oceanic and Atmospheric Administration (NOAA) said it will consider public comments prior to issuing any final rule and making final decisions on the issuance of the requested LOAs. The responses to public comments will be provided in the notice of the final decision.

Click here to download the NMFS consultation paper Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the U.S. Navy Training and Testing Activities in the Northwest Training and Testing (NWTT) Study Area

Click here to read the submission by Jay Inslee, Governor of State of Washington to the consultation and the accompanying letter from the Washington state agencies

Click here to download the submission by the Orca Consultancy

Click here to sign the petition