In previous years, there was an abundance of whales found by Mobley in exactly the same area. Special Report, supra., Exhibit 6. (Note: The Special Report contains far better reproductions of the Mobley survey data than the much smaller reproductions found in Technical Report 1. Figs. D-29-31, TR1. Nevertheless, the same absence/abundance of whales can be seen in the Technical Report figures. Compare Fig. D-1 and Figs. D-29-31, TR1.)
The same 1998 Mobley surveys finding no whales in the test location also located an abundance of whales outside the test area.
The Mobley surveys, therefore, seem to indicate that an endangered species was driven out of part of their favorite breeding ground by SURTASS LFA broadcasts far below the levels planned during deployment. One would think that such a striking piece of evidence would attract the attention of the scientists, if for no other reason than to attempt to explain the apparent effect.
The scientists knew, however, that they were on very shaky ground. To even raise the issue of whales leaving the testing area would call into question the absence of pre-testing surveys to determine whale locations and the adequacy of ship/shore observation practices to determine the presence or absence of whales during testing.
To raise the question would also open the door for the numerous observations by whale watch captains and others of whales leaving the test area, observations which the scientists and the Navy studiously avoid mentioning.
The scientists play a game of claiming that the whales remained off the west coast of Hawai`i during the testing, while deliberately ignoring the Mobley evidence that the whales also left the particular area off the west coast where the testing was taking place.
The Draft plays the same game. Draft at p. 4.2-21 (During SURTASS LFA sonar research, "breeding humpback whales remained in their area off the 'Big Island' of Hawaii.")
Months after the testing ended, Dr. Mobley claimed that the transits randomly selected for observation resulted in no observations taking place in the area where the absence of whales appeared on his 1998 charts, i.e. the primary LFA test area. (Mobley, personal communication, 1998). If the claim is true, then the Mobley surveys have no bearing on the question of whether the whales left the test area because he did not count whales in that specific area. The only value in the Mobley studies is to demonstrate that there was an abundance of whales outside the testing area during the first two weeks of March.
The Mobley claim also supports a conclusion that the SRP lacked scientific rigor. The only aerial survey involved in the study did not cover the very area where the testing was taking place. The scientists involved in the SRP could have determined the transits Dr. Mobley intended to follow prior to conducting their tests and moved their tests into areas Dr. Mobley would observe. Instead, they conducted the tests in an area outside the observations of Dr. Mobley.
Accepting Dr. Mobley's explanation as true, the only evidence available regarding the presence or absence of whales in the test area during the earliest testing days is the limited observation data from the ships involved in the testing and their shore observation post and the numerous observations of the whale watch captains and others outside the scientific team.
A complete technical report and DEIS would have addressed all the evidence and discussed the question of an absence of whales from the test area in terms of all the evidence.
The Acoustic Modeling method used in the OEIS/EIS process to predict effects around the world selects three areas in the Hawaiian Islands to model and does not include the area where the tests were conducted. Draft at 4.2-3, Figure 4-2.1; 4.2-4, Site No. 6; 4.2-5, Site Nos. 7 and 12. Given the controversy over the tests off the Island of Hawai`i, modeling that same area would have been appropriate.
The LFS SRP reports that the scientists were unsuccessful in locating Sperm Whales for testing. Draft at 4.2-23. Yet the Draft draws no inferences from that failure. According to the March 30, 1998 edition of the Honolulu Advertiser, a large number of 'unusual' whale and dolphin sightings occurred in the 1998 season, including the presence of Sperm Whales. The LFS SRP and Draft did not consider the possibility that all the broadcasts prior to the attempt to locate Sperm Whales had driven the Sperm Whales away.
The LFS SRP is limited and/or called into question by the following conditions:
(1) The large expenditures on SURTASS LFA prior to the scientific studies beginning.
(2) Pressures of time to complete the SRP and produce reports.
(3) Lack of scientific rigor in the pursuit of the research.
(4) Limited data bases from which to reach conclusions.
(5) No pattern emerging from the responses of focal animals.
(6) Significant variability of responses observed in focal animals.
(7) Inappropriate use of data and/or ignoring relevant data.
(8) Inability to test at conditions similar to proposed operating conditions.
Ultimately, the scientists did conclude that their data base could not be used to predict the impact of a fully operational SURTASS LFA. The SRP Phase III was rarely able to expose Humpback Whales to sound levels above 150 dB and exposed very few to sound levels above 140 dB. Ibid. at 10. The responses of the whales "did not scale consistently to received levels," i.e. no consistent pattern of responses emerged. Id. Most importantly, the scientists concluded that "it will be difficult to extrapolate from these results to predict responses at higher exposure levels."
Given the above inadequacies and limitations, the heavy reliance of the Navy on the SRP LFA to support conclusions regarding the deployment and operation of SURTASS LFA is unwarranted. The misuse of the SRP LFS is only further evidence of a "damn the evidence, full speed ahead to deployment" attitude on the part of the Navy.
The Draft states:
It is critical, therefore, to examine the logic that motivated the selection of experiments for the LFS SRP, how those results related to earlier data, and how the LFS SRP results related to the development of the risk continuum. Draft at 4.2-20.
Indeed the LFS SRP is critical to the Draft and the credibility of that research determines to a great extent the credibility of the Draft and its conclusions. The LFS SRP and the report issued on that research were compromised in so many different ways that the foundation of the Draft crumbles under the weight. What's left are hollow reassurances with no scientific basis.
Technical Report 3 is little better in filling the gaps.
The subjects for the tests were military personnel. TR3 at 8. Military personnel can be assumed to be in good physical condition. The general population, however, contains a wide range of physical conditions. Just as the responses of animals in the tests were "highly variable between animals," Ibid. at 5, there would be every expectation that the responses of the human general population would also be highly variable. Technical Report 3 admits that the responses among human beings are "highly variable between individuals." TR3 at 10. Simply testing well conditioned military personnel is insufficient to reach a generalized conclusion.
Again, the gaps are significant and critical. According to the Draft, the Navy did not consider the possibility that low frequency broadcasts would adversely affect divers in the water until receiving a report from a diver in 1993. Draft at 4.3-2.
Not having considered the possibility of such an effect, the Navy still compromises Technical Report 3 by an initial assumption that people engaged in snorkeling "would not be significantly impacted by exposure to LF sounds transmitted from the SURTASS LFA sonar." Draft at 4.3-2. There is no citation to support for this assumption. The Draft primarily based this assumption on the lower sound levels near the surface and the mitigation adopted for near shore areas. Id. In a partly conflicting portion, the Draft eliminates all further consideration of near shore activities, such as surfing, because such activities "largely occur in coastal waters away from where SURTASS LFA will be operating." Draft at 3.3-7. The conflict may arise from the confusion over whether Alternative 1 precludes broadcasting in near shore waters. See Section 2 above.
Regardless of the basis for eliminating consideration of potential injury to snorkelers, that assumption is called into serious question by the evidence from the Hawaiian tests.
There is basically no prior data available on possible impacts of low frequency sonar on snorkelers. The only data available on the potential impact on snorkelers is found in the Hawaii litigation. See e.g. Plaintiff's Memorandum in Support of Motion for Preliminary Injunction, Exhibits 25 and 26, Hawai`i County Green Party, supra.
The declarations in the Hawaiian litigation brought to the attention of the scientists and the Navy an incident in which a snorkeler suffered traumatic injury. One would think such a striking piece of unique evidence would capture the attention of the scientists and find its own separate place in Technical Report 3. The report from the snorkeler could have been the same opening to pursue necessary research as the report from the diver had been earlier. The failure to even include, let alone discuss, the incident is simply one more indication of a study lacking in objectivity.
The Draft presents a conclusion that the "primary potential for effects of LF sound" on humans in the water is "psychophysical sensations of loudness and vibration." Draft at ES-8. The term "psychophysical sensation" means a physical experience causing a psychological reaction, e.g. a sense of discomfort from detecting a broadcast. TR3 at 17. Technical Report 3 states that "it is clear that behavioral and psychological reactions to LFS are the major limiting factors for LFS exposures up to 157 dB and within the 100-500 Hz frequency band." TR3 at 15.
Technical Report 3 concludes that SCUBA divers will first detect and possibly react to LFS with the frequency range of 100 to 500 Hz at SPLs between 84 and 100 dB. Ibid. at 9.
The report discusses aversion to LFS. TR3 at 9-11. The report also addresses the possible reaction of divers who detect vibrations below their auditory threshold. Ibid. at 15. In discussing possible aversion reactions, the authors of the report state: "none of the sound exposures resulted in the uncontrolled or unsafe ascent to the surface." TR3 at 15.
The study dealt with disciplined military personnel participating in an experiment under the direction of their superior officers and confined within a closed tank. The likelihood of an uncontrolled and unsafe ascent, as opposed to a disciplined aversion response, is minimized in these circumstances.
There is no basis for expecting the same behavior from unalerted civilians in open water. The possibility exists, therefore, that a response might be for a diver experiencing inexplicable vibrations to panic and surface prematurely, resulting in serious injury. Such a possibility would exist for sounds between 84 and 100 dB SPL and between 100 and 500 Hz. Ibid at 9-10. The conduct of a study in which the divers gave informed consent and participated in a controlled environment cannot be generalized to the responses possible from unalerted divers in open water. Ibid. at 15.
The conservative approach would be to simply avoid all active broadcasts in areas where divers might be present.
Yet the recommendation of the report, adopted by the Draft, is that broadcasts up to 145 dB without restriction be permitted in areas where divers are present. TR3 at 18; Draft at 2-8.
Apparently, the report and the draft simply assume that no adverse effects will result from divers experiencing psychophysical sensations and engaging in harmful behaviors. By making that assumption, the Draft eliminates what supposedly were the "major limiting factors for LFS exposures up to 157 dB and within the 100-500 Hz frequency range." TR3 at 15.
While such an assumption permits more extensive deployment of active sonar, the assumption itself has no scientific basis.
Technical Report 3 also examined physiological effects of exposure to LFA.
The study documents such physiological effects as changes in breathing pattern, Ibid. at 8 (subjects timed their breathing so that inhalation and exhalation did not occur during a broadcast), and slowing of heart rate. Ibid. at 13.
The report does not, however, discuss the "severe symptoms in one diver similar to those caused by a concussion," an event known to the Navy. LFA-13 Environmental Review, supra. at 23.
Nor does the report discuss the evidence presented to the Hawaiian courts documenting traumatic physical results of a broadcast.
The snorkeler in Hawai`i offered a unique opportunity for the Navy to conduct an in depth physical examination of someone apparently injured by SURTASS LFA to discover whether there were previously unknown possibilities for injury. The direct exposure of the snorkeler presented in the Hawaiian evidence was 125 dB, according to the scientists conducting the SRP. Defense Exhibit 24 at para. 3, Kanoa Inc., dba Body Glove Cruises, supra.. All other information about the broadcast, e.g. frequency was withheld by the SRP scientists.
The Navy refusal to pursue research into that injury compromised the research producing Technical Report 3.
In addition, the evidence in Hawai`i brought to the Navy's attention adverse physiological reactions experienced by an additional six persons in the water. Plaintiff's Reply to Defendants' Opposition dated March 27, 1998, Exhibit 3, Kanoa Inc. dba Body Glove Cruises, supra. The technical report and the Draft ignore that evidence as well.
The human tests in Technical Report 3 took place "in a specially designed anechoic acoustic testing pool that has contoured sides and sound traps designed to reduce boundary effects and thereby stimulate the acoustic transmission properties of an infinite expanse of water." TR3 at 7.
Again, the snorkeler's experience in Hawaii should have been of interest because that exposure took place within a bay. The location raised the possibility that LF sound ricocheted off the bottom and side boundaries of the bay, increasing the snorkeler's exposure and amplifying the effects of the exposure. The tests run in a pool simulating open water could not examine such effects.
Acoustic modeling of the bay where the snorkeler was injured could have produced data regarding possible multiplier effects of an enclosed location. No such modeling was done, missing an opportunity to improve the level of scientific knowledge.
In this instance, the author is denied the opportunity to comment on an analysis of the injured snorkeler because the Draft contains no such analysis. The author is also denied the opportunity to specifically present comprehensive independent evidence because that evidence has been withheld or not prepared.
Had Technical Report 3 and/or the Draft addressed the snorkeler's injury, presumably all the data relevant to the broadcast at issue would have been revealed and a site-specific analysis prepared.
Technical Report 3 itself contains inconsistent data. After stating that most tissue damage would occur at the resonance frequency of the organ, TR3 at 2, the report cites previous research for the proposition that the resonant frequency of the human lung is around 130 Hz. Ibid. at 2-3. A later calculation finds the resonance of human lungs to be 45 Hz. Ibid. at 4. A third calculation puts the resonance at between 40 Hz at the surface and 80 Hz at 120 feet sea water. Ibid. at 14. A fourth report concludes that the greatest tissue strain will occur in the central airways at 30 to 40 Hz. Ibid. at 14. A chart in the report concludes that most lung damage would occur at 30 Hz exposure. Ibid at 27.
The report also acknowledges that there is "no empirical data ... available on the minimum SPL required to induce lung damage."
Technical Report 3 is limited or called into question by the following conditions:
(1) The large expenditures on SURTASS LFA prior to the scientific studies beginning.
(2) Pressures of time to complete the SRP and produce reports.
(3) Preliminary assumptions limiting the scope of the study.
(4) Limited or inconsistent data bases from which to reach conclusions.
(5) Significant variability of responses observed in animals and humans.
(6) Inappropriate use of data and/or ignoring relevant data.
(7) Inability to test in conditions similar to proposed operating conditions.
The reliance of the Navy on Technical Report 3 to permit insonification of waters where swimmers, snorkelers, and divers may be present is unwarranted.
3.2. The Draft Calculation of Risk is Inadequate.
The calculation of biological risk is based on studies of risk to human hearing despite the Draft's acknowledgment that there is "no guarantee that marine mammal behavior responses exhibit patterns similar to human hearing." Draft at 4.2-18-19; see also ibid. at 4.2-27 ("Assuming this observation [of human responses] can be extrapolated to marine mammals ....") Human responses are simply the only available model, ibid. at 4.2-19, which does not mean such a model is valid. See also Magellan II, Appendix A at G ("The applicability of human criteria, especially those for in-air hearing, to marine mammals listening in water is problematic. It is not known whether marine mammals are subject to phenomena analogous to the discomfort reported by humans.")
The actual calculation of risk posits a "smooth, continuous function that maps RL [received level] to risk." Draft at 4.2-20. This approach is considered more realistic that assuming that there is a value below which there is no risk and above which there is certainty of risk. Ibid. at 4.2-19-20.
Yet in developing the biological risk model, the Draft assumes that below 120 dB the risk is zero. Ibid. at 4.2-21. While this value may be correct, defining a value below which there is no risk was supposedly less realistic.
The risk model does not appear to adequately address varying levels of response, e.g. awareness of sound, responding to sound as obnoxious, and injury.
More importantly, the calculation of the biological risk is heavily dependent on the results of the LFS SRP, ibid. at 4.2-20 (the values used to calculate risk are "based on the results of the 1997-98 LFS SRP"), research which itself was riddled with inadequacies. See Section 3.1.1.4, supra. This same inadequate LFS SRP was used to model the risk for species other than those studied. Draft at 4.2-40.
While the LFS SRP may have been "the best option available to obtain critical scientific data under time and funding constraints," that does not mean that selection of this option, rather than extending the time significantly or seeking additional funding, met the requirements for an adequate environmental assessment.
In calculating biological risk, the Navy also seems to have ignored the frequency of the broadcasts. Draft at 4.2-20 (formula for calculating risk does not have a variable for frequency). This omission would seem to be significant because broadcasts at or near the resonant frequency for an organ, such as the lungs, would produce a physiological effect apart from the impact of hearing the sound. That physiological response could reasonably cause a greater reaction by the animal than simply hearing the sound at the same decibel level and a frequency not close to the resonant frequency of an organ.
The inclusion of frequency would also require the inclusion of depth because resonant frequency of organs changes depending on the depth. See e.g. TR3 at 14 (human lung resonance is 40 Hz at the surface and 80 Hz at 120 feet sea water.)
The formula for calculating risks is, therefore, incomplete and the calculation itself far more complex than the Draft considers.
The bottom line is that the unknowns and speculative assumptions underlying the risk calculation far outweigh the knowns. The premises for calculating risk and the data bases used barely elevate the risk calculation to an educated guess.
The importance of the ignored Hawaii evidence increases in these circumstances. If a comprehensive investigation of the whale watch captain reports had concluded that the vast majority of Humpback Whales in the test area did leave the testing area as soon as the tests began, then the LFS SRP would have found significant impacts at sound levels generally less than 140 dB. Those impacts would have included driving an endangered species out of its breeding grounds, obviously a biologically significant impact.
Such findings would demonstrate that the Draft's 180 dB assumption of the injury threshold is not conservative. Draft at 4.2-30. Such findings would have dramatically challenged the current conclusion that only 2.5 percent of the population exposed to 150 dB would experience non-injurious harassment. Id. Basically, the entire calculation of risk in the Draft would have been rendered invalid by confirmation of the whale watch captains observations.
The failure to follow up on the whale watch captain reports or to even discuss their evidence created a glaring inadequacy in the Draft.
The calculation of risk to species also did not take into account a species on the verge of extinction. The Hawaiian monk seal, for example, has so few members of the species left that any adverse impact on even a single such seal could have potentially devastating effects on the species. The Draft's models do not appear to take such a condition into account.
4. Miscellaneous Concerns
4.1. Joseph Johnson - The Draft is not clear on just where Mr. Johnson works.
4.2. Marine Acoustics, Inc. - The Draft provides no information on this company.
4.3. The Navy intends to use the HF/M3 system at levels up to 220 dB to detect animals in the vicinity of SURTASS LFA broadcast areas. Has the Navy prepared an environmental impact statement for the intended use of HF/M3?
4.4 During the testing off Hawai`i, a dead baby Humpback Whale appeared on the Island of Oahu. The person designated by the SRP to conduct a necropsy after such a death was unavailable. Mr. Chris Clark went to Oahu and removed the hearing structure from the dead whale. That hearing structure was to be analyzed for possible damage. What were the results of the necropsy?
4.5. The National Marine Fisheries Service stated that "although NMFS agrees to be a fully cooperating agency in the preparation of the DEIS, because of its regulatory role, we believe that it would be inappropriate for NMFS to be a signatory agency on the document." Draft, Appendix A, Letter from Hilda Diaz-Soltero, Director of the NMFS Office of Protected Resources to Captain Neil Rondorf dated April 1, 1998. Yet in the list of those preparing the Draft, both Mr. Kenneth Hollingshead and Mr. Roger Gentry of the NMFS Off of Protected Resources appear, along with their years of experience to lend credibility to the Draft. Why is the inclusion of Mr. Hollingshead and Mr. Gentry as preparers of the Draft not inappropriate given their roles in the office responsible for regulatory oversight?
4.6. The Navy has previously taken the position that the Endangered Species Act does not apply within the exclusive economic zone (EEZ) of a foreign nation. See e.g. LFA-13 Environmental Review, supra. at 47. Yet the Director of the Office of Protected Resources stated that the "take prohibitions of the ESA apply both to takes in U.S. territorial waters and to takes by people under U.S. jurisdiction while on the high seas." Draft, Appendix A, Letter from Hilda Diaz-Soltero, Director of the NMFS Office of Protected Resources to Mr. Joseph Johnson dated June 27, 1999 (emphasis added). Does the Navy still maintain that the Navy is not subject to the Endangered Species Act for activities conducted in the EEZ of a foreign nation? If so, what is the basis for the Navy claim that the ESA does not cover Navy activities in the EEZ of a foreign nation?
4.7 The health practitioners treating the snorkeler in Hawai`i injured by the SURTASS LFA broadcast traced the injury to a disrupted lymph system. What is the resonant frequency at surface level and down to six feet sea water of the human lymph system?
5. Conclusion
The Navy did not come to the table with clean hands. The failure to obey environmental laws prior to the initiation of the OEIS/EIS and the massive expenditure of funds on development prior to completing an OEIS/EIS called into question the legitimacy of the Navy's commitment to an honest environmental evaluation.
The conduct of the scientific studies, the rush to issue the Draft, the inadequacies in the Draft, and all the other criticisms offered above add up to a tainted process.
The author is not sure that there is any way to make a mid-course correction in this matter. There is no way to unspend the hundreds of millions of dollars spent on SURTASS LFA.
The Navy could revisit the need for SURTASS LFA in light of changes in the international community, e.g. the end of the Cold War. People at the top of the chain of command could cancel SURTASS LFA in light of the changed circumstances. The author understands that the ship under construction can be deployed for other purposes. Alternatively, the Navy can withdraw the Draft, bring in a new company to evaluate all the evidence, determine the environmental impacts in an honest and open fashion, and then decide whether there is a need to return to the drawing boards. The failure to respond to the Hawai`i conditions when they emerged, however, limits what can be done to adequately evaluate those conditions at this point. For example, any physical examination of the snorkeler at this point is probably moot.
To proceed to deployment based on the OEIS/EIS process to date would simply be to continue thumbing the Navy's nose at legal requirements to protect the environment. While flashing the "national security" badge can be fun, doing so in these circumstances is not a confidence builder for the civilian population.
Despite the critical tone of these comments, the author extends his aloha to all those involved in the OEIS/EIS process and assumes that in many respects the sins of others have fallen on those now carrying the SURTASS LFA burden.
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