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By Alan Kovski
July 18 — Plans for protecting whales and other marine mammals from Navy sonar must go beyond avoidance of substantial harm to a species, a federal appeals court ruled July 15 ( Nat. Res. Def. Council, Inc. v. Pritzker , 2016 BL 227685, 9th Cir., No. 14-16375, 7/5/16 ).
The U.S. Court of Appeals for the Ninth Circuit overturned a district court decision that ruled in favor of the NOAA's National Marine Fisheries Service (NMFS) on the agency's approval of Navy mitigation plans to keep harm to a “negligible” level for the marine mammal species.
The mitigation planning failed to satisfy the Marine Mammal Protection Act requirement that mitigation measures must ensure the “least practicable adverse impact,” the appellate court said in a lawsuit brought by environmental activist groups led by the Natural Resources Defense Council.
The ruling will require the NOAA Fisheries to reanalyze the mitigation plans developed for Navy operations using low-frequency sonar in training, testing and routine operations.
“We conclude that NMFS is required to prescribe regulations to achieve the ‘least practicable adverse impact' before it can authorize incidental take,” the three-judge appellate panel said, using “incidental take” legal jargon for harm.
The limitation of sonar operations to a “negligible impact” on marine mammal populations is required but not a substitute for an analysis of whether the proposed mitigation measures reduce the impact of incidental take on marine mammals to the lowest level practicable, the court said.
“NMFS should have considered whether additional mitigation measures were necessary to achieve the least practicable adverse impact on marine mammals, and also whether these mitigation measures would be practicable in light of the Navy's need for effective military readiness training,” the appellate court said.
Additional mitigation measures could include designation of additional “offshore biologically important areas” to provide marine mammals with relatively low-noise environments. The NMFS and the Navy already considered that possibility as part of an “adaptive management” plan for improving the mitigation measures over time if needed.
But adaptive management did not meet the requirements of the Marine Mammal Protection Act (MMPA), in the view of the appellate court.
“The mere possibility of changing the rules to accommodate new information does not satisfy the MMPA's strict requirements for mitigating the effects of incidental take,” the court said
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The Ninth Circuit ruling in Nat. Res. Def. Council v. Pritzker is available at http://src.bna.com/gSz .
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