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The US Navy's $100 MILLION Mistake

Low frequency sonar and the health of the oceans

by Lanny Sinkin

When you make a mistake, you really have two options. You can come clean, take your lumps, learn the lesson, forgive yourself, and move on or you can pretend you did nothing wrong, cover your tracks, even lie and hope you are not discovered.

While the first path is preferable from many points of view, the larger the mistake,

the more difficult it becomes to admit the mistake.

That's the problem for the United States Navy. Their mistake is an investment of something like $100 million in a low frequency sonar system designed to detect silent submarines. The investment was a mistake because it turns out the new system is a threat to numerous marine species, including endangered species, and to the marine environment itself.  The first mistake the Navy made was to ignore the need both legally and ethically to evaluate the potential environmental impacts of their new sonar system before bringing the system to the point of deployment.

The story begins in the early 1980's when the Navy became concerned that a new generation of submarines would not be detected by the extensive U.S. network of underwater listening devices. Previously, these passive systems could provide sufficient information to locate and track submarines. More silent submarines and noisier  oceans made such detection less likely. During the 1980's, the Navy evaluated alternative technologies for responding to this perceived threat. By 1987, every technology except low frequency active acoustic (LFAA) sonar had been ruled out. At that point, the Navy began extensive design, testing and development of an LFAA system.

Unfortunately, the Navy failed to initiate an environmental impact process at the same time. Under the National Environmental Policy Act (NEPA), federal agencies are required to initiate the preparation of an environmental impact statement (EIS) at the time a threshold decision is made to pursue an activity having potentially significant environmental effects. NEPA also forbids the irreversible or irretrievable commitment of resources prior to the completion of an EIS.  Under Executive Order 12114, the Navy was also required to prepare an overseas environmental impact statement (OEIS), if the proposed activity would (a)ffect common global areas, such as ocean waters; the environment of a foreign nation; or protected global resources.

For more than ten years, the Navy designed, built, and repeatedly tested LFAA systems without preparing the required EIS or OEIS. There is a real question whether such documentation would ever have been prepared, if the Navy had not been caught violating NEPA and numerous other federal laws. 

In 1995, the Natural Resources Defense Council (NRDC) learned that the Navy was on the verge of deploying their low frequency system, known as SURTASS LFA, in 80% of the world's oceans. NRDC sent a letter to the Navy pointing out the numerous environmental laws violated over the past eight years by the Navy and essentially threatening to take the matter to court, if the Navy persisted in acting illegally.   By that time, the Navy had spent tens of millions of dollars on the development of SURTASS LFA. Today, the total figure stands somewhere in the neighborhood of $100 million, including a nearly complete ship being built to carry the active sonar system.

In the face of the NRDC threat, the Navy agreed to prepare an environmental impact statement. The Navy called together scientists familiar with the marine environment. Not surprisingly, the Navy  discovered that sound is a very important part of the daily life of whales, dolphins, and other marine life. The extremely loud, low frequency sounds that the Navy intended to broadcast could potentially injure or kill such
marine life. Had the Navy stopped to consider the marine environment before leaping into development and testing of SURTASS LFA, this obvious truth would have emerged at the beginning of the process.

The Navy also discovered that loud, low frequency sound in the water can have adverse effects on human beings. Again, that information is not startling or unexpected.

The Navy had three choices at that point - stop the program, prepare an OEIS/EIS, or have NRDC go to court. Rather than scrap the program or risk facing a judge in such a flagrantly illegal situation, the Navy opted to conduct some studies and prepare the necessary documents.  An EIS by law must include a "no action" alternative, i.e. the possibility that the agency would conclude not to pursue the action after
evaluating the environmental impacts. In the draft OEIS/EIS (DEIS) issued in July 1999, the Navy claims that those preparing the DEIS were independent and could have chosen the "no action" alternative. That claim must, however, be taken with 100 million grains of salt. The existing massive investment in a system considered the only alternative for meeting a threat to national security would create tremendous momentum for a decision favoring deployment.

With that background, the Navy funded scientists to research the impacts of LFA on marine life and humans in the water. The marine life research took place in three locations over a two year period. That research is documented in a technical report issued by the researchers. The researchers examining effects on humans issued a separate report based on additional studies. The Navy relied on these studies in preparing the
DEIS issued in July 1999.

Unfortunately, the draft demonstrates without question that the momentum for deployment compromised the integrity of the process. As just a few highlights of the deficiencies in the DEIS:  While the scientists conducted the initial marine life tests off California and Alaska with little public awareness or response, the third phase test in Hawaii set off a storm of protests. That phase intended to test the effects of SURTASS LFA on Humpback Whales during their breeding season. The announcement of the tests beginning led to organized efforts to place swimmers in the water around the broadcast boat to prevent use of the LFA on the whales.

Four separate lawsuits against the Navy and others were filed in federal court. One led by the Ocean Mammal Institute challenged the failure of the Navy to have prepared an EIS before initiating potentially harmful testing. A second challenged the testing as a violation of the spiritual rights of native Hawaiians, who hold the whale sacred. A third suit by the Hawaii County Green Party claimed that evidence from the tests themselves demonstrated that whales were being driven from their breeding
grounds and humans were being injured. A fourth suit sought damages for a whale watch boat company forced to cut short its season by the disappearance of the Humpback Whales.

These suits were declared moot by the courts when the Navy stopped testing, promised that there would be no more testing, and left Hawaiian waters. The courts never reached the merits of the evidence regarding the threats posed to marine and human life by SURTASS LFA. The technical report prepared by the scientists and the DEIS itself completely ignore almost all of the evidence presented to the Hawaiian courts.
The Hawaiian tests began at the end of February 1998 and continued through March.
Neither the DEIS nor the technical report on the tests discuss the numerous reports from whale watch boat captains and others regarding the unusual disappearance of whales from the testing area beginning at the start of the tests in the first two weeks of March 1998. The captains making the observations had a total of more than 125 years of whale watching in Hawaiian waters.

During the litigation, the scientists attempted to dismiss the boat captains' evidence presented by characterizing the evidence as "anecdotal."  In their technical report, they simply avoid discussing the evidence at all. Nor does the DEIS mention the captains' reports. No one associated with the preparation of the technical report or the
DEIS made any attempt to contact the whale watch captains to elicit further information or otherwise follow up on the information provided by the captains.

The technical report does cite aerial surveys locating Humpback Whales by Professor Joseph Mobley during March. The scientists attempt to rely on Dr. Mobley's data to support a conclusion that the whales behaved normally. Yet the technical report completely ignores the consistent findings in the earliest Mobley surveys (March 1 and 8, 1998) that there were no whales seen in the exact area identified in the technical report as the primary LFA test site and an abundance of whales outside the test area.

In previous years, there was an abundance of whales found by Mobley in the test area as well.  Here was evidence that the whales were staying out of the testing area while remaining in the vicinity of the island. Even more importantly, this evidence strongly suggested that the LFA had driven an endangered species out of a favorite breeding area. One would think that would be at least interesting to the scientists studying whale response to LFA. Nevertheless,in their discussion of the Mobley surveys, the scientists simply ignore that part of Mobley's findings.

Months after the testing ended, Dr. Mobley claimed that the transits randomly selected for aerial 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. If the claim is true, then the Mobley surveys cannot be used by the scientists to claim the whales remained in the test area because Mobley now says 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.                                                         Back to previous page

Accepting Dr. Mobley's disclaimer 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 two Navy 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.   That the technical report and the DEIS do not discuss the captains' observations is one of many indicators that facts will not be allowed to impede a predetermined deployment decision.

While judicial rulings have taken most of the value out of the National Environmental Policy Act, two principles at least have survived - the decision-makers must consider the evidence before them and provide an opportunity for the public to comment on the decision-making process. By excluding highly relevant evidence known to the Navy; their contractor, Marine Acoustics, Inc.; and the scientists preparing the critical
underlying report(s), the DEIS violates both these principles. There is every reason, therefore, to expect a court to rule that the process must be reopened to consider such
evidence. The failure to address the evidence of whales leaving the testing area is matched by a similar failure to address the evidence of a swimmer in the water suffering traumatic physical harm from insonification by the SURTASS LFA.

(Continued on page 11)