Navy Blue Goes Green

By the Honorable Steven S. Honigman and Captain John P. Quinn, Judge Advocate General Corps, U.S. Navy

In 1996, at the Navy's request, Congress enacted a law that makes the Navy a co-regulator with the U.S. Environmental Protection Agency (EPA) with respect to certain naval vessel discharges. Under this Uniform National Discharge Standards initiative—which requires that factors such as practicability, mission impact, and cost, in addition to environmental benefits, be considered—the Navy and EPA are developing a comprehensive set of pollution standards for naval vessels. When implemented early in the next century, these standards will supersede state and local requirements, thus giving the Navy a uniform set of environmental standards toward which to design, build, and operate vessels.

The Navy also has made considerable progress in minimizing the potential for adverse impact from the use of naval sensors, ordnance, and other systems during training and exercises. Five important U.S. environmental planning and species protection mandates affect such operations:

  • National Environmental Policy Act (NEPA). NEPA requires federal agencies to prepare an environmental impact statement for major federal actions that significantly affect the quality of the environment within the United States, including the territorial sea. Public involvement in the environmental planning process, through notice and opportunity to comment, is the centerpiece of the NEPA process.
  • Executive Order 12114 . Similar to NEPA, but requiring less extensive public involvement and allowing for more flexible application, this order requires environmental analysis of federal actions that affect the environment outside of the United States, including within foreign countries.
  • Endangered Species Act (ESA). This act prohibits the unauthorized "take" of protected species within the United States and on the high seas, and requires federal agencies to consult with the cognizant wildlife agency regarding any action that may affect protected species.
  • Marine Mammal Protection Act (MMPA). This act prohibits the unauthorized "take" of any marine mammal within the United States or on the high seas. A 1994 amendment broadly defined take to include not only the killing or injuring of a marine mammal but also non-injurious harassment that "has the potential to disturb a marine mammal . . . in the wild by causing disruption of behavioral patterns." The implications of this amendment remain uncertain. In a 1995 proposed rule, for example, the National Marine Fisheries Service suggested that even vessel noise may be a form of marine mammal harassment. The Navy objected to this interpretation of the law; the rule has not been finalized. Uncertainty regarding the full extent of the MMPA harassment prohibition is a continuing challenge for environmental planners.
  • Coastal Zone Management Act (CZMA). This act requires federal agencies to ensure that any of their activities that affect land or water use or natural resources within a state's coastal zone are consistent to the maximum extent practicable with the state's coastal zone management plans. Federal agencies must provide a "consistency determination" to the affected state 90 days prior to commencing a proposed action.

Over the past four years, the Navy has on several occasions engaged environmental regulators, interest groups, and the courts concerning the application of these requirements to operations at sea. An awareness of these interactions will enable commanders to address these issues more effectively as they continue to arise.

Three Navy Case Studies

The Ship Shock Testing of the John Paul Jones (DDG-53). The Navy's 1994 experience with the shock testing of the John Paul Jones emphasizes the importance of careful attention to the environmental planning and conservation statutes that relate to operations at sea.

Shock testing, mandated by law, is used to determine how well a ship and its complex systems would sustain shocks of the sort that might be encountered in battle. It involves detonating as much as 10,000 pounds of high explosive in close proximity to the vessel and then examining ship's systems to determine the effect. Only by conducting real-world tests such as this can the Navy develop the empirical data needed to maximize the survivability of its ships and the safety of their crews.

The Navy considered several locations for the DDG-53 test, but a number of factors militated in favor of Southern California waters: the John Paul Jones was home ported in San Diego; a naval hospital and a qualified ship repair yard were located nearby; the weather generally is favorable; and other naval assets were readily available in the vicinity to support the test.

The Navy recognized that the shock test could result in a take of marine mammals, and that an MMPA letter of authorization therefore was needed. Working with local National Marine Fisheries Service (NMFS) scientists, the Navy surveyed those ocean areas that were practical for shock testing to determine which had the lowest density of marine mammals. It also drafted an extensive mitigation plan for the testing, which called for pre-detonation surveys in the days and hours preceding the test, shipboard visual and acoustic monitoring for marine mammals, and post-test monitoring for any injured marine mammals.

NMFS issued the Navy a letter of authorization to take marine mammals in the course of the DDG-53 shock test. The Natural Resources Defense Council (NRDC) challenged the issuance and sought an injunction to prevent the Navy from conducting the tests. It argued that neither NMFS nor the Navy had adequately considered alternative locations. In opposing the court order, the Navy showed that more than $50 million in additional costs could be caused by delay; that 13 ships of the class would have to be retrofitted if the delayed test disclosed any major design flaws; and that more than 2,000 sailors could be at risk until shock testing could be done. Nevertheless, the U.S. District Court granted a preliminary injunction.

The United States filed a notice of appeal. In the meantime, lawyers for the Navy and NRDC pursued a settlement that would allow the Navy to carry out the tests while ensuring that legitimate concerns about the safety of marine mammals were adequately addressed. A compromise was reached, under which the Navy, with observers designated by the NRDC, conducted the shock tests farther out to sea and with additional environmental analysis and mitigation measures. The delay in conducting these tests, resulting largely from the litigation, cost the Navy several million dollars.

The DDG-53 shock-test experience underscores the importance of early, effective, and legally sufficient environmental planning, and the benefits of engaging potential plaintiffs as early as possible. Of equal importance, the successful accomplishment of this crucial test also demonstrates that the Navy can work in partnership with environmental regulators and responsible environmental groups to find ways to harmonize operational and environmental requirements.

Operations off Georgia and Florida and the Right Whale . The waters and airspace adjacent to Kings Bay, Georgia, and Mayport, Florida, are major operating areas for the Navy's Atlantic Fleet. These warm shallow waters within a dozen or so miles of the northern Florida coast also are the only known calving area for the northern right whale, the world's most endangered whale species, with a population of only 300 to 350 mammals. In 1993, a strip of ocean off northern Florida—5-15 miles wide and roughly 120 miles long—was designated a critical habitat for the right whale.

Early in 1996, five right whale deaths were confirmed in waters off the southeastern United States. Initial reports suggested that concussive force, perhaps from an explosion, may have been a factor in one. During this period the Navy had conducted aerial and surface ordnance activities within the general region, but well seaward of the critical habitat. Upon learning of the possibility that concussive force may have been a factor, the Navy immediately initiated a review of its activities. Representatives from the National Oceanic and Atmospheric Administration, NMFS, the Marine Mammal Commission, and leading nongovernmental experts in right whale physiology reviewed all available evidence, including necropsy results. The group ultimately dismissed blast exposure as a possible cause of death of any of the animals.

Even before the interagency group had completed its review, the Atlantic Fleet implemented new right whale protective measures to be in effect during the calving season. All ordnance activities were moved seaward to no fewer than 50 miles from shore and were directed away from land, and north-south vessel transits through the critical habitat were prohibited. Additional review was mandated prior to conducting any operations in the critical habitat. These measures were in addition to longstanding Atlantic Fleet support to the NMFS-led Southeastern U.S. Implementation Team for the Recovery of the Northern Right Whale. The Navy also moved quickly to initiate informal Endangered Species Act consultation with NMFS, to determine whether ordnance activities were affecting the whale.

As the informal consultation progressed, it became apparent that a more comprehensive consultation would better serve the interests and obligations of both the Navy and NMFS. Certain surface ship training activities near Mayport, Florida, had been the subject of a 1995 informal consultation, but air operations and other vessel operations in the vicinity had not been addressed. A comprehensive consultation, including air operations, would ensure that both agencies fully complied with the mandates of the Endangered Species Act.

A key point to be resolved was whether the consultation between the Navy and NMFS should remain on an informal basis. As the discussions coalesced around a mutually acceptable set of mitigation measures, both agencies began to realize that memorializing their understandings through formal consultation would be appropriate. In November 1996, the Navy provided NMFS with a biological assessment describing not only operations off the Southeast coast but also the mitigation measures proposed for those operations. NMFS's final biological opinion, issued in May 1997, concluded that with the employment of the mitigation measures suggested by the Navy, fleet operations off the southeastern United States are not likely to jeopardize the right whale or other protected species.

This ESA consultation dealt with matters at the heart of the Navy's mission: where and how fast to sail, where to shoot guns and drop bombs, and how many watchstanders having what qualifications should man the bridge. Completion of this first-ever across-the-board formal consultation for Navy operations at sea in a specified geographic region was a major milestone. It demonstrates that compliance with environmental requirements can be achieved while still preserving the Navy's ability to train and operate effectively. In addition, the training and exercises covered now are far less susceptible to legal challenge. In 1995, an environmental group successfully sued the U.S. Coast Guard over right whale protection. No such suit has been filed against the Navy.

The Low-Frequency Active Sonar . More than 40 countries operate submarines capable of threatening U.S. forces afloat in the world's littoral regions. The surveillance towed array sensor system (SURTASS) low-frequency active (LFA) sonar system offers a submarine detection capability significantly more effective than existing active or passive systems. The introduction of low-frequency sound into the marine environment, however, is a controversial and highly visible environmental issue. Scientists believe that exposure of certain marine creatures to excessive levels of low-frequency sound potentially can cause adverse auditory, other physiological, or behavioral effects. Protection of human divers also is a concern. Effective and reliable mitigation measures must be developed to ensure that the LFA system can be operated in an environmentally responsible manner. Unfortunately, obtaining the needed scientific information to support such efforts is difficult, because some of the creatures potentially affected, such as large whales, can be studied only in their natural environment.

In August 1995, the Navy and the Natural Resources Defense Council entered into a dialogue regarding the potential environmental effects of the LFA sonar and the environmental analysis that would be required to support system testing and deployment. During this process the Navy shared with the NRDC and other interested organizations and individuals environmental assessments that had been prepared in connection with prior at-sea tests, and discussed in detail the environmental requirements for future testing and potential operational deployment

In April 1996, the Vice Chief of Naval Operations concluded that a comprehensive environmental impact statement, global in scope and prepared under authority of both NEPA and EO 12114, was required. In view of the high level of public interest, the Vice Chief also decided to provide opportunities for public involvement in the EO 12114 process that exceeded existing DoD requirements. Specifically, the following enhancements would be added: Federal Register notice of the Navy's intent to prepare a 12114 environmental impact statement; consideration of public input regarding the scope of issues that should be addressed, and Federal Register publication of a record of decision.

In July 1996, the Navy announced its intent to prepare the impact statement, beginning a process that continues today. In addition to NEPA and EO 12114 requirements, deployment of the LFA sonar may require action to comply with the Endangered Species Act, Marine Mammal Protection Act, and Coast Zone Management Act. To address these obligations in a manner that would earn the confidence of interested stakeholders, the Navy initiated an energetic outreach to other federal and state agencies and environmental interest groups. In January 1997, the Navy sponsored a meeting in Washington, D.C., with government agencies, environmental interest groups, and independent scientists, at which LFA operation and mitigation measures were discussed and a plan laid out for accomplishment of environmental requirements.

One significant outcome of that meeting was a consensus that more information was needed on the effects of low-frequency sound on marine mammals. To address this requirement, the Navy invited the agencies and organizations present to send scientific experts to participate in identifying the data gaps and the means of obtaining the needed information. A group of Navy and non-Navy experts subsequently designed a scientific research program to address these needs. Their plan then was discussed and critiqued by a broader group of experts. The needed environmental analysis was done, an MMPA permit was obtained, and the Navy provided CZMA consistency determinations to California and Hawaii. Neither state objected to the proposed research.

The LFA research program was overseen by leading national experts in marine mammals and bioacoustics from the Woods Hole Oceanographic Institute and Cornell University. The research was divided into three parts:

  • Phase 1, focusing on blue and fin whales, took place near the Channel Islands off California in September 1997.  
  • Phase 2, focusing on gray whales, took place near the California coast in January 1998.
  • Phase 3, focusing on humpback whales, took place near the island of Hawaii in February and March 1998.

In each phase the objective was to expose animals under observation to slowly increasing levels of low-frequency sound, in an effort to determine the level at which some reaction occurs. These data will assist not only in the development of appropriate LFA mitigation measures, but also in broadening scientific understanding of the effects of other low-frequency sound—such as that generated by supertankers—on marine creatures.

Although the Navy had involved major environmental interest groups extensively in the design of the LFA research, other interest groups that had not been involved unexpectedly filed a series of four lawsuits in an effort to enjoin the Phase 3 research. In response, the Navy and the other defendants demonstrated that meticulous attention had been given to all applicable NEPA, ESA, and MMPA requirements. On this evidence, the U.S. District Court in Honolulu declined in each case to issue the requested temporary restraining order or preliminary injunction. These cases should serve as a reminder that legal challenges to Navy activities at sea can come at any time, but that the Navy can prevail when proper attention is given in advance to environmental protection requirements.

In addition to the marine mammal research, the Navy has initiated a number of studies on the impact of low frequency sound on human divers. These studies, being conducted by civilian institutions and by Navy offices, will examine potential impact from a variety of medical perspectives.

For the Navy, the LFA experience has broken considerable new ground. Senior civilian and military officials within the Department of the Navy are personally involved in the process and have become far better acquainted with environmental planning and conservation requirements. Although the Navy regularly interacts with environmental stakeholders, the extensive public outreach regarding a state-of-the-art submarine detection system is unprecedented. The LFA experience also has alerted a broad segment of the Navy to the need for more aggressive environmental review early in the weapon system acquisition process.

The Right Thing to Do

During the 1998 Year of the Oceans, and beyond, the Navy can anticipate growing scrutiny of its operations at sea. The prudent course is to seize and retain the environmental initiative. As former Chief of Naval Operations Admiral Jeremy "Mike" Boorda noted, "Environmental protection must be an integral part of our day-to-day work. The law requires it, the public expects it, and it is the right thing to do. . . . Success in this area will enhance our ability to carry out the Navy's primary mission, by building public support for Navy programs, and helping to preserve access to training and operating areas."

A presidential appointee confirmed by the Senate, Mr. Honigman served as General Counsel of the Navy from June 1993 through March 1998. He now practices law in Washington, D.C., where he is a member of Thelen Reid & Priest LLP. Captain Quinn is Deputy Assistant Judge Advocate General and Deputy General Counsel of the Navy for Environmental Law. He previously served as environmental counsel on the Chief of Naval Operations staff (N-45) and on the Pacific Fleet staff.

 

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