1.4.5. The determination of no significant impacts on turtles appears to rely solely on a personal communication, not data or studies.
The Draft admits that turtles hear low frequency sound and that there is very little information available on the role sound plays in the life of turtles. Draft at 4.1-10. The Draft concludes that there would be no lasting adverse impacts on turtles based solely on a personal communication with one researcher; there are no citations to any studies offered for this conclusion. Draft at 4.1-12. The conclusion of no impact also relies solely on the mitigation measures, not any data on turtles. Id..
A conclusion based on no data, no studies, and one person's unpublished opinion hardly meets the test for scientific rigor.
In the absence of mitigation measures, one would expect increased impacts. The Draft admits that a "paucity of data on sea turtle populations, habitats, and LF hearing sensitivity" forecloses estimating the increased impacts. Id.
1.5. Lack of an "Open Process" in the Development of the OEIS/EIS
. Another of the five principles governing the preparation of the OEIS/EIS was supposedly a commitment to as "open process." Draft at ES-5. The author of these comments experienced a closed process.
As the attorney in two of the four cases filed in Hawaii, the author of these comments requested permission of the Navy to attend a meeting held in June 1998 in Washington, D.C. This meeting brought together scientists, Naval personnel, and others to discuss the results of the SRP.
The Navy denied the author permission to attend the meeting. The Navy did agree that the author could send in a report that would be distributed to the participants.
The author prepared a report titled:
IMPACTS OF SURTASS LFA TESTING
HAWAI'I - MARCH 1998
SPECIAL REPORT PREPARED FOR
PARTICIPANTS IN NAVY MEETING
JUNE 30, 1998
WASHINGTON, D.C.
(hereinafter "Special Report").
This author faxed the report to the Navy prior to the meeting. A participant in the meeting later reported to the author that copies of the report were dumped in the middle of a table at one point, participants were told they could have a copy, and that, other than this perfunctory effort, no discussion of the report took place.
[NOTE: The author's report is incorporated into these comments by reference. As a report submitted to the Navy in June 1998, the Navy clearly had notice of this report prior to preparing the Draft.]
The only explanation that the author was given for the refusal to permit him to attend was that he had represented clients who sued the Navy during the testing. The meeting included people outside the Navy and was not within any client-attorney relationship, so there was no basis for excluding the author.
Prohibiting the author from attending the meeting and treating the report in such a cavalier manner denied the Navy's advisory committee the opportunity to hear the Hawaiian evidence and amounted to censoring the information. Such a response can hardly be characterized as an "open process."
Another example of a closed process is the entire environmental review process that took place during the development of SURTASS LFA. See Section 1.1. supra.
1.6. Deliberate failure to consider relevant evidence.
The Draft acknowledges that one requirement of the National Environmental Policy Act is that "the EIS must provide full disclosure of the significant environmental impacts ...." Draft at 1-10.r Yet, one of the most glaring deficiencies in the Draft is the refusal of the scientists preparing the technical reports and the authors of the Draft to consider practically any of the evidence presented by plaintiffs in the Hawaiian cases. One exception is the discussion of the lone baby Humpback Whale discussed in Section 1.4.4 above. The only other exception is the discussion of the aerial surveys. See Section 1.4.1 above and 3.1.1.4 below.
Based on the failure to consider relevant evidence and other deficiencies, the author called for the withdrawal of the Draft. See Letter from Lanny Sinkin to J.S. Johnson dated September 22, 1999. In spite of the known deficiencies, however, the Draft was not withdrawn.
As noted above, the Navy was a defendant in all the cases filed in Hawaii. As a defendant, the Navy received service of all pleadings and evidence filed in the Hawai`i cases. The Navy also received a summary of some of the key evidence in the report prepared by the author referenced above. Special Report, supra. Yet a reader of the Draft unfamiliar with the Hawaiian litigation would have no idea that such evidence had been submitted to the federal courts and the Navy.
Scientists involved in preparing Technical Report 1 participated in the litigation by filing declarations opposing plaintiffs. See e.g. Defense Exhibits 14 (Clark) and 15 (Fristrup), Hawai`i County Green Party, supra. Those scientists were well aware of the evidence submitted to the courts prior to preparing Technical Report 1. Other than the one reference to the Humpback Whale calf separated from its mother, TR1 at 104, the authors ignore the plaintiffs' evidence.
Scientists preparing Technical Report 3 on the bioeffects of low frequency exposure make no mention of the traumatic effect of the LFA broadcast on the snorkeler filing her declarations in the Hawaiian litigation. Either the scientists involved in the SRP and the Navy withheld that evidence from the scientists preparing Technical Report 3 or those preparing the report deliberately ignored relevant evidence.
The ultimate responsibility for the failure to address the Hawaiian evidence rests with the United States Navy. As a defendant, the Navy had ample notice of the evidence. As the lead agency, the Navy had an obligation to ensure the scientists preparing the technical reports and the authors of the Draft addressed that evidence.
The author is not obligated at this point to present and comment upon all the evidence developed in the Hawaiian litigation. All of that evidence and the accompanying memoranda or briefs discussing that evidence are incorporated herein by reference.
The EIS process is required to fully disclose evidence of environmental impacts. The Draft is supposed to provide an opportunity to comment on the treatment of evidence by those preparing the Draft. The deliberate omission of any discussion of the Hawaiian litigation evidence from the Draft precludes those commenting from addressing the evidence and its interpretation by the decision-maker.
To conform to the law, the Navy should prepare a supplemental Draft addressing all the matters omitted from the current Draft and provide an additional comment period.
The exclusion of the Hawaiian evidence is the strongest indicator that this OEIS/EIS process is not an objective analysis of the environmental impacts of SURTASS LFA. This exclusion is also a strong indicator that the real purposes of the OEIS/EIS process were to avoid having NRDC take the Navy to court and to justify deployment of SURTASS LFA.
1.7. Premature Issuance of the Draft.
The Draft was rushed to completion before all the relevant studies were completed and available to the public. This rush is contrary to the stated goal of "synthesizing the data [from the research over the past two years] into a draft EIS ...." Draft, Appendix A, Letter from Neil E. Rondorf to the Honorable John G. Rogers dated January 20, 1998.
Technical Report 1 is the key study underlying the decision-making process in the Draft. Draft at 4.2-20 (the values used to calculate risk are based on the LFS SRP). The LFS SRP is used to justify a dramatic change in projected risk from the risk assumption of earlier studies. Draft at p. 4.2-20, 26 (50% risk at 120 dB based on earlier studies changed to 50% risk at greater than 150 dB based on LFS SRP).
Yet the authors of Technical Report 1 state: "We have only started to analyze the data ...." TR1 at 10. The analyses of the data are "ongoing." Ibid. at 4. The results of the analyses have not yet been peer reviewed. Id.
Technical Report 3 on the bioeffects of LFA relies on numerous studies conducted in the last two years. In the References section, those studies designated as preliminary reports are "for internal use only." Those studies consist of seven of the critical studies upon which the report relied [Clark (1998); Dalecki (April 1998); Dalecki (October 1998); Gerth (November 1998); Jackson, A.C. (October 1998); Jackson, R. (October 1998); and McIntosh (October 1998).]
Presumably these studies are for internal use only because those preparing the studies are still analyzing their data or because there has not been sufficient time for peer review and other processes providing the confidence to publish the reports.
Whatever the reasons for withholding these reports, the fact remains that critical reports upon which a major component of the Draft is based are not available publicly. Those preparing comments are, therefore, denied access to the underlying research reports upon which the technical report claims to be based. Such a barrier further compromises the integrity and validity of the comment process and mandates reopening the comment period when the underlying reports become available.
Issuance of the Draft based on incomplete reports violated the principle of scientific rigor supposedly governing the OEIS/EIS process. The Navy's rush supports a conclusion that the preparation of an OEIS/EIS is viewed as simply an obstacle to getting the system deployed. The report could be issued prematurely because the substance of the report really does not matter in the decision-making. Rapid deployment, not comprehensively analyzing the environmental impacts of SURTASS LFA, is the goal.
1.8. Conclusion of Section 1.
At the time the Navy decided to pursue low frequency active sonar as the technology of choice for detecting quiet submarines, the Navy had an obligation to begin preparation of an OEIS/EIS. The Navy knew at that time that the intended use for the system included foreign and common ocean waters and shore line areas in the United States.
That the Navy waited until the SURTASS LFA system was on the verge of deployment to begin that process created an incredibly difficult situation for all those involved in evaluating this system. That the Navy illegally spent hundreds of millions of dollars on this system before evaluating the environmental impacts made the situation even more difficult.
Under these circumstances, the Navy had an obligation to act with only the highest integrity and to subject the SURTASS LFA system to the strictest scrutiny. Unfortunately, the Navy failed to fulfill that obligation. Instead, the research is characterized by lack of scientific rigor, the OEIS/EIS process attempted to silence critics, the Draft and technical reports ignored relevant evidence, and the Navy issued the Draft before the scientists conducting studies had time to complete their work.
The criticisms presented in this section of comments provide a sufficient basis to withdraw the Draft and prepare a new Draft based on an honest commitment to evaluate all of the available evidence and to conduct a process characterized by the highest standards of scrutiny. Given the history of illegal development and investment, such an evaluation should begin with an assumption against deployment and place the burden of proof on those who would argue for deployment.
2. THE PRESENTATION OF ALTERNATIVE 1 AS THE PREFERRED ALTERNATIVE IS CONFUSING AND CONTRADICTORY BECAUSE TWO DIFFERENT ALTERNATIVES ARE PRESENTED AS ONE.
Another of the five principles supposedly governing the Draft is a commitment to provide an "understandable document to the public." Draft at ES-5.
The rush to issue the Draft is also reflected in what appears to be at least one major conflicting presentation within the Draft itself that is confusing for those trying to comment.
Geographically-restricted areas are defined as areas within 22 km (12 nm) of any coastline, offshore areas where marine animals of concern might congregate in high densities to conduct biologically important activities, and known recreational dive sites for humans. Draft at 2-8, 9.
The Draft states:
In a nominal year there could be a maximum of nine missions, six of which would involve the employment of SURTASS LFA sonar in the active mode and three of which would employ only the SURTASS in the passive mode (for operations in SURTASS LFA geographically-restricted areas [Subchapter 2.3.2.1]).
Draft at p. 2-7.
This statement is illustrated in Table 2-1 showing six active operations and three passive operations. The notes for that table state that the passive operations would be those in which "there would be no active transmissions (for operations in SURTASS LFA geographically-restricted areas.)"
The clear implication of the quoted statement and the table note is that active operations will take place outside the geographically-restricted areas and only passive SURTASS listening operations, not LFA broadcasts, will take place in the geographically-restricted areas. This conclusion is further supported by the statement that the SURTASS LFA will not be operating in coastal waters. Draft at 3.3-7.
At the same time, one justification for the development of SURTASS LFA was to be able to detect quiet submarines in coastal waters where other noise prevented detection by passive means. So the abandonment of coastal uses of SURTASS LFA would seem to be contradictory to this purpose and call into question the justification for this system.
In the actual discussion of Alternative 1, however, the activities within the
geographically-restricted areas are described in terms of a sound field that "does not exceed 180 dB" within 22 km of any coastline nor in offshore biologically important areas outside the 22 km zone and "does not exceed 145 dB" in the vicinity of known recreational and commercial dive sites. Draft at 2-8; see also Ibid. at 4.3-2 (Broadcasting is expected to take place where swimming and snorkeling occur.)
There is obviously a major environmental difference between an Alternative 1 that would limit use of SURTASS LFA to only passive missions in geographically-restricted areas and an Alternative 1 that would permit broadcasts up to 180 dB and/or 145 dB in geographically-restricted areas. The coastline in areas such as the Island of Hawai`i is a primary breeding and calving ground for Humpback Whales. By definition, a biologically important area is an area where endangered species may be feeding, migrating, or breeding and calving. Ibid. at 2-9. The potential for harm is increased dramatically in such areas.
The lack of clarity in the presentation leaves the question open as to just what Alternative 1 is. That confusion makes comments on Alternative 1 meaningful only if those commenting notice that there are two Alternative 1's and offer comments accordingly.
It appears that some calculations in the Draft are based on the first Alternative 1 and some on the second Alternative 1. See e.g. Draft at 2-5 (432 hours of total broadcasting per ship per year based on one third of missions being passive).
The definition of Alternative 1 is obviously a central component of the Draft. The Draft states that the Navy prefers this alternative. Ibid. at 2-8. The Draft does not, however, provide any clarity on which version of Alternative 1 the Navy prefers.
The author assumes that initially the Navy planned to present the active/passive plan as Alternative 1, i.e. something between no deployment and deployment without constraint. As the technical reports became available, however, there was apparently an opportunistic decision to increase the use of the LFA in the geographically-restricted areas and justify that increase by relying on studies which ignore critical data, are incomplete, and do not actually support the deployment of LFA.
Withdrawal of the Draft would also provide an opportunity to clear up the questions raised by the confusing and conflicting presentation regarding the actual nature of Alternative 1.
3. THE CONCLUSIONS REACHED IN THE DRAFT REGARDING ENVIRONMENTAL IMPACTS EITHER LACK SUFFICIENT SCIENTIFIC BASIS OR ARE CONTRARY TO EXISTING SCIENTIFIC INFORMATION.
3.1. The Scientific Research Program Does Not Support Deployment.
3.1.1. Critical data gaps were not filled.
3.1.1.1 The data gaps are critical.
Another of the five principles supposedly governing the preparation of the EIS is filling "critical data gaps." Draft at ES-5.
Those gaps are quite significant and amount to a pervasive lack of data. See e.g. Draft at 3.2-20 ("The sense of hearing is highly developed in all cetacean species studied to date. It is assumed that mysticete species rely heavily on sound for communication and sensing of their environment."); id. ("cetaceans are particularly vulnerable to the increasing influences of humans because of their low reproductive rates and social structures."); at 3.2-21 ("Sound is the primary modality for such necessary behaviors as communication ... and in male mating displays. ... sound might be used for navigation and food finding."); at 3.2-30 ("There are no direct data on hearing sensitivity for humpback whales."); at 3.2-19 ("Data on turtle vocalizations and hearing are few [citation omitted], although it has been suggested, albeit based on data from just a few species, that all species can hear LF sound as adults [citation omitted]."); at 4.1-10 ("Sea turtles can hear LF sound, but there is very little information available on the role of hearing of sea turtles."); at 4.1-9 ("There is insufficient research on the hearing responses in fish to determine what sound pressure levels would cause temporary or permanent harm."); at 4.2-19 ("There is a very limited basis for determining the potential effects of repeated exposures for marine mammals."); at ES-8 ("The Navy recognized the need for measured data sets on the potential risk from underwater LF sound to human divers.")
Given the potential for devastating disruption of endangered and other species and for harm to humans, the effort to fill the gaps had to be both comprehensive and meticulous. Unfortunately, that effort was neither.
3.1.1.2. Prior illegal development of SURTASS LFA limited time available for research to fill data gaps.
The data gaps did not magically appear in 1997. The gaps obviously existed in 1987 when the Navy decided to pursue the development of SURTASS LFA. Ibid at 1-8. The Navy knew of these gaps. See e.g. "Potential Impact on and Responses of Baleen Whales to Low Frequency Transients; Seasonal and Geographic Distributions, Biological Considerations," supra. at 2 ("There is, at present, only limited evidence to describe the behavioral responses of whales exposed to ... loud, man made low frequency (LF) sources ....").
The Navy's failure to address the questions of LF impact on marine life and humans in the water prior to getting caught violating the law meant the studies to fill those gaps did not occur until recently. See e.g. Ibid. at 4.2-22 ("In 1997, there was a widespread consensus that cetacean response to LF sound signals need to be better defined using controlled experiments. In response, the Navy developed the LFS SRP."); Overseas Environmental Impact Statement and Environmental Impact Statement for Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar, Technical Report 3 (hereinafter "TR3") at 1 ("The research [on the effects of LF on humans] was conducted between June 1997 and November 1998 ....").
The late commitment to filling the "critical data gaps" led to rushing the results of the research in order to justify deployment. See Section 1.F. above.
The Navy correctly characterizes the nature of the gaps as "critical." The time given to conduct the studies and analyze the results prior to issuance of the draft was very limited. Under these circumstances, the evidence available from other sources, such as the evidence presented to the courts in Hawai`i, had greater weight and deserved focused attention.
Given the Navy's large investment to date in the SURTASS LFA and the history of illegal development, a question naturally arises as to whether the Navy relies upon the last minute, incomplete studies to justify deployment, whatever the studies themselves indicate. Unfortunately, the Draft confirms that the scientific studies are used to reach conclusions that the scientists themselves are not prepared to make.
3.1.1.3. The Draft relies heavily on the most recent research.
The Draft relies very heavily on the results of the LFS SRP for the conclusion that SURTASS LFA will have minimal environmental effects. Technical Reports 1 and 3 are the key studies underlying the decision-making process in the Draft. See e.g., Draft at 4.2-20 (the values used to calculate risk are based on the LFS SRP).
The LFS SRP is used to justify a dramatic change in projected risk from the risk assumption of earlier studies. Draft at p. 4.2-20, 26 (50% risk at 120 dB based on earlier studies changed to 50% risk at greater than 150 dB based on LFS SRP); see also "LFA-13 Environmental Review," supra. at 27 (The operation of LFAA is expected to produce the following responses in marine mammals: awareness at 120 dB, modified behavior at 140 dB, and potential impact at 160 dB) and at 28 ("The 120 dB level is also widely accepted by the environmental community as the level at which mysticetes may begin to avoid a noise source (citations omitted)."
While the deployment levels are classified, the author has seen indications that the range from 215 dB to 235 dB is likely.
The Draft relies on the bioeffects research conducted over the past two years in determining potential effects on and required mitigation to protect human divers. Draft at 4.3-3 (The limitation on broadcast levels in areas where divers may be present is based on the studies conducted between June 1997 and November 1998).
The Draft also used Technical Report 3 to change earlier requirements for avoiding harm. Previously, the Navy adopted mitigation requirements to ensure divers are not exposed to levels above 145 dB. "LFA-13 Environmental Review," supra. at 45. The procedure required that an estimate of sound level in the impacted area be conducted. Id. If the projected sound level was between 130 and 139 dB, the procedure required an initial spot-check of the actual sound field to validate the projection. Id. If the predicted level was greater than 139 dB, continued monitoring would be required. Id.
Using Technical Report 3 as a basis, the Navy eliminated all requirements for mitigation when the predicted sound field is < 145 dB. Draft at 5-2 (If projected sound field is greater than 145 dB, mitigation would be required.)
An examination of these two technical reports does not, however, support a conclusion that the gaps have been filled nor the conclusions reached in the Draft that the SURTASS LFA will have minimal environmental effects.
3.1.1.4. The research does not fill the gaps.
Technical Report 1 admits that the environmental impact of low frequency sound on marine species is an incredibly complex question. TR1 at 2. To address that question by selecting a few species and generalizing to all the rest is, at best, a first pass at answering that question. Any generalized conclusions reached from such a research program are at best speculative and at worst seriously in error.
The quality of the research conducted on the selected species, particularly whales, would be critical because these species are not available for study in research facilities. TR 1 at 2. As noted in Sections 1.1.1-4 above, the research methodology was questionable and the research itself inadequate.
The authors characterize their report as "some of the preliminary results of the analysis" of the data, not meant to be definitive or thorough. Ibid. at 4. The authors state that the results reported in Technical Report 1 cannot be relied for decision-making because they are preliminary and incomplete.
In the one area analyzed for the Hawaiian tests -- cessation of song -- the data base consisted of only 17 playbacks from which the scientists could perceive "no trend." Ibid. at 9.
Even in the data addressed, the scientists adopted a non-conservative approach. For example, the report states that singing stopped during ten playbacks and that in four of those instances the singer joined another whale. Id. The scientists find that "[t]his pattern of stopping singing and joining is common on the breeding ground, so these cases are not considered responses to playback." Id.
The conclusion is that these four cessations continued a pattern of previously observed behavior, i.e. cessation of singing and joining another whale. Yet the actual pattern of behavior being observed at that time was that more than half the whales (10 out of 17) ceased to sing during broadcasting.
The scientists have chosen an interpretation that favors deployment when they could just as easily have decided that a conservative assumption would be that the four cessations should be included in the cessations attributed to broadcasts.
Similarly, while admitting that the data base is limited and that no trend emerged, the scientists find that "there is little evidence that whales are more likely to respond at higher levels within this [120-150 dB] range." Id.
Given the limited data base and lack of any trends, that conclusion could just as easily have been that there is little evidence that whales are less likely to respond at higher levels.
The scientists have again chosen an evaluative statement that favors deployment when the data base does not support reaching such a conclusion.
Even in the limited test group, the scientists found significant variation in responses within the Humpback Whale community. Id. At this point, the scientists can only speculate as to why one whale is more sensitive than another. Id. (Sensitive singers are possibly younger or inexperienced animals and might have different song attributes than less sensitive animals).
The scientists reach conclusions based on data which appears to contradict the conclusion. For example, Technical Report 1 states: "There were not significant differences between the distribution of animals around the PBV [playback vessel] during control and playback conditions." Id. Yet Figure D-26 appears to show far fewer whales in the vicinity of the PBV during playback and a distribution pattern of a lower percentage of whales close to the PBV.
The scientists preparing Technical Report 1 also misuse data from other studies.
A major basis for filing the Hawaiian litigation was the failure of the Navy and the scientists to stop testing when evidence arose that the whales were leaving the test area. See e.g. Plaintiff's Memorandum in Support of Motion for Preliminary Injunction, Hawai`i County Green Party, supra.
Technical Report 1 claims that a survey upon which plaintiffs' relied supports a conclusion that whale distribution during the testing period was normal. That claim is patently false.
Technical Report 1 provides inconsistent descriptions of the normal pattern of Humpback Whale migration to and away from Hawai`i. Compare TR1 at 10 ("a slow decline in the last half of March" is consistent with observations in an earlier year) and 108 (the number of whales peaks by early March followed by a rapid decline).
Technical Report 1 completely ignores the consistent findings in the earliest Mobley surveys (March 1 and 8) that there were no whales seen in the exact area identified in Technical Report 1 as the primary test site. Compare Special Report, supra., Exhibits 3-5 and Fig. D-1, TR1.
This one example is perhaps the most telling illustration of how the entire process leading up to the Draft is compromised. The scientists know that they concentrated their broadcasts in a certain area. The scientists know that Dr. Mobley's surveys show no whales in exactly that area early in the broadcast schedule. Yet the scientists make no mention of this clearly important piece of data, while falsely claiming that the Mobley survey documents normal whale behavior during the tests.
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