International Regulation of Underwater Sound: Establishing Rules and Standards to Address Ocean Noise Pollution (Solid Mechanics and Its Applications)

INTERNATIONAL REGULATION OF UNDERWATER SOUND Establishing Rules and Standards to Address Ocean Noise Pollution

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INTERNATIONAL REGULATION OF UNDERWATER SOUND Establishing Rules and Standards to Address Ocean Noise Pollution

by

Elena McCarthy Marine Policy Center Woods Hole Oceanographic Institution

KLUWER ACADEMIC PUBLISHERS NEW YORK, BOSTON, DORDRECHT, LONDON, MOSCOW

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1-4020-8078-6 1-4020-8077-8

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Contents Chapter One – Introduction 1. A Brief History of the Use of Sound in the Ocean 2. Ambient Noise in the Sea 3. Effects of Sound on Marine Mammals 4. Regulation of Noise in the Ocean-Some Background Chapter Two – Scientific Aspects of Underwater Sound 1. The Physics of Underwater Sound 2. Effects of Acoustic Emissions 2.1 Health Threats to Marine Mammals 2.2 Health Threats to Humans 2.3 Threats to other Marine Life 2.4 Acoustic Interference 3. Summary – Effects of Acoustic Emissions 4. Sources of Naturally-Occurring Sound in the Ocean 4.1 Physical & Geophysical Sources 4.2 Biological Sources 4.3 Sounds from Marine Mammals 5. Anthropogenic Sound in the Sea 5.1 Is Ambient Noise Increasing? 5.2 The Many Uses of Sonar 5.3 Shipping and Shipping Trends 5.4 Dredging and Coastal Construction 5.5 Offshore Oil and Mineral Exploration 5.6 Recreational Boating 5.7 Fishing and Aquaculture 5.8 Military Activities 5.9 Oceanographic Research 5.10 Other Sources 5.11 Ambient Noise-Summary 6. Hotspots – Sensitive Areas of Intense Acoustic Activity 6.1 Stellwagen Bank 6.2 The Ligurian Sea 6.3 Other Hotspots Chapter Three - Focusing Events 1. What are Focusing Events? 2. The Role of Non-Governmental Organizations 2.1 What are Environmental NGOs? 2.2 Public Perception of Marine Mammals 2.3 The Natural Resources Defense Council 2.4 Other NGOs involved in Ocean Noise Pollution 2.5 The Emergence of New NGOs 3. Key Focusing Events 3.1 Ship Shock Testing 3.2 Acoustic Thermometry of Ocean Climate (ATOC) 3.3 The North Pacific Acoustic Laboratory (NPAL) 3.4 Greek Whale Strandings and NATO 3.5 Surveillance Towed Array Sensor System (SURTASS) 3.6 Bahamas Strandings 3.7 Littoral Warfare Advanced Development (LWAD) 3.8 Other Focusing Events 4. Other Factors Contributing to the Noise Controversy

1 4 5 7 9 14 14 16 18 19 20 23 23 24 25 28 28 31 32 37 41 47 50 52 55 58 60 62 66 71 80 83 85 86 87 88 91 94 95 96 97 101 102 104 112 115 116 118

vi Chapter Four – Policy Development 1. Trail Smelter & Regulation of Transboundary Pollutants 2. The Pollution Provisions of the Law of the Sea Convention 3. Ocean Noise as a Transboundary Pollutant 4. Previous Regulation of Transboundary Pollutants 4.1 Thermal Ocean Pollution 4.2 Radiation 4.3 Air Pollution 5. Existing International Regulatory Framework 5.1 The United Nations Environmental Programme 5.2 The International Maritime Organization 5.3 International Whaling Commission 5.4 International Seabed Authority 5.5 The European Union 5.6 The Use of Regional Agreements 5.6.1 The OSPAR Convention 5.6.2 The Arctic Council 5.6.3 ASCOBANS 5.6.4 ACCOBAMS 5.6.5 NATO Chapter Five - Politics, Potential Solutions, & Obstacles 1. International Institutions 1.1 The Value of International Regimes and Organizations 1.2 GESAMP 1.3 The Development of an International Treaty 2. Conventional Approaches to Pollution Control 3. Policy Instruments for Addressing Ocean Noise Pollution 3.1 Taxes 3.2 Performance Bonds and Subsidies 3.3 Permits 3.4 Technological Standards- BAT and BPT 3.6 Best Practicable Environmental Option 3.7 Bans and Zoning 3.8 Marine Protected Areas 4. The Trend Toward Ecosystem Based Ocean Management 5. Policy Instruments – A Summary Chapter Six – The Use Of Marine Protected Areas 1. Unilateral MPAS in the U.S. and Abroad 2. Multilateral MPAs 3. The Potential of MPAs to Prevent Acoustic Disturbance 4. Zoning in MPAs 4.1 Activity-Specific Zones 4.2 Individual Source-Specific Zones 4.3 Buffer Zones 5. Challenges in Implementing MPAs and Zoning Chapter 7 – Conclusion 1. The Politics of Policy-Making 1.1 Where is the Issue of Ocean Noise? 1.2 Incrementalism and Public Policy 2. Summary of Findings Appendix A – Glossary Appendix B – List of Acronyms Bibliography

121 124 128 131 131 132 137 142 143 145 148 150 151 153 153 155 157 160 164 169 169 173 176 180 193 194 196 197 205 208 209 211 211 216 219 223 226 226 228 230 231 234 247 249 251 257 263 265 267

Preface

In May 1996, the Alliance, an oceanographic research vessel operated by the North Atlantic Treaty Organization (NATO), was conducting experiments with a new sonar off the coast of Greece. Several hours after the experiments, 17 beaked whales stranded in the Kyparissiakos Gulf and subsequently died.1 These events came to light much later when a Greek biologist published a correspondence in the journal Nature, which raised the concern that the sonar in some way had contributed to the deaths of the whales. 2 As a result of the article, NATO held an international inquiry in June 1998. I attended this meeting, and listened to the many possibilities of physiological and behavioral effects that the sonar could have created. In part due to the lack of necropsy data, however, no conclusion was reached as to the cause of the whales’ deaths.3 I left the meeting thinking of something other than ocean physics and marine mammal physiology though—I began to think about who is responsible in such a situation? What types of rules and regulations apply— if, in fact, such rules and regulations even exist? This event underscored the regulatory challenges posed by the presence of noise in the international arena: The sonar was owned by the US

1

The number of stranded animals was reported to be between 12-17; the exact remains unknown, as most cetaceans sink when they die. 2 See A. Frantzis, “Does Acoustic Testing Strand Whales?,” Nature 392 (1998): 29. See also “Quiet, Please. Whales Navigating,” The Economist, March 7, 1998 at 85 and “Beached Whales and Military Testing”, The Washington Post, March 9, 1998 at A2. 3 SACLANTCEN Summary Record, SACLANTCEN Marine Mammal Environmental Policy and Mitigation Procedures Panel, La Spezia, Italy, 17–19 June 1998.

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government; the ship was owned by the 16 NATO nations but flew a German flag; and the experiment was carried out in Greek waters.4 Determining who was responsible, let alone who might regulate the use of the sonar in this scenario, was complex and the international implications were significant.5 The challenge of regulating ocean noise in an international context became disturbingly evident. Addressing this challenge formed the basis of my research. This book examines the issue of anthropogenic, or manmade, sound in a global context. It investigates the nature and significance of problems associated with anthropogenic sound in the ocean, identifies conflicting uses of ocean space related to noise, and considers the need for new regulatory initiatives. In particular, it considers the response of the international legal system to the nascent problem of ocean noise. In doing so, it identifies the existing legal, economic, and political barriers to the creation and implementation of a new international regime designed to manage anthropogenic noise in the ocean. Because underwater noise can travel thousands of miles across the high seas and into waters under the jurisdiction of other states, its impacts can be international in scope. Presently, there are no rules of international law that specifically address the transmission of sound through the ocean.6 This lack of international rules and standards for regulating underwater sound has stimulated intense controversy in scientific, environmental, and legal communities. As a result, there is now a need to develop internationally accepted rules and standards for sound propagation and transmission in the world’s oceans. Noise is clearly different from traditional pollutants such as oil or sewage because it is not a substance, but a form of energy.7 As such, it shares certain attributes with other types of energy pollutants such as radiation and heat. For this reason, the book examines the historical treatment of radiation and thermal energy by the 1982 United Nations Convention on the Law of

4

John Peterson of SACLANTCEN provided a detailed explanation of why the NATO vessel flies a German flag. Personnel e-mail correspondence, May/June 1998. 5 Although this NATO event was not the first time ocean noise and its effects on marine mammals was in the spotlight, it was the first incident that had such overwhelming international implications. Other events are discussed in detail in Chapter Three. 6 See Harm Dotinga & Alex Oude Elferink, “Acoustic Pollution in the Oceans: The Search for Legal Standards,” Ocean Development And International Law 31 (2000): 162. 7 In this book no distinction is made between the terms “noise” and “sound”. They are often used interchangeably. Noise is a somewhat relative term and has been defined as “sound or a sound that is loud, unpleasant, unexpected, or undesired.” Also as “sound or a sound of any kind.” The American Heritage Dictionary of the English Language, ed., (Boston: Houghton-Mifflin Co., 1996).

Preface

ix

the Sea. It then seeks to identify the appropriate treatment for noise as a type of pollution that directly and indirectly impacts on the ocean ecosystem. Finally, the book proposes some new approaches that could be used by the international community to address the problems that have been identified. Specifically, it focuses on the potential of marine protected areas, sanctuaries, and multi-lateral regional initiatives in regulating underwater noise pollution. The first chapter outlines the history of the use of sound in the sea, the effects of sound on marine life, and the evolution of noise regulation in the ocean. Chapter Two provides an explanation of the scientific aspects of underwater sound including the physics of sound, its sources, and its effects. Additionally, it analyzes statistical and technical data to determine trends in anthropogenic noise in the ocean and to locate geographical areas that pose the greatest threat to marine life and habitat. Chapter Three examines how ocean noise became an international concern, specifically the catalyzing role of non-governmental organizations (NGOs) and environmental groups in bringing the issue of underwater noise pollution to the attention of governments, intergovernmental organizations, and the public. Chapter Three also describes several of the key “focusing events” that brought this issue to the public’s attention. These include the highly publicized Acoustic Thermometry of Ocean Climate (ATOC) experiment—the first event to prompt a debate over the use of sound in the ocean and its possible harm to marine mammals. It also takes an in-depth look at the development of the US Navy’s SURTASS-LFA system, the stranding of whales in Greece during the NATO sea trial, the US Navy’s submarine and surface ship shock tests, and whale deaths in the Bahamas during US naval operations. Chapter Four outlines the “route to government” that has guided international pollution issues in the past and validates the concept of noise as a type of transboundary pollutant. It then looks at the existing international legal framework to determine whether it can be applied to the issue of anthropogenic ocean noise. It focuses on the evolution of international policy that regulates thermal, radioactive, and air pollution, including a case study of the 1979 Convention on Long Range Transboundary Air Pollution. Chapter Four also discusses the current role of the United Nations (UN) and other intergovernmental bodies in controlling pollution and comments on the applicability of the legal framework provided by the 1982 UN Convention on the Law of the Sea (UNCLOS). It then considers the existing responsibilities and potential contributions from other international organizations such as the Arctic Council, the International Maritime Organization (IMO), the International Whaling Commission (IWC), the

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International Seabed Authority (ISBA), and NATO. Finally, Chapter Four looks at existing international legal instruments and regional agreements which provide some specific rules and standards to govern anthropogenic sound in the ocean. Chapter Five suggests potential approaches to the problem, obstacles to establishing effective policy, and the political dynamics surrounding the issue of ocean noise. Specifically, this chapter identifies several institutions with the jurisdictional capacity and expertise to address underwater noise pollution. It then investigates the use of a habitat-focused regulatory structure to minimize cumulative risks from acoustic activities in the ocean. Chapter Six addresses the establishment of marine sanctuaries and the use of zoning as mechanisms for controlling noise-producing activities. Chapter Seven includes a brief summary of the conclusions made in the book. A glossary and a list of acronyms is found in Appendices A and B.

Acknowledgments

This work was supported with a grant from the Robert and Patricia Switzer Foundation with additional support from the Marine Policy Center at the Woods Hole Oceanographic Institution and the SACLANT Undersea Research Centre in La Spezia, Italy. I would like to express my sincere gratitude to Professor Lawrence Juda at the University of Rhode Island whose encouragement and support guided me through much of this research. He is an exceptional scholar and advisor, and moreover, a kind man with great respect for students. Our discussions together are among my most pleasant professional memories. I would also like to acknowledge my friends and colleagues at the University of Rhode Island who read this book in its earlier form and offered helpful suggestions on content and format. These include Tom Braisted, Shannon Bettridge, Jason Gomez, and especially Holly Turton. Professors Dennis Nixon, Richard Burroughs, Bill Gordon, and Jim Miller also provided valuable input to my research. My colleagues at the Woods Hole Oceanographic Institution have been a great help to me in completing this book. They include Porter Hoagland, George Friske, Peter Tyack, and especially Flora Lichtman, who read and edited each chapter with great care. The support of all my colleagues at the SACLANT Undersea Research Centre is greatly appreciated. These individuals include Mike Carron, Bill Roderick, Steve Ramberg, Arthur Green, and Federico de Strobel. Others whose contributions cannot be overlooked include Richard Nadolink who has been an advocate of my research for many years, Darcy Magratten who designed the cover and was a great help in formatting and

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layout, and Karen Kohanowich, Joel Reynolds, Mike Pestorius, Lisa Baertlein, and Jane Ginsberg who provided valuable comments.

Chapter 1 INTRODUCTION

1. A BRIEF HISTORY OF THE USE OF SOUND IN THE OCEAN Aristotle is thought to have been the first who noted that sound could be heard in the water.1 Almost 2000 years later, Leonardo da Vinci wrote, “If you cause your ship to stop and place the head of a long tube in the water and place the other extremity to your ear, you will hear ships at great distances.”2 The modern study of underwater acoustics can be considered to have started in the early century.3 In September 1826, on Lake Geneva, the

1

J.B. Hersey, “A Chronicle of Man’s Use of Ocean Acoustics,” Oceanus, 9 (1977), Woods Hole Oceanographic Institution, Woods Hole, MA. A thorough overview of the development of man-made sound in the ocean is found in Robert J. Urick’s comprehensive text, Principles of Underwater Sound, ed. (New York: McGraw-Hill, 1983). Other sources for information on the historical development of underwater acoustics include Marvin Lasky, “Review of Undersea Acoustics to 1950,” 61 Journal of the Acoustical Society of America, 2, (Feb. 1977): 283-297; and R.B. Lindsay, Acoustics – Historical and Philosophical Development (Stroudsberg, PA: Douden, Hutchinson and Ross, 1973). 2 J.B. Hersey, “A Chronicle of Man’s Use of Ocean Acoustics,” Ibid. 3 General acoustics texts include Lawrence Kinsler et al., Fundamentals of Acoustics, ed. (John Wiley and Sons: New York, 1999), and Philip Morse and K. Uno Ingard, Theoretical Acoustics (Mcgraw-Hill: New York, 1968); Eugen Skudrzyk, The Foundations of Acoustics (Springer-Verlag: New York, 1971). Texts that focus on underwater acoustics include Clarence Clay and Herman Medwin, Acoustical Oceanography: Principles and Applications (John Wiley and Sons: New York, 1977) and

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speed of sound was first measured by Daniel Colladon, a Swiss physicist, and Charles Sturm, a French mathematician. They created an experiment in which an underwater bell was struck, generating a flash of light that could be seen over the horizon. Colladon started a stopwatch when he saw the flash of light and stopped it when he heard the bell about ten seconds later. (Figure 1). Their calculation of the speed of sound (1435 m/s) was only three meters less than presently accepted values. Moreover, their experiment revealed an important characteristic of sound in the sea: a small amount of sound, or energy, has the ability to travel great distances without dissipating significantly. Later, in the 1890s, Elisha Gray, a colleague of Thomas Edison, designed a waterproof telephone transmitter that could be used as a “hydrophone” to listen to underwater bell signals. This ultimately led to the development of an undersea signaling system that could warn mariners of dangerous navigational hazards. Shortly after, in 1912, the effort was expanded to include underwater communication through transmission of Morse code in the sea.

Figure 1. Measuring the speed of sound on Lake Geneva, September 1826. Modified images from Souvenirs et Memoires – Autobiographie de Jean-Daniel Colladon, 1893, Geneva.

Robert J. Bobber, Underwater Electroacoustic Measurements (Peninsula Publishing: Los Altos, CA, 1988). The Journal of the Acoustical Society of America is published monthly and contains a section on underwater acoustics.

Introduction

3

The advent of World War I and advances in submarine warfare drove the development of underwater acoustic technologies. Echoes were received from a submarine at distances as great as 1500 meters for the first time, in 1918. After the war, these new capabilities were adapted for peacetime use and developed extensively. This resulted in several new inventions, including the fathometer, a ship location system that aided in navigation, and seismic prospecting. In years between the two World Wars, the development of underwater acoustic instrumentation benefited from advances in electronics, which allowed for amplification, processing, and the display of acoustical data. Perhaps most importantly, it was during this time that scientists began to understand how sound propagates in the sea. By the time World War II began, many American ships were equipped for both underwater listening and echo-ranging. During World War II, an increased effort in undersea acoustics was directed toward developing systems to locate and track German U-boats. Scanning sonar sets, acoustic mines, the acoustic homing torpedo, and non-reflecting coatings for submarines were all developed during wartime. It was also in this time period that the term “sonar” came into use as an acronym for sound navigation and ranging.4 At the end of WWII, the Soviets gathered the German resources they needed to build up a submarine fleet, creating a new threat for the Allied forces. Therefore, the US and British efforts in underwater acoustics continued. The resulting Cold War required a better understanding of underwater acoustics, and as a result, great advances in sound propagation were made. Sonar systems grew larger, more powerful, and operated at lower frequencies, resulting in much greater range. Complex signal processing and digital computers provided better data to sonar operators. Since the end of the Cold War, advances in underwater acoustics have continued. The focus of military acoustics has shifted from deep water to the shallow water littoral. Moreover, a considerable increase in the use of underwater sound for non-military, commercial applications has occurred. These commercial devices include side-scan sonars to image ship wrecks, sub-bottom profilers to penetrate the seafloor while searching for oil and other minerals, acoustic speedometers for measuring ship speed, acoustic transponders and beacons for position marking, and myriad devices to aid in ocean exploration.

4

For a discussion of the evolution of the term “sonar”, see L.B. Batchelder, “When Sonar Was Called Submarine Signaling,” 19 Journal of the Acoustical Society of America (1947): 678.

4

2.

International Regulation of Underwater Sound

AMBIENT NOISE IN THE SEA

During the development of these acoustic technologies, the noisy background of the sea has been well documented and measured. Vern Knudsen discussed the background noise of the sea, known as ambient noise, in a paper in 1948.5 He reported average sound levels for various frequencies as a function of wind speed and wave height. Later in 1962, G.M. Wenz published a major review that examined many sources of ambient noise in the ocean.6 Knudsen’s and Wenz’s papers included a wellknown set of curves that illustrated many of the naturally occurring sounds in the ocean that result from rain, wind, marine life, ice, and seismic activity (these curves can be seen in Chapter Two).7 The background level of ocean noise has increasingly become a concern as we have developed new technologies to create more intense sound and have improved our ability to detect it. This was documented by Donald Ross in his work on the mechanics of underwater noise and in a more recent paper in which he predicts ever-increasing ambient noise in the sea.8 Robert Urick also documented the growing presence of noise sources in the sea in his text on ambient noise.9 Noise generated by specific anthropogenic sources was comprehensively summarized in W. John Richardson’s 1995 text, Marine Mammals and Noise.10 This book contains specific data on man-made noise from helicopters, airplanes, ships, icebreaking activities,

5

V.O. Knudsen, R.S. Alford, and J.W. Emling, “Underwater Ambient Noise,” 7 Journal of Marine Research 3 (1948): 410-429. Like many aspects of underwater sound, the noise in the sea received its first quantitative attention during World War II, when Knudsen’s team made measurements in the shallow coastal waters off Southern California and Florida for the purposes of acoustic mines and harbor protection sonars. 6 G.M. Wenz, “Acoustic Ambient Noise in the Ocean: Spectra and Sources,” 34 Journal of the Acoustical Society of America 1936, 1952 (1962). 7 In 1967, Tavolga drew attention to the omnipresent cacophony in the ocean in a more general article in the journal Natural History. See W. N. Tavolga, “Noisy Chorus of the Sea,” Natural History 76 (1967): 20-27. 8 See Donald Ross, Mechanics of Underwater Noise (New York: Pergamon, 1976 ). In 1993, Ross published an article that claimed low-frequency ambient noise levels would continue to increase. See “On Ocean Underwater Ambient Noise,” Institute of Acoustics Bulletin (1993): 5-8. 9 See Robert J. Urick, Ambient Noise in the Sea (Los Altos, CA: Peninsula Publishing, 1986). Also, in 1986, P. Zakarauskas published a literature review that focused on ambient noise in shallow water. See P. Zakarauskas, “Ambient Noise in Shallow Water: A Literature Review,” 14 Canadian Acoustics 3 (1986): 3-1. 10 W. John Richardson et al., Marine Mammals and Noise (New York: Academic Press, 1995).

Introduction

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hovercraft, dredging and construction, tunnel boring, drilling, airguns for marine geophysical surveys, sonars, and marine explosions.

3.

EFFECTS OF SOUND ON MARINE MAMMALS

The health threats and behavioral effects of sound on humans and marine life are well documented and a large body of literature exists on the effects of underwater noise on marine mammals. As early as 1971, Roger Payne and Douglas Webb predicted the potential impact of shipping noise on whales.11 Since then, the behavioral responses of marine mammals to noise have been widely studied, particularly in the United States. This is, in part, due to the requirements of the Endangered Species Act12 and the Marine Mammal Protection Act (MMPA).13 Much of the early work on the effects of underwater sound resulted from concerns that the oil and geophysical industries generated noise that could be harmful to marine mammals.14 Many other observational or experimental studies and anecdotal reports documenting the response of marine mammals to sound can be found in the literature. These studies generally focus on various sources of noise such as explosions or blasting,15 acoustic thermometry signals (used to measure global warming),16 shipping noise,17 and artificial sounds (playback

11

Roger Payne and Douglas Webb, “Orientation by Means of Long Range Acoustic Signaling in Baleen Whales,”Annals of the New York Academy of Sciences (1971): 111. 12 “Endangered Species Act of 1973,” Public Law 93-205, (16 U.S.C. 1531-1544). 13 “Marine Mammal Protection Act of 1972,” Public Law 92-522, (16 U.S.C. 1361 et seq.) 14 See for example, R.S. Gales, “Effects of Noise of Offshore Oil and Gas Operations on Marine Mammals – An Introductory Assessment,” US Navy Technical Report No. 844, vols 1 & 2 (1982); also C.W. Turl, “Possible Effects of Noise from Offshore Oil and Gas Drilling Activities on Marine Mammals: A Survey of the Literature,” NOSC Technical Report 776 (1982). More recent studies include C.I. Malme et al., Analysis and Ranking of the Acoustic Disturbance Potential of Petroleum Industry Activities and Other Sources of Noise in the Environment of Marine Mammals in Alaska, (Mineral Management Service: Anchorage, AK, 1989); and B.R. Mate et al., “A Change in Sperm Whale (Physter macrocephalus) Distribution Correlated to Seismic Surveys in the Gulf of Mexico,” Journal of the Acoustical Society of America 96 vol.5, part 2 (1994): 3268-3269. 15 Darleen Ketten, et al., “Blast Injury in Humpback Whale Ears: Evidence and Implications,” Journal of the Acoustical Society of America 94 (1993): 1849-1850; W.A. Ahroon et al., “The Effects of Reverberant Blast Waves on the Auditory System,” Journal of the Acoustical Society of America 1009 (1996): 2247-2257. 16 Witlow Au et al., “Acoustic Effects of the ATOC Signal on Dolphins and Whales,” Journal of the Acoustical Society of America 101(1997): 2973-2977; A.E. Bowles et al., “Relative Abundance and Behavior of Marine Mammals Exposed to Transmissions from the Heard

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experiments).18 Richardson and Randall Reeves have carried out extensive reviews and evaluations of this literature.19 More recently, entire textbooks on the subject of marine mammal hearing and communication have been published.20 Controversy over the development of sonars for the US Navy and the use of acoustic thermometry has led to significant research on marine mammals, summarized in three reports published by the US National Research Council. In 1992, the Ocean Studies Board of the US National Research Council established the Committee on Low-Frequency Sound and Marine Mammals. This committee was responsible for reviewing the current state of knowledge on the effects of low-frequency (1 – 1,000 Hz) sound on marine mammals, evaluating the pros and cons of the use of underwater sound as a research tool, and providing guidance to the US Navy’s Office of Naval Research on its low-frequency sound research program. The resulting report cited an urgent need for more research on marine mammals and a better understanding of the effects of low-frequency sound on marine mammals and their prey.21 Furthermore, it recognized great difficulties in establishing regulatory policy in the absence of data regarding such effects.22 A follow-up report, “Marine Mammals and Low-Frequency Sound: Progress since 1994” was released in 2000.23 It summarized the results of

Island Feasibility Test,” Journal of the Acoustical Society of America 96 (1994): 24692484. 17 C. Erbe and Dave Farmer, “Masked Hearing Thresholds of a Beluga Whale (Delphinapterus leucas) in Icebreaker Noise,” Deep-Sea Research II 45 (1998): 13731388; V. Lesage et al., “The Effect of Vessel Noise on the Vocal Behavior of Belugas in the St. Lawrence Estuary, Canada,” Marine Mammal Science 15(1) (1999): 65-84. 18 Chris Clarke and J.M. Clark, “Sound Playback Experiments with Southern Right Whales,” Science 207 (1980): 663-665; M. Andre et al., “Sperm Whale (Physter macrocephalus) Behavioral Response after the Playback of Artificial Sounds,” Reports of the International Whaling Commission 47 (1997): 499-504. 19 W. John Richardson et al., Marine Mammals and Noise and Reeves, R.R., “Whale Responses to Anthropogenic Sounds: A Literature Review,” Science and Research Series 47, New Zealand Department of Conservation, Wellington, New Zealand (1992). 20 See e.g., Richardson et al., Marine Mammals and Noise and Whitlow Au, The Sonar of Dolphins (New York: Springer-Verlag, 1993); also see Hearing by Whales and Dolphins, ed. W.W.L Au, A.N. Popper, and R.R. Fay (New York: Springer-Verlag, 2000). 21 Ocean Studies Board, Low-Frequency Sound and Marine Mammals: Current Knowledge and Research Needs (Washington, DC: National Academy Press, 1994), 1. [hereinafter OSB-1994]. 22 Ibid., 4-7. 23 Ocean Studies Board, Marine Mammals and Low-Frequency Sound: Progress since 1994 (Washington, DC: National Academy Press, 2000), 17. [hereinafter OSB-2000].

Introduction

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recent experiments on the effects of ATOC sound sources on marine mammals and made recommendations for new research priorities. An update to the 2000 report was published in 2003. It called for the creation of a single US agency responsible for coordinating ocean noise monitoring and research and conducting more studies on the effects of noise on the marine ecosystem.24

4.

REGULATION OF NOISE IN THE OCEAN – SOME BACKGROUND

Ocean governance is a concept that has long challenged policy-makers: modern concern over the subject dates back to the time of natural law theorist Hugo Grotius.25 In his classic 1609 study, Mare Liberum, Grotius argued that the sea cannot become private property, and that “no part of the sea can be considered as the territory of any people whatsoever.”26 Since then, the legal regime of oceans has changed in response to advances in scientific knowledge and an ever-increasing expansion of human use of ocean space.27 Today, ocean management must take into account a number of factors that include scientific uncertainty, economic globalization, limitation of natural resources, modern technology, population pressures, and innumerable new challenges. Ocean noise pollution presents one of the newest challenges. The literature on the regulation of various types of ocean pollution is vast, however, little has been written on the regulation of ocean noise.28 This is because many of the technologies contributing to increased ocean noise

24

Ocean Studies Board, Ocean Noise and Marine Mammals (Washington, DC: National Academy Press, 2003) [hereinafter OSB-2003]. 25 Hugo Grotius, The Freedom of the Seas or the Right Which Belongs to the Dutch to Take Part in the East Indian Trade, translated from the Latin by Ralph van Deman Magoffin and edited with an introduction by James Brown Scott (New York: Oxford University Press, 1916). 26 Ibid., 34. 27 For a thorough discussion of the evolution of ocean governance, see Lawrence Juda, International Law and Ocean Use Management: The Evolution of Ocean Governance (New York: Routledge Press, 1996). 28 For an overview of ocean pollution, see generally R.B. Clark, Maine Pollution, ed., (Oxford: Clarendon Press, 1997). For background on regulation of marine pollution, see Ramanlal Soni, Control of Marine Pollution in International Law (Cape Town: Juta & Co., 1985) and Daniel Barstow Magraw, International Law and Pollution (Philadelphia: University of Pennsylvania Press, 1988). See also Patricia Birnie and Alan Boyle, International Law and the Environment, 2d ed. (Oxford: Clarendon Press, 2001).

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are new and the externalities resulting from their use are just now emerging or being recognized. As a result, the policy implications of these new technologies have only recently been considered. In addition, the complicated physics of underwater sound has led to much confusion in the policy arena. Therefore, a solid understanding of the science of underwater sound is imperative to the development of good policy. The following chapter explains the scientific aspects of underwater sound, outlines the sources of sound in the sea, and explains its impacts on the ocean ecosystem.

Chapter 2 SCIENTIFIC ASPECTS OF UNDERWATER SOUND

1.

THE PHYSICS OF UNDERWATER SOUND

Sound is a form of mechanical energy—a vibration that travels as a wave by causing pressure changes in a fluid. While the ocean is basically opaque to light, it is comparatively transparent to sound.1 The ocean is an especially effective medium for transmitting sound—of all forms of known radiation, sound travels best through the sea.2 It occurs naturally in the marine environment as a result of wind, waves, rain, and marine life but can also be introduced incidentally or intentionally by human activities such as shipping, construction, and the use of sonar technology. Noise generated by these human activities is known as anthropogenic noise. Sound waves differ in wavelength, intensity, and frequency. The lower the frequency of a sound, the farther it can travel in the ocean. Sound of frequencies below 1000 Hertz (cycles per second, Hz) is often referred to as low-frequency sound. This type of sound is of the greatest concern because at very low frequencies it can travel thousands of kilometers and can interfere with the communication and navigation of many marine mammals.

1.

2

Ocean Studies Board, Marine Mammals and Low-Frequency Sound: Progress Since 1994 (Washington, DC: National Academy Press, 2000): 1. [Hereinafter OSB – 2000.] Robert J. Urick, Principles of Underwater Sound, ed. (Los Gatos, CA: Peninsula Publishing, 1983): 1.

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Scientific Aspects of Underwater Sound

The decibel (dB) is the unit used to compare differences of like quantities of sound—usually intensity or power. Much of the controversy over lowfrequency sound in the ocean can be attributed to misuse of the term “decibel.” The decibel is not an absolute unit with a physical dimension; it is a relative unit that expresses sound logarithmically. The term “decibel” is useless unless the standard of comparison is cited.3 For example, it is important to note that standard reference pressures used in underwater acoustics and in-air acoustics are not the same. The standard reference pressure for ocean sounds is gauged to 1 micro-Pascal while the 4 standard reference for air-borne sounds is 20 micro-Pascals Therefore, one cannot directly compare the output of an underwater sonar with the sound from a jumbo jet. It is essential that one not erroneously compare air-borne sounds with water-borne sounds as has often been done in the controversy over low-frequency sound.5 Perception of the sound must also be considered. For example, in humans, a 10-dB increase in sound may be perceived as only twice as loud, not ten-times as loud.6 It is also important to note that a source level (generally evaluated 1 meter from the source) should not be confused with a received level at an unspecified distance. Finally, context is important. For example, a blue whale call is approximately 190 dB, which would be harmful to humans, but apparently has no effect on blue whales.7 No clear correlation exists between a harmful sound level in air for a human and that in water for an animal.8 Because sound is multi-dimensional, it cannot be characterized by a single measure. When considering the response of a marine mammal

3.

4

5.

6.

7.

8.

For an excellent discussion of the proper use of the term “decibel” see David M.F. Chapman and Dale D. Ellis, “The Elusive Decibel: Thoughts On Sonars And Marine Mammals,” Canadian Acoustics, June 1998. This reference pressure in water is normally abbreviated to “dB re: ” and will be assumed throughout this document unless otherwise specified. For a discussion of the controversy resulting from confusion over underwater acoustical terminology, see John Potter, “ATOC: Sound Policy or Enviro-Vandalism? Aspects of a Modern Media-Fueled Policy Issue,” Journal of Environmental Development (June 1997): 47. Office of Protected Resources, National Oceanic and Atmospheric Administration, “The Effects Of Manmade Noise On Marine Mammals,” Marine Mammal Protection Act Bull. 2nd/3rd Quarter, (2000): 9. Ibid. See also W.C. Cummings and P.O. Thompson, “Underwater Sounds from the Blue Whale, Balaenoptera musculus. ” 50 (4, Pt. 2) J. Acoustical Society of America (1971): 1193-1198 and David K. Mellinger and Christopher Clark, “Blue Whale Sounds (Balaenoptera musculus) Sounds from the North Atlantic,” 114 (Pt. 2) J. Acoustical Society of America (2003): 1108-1119. For a discussion of this see Chapman and Ellis, supra note 3.

Scientific Aspects of Underwater Sound

11

species to a particular sound a number of factors must be considered. These include the sound’s intensity, duration, frequency, bandwidth, duty cycle, rise time, temporal structure, and the similarity of any of these factors to biologically relevant sounds.9 Additionally, the hearing sensitivity of the species is important. Another problem concerns the difficulties in assessing the actual levels of sound received by the animal. Several environmental factors affect transmission loss in the ocean, making it difficult to predict exactly the level of sound to which an animal is exposed. All sound in the ocean diminishes with increasing distance from its source. The rate of transmission loss, however, is influenced significantly by environmental conditions. The radius of acoustic influence for a given source can vary by as much as an order of magnitude depending on water depth, bottom properties, water temperature and other local propagation conditions.10 As a result, under optimal conditions even a moderate sound level can be detected hundreds of kilometers away from the source.11 Moreover, multiple sources of noise must be taken into account. But to add two values expressed in decibels, one must recognize that the decibel levels cannot simply be summed. This is because the unit of decibels represents a ratio of two numbers in some other unit (such as watts/cm 2). Instead, the following curve can be used to add two decibel levels.12

Figure 1. Chart for combining decibel levels.

9

For an explanation of these terms, see the glossary in Appendix A. W. John Richardson et al., Marine Mammals and Noise (New York: Academic Press, 1995), 59. 11. For a thorough discussion of transmission loss and the environmental factors that affect sound propagation in the ocean, see Richardson et al., Marine Mammals and Noise, 59– 83; also Robert J. Urick, Principles of Underwater Sound, 99–197. 12 Alternatively, the decibel value could be converted from dB back to the original units, summed, and then converted again to dB. 10.

12

Scientific Aspects of Underwater Sound

It is important to understand the proper method for summating decibel levels when considering the effect of multiple noise sources in close proximity. For example, when attempting to determine the total decibel level that an animal might be exposed to from two different noise sources, it is essential to combine the two levels properly. An example of two such sources might be light shipping and wind-wave noise, both at 100 Hz. If the noise from light shipping at 100 Hz is 60 dB, and the noise from wind and wave action (equal to sea state 3) at 100 Hz is 63 dB, then the total of both sources at 100 Hz is 64.8 dB (63 + 1.8 dB) (see Figure 1.) Another important consideration when summing two decibel levels is to ensure that both frequencies are within the range of the “receiver” (i.e. the animal). In keeping with this caveat, it is therefore appropriate to sum the decibel levels of a ship making noise at 100 Hz and also a ship making noise at 200 Hz if the sensory range of the whales in the region is between 20 20,000 Hz, for example. However, it is not appropriate to add decibel levels outside the sensory range of the animal. Thus, if a ship is creating a sound at 100Hz and a fathometer is operating at 50,000 Hz, it is not appropriate to add the decibel level of the fathometer when considering the effect of the two sources on the same whale’s hearing (other, non-auditory effects might need to be considered however.) To summarize: the sources of all noise in the ocean must be considered relative to the known range of hearing and other effects on marine life. Multiple sources of noise can contribute to a greater sound field—but frequency ranges of sources as well as receivers must be considered. Figure 2 depicts the broad spectrum of ocean noise, the activities that generate it, and the frequency ranges employed by several species of marine mammals. The left ordinate provides a measurement of sound intensity while the abscissa represents frequency. Marine mammal navigation and communication frequencies are overlaid with prevailing man-made and natural sounds in the ocean to illustrate areas of overlap. It should be emphasized that the values in this figure were averaged over long periods of time, and, as a result, the variability in the levels is quite large. This figure graphically displays the “conflicts of use” between marine mammals and anthropogenic activities. For example, shipping and other industrial activities generate frequencies that fall within the range that marine mammals (i.e. humpback, Bryde’s and bowhead whales) utilize for communication and echolocation. To summarize the previous section, the issue of underwater noise pollution is a contemporary problem that is exacerbated by the transboundary nature of ocean sound. To best understand the international implications of underwater noise pollution, it is important to consider the

Scientific Aspects of Underwater Sound

13

pervasive nature of sound in the ocean and the ability of sound to travel long distances. Because sound in the oceans is not restricted by national boundaries, acoustic energy cannot be regulated by domestic policy alone. To complicate matters further, the nature of noise in the water is multisource. Overall noise in the ocean results from a combination of sources some man-made (sonar, ships’ engines) and some natural (waves, wind, rain, ice). Acoustic transmissions underwater cannot always be considered individually: all sources of noise and their cumulative effects must be taken into account.

Figure 2. Man-made and naturally occurring sounds in the ocean. Source: Dr. David Bradley, Applied Research Laboratory, Penn State University based on curves generated by G.M. Wenz, “Acoustic Ambient Noise in the Ocean: Spectra and Sources”, 34(12) Journal of the Acoustical Society of America (1962) and data on frequency range of marine mammal transmissions found in W.J. Richardson et al., Marine Mammals and Noise.

14

2.

Scientific Aspects of Underwater Sound

EFFECTS OF ACOUSTIC EMISSIONS

Most of the public’s concern with the use of underwater sound has focused on the potentially damaging effects of sonar on marine mammals. However, other threats exist as well. The next section investigates the established threats from noise to marine mammals and also discusses threats to humans and other marine life. It also discusses challenges to existing oceanographic systems from uncontrolled transmissions and multiples sources of sound, known as acoustic interference.

2.1

Health Threat To Marine Mammals

The focus on marine mammals and noise stems from concerns that underwater noise could interfere with the animals’ own biological sonars on which they rely to communicate, navigate, and hunt prey. But the threats to marine mammals from loud underwater sounds include other physiological and behavioral effects as well. Powerful sound can cause tissue in the lungs, ears, or other body parts to rupture or hemorrhage.13 At a greater distance from the source, the same sound could induce hearing loss—either temporary or permanent.14 Sound can also interfere with marine mammals’ ability to detect echolocation pulses, calls from potential mates, and other important natural sounds. This phenomenon of covering up one sound by another, called masking, could potentially be the most serious effect of lowlevel sound.15 Behaviorally, mammals’ reaction to sound can range from brief interruptions of normal activities, such as feeding, to short- or long-term displacement from noisy areas.16 One study has found that man-made noise might interfere with breeding humpback whales by forcing them to increase

13.

A summary of the most recent scientific research on health threats from noise to marine mammals is contained in Chapter Three of the Ocean Studies Board’s Ocean Noise and Marine Mammals (Washington, DC: National Academy Press, 2003) [hereinafter OSB2003]. Regarding resonance in small mammals in general, see D. Dalecki et al., “Lung Response to Low-Frequency Underwater Sound”, 106 (4) Journal of the Acoustical Society of America (1999): 2165. 14. For an explanation of threshold shifts see OSB-2003, 83-90. See also Ocean Studies Board, Low-Frequency Sound and Marine Mammals: Current Knowledge and Research Needs (Washington, DC: National Academy Press, 1994), 12. [hereinafter OSB-1994]. 15. Office of Protected Resources, “The Effects Of Manmade Noise On Marine Mammals,” supra note 6. For a summary of the research carried out on masking, see generally OSB2003, 96. 16. W.J. Richardson et al., Marine Mammals and Noise, 2.

Scientific Aspects of Underwater Sound

15

the length of their mating songs when exposed to low-frequency sonar.17 There are dozens of documented behavioral disturbance reactions of marine mammals to human presence and anthropogenic activities such as boating, shipping, oil exploration, dredging, icebreaking, and scientific and defense activities.18 Other behavioral disturbances include the possibility that loud sonar could force whales to dive deeply and thus cause decompression sickness upon rising.19 Aircraft overflight and rocket launches can create another form of marine mammal disturbance.20 Even whale-watching and the use of underwater scooters by biologists have been reported to disturb marine mammals.21 However, many of these reports are anecdotal and concern only short-term behavioral reactions; few long-term studies have been conducted.22 Furthermore, little of the data were gathered under highly controlled conditions. Despite these reports, it remains difficult for scientists to agree on exactly what effect anthropogenic sound has on marine mammals. The National Academy of Sciences emphasized that short and long-term effects of ocean

17.

Patrick J .O. Miller et al., “Whale Songs Lengthen in Response to Sonar”, Nature 405 (2000): 903. 18 For a detailed account of anecdotal reports of disturbance reaction and in situ and laboratory data, see W.J. Richardson et al., Marine Mammals and Noise, 241–322. See also Sue. E. Moore and Janet Clarke, “Potential Impact of Offshore Human Activities on Gray Whales (Eschrichtius robustus),” Journal of Cetacean Research 4(1) (2002): 19-25. Also see Naval Air Warfare Center Aircraft Division, “Underwater Effects of Sonobuoys and Signals Underwater Sound Charges,” Doc. N00174-95-D-008 (1998); R.S. Gales, “Effects of Noise of Offshore Oil and Gas Operation on Marine Mammals – An Introductory Assessment,” US Navy Technical Report No. 844, vols. 1 & 2 (1982); and C.W. Turl, “Possible Effects of Noise from Offshore Oil and Gas Drilling Activities on Marine Mammals: A Survey of the Literature,” NOSC Technical Report 776 (1982). 19 See P.D. Jepson et al, “Gas-Bubble Lesions in Stranded Cetaceans: Was Sonar Responsible for a Spate of Whale Deaths After an Atlantic Military Exercise?” 425 Nature 575 (2003). Also “Whales Get the Bends,” New Scientist, December 15, 2001, 17. 20 See Launch of Titan II and Titan IV Rockets, Taurus Vehicles, and Lockheed Vehicles from Vandenberg Air Force Base, Marine Mammal Commission Annual Report to Congress, 1996, (Bethesda, MD: Marine Mammal Commission, 1997): 207-208. 21 See Robert D. McCauley and Douglas H. Cato, “The Underwater Noise of Vessels in the Hervey Bay (Queensland) Whale Watch Fleet and its Impact on Humpback Whales”, 109 Journal of the Acoustical Society of America (2001): 2455. Also see Jane Fritsch, “Saving the Whale’s Hearing: A Fear that Fleets of Watchers May Harm Mammals,” The New York Times, September 1, 1997, A15. For anecdotal information on harassment of whales by underwater scooters, see “underwater scooters and cetaceans”, an e-mail posted to the MARMAM listserver by Greg Sanders of the USFWS on 12 November, 2001, available at 22 OSB-2000; W.J. Richardson et al., Marine Mammals and Noise.

16

Scientific Aspects of Underwater Sound

noise on marine life are still poorly understood and called for further research on the effects of noise on the marine environment.23

2.2

Health Threats to Humans

Health threats to humans from underwater sound are similar to those that marine mammals may experience and range from non-existent to lifethreatening. These possible effects include temporary and permanent changes in hearing sensitivity (threshold shifts), resonance in air containing cavities (including lungs, sinuses and respiratory passages), disorientation, and acoustic annoyance.24 In 1980, the US Navy released a study entitled “On the Effects of Exposure to Intense Underwater Sound on Navy Divers,” which addressed the potential risks to the health of Navy divers from exposure to intense sound in water.25 The study discussed the results of tests on human divers and the effects of sound on marine mammals. It concluded that “[because] it is possible that some long-term health hazards exist it is necessary to formulate an approach to the problem.”26 The report called for further research to establish safe underwater noise exposure levels. In February 1996, a technical report was released by the University of Texas at Austin that addressed the effects of low-frequency waterborne sound on divers.27 It presented data from a 30-month study on the effects of sound in the low frequency range (160-330 Hz) on 87 US Navy divers. Data from the study were used to develop a set of guidelines for the exposure of divers to sonar transmissions in the low frequency range. Mathematical modeling and testing of the human subjects showed that the threshold of the biological effects for the conditions tested is 160 dB, which was the limit of the study.

23.

OSB-2003, 7-10. In the U.S., most of the research on the effects of noise on humans has been carried out by the Navy. A summary of much of the Navy’s earlier work is found in P.F. Smith and W.L. Hunter, “On the Effects of Exposure to Intense Underwater Sound on Navy Divers,” Naval Medical Research and Development Command, Work Unit no. M0099.PN.0033155, Groton, CT (1980). See Wesley L. Nyborg, “Nonthermal Mechanisms for Effects of Low Frequency Sound,” in, Effects of Low Frequency Waterborne Sound on Divers, Doc. No. ARL-TR-96-5, ed. F. Michael Pestorius, (1996). 25 Smith and. Hunter, “On the Effects of Exposure to Intense Underwater Sound on Navy Divers,” Ibid. 26 Ibid., 13. 27. F. Michael Pestorius, “Effects of Low Frequency Waterborne Sound on Divers,” supra note 24. 24

Scientific Aspects of Underwater Sound

17

A more recent study was conducted between June 1997 and November 1998 by the Office of Naval Research, the Naval Submarine Medical Research Laboratory, and a consortium of universities. This research was carried out in support of a US Navy Environmental Impact Statement (EIS) and resulted in a report titled “Summary Report on the Bioeffects of Low Frequency Waterborne Sound.”28 It specifically focused on the effects of low frequency sounds (100–500 Hz) on animals and humans. The goal of the research was to generate guidelines for the use of underwater low frequency sound near recreational divers. The report suggested that it would be “prudent and justifiable” to use a conservative value of 145 dB as the maximum permissible intensity of exposure for recreational divers. Furthermore, it provided a detailed guidance based on a number of interrelated components including frequency, intensity, duration, depth, and duty cycle.29 The mechanisms by which sound can create tissue damage in the human skull, lung and other tissues have been investigated in the U.S.30 In the U.K., Dr. Jeremy Nedwell and his colleagues have also carried out a significant body of research on human hearing underwater.31

28

Edward Cudahy et al, “Summary Report on the Bioeffects of Low Frequency Water Borne Sound,” Department of the Navy Technical Report 3, (March 1999). 29. Ibid., 29. These components (including the 145 dB re: 1 :Pa maximum permissible exposure intensity) do not stand alone and must be taken together. Regarding duration, see J.R. Sims et al., “Diver Aversion to the Duration of Underwater Low Frequency Sonar”, presented at the Seventh International Congress on Noise as a Public Health Problem, N. Carter and R.F. Soames eds., Vol. 1 (1998): 411-414. 30 See E. Hanson and E. Cudahy, “Skull Vibration in the Presence of Waterborne LowFrequency Sound,” Proceedings of Noise Effects ’98, The Seventh International Congress on Noise as a Public health Problem, Vol. 1 (1998): 298-301; J.S. Martin et al, “Low Frequency Response of the Submerged Human Lung,” 107 Journal of the Acoustical Society of America (2000): 2813; and E. Cudahy and W. Ellison, “A Review of the Potential for in vivo Tissue Damage by Exposure to Underwater Sound,” a white paper prepared for the Naval Submarine Medical Research Laboratory, March 12, 2002. 31 See for example J.R. Nedwell and S. Parvin, “The Effects of Low-Frequency Sonar Transmissions on Divers and Ichthyofauna: Literature Survey and Initial Experimental Results,” Report DRA(AWL)TM93721, Defense Research Agency, Alverstoke, Gosport, Hampshire, PO12 2DU (September 1993). Also, see J. R. Nedwell and S. Parvin, “Underwater Hearing in Man,” DRA Technical Memo No. DRA/AWL TM 92723, (September 1992); J. R. Nedwell et al., “Underwater Tool Noise: Implications for hearing Loss,” in Advances in Underwater Technology: Ocean Science and Offshore Engineering 31 (1993); and J. R. Nedwell and S, Parvin, “Noise and Hearing Loss in Divers,” Journal of the Society for Underwater Technology 20(4) (1994). See also the U.K.’s Ministry of Defence webpage that explains potential effects of sound on humans at last accessed on January 23, 2003.

18

2.3

Scientific Aspects of Underwater Sound

Threats to Other Marine Life

An emerging concern relates to the effects of underwater sound on the food chain.32 The contribution of individual species to the overall health of the ecosystem is fundamental to the concept of the ocean food chain. If a lower trophic level is threatened or eliminated, a food source for higher predators is lost—a link in the food chain is disrupted.33 Thus, if noise affects the reproduction or viability of a prey species, every species above it on the food chain could be affected. This leads to concerns that noise can adversely affect not only the health of individual animals, but the entire ecosystem. In this sense, noise can be considered not only a discrete threat to whales, but a source of overall habitat degradation. Several studies have shown that reduced growth and reproduction in a variety of marine organisms was related to increases in noise.34 One study reported that growth rates in minnows and killifish were lower in aquariums exposed to noise.35 Another experiment found that shrimp exposed to noise exhibited reduced reproduction and growth rates and increased aggression and mortality.36 Moreover several studies suggest that noise causes fish to move from an area for an extended period of time only to return days later when the noise ceases.37 Other scientists have published extensive data that show that low-

32

A general work on the fundamentals of the marine food chain is B. Zeitzschel, The Food Chain in the Open Sea (Keil: Institute Meereskunde,1979); also see A. Price “The Marine Food Chain in Relation to Biodiversity,” The Scientific World Journal 1 (2001): 579-587; and R. Jones and E.W. Henderson, “Further Observations on Energy Flow through the Marine Food Chain,” in Collected Papers of the International Council for the Exploration of the Sea Conference, (Copenhagen: ICES, 1980). 33 This is discussed in Food Chains, Yields, Models, and the Management of Large Marine Ecosystems, ed. Kenneth Sherman and Lewis M. Alexander (Boulder, CO: Westview Press, 1989). 34 For a general discussion on the effects of sound on the food chain, see OSB-2000; 60-63. Also for a review of the literature on marine ecosystem impacts of noise, see OSB-2003, 106-108. 35. Arnold Banner & Martin Hyatt, “Effects of Noise on Eggs and Larvae of Two Estuarine Fish,” Transactions of the American Fisheries Society 102 (1973): 134. 36. J.P. Lagardere, “Effects of Noise on Growth and Reproduction of Crangon crangon in Rearing Tanks,” Marine Biology 71 (1982): 177. 37 See N.O. Handegard et al., Avoidance Behaviour in Cod (Gadus morhua) to a BottomTrawling Vessel” 16 Aquatic Living Resources, 3 (2003). Also, see A. Engas et al., “Effects of Seismic Shooting on Local Abundance and Catch Rates of Cod (Gadus morhua) and Haddock (Melanogrammus aeglefinus), 53 Canadian Journal of Fisheries and Aquatic Sciences, 2238-2249 (1996); T. Konagaya, “The Sound Field of Lake Biwa

Scientific Aspects of Underwater Sound

19

frequency sounds actually attract sharks and thereby could redistribute shark populations.38 A recent report suggests that short or long-term exposure of fish to anthropogenic sounds may alter behavior and result in temporary or permanent loss of hearing.39 The US National Academy of Sciences has called for additional studies on the effects of low-frequency sound on the food chain. Of particular concern are fish species that are commercially important, are endangered, or are an essential component of marine mammal food diets.40

2.4

Acoustic Interference

As far back as 1970, acoustic interference was of concern to the US National Academy of Sciences. Its report, Present and Future Civil Uses of Underwater Sound, duly noted an increase of anthropogenic sound in the ocean, but failed to comment on its effects on marine mammals.41 However, it did bring to light a different aspect of marine acoustics that could have legal repercussions in international waters: acoustic interference. Acoustic interference occurs when two or more acoustic systems utilize the same frequency range to transmit data at the same time. The report cited potential problems due to interference from the harmonics created by high-power naval sonars with emergency signals (distress, search, and navigation signals.)42 It recommended that a band of frequencies be set aside to prevent such interference. Furthermore, it proposed industry standardization of frequencies and pulse codes to prevent interference in non-emergency applications, such as the control of underwater oil wells. The report outlines a frequency allocation scheme that would divide the acoustic spectrum into

and the Effects of Construction Sound on the Behavior of Fish,” 46 Bulletin of the Japanese Society of Scientific Fisheries, 129-132 (1980). 38 Arthur A. Myrberg, JR., “Using Sound to Influence the Behavior of Free-Ranging Marine Animals,” in Behaviour of Marine Animals, ed. Howard E. Winn and Bori. L. Olla (New York: Plenum Press, 1972): 435.. See also Arthur A Myrberg Jr., “Underwater Sound: Its Effect On The Behavior Of Sharks,” in Sensory Biology of Sharks, Skates and Rays, ed. Edward S. Hodgson & Robert F. Mathewson (Washington, DC: Government Printing Office, 1978): 391. 39 See Arthur N. Popper, “Effects of Anthropogenic Sounds on Fishes,” 28(10) Fisheries (2003): 24-31. 40. OSB-2000, 61. 41 National Academy of Sciences’ Committee on Underwater Telecommunication, Present and Future Civil Uses of Underwater Sound (Washington, DC: National Academy of Sciences, 1970). 42 Ibid., 41-42.

20

Scientific Aspects of Underwater Sound

bands, which would in turn be assigned to individual activities such as fish finding, bottom surveys, and telemetry and control.43 In the 1983 edition of his book, Principles of Underwater Sound, Robert Urick echoed the sentiments of the earlier National Academy report. He emphasized that spectrum crowding was beginning to occur in the oceans and called attention to the need for frequency standardization and regulation in the manner of the US Federal Communications Commission.44 In March 1990, the Intergovernmental Oceanographic Commission (IOC) published a report entitled International Workshop on Marine Acoustics.45 The report discussed the possibility of establishing an IOCsponsored voluntary code to reduce inter-equipment interference in the frequency range used by many airlines, fisheries researchers, and oceanographers.46 In the thirty years since the concern over acoustic interference was first raised, the development of a voluntary code to reduce interference was rejected and little follow-up has taken place.47 Meantime, the concern over acoustic effects on marine life has expanded and now become an international issue.

3.

SUMMARY—EFFECTS OF ACOUSTIC EMISSIONS

The previous section discussed many of the concerns of scientists and environmentalists over the effects of noise in the ocean. These effects can be divided into two categories: direct effects such as marine mammal

43

Ibid., 44. See Urick, Principles of Underwater Sound, supra note 2 at 16. See also National Academy of Sciences, Present and Future Civil Uses of Underwater Sound, supra note 41. 45. International Workshop on Marine Acoustics, Beijing, China, UNESCO-IOC report SC90/WS-63 (March 1990). 46 Ibid. 47 In a July 26, 2002 e-mail, Yihang Jiang, of the International Oceanographic Commission, indicated that the suggestion to establish a group of acoustic experts within the IOC in addition to adopting a voluntary code to reduce interference did not get through the IOC assembly because the International Council for Science’s Scientific Committee on Oceanic Research (SCOR) had already established a similar working group. Drs. Ed Urban and David Farmer of SCOR indicated they knew of no discussions concerning such a voluntary code. See e-mail dated July 29, 2002 from Dr. Ed Urban, Executive Director of SCOR, also e-mail dated July 29, 2002 from Dr. David Farmer, Chairman of SCOR Working Group 96. 44

Scientific Aspects of Underwater Sound

21

mortalities and strandings; and indirect effects such as long-term behavioral modifications. Direct effects include temporary and permanent hearing loss, tissue damage, and hemorrhaging. These effects can cause animals to die immediately, or lose their bearing, become stranded, and subsequently die. Another direct effect of noise is acoustic interference with underwater communication, a concern of some scientists and acousticians. Stranding incidents and marine mammal mortalities such as those in Greece and the Bahamas (discussed briefly earlier and in greater depth in Chapter Three) have focused the attention of environmental groups and governmental agencies on these direct effects of noise. Indirect effects include reduced fecundity and growth rates of prey species, and behavioral modification in marine mammals due to masking or avoidance. Such indirect effects are more difficult to measure yet have the potential to affect the entire ecosystem and result in habitat degradation. More data on the cumulative, long-term effects of noise on marine mammals and the ecosystem is needed before the indirect threats can be quantified. The threats from cumulative effects have been acknowledged by scientists who claim, “the issue of cumulative impacts from human-generated noise is best dealt with as a habitat degradation issue.”48 Furthermore, greater recognition of noise in the marine environment is evidenced by an increase in funding of marine mammal research and acoustic monitoring efforts. The US Navy funds the majority of all marine mammal acoustics research in the world. In fiscal year 2001, it provided $7 million for research directly related to assessing and mitigating the effect of noise from Navy activities on the environment; funding for fiscal year 20022003 has increased significantly.49 In 2002, the US Minerals Management Service (MMS) committed almost $6 million to a three-year multi-agency study on the response of sperm whales to seismic exploration, in addition to funding other studies on airgun signatures and improved environmental models for marine mammal distribution.50 Funding levels for research on

48

OSB-2000, 63. Over half of ONR’s funding goes outside the Navy to independent research institutions and universities. Additionally, the US Navy invested $3 million in FY01 to develop techniques to monitor marine mammals using exisiting naval technologies. See statement of Vice-Admiral Dennis V. McGinn, testimony before the Subcommittee on Fisheries Conservation, Wildlife and Oceans of the House Committee on Resources, October 11, 2001. Text available at last accessed on January 23, 2003. Information on the Office of Naval Research’s marine mammal program is found at <www.onr.navy.mil>, last accessed on November 14, 2002. 50 Personal correspondance, Bill Lang, January 30, 2004. See also home page for “Sperm Whale Seismic Study,” at http://seawater.tamu.edu/SWSS and “Ongoing MMS

49

22

Scientific Aspects of Underwater Sound

marine mammal bioacoustics have also increased in other federal agencies such as the National Marine Fisheries Service (NMFS), the Fish and Wildlife Service (FWS), and the Marine Mammal Commission (MMC).51 Finally, private support, particularly from the oil and gas industry, has contributed to increase funding levels for marine mammal acoustics research in the U.S.52 Outside of the U.S., the trend is similar. In the U.K., the Ministry of Defence is currently spending $3.5 million annually on marine mammal research. This amount is expected to increase to $5 -$6 million in the next year.53 In the Netherlands, funding levels are presently at two man-years per annum and are expected to grow.54 In Australia, over half a million dollars was allocated for research on marine mammal bioacoustics and the impact of noise on whales and seals in 2003.55 Finally, in Singapore, a research program to study dolphin sonar has recently been initiated and cooperation between the U.S. is anticipated in the near future. 56 The previous section reviewed the threats presented by noise in the ocean. Understanding the origin of such noise is essential to defining the problem of ocean noise pollution. Therefore, the following two sections discuss naturally-occurring and anthropogenic sources of noise.

Environmental Studies” web page at: http://www.gomr.mms.gov/homepg/regulate/environ/ongoing_studies/gm/GM-0104C.html. 51 Funding levels from all federal agencies for marine mammal research are reported in the most recent report by George H. Waring, “Survey of Federally-Funded Marine Mammal Research and Studies: FY74-FY99,” (Bethesda, MD: US Marine Mammal Commission, 2001). 52 For example, the International Association of Geophysical Contractors (IAGC), an oil and gas industry organization, has contributed resources and “in-kind” services to the MMS’s Sperm Whale Seismic Study. See the IAGC website at www.iagc.org. 53 Personal communication with Dr. Graham Jackson, U.K. Defence Science and Techonology Laboratory, November 11, 2003. 54 Personal communication with Dr. Peter Beerens, TNO Physics and Electronics Laboratory, Netherlands, December 01, 2003. 55 Personal communication with Dr. Doug Cato, Defence Science and Technology Organisation, Canberra, Australia, January 18, 2004. 56 Personal communication with Darren Bergen, US Office of Naval Research, Singapore, from a presentation by the Singapore Defence Science and Technology Agency, October 2003.

Scientific Aspects of Underwater Sound

23

4.

SOURCES OF NATURALLY-OCCURRING SOUND IN THE OCEAN

4.1

Physical and Geophysical Sources

Many physical and geophysical sources of noise exist naturally in the ocean: wind, waves, seismic activity, rain and snow, sea ice, molecular agitation, thunder and lightning. Wind and waves are significant and interrelated sources of noise throughout the sea. There are no peaks in the sound generated by wind and waves; their noise is distributed smoothly with a frequency range between 100 and 50,000 Hz.57 Seismic noise from tectonic activity and volcanic events can make significant contributions to the low-frequency end of the spectrum of the ocean, especially in areas that are geologically active.58 These sounds are usually transient, however, and most of their energy is below 100 Hz.59 Rain, snow, and hail generate precipitation noise which ranges from 100 to 500 Hz.60 Rain can increase the naturally occurring levels of ambient noise by up to 35 dB across a broad range of frequencies.61 Sea ice noise is found at high latitudes and has been measured at greatly varying levels over a broad range of frequencies.62 Ice on the sea surface can drastically alter the ambient noise field depending on the type of ice and the degree of cover, and temperature. In some cases ice can decrease ambient noise levels 10-20 dB by isolating the sea below from the effects of wind.63 In other cases, the movement and cracking of ice, and the interaction of ocean waves with the ice edge can increase ambient noise levels. Another source of ambient noise in the ocean is molecular agitation,

57

See the Wenz curves for an illustration of this frequency distribution. From the Wenz curves. 59 W.J. Richardson at al., Marine Mammals and Noise, 92. 60 See Wenz curves. Note also that a recent National Marine Fisheries Service document claimed that, “each year billions of lightning strikes hit the ocean with source levels of about 260 dB,” but a source for this information has not been located. See Final Rule, “Taking and Importing Marine Mammals,” 67 Federal Register 46711, July 16, 2002. 61 OSB-2003, 38. 62 For noise from thermal cracking, see A.R. Milne and J.H. Ganton, “Ambient Noise under Arctic-Sea Ice,” Journal of the Acoustical Society of America 36(5) (1964): 855-863. For noise from melting icebergs, see R.J. Urick, “The Noise of Melting Icebergs,” Journal of the Acoustical Society of America 50(1), Part 2 (1971): 337-341. 63 OSB-2003, 39-40. 58

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which creates noise at higher frequencies, generally above 30 kilohertz (kHz).64

4.2

Biological Sources—Sound from Fish and Invertebrates

Biological noise is created by a number of organisms including marine mammals, fish, and shrimp. It can range from almost non-existent to dominant over some broad frequency bands.65 This section discusses the contribution of fish and marine invertebrates to the background noise of the sea. Many species of fish are known to use sound for communication and produce sound incident to other behaviors, such as swimming and feeding.66 Some marine life, like sharks, are not known to produce sounds but have been shown to respond to sounds from potential prey.67 It should be emphasized, however, that the acoustic behavior of most fish species remains unknown.68 Fish generally produce sounds by striking two bony structures together or regulating air within a swimbladder. Therefore, the sounds they produce are usually pulsed signals below 1,000 Hz.69 The extent of fish sounds produced depends on diurnal and seasonal timescales – for example, noise production

64

See R.H. Mellen, “The Thermal-Noise Limit in the Detection of Underwater Acoustic Signals,” Journal of the Acoustical Society of America 24(5) (1952): 478-480. Also see C.S. Johnson, “Thermal-Noise Limit in Delphinid Hearing,” NOSC TD 270. US Naval Oceans Systems Center, San Diego, CA. NTIS AD-A076206 (1979). 65 See generally Richardson, Marine Mammals and Noise and W.Au, The Sonar of Dolphins, (New York: Springer -Verlag, 1993) for discussions of marine mammal sounds. For fish and shrimp noise, see A.A. Myrberg, Jr., “Ocean Noise and the Behavior of Marine Animals: Relationships and Implications,” in Effects of Noise on Wildlife (New York: Academic Press, 1978) and D.H. Cato, “The Biological Contribution to the Ambient Noise in Waters Near Australia,” 20 Acoustical Australia 3 (1992): 76-80. 66 Acoustic Behavior of Animals, ed., R.G. Busnel (Amsterdam: Elsevier, 1963); R. Zelick at al., “Acoustic Communication in Fishes and Frogs,” in Comparative Hearing: Fish and Amphibians, R.R. Fay and A.N. Popper, eds. (New York: Springer-Verlag, 1999) 67 A.A. Myrberg, “Using Sound to Influence the Behaviour of Free-Ranging Marine Animals,” in Behaviour or Marine Animals, Vol. 2, H.E., Winn and B.L. Olla, eds. (New York: Plenum Press, 1972); A.A. Myrberg et al., “Attraction of Free-Ranging Sharks by Low Frequency Sound, with Comments on its Biological Significance,” in Sound Reception in Fish, A. Schuijf and A.D. Hawkins, eds. (New York: Plenum Press, 1976). 68 It has been reported that the acoustic behavior of only 100 species of fish is known (representing only 0.4 percent of the over 25,000 fish species). See OSB-2003, 46. 69 Ibid.

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often peaks for a few hours after sundown and during the spring and early summer months. This may be related to the use of sound by males to attract females to spawning sites.70 Generally, the major contributions to ambient noise results from chorusing behavior, which occurs when a large number of fish are calling simultaneously. These fish choruses have been known to increase ambient noise levels by 20 dB or more (in the 50 - 5,000 Hz band).71 In addition to fish, marine invertebrates also produce sound. Perhaps the most notable is the snapping shrimp, which generates very high levels of sound by snapping closed its large front claw.72 The substantial acoustic data gathered on snapping shrimp show broad peaks in the 2,000-15,000 Hz band.73 Interestingly, the noise produced by snapping shrimp has been shown to cause bottlenose dolphins to change the frequency of their echolocation clicks to outside the band of the snapping shrimp.74 Another significant source of biological noise, and one that has the greatest potential to be affected by anthropogenic activities, is the sound created by marine mammals. The following section examines these sounds in more detail.

4.3

Sounds from Marine Mammals

Marine mammals create sound to communicate, navigate, and detect underwater objects (echolocation).75 Great complexity and variability exists within the range of their sounds. They are known to communicate the presence of food, danger, or another animal, as well as information about their identity, position, or reproductive status. They echolocate to detect,

70

H.E. Winn, “The Biological Significance of Fish Sounds,” in Marine Bioacoustics, W.N. Tavolga, ed. (New York: Pergammon Press, 1964); S.A Holt, “Intra- and Inter-day Variabillity in Sound Production by Red Drum (Sciaenidae) at a Spawning Site,” 12 Bioacoustics, 227-230 (2002). 71 A substantial body of work has been carried out on the character of fish sounds in different environments, primarily the U.S. and Australia. See generally OSB-2003, 46-47. 72 OSB-2003, 47-48. 73 Snapping shrimp are a well-studied phenomenon due to the impact of their sounds on the performance of military sonars. Much of the research on the acoustics of snapping shrimp was carried out during WW II. See University of California Division of War Research, Underwater Noise Caused by Snapping Shrimp (Washington, DC: Navy Dept., Bureau of Ships, 1946). 74 W.Au, The Sonar of Dolphins, supra note 65; also see OSB-2003, 48. 75 Several reviews of marine mammal sounds are found in the literature. See Watkins and Wartzok, 1985; Richardson, and Wartzok and Ketten, 1999, and Whitlow W.L Au, The Sonar of Dolphins (New York: Springer -Verlag, 1993).

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characterize, and localize underwater objects such as obstacles, prey, and other mammals.76 They produce sounds over a very wide range of frequencies, from less than 10 Hz to greater than 200,000 Hz.77 Whales can be divided into two groups, the baleen whales (mysticetes); and the toothed whales (odontocetes). The mysticetes include the bowhead, right, gray, humpback, fin, blue, Bryde’s, sei and minke whales. The sounds from this group of whales have been studied, but it has proven difficult to determine the context and function of their sounds as they are rarely held in captivity. This has made it difficult to associate specific sounds with a specific activity. Although the frequency and source levels generated by many mysticetes is known, there is no evidence that they echolocate.78 Vocalizations of baleen whales are of lower frequency than those of odontocetes – they are rarely above 10,000 Hz—and have the potential to be detected over long distances—they can be heard for hundreds of kilometers.79 Baleen vocalizations are generally classified as low-frequency moans, simple calls, complex calls, and complex songs. Although accurate source level measurements are difficult to make, some estimates in the lowfrequency band (10-25 Hz) are as high as 190 dB.80 Odontocetes are very social and often interact quite vocally within stable groups. Because they are often held in captivity, they are better understood than the mysticetes. There are approximately 68 species of odontocetes including sperm whales, killer whales, beluga whales, porpoises and dolphins.81 Their sounds are classified into three groups: whistles; pulsed sounds such as cries, grunts and barks; and echolocation clicks. Generally, whistling is found in very social whales found in large herds (numbering 121000) and most of the energy is concentrated below 20 kHz.82 Pulsed sounds are complex and the energy is concentrated between 500 Hz to 25 kHz. The duration of these pulsed calls ranges from 0.05 seconds to 10 seconds and

76

W.J. Richardson et al., Marine Mammals and Noise, 159. OSB-2003, 41. 78 See K.S. Norris, “Marine Mammals of the Arctic, their Sounds and their Relation to Alterations in the Acoustic Environment by Man-Made Noise,” in ed. N.M. Peterson, The Question of Sound from Icebreaker Operation: The Proceedings of a Workshop, (Calgary, Alberta: Petro-Canada, 1981). 79 OSB-2003,42. 80 W.C. Cummings and P.O. Thompson, “Underwater Sounds from the Blue Whale (Balaenoptera musculus)”, 50 Journal of the Acoustical Society of America (1971): 11931198; T.J. Thompson et al.,” Justicete Sounds” in Behavior of Marine Animals, eds. H.E. Winn and B.L. Olla (Cambridge, MA: Perseus Publishing, 1979): 403-431. 81 W.J. Richardson et al., Marine Mammals and Noise, 2. 82 Peter Tyack, “Population Biology, Social Behavior, and Communication in Whales and Dolphins,” Trends in Ecological Evolution 1(6) (1986): 144-150. 77

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repetition rates of up to 5,000 per second have been measured.83 Echolocation clicks are highly-directional, forward-projecting sounds of high intensity and frequency. The repetition rate for echolocation clicks is six to eight clicks per second, yet their duration is brief (50 – 200 microseconds).84 The highest source level of any recorded marine mammal sound is from echolocation clicks with levels measured up to 230 dB for medium-sized whales.85 Generally, echolocation sounds are spaced so that the return echo from a target is received before the next sound is transmitted. This essentially allows the animals to “see” underwater; they can hunt and characterize prey, locate and avoid obstacles, and easily navigate through ocean terrain. Other marine mammals, such as seals, or pinnipeds, vocalize and hear both underwater and in air, and thus are subject to the effects of noise in the ocean and on land. Some measurements have been made of the underwater vocalizations of Weddell seals, which have been known to reach 193 dB.86 However, marine mammals such as manatees, dugongs, sea otters, and eared seals have low-level underwater vocalizations and contribute little to the overall ambient noise field. In summary, the contributions of marine mammals to ambient noise in the ocean can be significant over short periods of time and space when large groups of animals are vocalizing. Blue whale choruses have been reported to increase the ambient noise level up to 20 dB, while fin, humpback and sperm whales have been known to cause similar increases.87 During breeding season, these vocalizations increase.88 However, with the exception

83

Regarding the duration of some odontocetes’ pulsed calls, see J.K.B. Ford and H.D. Fisher, “Killer Whale (Orcinus orca) Dialects as an Indicator of Stocks in British Columbia,” Report of the International Whaling Commission, 32 (1982): 671-679. For information on frequency and repetition rates in killer whales, see W.E. Schevill and W.A. Watkins, “Sound Structure and Directionality in Orcinus (killer whale),” Zoologica 51 (6) (1966): 71-76; also Ford and Fisher, above. 84 Ibid., Schevill and Watkins, 1966. For echolocation duration, see Au, The Sonar of Dolphins, 134. 85 W.J. Richardson et al., Marine Mammals and Noise, 185. 86 J.A. Thomas and V.B. Kuechle, “Quantitative Analysis of Weddell Seal (Leptonychotes weddelli) Underwater Vocalizations at McMurdo Sound, Antarctica”, 72 Journal of the Acoustical Society of America (1982): 1730-1738. 87 W.C. Cummings and P.O. Thompson, “Characteristics and Seasons of Blue and Finback Whale Sounds Along the US West Coast as Recorded at SOSUS Stations”, 95 Journal of the Acoustical Society of America (1994): 2853; K.R. Curtis et al., “Low-Frequency Ambient Sound in the North Pacific: Long Time Series Observations”, 106 Journal of the Acoustical Society of America (1999): 3189-3200. 88 W.W. Au et al, “Seasonal and Diurnal Trends of Chorusing Humpback Whales Wintering in Waters off Western Maui”, 16 Marine Mammal Science (2000): 530-544.

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of mysticetes, whose calls can be heard for great distances, marine mammals contribute to the ambient noise field only locally.89

5.

ANTHROPOGENIC SOUND IN THE OCEAN

Ambient noise is the aural background of the ocean. Ambient noise levels at a given time and place represent an integration of all noise sources. Wind, waves, rain, marine mammal sounds, shipping, dredging, coastal construction, oil and mineral exploration, oceanographic research, and military activities all contribute to the ambient noise of the sea. Much of the sound created by human activities is below one kHz, and has the ability to travel longer distances than higher frequency sound, which attenuates rapidly.90 As global trade intensifies, mineral exploration and exploitation increases, and the use of sonar as a scientific and military tool expands, the level of noise in the ocean could be expected to rise. The increase in oceanbased activities shows no sign of abating. This increase in ocean uses leads to the question of whether the presence of anthropogenic noise in the ocean is increasing as well. That is, are the threats that noise poses also increasing? The next section attempts to answer this question.

5.1

Is Ambient Noise Increasing?

It is commonly accepted that noise levels are rising due to increased human activities in coastal and offshore areas. Ross maintains that lowfrequency noise levels increased more than 10 dB in many parts of the world between 1950 and 1975.91 The 1999 Marine Mammal Commission Report to Congress claimed “sources and pervasiveness of anthropogenic sound in the world’s oceans have increased substantially since 1972.”92 Testimony before the US House of Representatives by Vice-Admiral Dennis McGinn of the US Navy referred to an “alarming rise of ambient noise...by unregulated

89

OSB-2003, 45 Ibid., 95. 91 Donald Ross, “On Ocean Underwater Ambient Noise,” Institute of Acoustics Bulletin (1993): 5-8. 92 Marine Mammal Commission Report to Congress, 1999, at 158. 90

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commercial shipping and seismic surveying.”93 Several other sources cite an increase in anthropogenic noise in the ocean over the past few decades.94 However, there are few historical records of ambient noise data to substantiate these claims. Long-term ambient noise data is challenging to record and can be difficult to interpret due to the omni-directional nature of noise and the limitations of recording hardware. One potential source of historical ambient noise data is the US Navy’s Sound Ocean Surveillance system (SOSUS), which was designed to provide worldwide acoustic submarine surveillance.95 This network of hydrophones listened for and recorded signals from enemy submarines. But because the system was designed to listen for submarines over large areas of the ocean floor, the background sounds, or ambient noise from merchant vessels, oil rigs, and other commercial activities was filtered out. Consequently, SOSUS is not an optimal source of long-term historical records of broadband ambient noise. Another potential source of historical ambient noise data is the underwater recording system used at Navy test ranges. However, like the SOSUS data, these recordings focus on individual ships or transient activities, not ambient noise, which is generally filtered out. Furthermore, most ranges are shielded and located in unusually quiet areas of the sea

93

See statement of Vice-Admiral Dennis V. McGinn, testimony before the Subcommittee on Fisheries Conservation, Wildlife and Oceans of the House Committee on Resources, October 11, 2001. Text available at last accessed on November 14, 2002. 94 See R. Gisiner, “Proceedings from the Workshop on the Effects of Anthropogenic Noise in the Marine Environment: 10-12 February 1998, (Washington, DC: Office of Naval Research, 1998); M. Jasny, Sounding the Depths: Supertankers, Sonar and the Rise of Undersea Noise (New York: Natural Resources Defense Council, 1999); C.W. Turl, “Possible Effects of Noise from Offshore Oil and Gas Drilling Activities on Marine Mammals: A Survey of the Literature,” 6; and D.A. Croll et al, “Effect of Anthropogenic Noise on the Foraging Ecology of Balaenoptera Whales,” Animal Conservation, vol. 4, no. 1 (Feb. 2001): 13-27. 95 For more information on the US Navy’s SOSUS system, see Jane’s Underwater Warfare Systems, 11th ed., ed. Anthony Watts, (Surrey, UK: Jane’s Information Group, 2000.) For a discussion of the potential for civilian use of the SOSUS system, see Kirk Evans, “The Nation’s Fixed Undersea Surveillance Assets – A National Resource for the Future,” Acoustical Society of America meeting, Boston, MA, June 6-10,1994. Also, see for a description of the declassification of the SOSUS system. The website for the Federation of American Scientists at also contains an explanation of the SOSUS system.

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specifically to eliminate the sounds from shipping, oil exploration, and other non-military activities that could contaminate the data. A third source of ambient noise data is a global network of sensors that has been deployed to ensure compliance with the Comprehensive Test Ban Treaty.96 This network includes hydroacoustic sensors that could be used to provide ambient noise data over long periods. To date, however, only two of the planned six hydrophone stations are in operation, both in the Indian Ocean, and the data remains unpublished.97 Furthermore, the frequency band of the hydrophones is from one to 100 Hz, too low to record noise from most ships, sonars and other industrial activities. Another source of archived ambient noise data is held by the Naval Oceanographic Office where almost 50,000 omnidirectional measurements of ambient noise exist.98 This database was started in the 1950s to support US naval operational interests. As such, it is very narrowly focused geographically. In fact, the National Academy of Sciences commented that perhaps it most striking feature is its lack of data in most of the world’s oceans.99 Furthermore, access to the database is restricted. In summary, no long-term (greater than 10 year), systematically collected, ocean acoustic data set exists for any frequency band.100 Furthermore, very little data exists outside of the northern hemisphere, no data has been collected in biologically sensitive areas for specific species, and little data exists for frequencies above several kilohertz.101 How can one then, determine if the anthropogenic component of ambient noise is increasing? Absent actual ambient noise data, one can examine a number of indices in each sector of anthropogenic activity that could contribute to ambient noise. For the shipping sector these indices might include: number of ships at sea, average gross tonnage, average ship size, and type of propulsion system. In the oil and gas sector, indices could include: intensity of oil exploration, number of industry work boats, and number of seismic explorations. This derived method of drawing conclusions about ambient noise trends in the sea will be employed in the remainder of this chapter.

96

John Newton and Marta Galindo, “Hydroacoustic Monitoring Network,” Sea Technology, (September 2001): 41. 97 Personal correspondence, from an e-mail by Dr. John Newton of the Comprehensive Test Ban Treaty Organization in Vienna, Austria, December 18, 2001. 98 OSB-2003, 124; also see Paul Etter, Underwater Acoustic Modeling, Ed., (New York: E & FN Spon, 1991), 254. 99 OSB-2003, 125. 100 Ibid. 101 Ibid.

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The following sections discuss the various activities or sectors of industry that contribute to anthropogenic noise in the ocean in addition to identifying trends in each in sector.

5.2

The Many Uses of Sonar

Most maritime activities create sound at sea—either intentionally, or as a by-product of other activities. Sonar is one of the most widespread intentional uses of sound in the ocean. It is used during almost every human activity that takes place at sea. As such, it is addressed in this section, prior to a discussion of individual maritime activities that generate noise. Sonar has been in practical use since the turn of the century. Today, thousands of sonars are used daily throughout the world. They are found on fishing boats, merchant ships, research vessels, oil rigs, and commercial fish farms. Sonar pingers are used by airlines to locate lost flight recorders; sidescan sonars are used for locating shipwrecks; multibeam sonars are used to create three-dimensional maps of the ocean floor; acoustic releases are employed by scientists to retrieve oceanographic moorings; and chirp sonars are used to locate methane pockets and determine sediment types in the seabed. Fathometers are used by almost every large ship in the world to track the ocean floor; and fish-finding sonars are used by both commercial and sport fishermen. Two general types of sonars exist: passive and active. A passive sonar only listens to incoming sounds and does not generate sound in the ocean. Active sonars, however, emit pulses (usually called a “ping”) and then listen for a return echo. Active sonars are used to measure water depth (fathometers); to locate schools of fish (fish-finders); to measure currents (acoustic doppler current profilers); to search for wrecks (side-scan sonars); to map the ocean floor (multi-beam sonars); and to detect enemy vessels (military sonars). They can be suspended in the water column, fixed to the ocean floor, towed from vessels or helicopters, or hull mounted on submarines, ships, and torpedoes. Sonar frequency ranges vary from a few hundred hertz for long-range search sonars to many hundred kilohertz for mapping and imaging sonars. The optimum frequency range is highly dependant on the task. Generally, military sonars exist in all frequency ranges, whereas commercial sonars rely on higher frequencies. Sonars are used by almost all maritime activities such as shipping, oil and gas exploration, and fishing to navigate, create images, or carry out remote sensing. However, each activity also creates its own unique sounds (independent of commercial sonars) which are discussed below.

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5.3

Shipping

Vessels of all types contribute to background noise in the sea in a number of ways: through their engines and bearings, the vibration of the hull, and propeller cavitation. Propeller cavitation, the creation of collapsing air bubbles adjacent to ship propellers at high speeds, is usually the dominant noise generated by most ships.102 Generally, for medium to large vessels, the noise from propeller cavitation peaks at 50–150 Hz.103 But all the sources of noise combine to create a characteristic ship noise that is a combination of narrow-band sounds and broad-band sounds over a wide range of frequencies. Propulsion machinery is another significant source of noise. Rotating shafts, gear teeth, and reciprocating parts all create noise that then travels into the ocean through the ship’s hull. Other sources of ship-related noise include noise from pumps, compressors, and generators, flow noise from the ships hull, and bubbles breaking in the ships wake. These noise levels vary widely as they depend on the size of the ship, the type of propeller, the propulsion system, the ship’s speed, and its mode of operation. Especially at low frequencies (between 5 and 500 Hz), vessel traffic is a major contributor to noise in the ocean, affecting very large geographic areas. Generally, all vessels at sea (e.g., ferries, cruise ships, military vessels, commercial transport ships) produce noise in a similar fashion.104 Large ships, fully-loaded vessels, and ships that are towing or pushing a load generate the most noise. The large number of ships throughout the world, their distribution around the globe, and their mobility make shipping the greatest source of continuous anthropogenic noise in the ocean.105 Furthermore, the tendency of ships to travel in well-defined shipping lanes and call on ports tends to consolidate shipping noise—often in shallow water areas that are the most biologically productive. Moreover, the cumulative

102

See Donald Ross, Mechanics of Underwater Noise (New York: Pergamon, 1976). A thorough explanation of propeller cavitation is found in Urick, Principles of Underwater Sound. 103 Ibid. Ross, Mechanics of Underwater Noise. 104 A comparison of radiated noise levels of US navy ships with those of commercial ships is reported in the memo, “Navy vs. Commercial Ship Traffic”, Memorandum from the Center for Naval Analysis to the Director, US Navy’s Environmental Protection, Safety, and Occupational Health Division (N45), April 18, 2001. The memo also contains accounting of what fraction of coastal ship traffic that Navy ships account for. 105 Shipping generally dominates continuous or “ambient” ocean noise in the low-frequency range. For a thorough assessment of continuous shipping noise, see W.J. Richardson et al., Marine Mammals and Noise, 87–158.

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sonic acoustic energy generated by ships is significant and, most importantly, omnipresent.106

5.3.1

Trends in Shipping

Because shipping is the greatest contributor to low-frequency ambient noise, it might appear that an increase in shipping would give rise to an increase in ambient noise.107 In fact, in 1976, Ross cited increases in several factors that affect global shipping noise: number of vessels, efficiencies of port handling facilities, average ship speed, propulsion power, and propeller tip speed.108 Combining these factors led him to conclude that from 1950 to 1975, ambient noise increased about 10 dB in areas where shipping noise dominates. At that time, he predicted that by the year 2000, low-frequency ambient noise levels from ships would increase an additional 5 dB.109 Did this increase occur? Is noise from shipping increasing? To address these questions, a number of trends in shipbuilding and commercial shipping are examined and the findings are shown in the figures below. Figures 3 and 4 illustrate the marked increase in the number and size of commercial vessels over the past fifty years as reported in Lloyd’s Registry, one of the world’s most comprehensive sources of data on commercial vessels.110 Specifically, Figure 3 illustrates the growth in the number of vessels in the U.S. and world fleets. Growth was greatest in the 1970s, a period of global economic expansion and an increase in US oil imports. This expansion necessitated the construction of many new ships, particularly tankers and drybulk carriers.111 Figure 4 illustrates a similar increase in ship size, or gross tonnage. Figure 5 illustrates the growth in international trade from 1970 to 2001.112

106.

OSB-1994, 74. An analysis of the entire energy created by the world’s fleet of supertankers is found in this document. Presently over 120 supertankers operate in the world’s oceans at any one time. The energy created by this fleet of supertankers is compared to the energy created by oceanographic research such as ATOC and found to be significantly greater. 107 Ross, “On Ocean Underwater Ambient Noise,” 6, supra note 91. 108 Ross, Mechanics of Underwater Sound, 285, supra note 102. 109 Ross, “On Ocean Underwater Ambient Noise,” 6, supra note 91. 110 Lloyd’s Registry is the world’s premier ship classification society and a leading independent technical inspection, certification and advisory organization. For more info on Lloyd’s, see the website at 111 World Fleet Statistics (London: Lloyd’s Register, 1998) also see Luc Cuyvers, Ocean Uses and their Regulation, (New York: John Wiley and Sons, 1984), 113. 112 GESAMP (IMO/FAO/UNESCO-IOC/WMO/IAEA/UN/UNEP Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection) and Advisory Committee on

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Figure -3. Number of ships in U.S. and world fleets. Source: Based on data from Lloyd’s Registry of Shipping. This data represents all selfpropelled commercial vessels of at least 100 gross tons including government-owned ships that are not military in nature. It excludes all warships.

Figure -4. Tonnage of world and US fleets (000 GT) Source: Lloyd’s Register of Shipping

Protection of the Sea, A Sea of Troubles Rep. Stud. 70 (London: GESAMP, 2001), 27. Also see Review of Maritime Transportation, 2002 UNCTAD/RMT/2002 (Geneva: UNCTAD, 2002): 6.

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35

Figure –5 .International seaborne trade. Source: Review of Maritime Transport, 2002. These data are based on crude oil and products, five major bulks, and other dry bulk.

These figures illustrate the trend in an increasing size and number of ships. Industry data indicates that this pattern will continue. For example, world waterborne trade increased by 3.8 percent annually from 1993-1997 (on a tonnage basis)113 and by 2.1 percent in 2001.114 The container ship fleet is expected to grow ten percent annually over the next few years, and the tanker growth rate is expected to be two to three percent.115 Overall, the percentage of containerized cargo has grown from 23 percent in 1980 to 70 percent today and is expected to reach 90 percent by 2010.116 Furthermore, changes in business practices may contribute to increased trade: the decentralization of production has increased the overall number of freight movements that must be carried out, both domestically and internationally.117 The estimated growth in trade creates a demand for a greater inventory and increased size of commercial vessels. This trend toward larger ships is 113

US Department of Transportation, Maritime Trade and Transportation (Washington, DC: US Maritime Administration, 1999), x-xi. 114 This increased was in deadweight tons. From the UNCTAD Secretariat, Review of Maritime Transport, 2002 (New York: United Nations, 2002), ix. 115 Anthony Coia, “Ships’ Relentless Growth,” The Journal of Commerce, (Sept. 3-9, 2001): 30. Also see US Department of Transportation, Maritime Trade and Transport, 1. 116 Ibid. 117 US Department of Transportation, An Assessment of the US Marine Transportation System: A Report to Congress, September 1999, text available at <www.dot.gov/mts/report/mtsfinal.pdf>

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expected to continue. For example, ship owners are presently ordering highspeed ships which operate at 25 – 27 knots, have beams of up to 164 feet, and drafts of more than 47 feet.118 The tonnage levels of the world fleet are also increasing.119 Furthermore, it is anticipated that the expanded world fleet of the 1970s will drive demand for replacement of the aging vessels in the near future.120 It is reasonable to conclude that these trends in increased ship size would lead to an increase in noise from ship traffic. In 1993, Ross claimed that the amount of noise radiated from a ship is a function of ship size and speed and, therefore, ships with the highest propulsion powers will be the noisiest.121 Many researchers agree and claim that, at the very least, the sheer increase in number of vessels will certainly result in an increase in ocean noise.122 However, other scientists believe that even if the number of vessels has increased, shipping noise has not.123 They claim that improvements in technology such as variable pitch propellers and the widespread use of diesel electric systems has reduced noise from ships. Furthermore, they argue, because bigger ships are deeper in the water, propeller cavitation is reduced. Finally, many claim that there is a negligible correlation between sound source level and ship length and speed.124 A database of ships’ acoustic signatures does exist but this data is limited. Known as the Historical Temporal Shipping Database (HITS), it was created by the US Navy to provide input to sonar prediction models, not necessarily to monitor trends in ambient noise.125 Ultimately, historical increases in ambient noise from

118

Ibid. James Kemp, “Optimistic Future for the Supply Side of World Shipbuilding,” press release from Lloyd’s Register, April 26, 2000 available on-line at <www.lr.org/news/press_releases/2000/pr0426_forecast.htm> 120 Ibid. Also see US Department of Transportation, Outlook for the US Shipbuilding and Repair Industry (Washington, DC: US Maritime Administration, 1997). 121 Ross, “On Ocean Underwater Ambient Noise,” supra note 91. 122 See for example, Jasny, Sounding the Depths: Supertankers, Sonar and the Rise of Undersea Noise, 30, supra note 94; Ross, Mechanics of Underwater Sound, 279, supra note 102. 123 Personal communication with Dr. Marshall Bradley, PSI Inc., Slidell, LA; Dr. Stephen Wales, Naval Research Lab, Stennis Space Center, LA. 124 Stephen Wales and Richard Heitmeyer, “An Ensemble Source Spectra Model For Merchant Ship Radiated Noise,” 111 Journal of the Acoustical Society of America (2002): 1211-1231. 125 A recent article reports on the limitations of current models for predicting ambient noise from shipping calls for a better understanding of the relationship between shipping and noise predictions models. See R. Heitmeyer et al., “Shipping Noise Predictions: Capabilities and Limitations,” 37 (4) Marine Technology Society Journal, in press. 119

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shipping are difficult to prove because measurements of ambient noise at the same location over a decade or more do not appear in the literature. There is currently no consensus on whether ambient noise from shipping has increased and there has been a call for further discussion on the issue.126 As one scientist who studies ambient noise stated, “The thought that ambient noise has increased worldwide or even locally seems to make sense at first blush given the increased shipping load, however, it is purely conjecture. I don’t even know how one would go about making a quantitative assessment to substantiate such a notion.”127 For a thorough analysis of the noise created by shipping, individual vessel sound signatures would be useful. But this data is scarce, often classified, and even when recorded, is usually used for maintenance purposes, not for ambient noise measurements.128 Other factors that would have to be considered for a quantitative assessment of noise from shipping include average length of haul, which affects overall time spent at sea; age of vessel, an indicator of noise; density of shipping routes, which affects the intensity of noise; and other factors that affect distribution of ships at sea.129

5.4. Dredging and Coastal Construction Noise from marine dredging, tunnel boring, and other construction activities can exceed ambient noise for considerable distances.130 Dredges are used to deepen shipping lanes and harbors, to build submerged platforms, or to create new land masses. They are a significant source of continuous noise in coastal regions. Unlike transient noise sources in the ocean, such as ships, dredge noise is often concentrated in the same area for weeks at a time. The

126

See recommendations by the Committee on Potential Impacts of Ambient Noise in the Ocean on Marine Mammals in OSB-2003, 128. 127 E-mail from Peter Scheifele, Operations Manager, University of Connecticut’s National Undersea Research Center (North Atlantic and Great Lakes), October 18, 2001. 128 See Ronald Darby, “A Practical Method for Predicting Machinery Noise” Journal of the Acoustical Society of America, 104(3) (1998): 1817. 129 Dr. Ralph Klingbeil, a scientist at the Naval Undersea Warfare Center in Newport, RI indicated that noise from ships is highly dependant on water depth and it is difficult to model ship noise as a single source. Furthermore, he added that in shallow water, the boundary interactions make it especially challenging to predict noise from shipping. Personal communication, January 6, 2003. 130 Richardson provides a graph which compares received level of dredge noise to range traveled. The noise levels from the loading and unloading of hopper dredges are shown to exceed 120 dB at ranges beyond 10 kilometers. See W.J. Richardson et al., Marine Mammals and Noise, 123.

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noise from dredging is greatest at low frequencies and is found to vary with dredge type and operating status. Tunnel boring requires large machines with rotating cutters to drill undersea tunnels for railways, roads, and sewage outfalls. The sound from these machines was measured by Malme and Krumhansl and found to be strongest below 10 Hz.131 Underwater demolition is often required in support of coastal construction and relies on explosions that typically use 10 – 1000 kg of explosives per blast.132 Smaller explosives are used for a wide range of other applications. Other land-based construction activities such as pile-driving and pier construction can contribute to ocean noise although their impact depends on how well coupled the land and ocean media are.133 Unfortunately, this coupling is poorly understood. However, the proximity of construction activities to shore concentrates noise in shallow water, often in biologically productive areas, where it may pose the greatest threat to marine life.

5.4.1

Trends In Dredging And Coastal Construction

Intensive use of the worlds’ coastline is illustrated by a marked shift in population from the hinterlands toward the sea.134 This migration to coastal regions requires additional dredging and construction to accommodate new homes, businesses, and infrastructure. As discussed above, these activities create noise in the sea. Currently, the majority of worldwide population is concentrated along or near coasts on just 10 percent of the land.135 Globally, the number of people living within 100 km of the sea increased from 2 billion to 2.2 billion in the

131

132 133

134

135

C.I. Malme and P.A. Krumhansl, “A Study of Sound Levels Produced by MWRA Outfall Tunnel Boring Machine Operations in Massachusetts Bay,” Tech Memo 1113, (Cambridge, MA: BBN Systems and Technology Corporation, 1993). W.J. Richardson et al., Marine Mammals and Noise, 148. One example of pile-driving affecting marine life is found in H. Shin, “Effect of the Piling Work Noise on the Behavior of Snakehead (Channa argus) in the Aquafarm, Journal of the Korean Fisheries Society vol. 28, no. 4 (1995): 492-502. Globally, this “coastal population explosion” was documented by Don Hinrichsen in Coastal Waters of the World: Trends, Threats, and Strategies (Washington, D.C.: Island Press, 1998). It was also illustrated by the World Resources Institute (WRI) map of “Population Distribution within 100 km of Coastlines,” an image located on the WRI website at last accessed on January 12, 2003. Ibid. Don Hinrichsen, Coastal Waters of the World.

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five-year period between 1990 and 1995.136 As human population increases in coastal areas, so do dredging, construction, and other related activities. In the U.S., a similar intensification of construction along the coasts is occurring: An average of 2,000 new homes were built along the US shoreline every day during the past 25 years.137 From 1960 to 1990, coastal population density in the U.S. increased from an average of 275 to nearly 400 people per square kilometer – an increase of almost 45 percent.138 (The national average is 236 persons per square kilometer.)139 Fifty percent of the nation now lives within 75 kilometers of the coast and this number is expected to increase to 60 percent by 2010.140 Figure 6 illustrates this migration toward the coast in the U.S. It compares past and projected population densities in coastal communities with non-coastal communities.141 Another trend that leads to increased construction and dredging activities is the prevalence of deeper draft vessels.142 Larger vessels with deeper drafts require shipping channels and ports with greater depths to accommodate them, many as great as 45 feet or more.143 This in turn requires additional dredging and construction activities, which are expected to grow above recent highs.144 Moreover, the trend toward deeper channels is accompanied by an increasing demand for greater channel reliability, a factor that leads to increased maintenance dredging.145

136

From last accessed on January 12, 2003. Also see Center for International Earth Science Information Network (CIESIN) Columbia University available on-line at source link and the International Food Policy and Research Institute’s and World Resources Institute’s 2000 Gridded Population of the World, Version 2 from which this data was taken. 137 National Ocean Service, “Trends in US Coastal Regions: 1970-1998,” (Washington, DC: US Department of Commerce, August 1999), 4. 138 Don Hinrichsen, Coastal Waters of the World, supra note 134. 139 National Ocean Service, “Trends in US Coastal Regions: 1970-1998,” supra note 137. 140 The National Academy of Science, Meeting Research and Education Needs in Coastal Engineering (National Academy Press: Washington, D.C., 1999), 40. 141 This diagram is based on a graph found in National Ocean Service “Trends in US Coastal Regions: 1970-1998,” 3, supra note 137. The graph was created with data from the US Bureau of the Census, 1998, and the National Planning Association, 1995. 142 Anthony Coia, “Ships’ Relentless Growth,” The Journal of Commerce, (Sept. 3-9, 2001): 30, supra note 115. Also see Maritime Trade and Transport, 1, supra note 113. 143 US Department of Transportation, An Assessment of the US Marine Transportation System: A Report to Congress, September 1999, supra note 117. See also the US Army Corps of Engineers Dredging Information System, which reports total cubic yards of dredge material carried out by the Corps as well as private industry from 1963-2002. Found at <www.iwr.usace.army.mil/ndc/dredge/ddhisbth.htm> 144 Ibid. 145 Ibid.

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Figure 6. US population density in coastal and non-coastal counties. Source: Trends in US Coastal Regions: 1970-1998

The effects of noise created by dredging and coastal construction may be of concern for two reasons. Generally, construction activities are not transient like many other sources of sound. Instead, construction often continues in one area for many weeks at a time. Also, dredging and construction activities are concentrated in coastal regions where many marine mammals are found migrating, breeding and searching for food.146 New technologies used by dredging and construction industries such as Global Positioning System (GPS) and dynamic positioning could perhaps lead to increased efficiencies and thus reduced noise output.147 Other improvements in ship navigation in conjunction with new seafloor mapping technologies allow for refined dredging techniques.148 However, it remains uncertain that such technologies could reduce the amount of earthmoving and pile driving enough to balance the increase in noise due to an 146

147

148

It has been shown that piling noise has a marked effect on at least one species of fish. See H.O. Shin, “Effect of the Piling Work Noise on the Behavior of Snakehead (Channa argus) in the Aquafarm, 28 (4) Journal of Korean Fisheries Society (1995): 492-502. For a discussion of trends in dredging technology, see R.B. Kidd et al., “The Status of Geological Dredging Techniques,” in Proceedings of the Marine Geological Surveying and Sampling Meeting, (The Geological Society: London, May, 1988). Ibid.

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intensification and expansion of construction activities. Although the increase in coastal construction and dredging cannot be directly related to a measured increase of noise in coastal waters, it is likely that the global migration towards the coasts has led to an increased intensity in noisemaking activities.

5.5

Offshore Oil and Mineral Exploration and Extraction

Offshore drilling and mineral extraction involve several activities in two general categories that produce underwater noise: exploration and extraction. Exploration, or geophysical surveying, is used to locate mineral deposits and geological features associated with petroleum deposits.149 These geophysical surveys use the reflections from high-energy, low-frequency sound transmission to characterize the ocean’s geological features. These reflected sound pulses can be detected hundreds of kilometers from their original source.150 Several technologies are used to create these sounds. Some of the most prevalent are airguns, sleeve exploders, and gas guns. Airguns are the most commonly used sound generators for geophysical surveys. They are typically deployed from a ship and can be used individually or in arrays of as many as 70 airguns. They operate by venting high-pressure air into the ocean, which produces an air-filled cavity that expands and contracts and expands again, creating sound with each oscillation. A series of hydrophones, or underwater microphones, is towed behind the airguns to measure the reflected signals from beneath the sea floor. Typically, the guns are fired once every several seconds and create source levels as high as 259 dB.151 In the Gulf of Mexico alone, over 900 seismic surveys are conducted

149

General overviews of geophysical seismic surveys are found in F.S. Kramer, R.A. Peterson, and W.C. Walter, ed. Seismic Energy Sources, (Los Angeles: Bendix-United Geophysical Corporation, 1968); on this theme also see R. Lugg, “Marine Seismic Sources,” In ed. A.A. Fitch Developments in Geophysical Exploration Methods (London: Applied Science Publications, 1979); and R.C. Johnston and B. Cain, “Marine Seismic Energy Sources: Acoustic Performance Comparison,” Meeting of the Acoustical Society of America, Miami, FL, (December 1981). 150 A.E. Bowles, et al., “Relative Abundance and Behavior Marine Mammals Exposed to Transmissions from the Heard Island Feasibility Test,” Journal of the Acoustical Society of America, 96(4) (1994): 2469-2484. 151 R. Parrot, “Seismic and Acoustic Systems for Marine Survey Used by the Geological Surveying of Canada: Background Information for Environmental Screening,” manuscript, Atlantic Geosciences Center, Geological Survey of Canada, Dartmouth, N.S. (1991).

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each year.152 The use of towed arrays of airguns and other devices to generate high-energy seismic waves has been reported to affect the movements and behavior of animals as far away as 10 km.153 Figure 7 illustrates how air guns are used in seismic surveying. Marine seismic vessels tow arrays of air guns and streamers carrying hydrophones a few meters below the surface of the water. The tail buoy helps the crew locate the end of the streamers. The air guns are activated periodically, (typically every 25 meters; about every ten seconds). The resulting sound wave travels into the ocean floor, is reflected back by the underlying rock layers to a hydrophone, and then relayed to a recording vessel.

Figure -7. Seismic surveying using airguns. Source: Schlumberger Inc.

Arrays of sleeve exploders and gas guns are also used for conducting geophysical surveys; they explode a mixture of propane and oxygen to

152.

See US Department of Commerce, Marine Mammal Protection Act of 1972 Annual Report 1999 (Washington, D.C.: National Marine Fisheries Service’s Office of Protected Species, 1999), 170. 153. Ibid., 169. Concerns over seismic surveying are not limited to the U.S. More recently, whale strandings off the west coast of Ireland were attributed to increased seismic activity of oil exploration companies. See Eibhir Mulqueen, “Whale Strandings Due To ‘Seismic Activity,’” The Irish Times, May 6, 2000, at 2. International trade organizations in the U.K. have expressed concern over the effects of sounds generated by the oil industry. See Donald Smith et al., “Oil and Gas Industry Sounds and their Effects on Marine Life: What We Know, What We Believe and What Remains to be Determined”, Proceedings from the Environmental Consequences of Underwater Sound (ECOUS) Symposium, May 12-16 2003, San Antonio, Texas.

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produce a sound pulse. Like airguns, they produce high-energy pulses of similar levels. For example, a 12-sleeve array can create sound levels of approximately 150 dB eight kilometers from the source and 116 dB at more than 25 km from the source.154 Extraction of oil and other minerals, another activity that generates noise, involves drilling from fixed platforms or rigs, ships, and submersibles. Noise levels near several drilling and production sites throughout the world have been measured.155 It was found that the drilling itself can create a significant amount of noise, as can many of the support activities required to maintain drilling platforms (e.g., the movement of supply ships and aircraft and the installation of conductor pipe). It is acknowledged that the many activities involved in drilling for and recovering oil produce a composite underwater noise field that is well above the ambient sound levels in most areas. 156 Furthermore, most oil and gas activities take place on the continental shelf, an area of high biological productivity.

5.5.1

Trends in Offshore Oil and Mineral Exploration and Extraction

Noise sources associated with offshore petroleum-related operations include drilling platforms, support vessels, helicopters, and seismic exploration. For example, in 1998, three or four seismic surveys were conducted every day and more than 100 exploration and development wells

154

C.R. Greene and W.J. Richardson, “Characteristics of Marine Seismic Survey Sounds in the Beaufort Sea,” Journal of the Acoustical Society of America 83(6) (1988): 2246-2254. 155 See generally R.S. Gales, “Effects of Noise of Offshore Oil and Gas Operation on Marine Mammals – An Introductory Assessment,” US Navy Technical Report No. 844, vols. 1 & 2 (1982); also C.W. Turl, “Possible Effects of Noise from Offshore Oil and Gas Drilling Activities on Marine Mammals: A Survey of the Literature,” NOSC Techhical Report 776 (1982); and B. Wursig and C.R. Greene, “Underwater Sounds near a Fuel Receiving Facility in Western Hong Kong,” Marine Environmental Research 54(2) (2002): 129-145. 156 Drilling from vessels and submersibles has also been measured and found to be above the median ambient level 10 kilometers from the source. See C.R. Greene, “Acoustic Studies of Underwater Noise and Localization of Whale Calls,” in Responses of Bowhead Whales to an Offshore Drilling Operation in the Alaskan Beaufort Sea, (King City, Ontario: LGL Ltd., 1987); also C.R. Greene, “Underwater Sounds from the Semisubmersible Drill Rig SEDCO 708 Drilling in the Aleutian Islands,” in American Petroleum Institute Publication 4438, (Washington, D.C., American Petroleum Institute, 1986). Generally, the most noise is created from drillships, while drilling from islands is the quietest. The noise generated by drilling from semisubmersibles and platforms falls between ships and islands. See generally, W.J. Richardson et al., Marine Mammals and Noise, Section 6.4, “Oil and Gas Drilling and Production.”

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were drilled in the Gulf of Mexico.157 In addition, more than 1,000 boat trips and 2,000 helicopter trips were made daily to transport personnel and materials to offshore rigs.158 Figure 8 shows the number of international offshore rigs in place from 1991 until 2001.

Figure -8. Number of offshore oil rigs (worldwide) Source: Ten years of international offshore rig counts in World Oil

The number of rigs dropped off after a peak in 1998, but a clear trend does not emerge from this data. Figure 9 provides data over a longer time period; it illustrates the international offshore seismic activity from 1979 to 1991. It plots the number of seismic crews working offshore to give an indication of the amount of seismic exploration that is carried out. From this graph, the increase in offshore activity in the early 1980s can be observed, followed by a decline later in the decade. Again, no clear trend emerges from this data. It is apparent however, that this data does not support a claim of continued expansion in offshore oil development with its attendant noisecreating activities during the last two decades.159

157

US Department of Commerce, Marine Mammal Protection Act of 1972 Annual Report 1998 (Washington, D.C.: National Marine Fisheries Service’s Office of Protected Species, 1998), 170. 158 Ibid. 159 Offshore production as a percentage of overall world production of crude oil also does not yield any significant trends. In 1989 it was 25.1 percent; it increased to 33.4 percent in

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45

Figure -9. Number of offshore seismic crews. Source: Based on data compiled from 20 years of international geophysical activity statistics in International Energy Statistics Sourcebook, ed. (Tulsa: PennWell Publishing, 1992).

Figure 10 illustrates another important factor when considering noise from the oil industry. It reveals the practice of locating rigs in increasingly deeper waters. Early offshore drilling was concentrated in shallow waters. However, new technologies allow rigs to be located in offshore waters as deep as one mile. This practice is significant because the noise sources used for oil exploration generally can travel farther in deeper waters and, therefore, impact larger areas.160

1991 but dropped down to 30.1 percent in 1995. This data from Basic Petroleum Data Book (Washington: American Petroleum Institute, 1997) section XI, Table 1. In this same time period, offshore oil and offshore gas production increased 37 percent and 27 percent respectively. See UN General Assembly Report A/57/57, Oceans and Law of the Sea: Report of the Secretary-General, March 7, 2002. 160 This is because sound travels faster under high pressure conditions. See C.W. Turl, “Possible Effects of Noise from Offshore Oil and Gas Drilling Activities on Marine Mammals: A Survey of the Literature,” 5, supra note 18.

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Figure -10. Deepwater drilling progression (worldwide). Source: Minerals Management Service, Offshore statistics, year end 2000.

However, trends in the increased offshore oil development do not tell the entire story. For example, although the number of offshore wells may be increasing, the number of geophysical surveys may not be increasing. Reduced exploratory drilling due to better seismic technology and directional drilling (using a single platform instead of multiple structures) are industry advancements that could actually result in a decrease in noise.161 Although the US Minerals Management Service expects an increase in the use of seismic equipment, new systems and technologies, new deployment scenarios, and greater efficiency in support activities could result in an overall decrease in noise in the ocean.162 In regard to operations associated with offshore oil exploration, a scientist with the Minerals Management

161

These comments from an e-mail by Dr. William Lang, oceanographer at the Minerals Management Service, September 27, 2001. 162 For a discussion concerning the efficiency of modern seismic crews, see Michael Schoenberger, “Lies, Damned Lies, and Statistics,” The Leading Edge, July 1994. See also Jack Caldwell, “Acoustic Activities in the Seismic Industry,” Gulf of Mexico Marine Protected Species Workshop, Doc. 2001-039, (Washington, D.C.: Minerals Management Service, June 1999), 55-56.

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Service of the US Department of the Interior concluded, “the more I have looked at the problem [of increasing manmade noise] in the Gulf [of Mexico], the more the logic of ‘increasing’ noise (from industry) seems unsupported, or in need of verification. Unfortunately, I have no ready sources for a verification.”163 As in the case of the shipping industry, no consensus emerges on whether noise from global oil and gas explorations is increasing. As with shipping, the increase in oil and gas activity may be balanced by improved efficiency and advances in technology.

5.6

Recreational Boating

Recreational power boating is a relatively new activity made possible by the invention of the small, affordable outboard engine in the early 1900s. Small boats with outboard engines are common in coastal regions but little data exist on the sound they create.164 The contribution from recreational boats to ambient noise in the ocean has not been quantified.165 It is known that their frequency ranges are generally higher than larger vessels and that much of the noise they create depends on their operating status.166 Because of their size, such vessels are generally concentrated in coastal regions. Jet skis, small, motorized “personal watercraft” propelled by water jets, are another source of noise from recreational boating activities.167 Like power boats, they are generally confined to shallow water coastal areas. This is significant because coastal regions are often where marine life is

163

Dr. William Lang, US Minerals Management Service, e-mail, September 27, 2001. W.J. Richardson et al., Marine Mammals and Noise, 112. For published measurements of small boat noise, see R. W. Young and C. N. Miller, “Noise Data for Two Outboard Motors in Air and in Water,” Noise Control 6(1) 1960: 22-25; and B.S. Stewart et al, “Effects of Man-Made Waterborne Noise on Behavior of Belukha Whales (Delphinapterus leucas) in Bristol Bay, Alaska,” (San Diego, CA: Hubbs/Sea World Research Institute, 1982). 165 OSB-2003, 50. 166 See C.I. Malme et al., “Analysis and Ranking of the Acoustic Disturbance Potential of Petroleum Industry Activities and Other Sources of Noise in the Environment of Marine Mammals in Alaska,” (Boston, MA: BBN Systems and Technology Corporation, 1989) and W.J. Richardson and C. I. Malme, “Man-made Noise and Behavioral Responses,” in The Bowhead Whale, ed. J.J. Burns at al. (Lawrence, KS: Society Marine Mammals, 1993). 167 Regarding concern about jet ski disturbance to humpback whales in Hawaii, see R.T. Tinney Jr., “Review of Information Bearing upon the Conservation and Protection of Humpback Whales in Hawaii,” Report for US Marine Mammal Commission, Washington D.C., 1988. 164

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most abundant and where whales populations sometimes congregate to feed and mate.

5.6.1

Trends In Recreational Boating

Prior to the advent of the outboard engine in 1911, there were few privately owned recreational powerboats.168 The rapid increase in boat ownership in the U.S. after 1911 is shown in Figure 11. This increase in recreational boating occurred dramatically in the U.S. and other countries due to the availability of the small, relatively affordable outboard which made it possible for subsistence fishermen and recreational boaters to own engines.169 In the U.S., the number of recreational boats owned has increased steadily since 1913, with a leveling off in 1980.

Figure -11. Estimated number of recreational boats owned. Source: National Marine Manufacturers Association. Data based on state and Coast Guard registrations.

168

Ole Evinrude was issued a patent for a “marine propulsion system” in 1911. Although other inventors had experimented with the outboard motor as early as 1896, Evinrude’s was the first commercial success. See and both accessed on January 16, 2003. 169 Boat ownership in other countries is provided by the International Boat Industry, which provides country reports and market facts on its website at <www.ibinews.com/ibinews/key_mkt_facts/index.htm>

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But Figure 12 shows a large drop in the number of motors sold since 1985. This decrease in number of motors sold may be balanced somewhat by the gradual increase in average horsepower of motors sold. This is because horsepower affects the noise generated by outboard motors—greater horsepower results in louder engines. 170 In terms of overall noise generated by recreational boats, the increased noise generated by more powerful engines may be offset by the smaller number of engines sold in the same time period.

Figure -12. Comparison of average horsepower with total motors sold. Source: National Marine Manufacturers Association

What’s more, the advent of the four-stroke engine has resulted in much quieter vessels. Noise emissions from new four-stroke outboard motors are significantly lower than previous models.171 Similarly, newer engines for personal watercraft and jet-skis are claimed to be nearly 70 percent quieter

170

The Personal Watercraft Industry Association maintains a website that provides sound level comparisons for various types of open exhaust boats. See <www.pwia.org/Snd_PWC.htm> last accessed on November 12, 2002. 171 See last accessed on March 21, 2002.

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than those built just a few years ago.172 These noise reductions can be attributed to the use of active noise-canceling devices and noise suppression materials, a redesign of the intake/exhaust system, and isolation of the engine and drive train. It has been noted, however, that some of the noise elimination resulted from rerouting the engine exhaust from above the water line to below, so it is not clear how much underwater noise has actually been reduced.173 Again, a tradeoff is observed between the advances in technology that reduce acoustic emissions and the increasing number of recreational vessels in existence.

5.7

Fishing and Aquaculture

The fishing industry, like most other marine industries, relies heavily on the use of sound in the sea. Fishing vessels create unique noise characteristics or “acoustic signatures” that have been measured.174 Furthermore, fishing vessels use sonar for depthfinding, navigation, and fish finding. Commercial fish finders and depth sounders are generally focused downward in the water column and operate in the kilohertz frequency range. One concern over these devices is that they generally operate in areas of high productivity in nearshore waters, where marine mammals are also likely to be found. Two unique applications of sound by the fishing and aquaculture industries are the high-powered Acoustic Harassment Device (AHD) and the lower-powered Acoustic Deterrent Device (ADD). Because many species of marine mammals interact with aquaculture operations and commercial fisheries, these industries have developed such devices to create noise that prevents marine mammal interactions with fishing gear or aquaculture pens (Figure 13). However, the use of these acoustic devices to prevent such interactions is highly controversial: numerous uncertainties exist about their

172

Monita Fontaine, Executive Director of the Personal Watercraft Industry Association, “Whisper Quiet Personal Watercraft,” The Providence Journal, October 12, 2001, A7. 173 OSB-2003, 50. 174 For noise from trawlers, see C.I. Malme at al., “Analysis and Ranking of the Acoustic Disturbance Potential of Petroleum Industry Activities and other Sources of Noise in the Environement of Marine Mammals in Alaska,” OCS Study MMS-89-0006. (Anchorage, AK: US Minerals Management Service, 1989). For an overview of the effects of fishing vessel noise on fish populations, see Underwater Noise of Research Vessels Review and Recommendations, R.B. Mitson, ed., (International Council for the Exploration of the Sea: Copenhagen, 1995).

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safety and effectiveness.175 A claim by whale researchers in Canada alleged that killer whales have abandoned waters between Canada’s west coast and northern Vancouver Island to avoid the sound from AHDs, used by salmon farmers to keep seals from their fish pens.176 Habitat exclusion is not the only concern; some devices are sufficiently high enough in source level that they could damage the hearing of animals at close range.177 Because they are of a relatively high frequency (kilohertz), their effect is geographically limited to the area immediately surrounding the net or pen where they are located. The use of these devices is presently unregulated and they can be employed without prior determination of their impact on marine mammals.178

Figure -13. Acoustic Deterrent Device (ADD) - Gillnet pinger

175

For example, one theory claims that AHDs intended to keep seals out of fish pens may also exclude harbor porpoises from important habitat. See Dave W. Johnston, “The Effect of Acsoutic Harassment Devices on Harbour Porpoises (Phocoena phocoena) in the Bay of Fundy,” Biological Conservation 108 (2002): 113-118. 176 See Alexandra Morton and H.K. Symonds, “Displacement of Orcinus orca (L.) by High Amplitude Sound in British Columbia, Canada,” ICES Journal of Marine Science, 59 (2002): 71-80. 177 ADDs generally have a source level between 130 – 150 dB re: 1 mPa at 1 m, and highpowered AHDs typically have source levels in the 190-200 dB re: 1 mPa at 1 m range. OSB-2003, 67. 178. Marine Mammal Protection Act of 1972: Hearings before the Subcommittee on Fisheries, Conservation, Wildlife and Ocean of the House Resources Committee on Resources, US House of Representatives, June 29, 1999, (testimony of Penelope Dalton, Assistant Administrator of NMFS). A copy of this testimony was obtained directly from the Subcommittee on Fisheries, Conservation, Wildlife and Ocean.

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5.7.1

Trends in Fishing and Aquaculture

The use of gillnet pingers and other types of acoustic harassment devices is a relatively new occurrence over the past 25 years.179 Since their development, their use has been mandated by some government agencies yet remains controversial.180 In the U.S. they have increased in number since amendments to the Marine Mammal Protection Act mandated their use in many fisheries. Whether they will continue to increase in number, however, is uncertain because so much controversy exists over their usefulness and effectiveness.181

5.8

Military Activities

Reliance on sound has been a mainstay of navies throughout the world for imaging, communication, and navigation. Naval vessels employ sonars that measure currents, map the seafloor, aid in navigation, and look for enemy submarines and mines. Naval vessels also create considerable sound through their power plants, propellers, and hulls. But some of the most intense sounds created by the military involve the testing of ordnance, torpedoes and mines. Man-made explosions are the most powerful anthropogenic point sources of sound in the sea. The pressure pulses from explosions are the only type of

179

Changes to the Marine Mammal Protection Act in 1994 prohibited fishermen and fish farmers from using lethal forces against predators to their catch and stock. As a result, non-lethal methods of protection, such as the AHD, were pursued. In fact, AHDs have been in use since the early 1980s in North America. See Randall Reeves et al., “Acoustic Deterrence of Harmful Marine Mammal-Fishery Interactions: Proceedings of a Workshop held in Seattle, WA, March 20-22, 1996,” NOAA Technical Memorandum NMFS-OPR10 (Washington, DC: US Department of Commerce, 1996). 180 A federal order mandated them on drift nets off California and Oregon and sink nets in New England. See Federal Register, Volume 63, Number 231, 66464, December 2, 1998. 181 Concerning the controversy over the use of pingers in the U.S., see Ken Baldwin and Scott Kraus, “Marine Mammal - Gear Interactions: Problems, Acoustic Mitigation Strategies, Open Ocean Aquaculture,” in the Proceedings of the US - Japan Aquaculture Symposium ed. W. Howell et al., eds. (Durham, NH: University of New Hampshire, 1998). Regarding similar controversies in Australia, see G. McPherson and N. Gribble, “Use of Pingers in Nets Reviewed,” Queensland Fisherman vol. 17, no. 4 (1999): 24-25.

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noise that is known to cause death and injury to marine mammals.182 Explosives have routinely been used by the military in the form of bombs, depth charges, torpedoes, and mines. This practice is intense during wartime, but continues during training periods in peacetime as well. For example, the US National Defense Authorization Act requires that new designs for the hulls and other critical components of Navy ships and submarines undergo shock tests before service in the fleet.183 As a result, the US Navy detonates up to 4500 kilograms of explosives to test the survivability of military ships to underwater blasts.184 Typically, a shock test is performed on the lead ship of any new class of submarines and surface ships. These “ship shock” tests have led to much concern about the effect of underwater explosions and impulses on marine mammals. The shock testing of the U.S.S. John Paul Jones and the new Seawolf submarine, in particular, were contentious because of their use of high-powered explosives to carry out the testing (Figure 14).185 The effects of many types of explosions on marine life were documented by Greene in 1985 and are summarized in Richardson’s text on marine mammals and noise.186 Another category of military uses of sound includes navy sonars designed for target detection, localization and classification. High-frequency military sonar systems are often components of weapons, such as torpedoes or mines and are designed to perform from a few hundred meters to a few kilometers. Mid-frequency military sonars are designed to localize and track targets over tens of kilometers. High-power, low frequency sonars are used for surveillance and can collect information over entire ocean basins.187

182

For an explanation of these types of explosion-related injuries, see generally W.J. Richardson et al., Marine Mammals and Noise, Section 9.10.2, “Blast Damage.” 183 See “Major Systems and Munitions Programs: Survivability Testing and Lethality Testing Required before Full-Scale Production,” 10 U.S.C. 2366. 184 Ibid. See also W.J. Richardson et al., Marine Mammals and Noise, 148. 185 See US Department of Commerce, Marine Mammal Protection Act of 1972 Annual Report 1998 (Washington, D.C.: National Marine Fisheries Service’s Office of Protected Species, 1998), 44; also the US Navy, Final Environmental Impact Statement, Shock Testing the Seawolf Submarine, May 1998, at ; and the Record of Decision for the Final Environmental Impact Statement for the Shock Testing of the U.S.S. Winston S. Churchill, 66 Federal Register 22450 May 4, 2001, which allowed for the detonation of up to four 10,000 lb. explosive charges. 186 Proceedings of the Workshop on Effects of Explosives Use in the Marine Environment, ed. G.D. Greene, F.R. Engelhardt and R.J. Paterson (Ottawa, Canada: Canadian Oil and Gas Lands Administration Environmental Protection Branch, 1985). 187 For a comprehensive overview of military sonars see Jane’s Underwater Warfare Systems 2003-2004 (Surrey, U.K.: Jane’s Information Group Inc., 2003).

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Figure -14. Shock Trial of USS John Paul Jones Source: US Navy

By far the greatest concerns over noise and its effects on marine mammals focus on low frequency active (LFA) military sonar systems used in anti-submarine warfare. In particular, the US Navy’s Surveillance Towed Array Sensor System Low Frequency Active (SURTASS-LFA) has generated the most debate. This sonar is designed to create sound that can travel many hundreds or even thousands of kilometers through the water to search acoustically for enemy submarines. The controversy surrounding the SURTASS system is discussed in depth in Chapter Three.

5.8.1

Trends In Military Activities

Militaries have developed new and more powerful sonars in the past 25 years. The US Navy in particular, has moved from passive listening systems deployed after World War II (such as SOSUS) to new, active, long-range sonars that use high power, low-frequency sound to transmit over very long distances. This trend toward active sonar is occurring internationally as well. In the United Kingdom, a new active and passive anti-submarine warfare system is under development to replace the older passive sonar.188

188

See “The Sonar 2087 Project” at the U.K.’s Ministry of Defense website at <www.mod.uk/dpa/projects/sonar2087/sona2087.htm>last accessed on January 23, 2003.

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Known as Sonar 2087, this new low-frequency system is presently undergoing sea trials.189 However, the use of such military sonars is generally limited to operational areas, and their use is considered episodic. A typical ship exercise might last a few hours to a few days. Battle group exercises last 1012 days on average, and large multinational fleet exercises last up to a month, but occur only every two years, at most.190 Nevertheless, LFA sonars and the practice of ship shock testing represent additional, albeit, infrequent new forms of intense sound in the sea. These new military sound inputs represent some of the most controversial sources of ocean noise, a matter which is discussed in greater depth later in this book. In conclusion, it is unclear whether the number of military sources of noise in the ocean will continue to increase as many naval programs are controversial and there is significant pressure on governments to limit the use of such high powered systems.

5.9

Oceanographic Research

Sound is an important tool for many oceanographers who use it to measure the properties of water masses, to create underwater images, and to record bathymetry. 191 Most of this oceanographic research utilizes low power sonar systems at high frequencies (e.g., sidescan sonar, multibeam mapping systems, acoustic current profilers.) However, some ocean bottom surveys employ airguns and other similar tools used by the seismic survey industry. Oceanographers also use explosives to study seafloor characteristics. These small explosives are known as SUS charges (signal underwater sound) and create a significant amount of energy at low frequencies. Their use recently became the subject of a lawsuit against the US National Science Foundation and oceanographers at Columbia University who were using them to map seamounts off the coast of Mexico.192

189

See “New Hardware Sea Trials Approach,” Jane’s Navy International, June 01, 2002. OSB-2003, 66. 191 For a general overview of uses of sound for oceanographers, see Clarence S. Clay and Herman Medwin, Acoustical Oceanography: Principles and Applications, (New York: Wiley and Sons, 1977). 192 The controversy stemmed from oceanographers’ use of a 20 airgun array to fire extremely high energy acoustic bursts into the water to map the seafloor. For information on the lawsuit resulting from the research, see the website of the plaintiff, the Center for Biological Diversity at <www.sw-center.org> last accessed on November 12, 2002. See D. Malakoff, “Suit Ties Whale Deaths to Research Cruise,” Science 298 (2002): 722-723; 190

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But perhaps the most controversial acoustical research relies on powerful, low frequency sonars to detect changes in the ocean temperature, a technology known as acoustic thermometry. This technique examines the properties (density, salinity, temperature, and sound speed) of ocean layers using sound. Recent acoustic thermometry studies have been designed to study long-term trends in ocean temperature as a function of sound speed. The first of these experiments was known as the Heard Island Feasibility Test and was conducted in early 1991. In this study, sound transmitted from the Indian Ocean was detected as far away as Bermuda and California— almost halfway around the world.193 The Acoustic Thermometry of Ocean Climate (ATOC) project was a follow-up to the Heard Island Feasibility Test and was designed to monitor global warming trends in the Pacific Ocean.194 Figure 15 illustrates the ATOC experiment and the location of the sound sources. The transmission paths from sonar sources in Kauai and near the Pioneer Seamount to receivers in several locations throughout the Pacific Ocean are shown. The controversy surrounding the ATOC experiment is discussed in depth in Chapter Three.

and Scott Gold, “Group Blames Whale Deaths on Seismic Testing,” Los Angeles Times, October 16, 2002. For more detail, see Center for Biological Diversity v. National Science Foundation, US District Courts, Northern District of California, October 18, 2002, text available on the website for the Center for Biological Deversity at <www.sw-center.org.> 193 The sound was measured as far away as 17,000 km. See Walter Munk & Arthur Baggeroer, “The Heard Island Papers,” Journal of the Acoustical Society of America 96 (1994): 2327 (providing background information on the experiment and its precursor). 194 See Advanced Projects Research Agency, “Final Environmental Impact Statement/Environmental Impact Report for the California Acoustic Thermometry of Ocean Climate project and its associated Marine Mammal Research Program, (Arlington, VA, U.S. Advanced Projects Research Agency, 1995). Also, Advanced Projects Research Agency and National Marine Fisheries Service, “Draft Environmental Impact Statement/Environmental Impact Report for the Kauai Acoustic Thermometry of Ocean Climate project and its associated Marine Mammal Research Program, (Arlington, VA, U.S. Advanced Projects Research Agency and US National Marine Fisheries Service, 1994).

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Figure -15. Acoustic Thermometry of Ocean Climate (ATOC) Source: Based on an image from Marine Mammals and Low-Frequency Sound: Progress since 1994.

5.9.1

Trends in Oceanographic Research

It appears that the only clear increase in noise generation at sea is associated with new sonars used by academic research and military activities. With advances in technology, these sectors are building more powerful sonars and developing new scientific techniques to measure ocean properties with sound. Academic acoustic research programs such as ATOC did not exist 25 years ago. It is only in the past two decades that the acoustic techniques on which ATOC relies have been used to measure large scale ocean dynamics, The future of programs such as ATOC is including temperature.195 uncertain and it remains unclear whether the number of these types of active sonars will increase in the future. It should be emphasized that the

195

For an explanation of the development of acoustic tomography, see the Woods Hole Oceanographic Institution’s website at

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contribution to the global noise budget made by these systems is very small when compared to continuous noise sources such as shipping.

5.10 Other Sources Other sources of anthropogenic noise that can affect marine mammals include airplanes and helicopters, which pose the greatest threat when marine mammals are at the ocean surface or when they are “hauled out” on land.196 Another controversial form of man-made noise in the ocean is generated from offshore wind farms that harness the power of the wind to generate electricity. Some environmentalists are concerned that noise from these large windmills will affect marine mammals and fish stocks.197 Clearly, the windmills create some noise in the water, but it is not yet known at what frequencies and source levels.198 In summary, noise is created by a number of sources—some are transient, others are continuous. Explosions produce the highest source

196

For a thorough treatment of noise from helicopters and fixed wing aircraft, See W.J. Richardson et al., Marine Mammals and Noise at 100, also see J.J. Brueggeman et al., “1989 Walrus Monitoring Program: The Klondike, Burger, and Popcorn Prospects in the Chukchi Sea,” (Houston.TX: Shell Western E & P Inc., 1990) 197 Underwater noise is not always mentioned as a concern over these windfarms. To date, most concerns are over the airborne (vis-à-vis waterborne) noise. One project manager for the US Department of Energy’s National Renewable Energy Laboratory has stated, “These things are so far offshore you won’t notice [noise]. Close up, you hear two things. You hear a swoosh, which is the aerodynamic noise of the wind going over the blades. And the second thing you hear is generator and gear-box noise - low-level mechanical stuff.” See Karen Lee Ziner “Offshore Harvest of Wind is Proposed for Cape Cod,” New York Times April 16, 2002, at D3. Many other articles and editorials have been written concerning the potential environmental effects of these windfarms. See for example Patricia Nealon, “Environmentalists Clash Over Wind Farm Plan,” Boston Globe, July 11, 2002 at B1. See also Raymond Benson, “How Wind Farm Noise Could Hurt Fish Stocks,” Cape Cod Times, January 28, 2002. Offshore wind farms are more common in Europe than the U.S. See Henning von Nordheim, “Wind Power Special,” a paper presented at the Council of Europe Conference “Awareness to the Landscape: From Perception to Protection,” Segovia, April 6-8, 2000. Text available at www.coastalguide.org/windpower/von_nordheim.html. Also, see Oluf Henriksen, “Underwater Noise from Offshore Wind Turbines: Expected Impacts on harbor Seals and Harbor Porpoises”, Proceedings from the Environmental Consequences of Underwater Sound (ECOUS) Symposium, May 12-16 2003, San Antonio, Texas. 198 See the permit application for a proposed wind farm off the coast of Cape Cod: Cape Wind Associates, “Expanded Environmental Notification Form and Combined Cape Cod Commission Development of Regional Impact Review,” November 15, 2001. See also US Army Corps of Engineers, “Comment Summary: Offshore Wind Energy Generation Project Horseshoe Shoals, Nantucket Sound,” April 2002, File Number 200102913.

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levels but are transient. Powerful sonars also emit high levels but they, too, are short duration pulses which results in a much lower average received level. Longer duration sources like supertankers produce peak levels that are lower than many transient sources but can result in average received levels that are very high.199

Table 1 lists some source levels of common underwater sounds. It should be emphasized that these measured levels are representative – there can be great variability in many of these source levels due to environmental

199

See W.J. Richardson et al., Marine Mammals and Noise, 155 - 158 for a comparison of noise sources based on their duration and peak levels.

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factors. Table 2 indicates the frequencies generated by some common human activities as well as several of the frequencies employed by marine mammals. It should be emphasized that many of these sounds are broadband, that is, they occur over a broad range of frequencies.

5.11 Ambient Noise—Summary Substantial anthropogenic ocean noise is a relatively recent occurrence that has resulted from new inventions such as the internal combustion engine, sonar, and oil drilling technology. Prior to the development of these technologies, ships used wind power to sail quietly across the seas, coal fueled most engines and was mined on land, and sonar technology was only a concept in da Vinci’s notebook. Certainly, ocean noise has increased since the advent of these technologies. The rapid expansion of the merchant fleet, the increased use of sonar by the military and scientists, and the intensification of offshore oil and gas activities have undoubtedly contributed to an increase in anthropogenic noise in the ocean. But it is unclear whether this trend has continued beyond the 1970s. With the exception of sonar, the amount of noise generated by individual activities may have actually decreased due to advances in technologies (quieter propellers, more efficient drilling, four-stroke outboards) even if the intensity of these activities has increased in the past three decades. In conclusion, a continuing increase in ocean noise is not a certainty: anthropogenic noise will not necessarily increase in the future, in spite of increased activity by man in the ocean. Some limited efforts have been carried out to assess long-term trends in ocean noise.200 Noise measurements recorded off the coast of California from 1994-2001 were compared with those recorded by the same receiver from 1963-1965. The results indicated a 10 dB increase over 33 years in the bandwith 20-80 Hz. This was attributed to an increase in the number and gross tonnage of commercial vessels. However, a much smaller increase was reported in higher frequencies.201 The uncertainty surrounding increasing levels of ocean noise has been identified by the US National Research Council which commented that,

200

201

In addition to Ross’s interpretation which was discussed earlier, see also L.L. Mazzuca, “Potential Effects of Low Frequency Sound (LFS) from Commerical Vehicles on Large Whales”, M.S. Thesis, University of Washington (2001). R.K. Andrew et al., “Ocean Ambient Sound: Comparing the 1960s with the 1990s for a Receiver off the California Coast”, 3(2) Acoustics Research Letters Online (2002): 65-70.

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“there is a remarkable dearth of theories or data addressing [long-term trends in ocean noise].”202 This led the Council to identify the need for long-term noise monitoring and the US Minerals Management Service to propose studies to measure ambient noise levels.203 At the Stellwagen Bank National Marine Sanctuary in Massachusetts Bay, a long-term noise-monitoring project has been implemented in a very limited fashion since 1996.204 In Italy, a new project known as “Delfini Metropolitani” will attempt to create an acoustic map of the Gulf of Genoa to evaluate the impact of human activities on the area.205 Monitoring efforts such as these require substantial amounts of data gathered for many years and, as yet, they have failed to conclusively support or refute the claim of increasing ambient noise worldwide. At a meeting of the Acoustical Society of America, it was reported that “there is almost no controlled data on how the acoustic environment is changing as a result of human activity.”206 Indeed, the US National Research Council has recommended that “the first step in comprehensive monitoring and regulation of sound in the ocean should be to attempt to characterize the existing ambient sound field in the ocean and to characterize the sources that contribute to it.”207 While it is possible that aggregate noise levels in the ocean may no longer be increasing, problems may continue due to increasing intensity and consolidation of noise sources. This phenomenon is discussed in the following section.

202

OSB-2003, 128. US Department of Commerce, Marine Mammal Protection Act of 1972 Annual Report 1999 (Washington, D.C.: National Marine Fisheries Service’s Office of Protected Species, 1999), 168. 204 See Peter Scheifele, “Noise Levels and Sources in the Stellwagen BNMS,” report for the Stellwagen Bank National Marine Sanctuaries, unpublished. 205 E-mail to MARMAM, from [email protected], on 26 March 2001. Available at The “Delfini Metropolitani” project was created by the Acquario di Genova in collaboration with the University of Genova, CIBRA, and the Centro Studi Cetacei. The project is presently delayed as an optical cable used to transmit data was damaged in a storm. Personal communication with Gianni Pavan, 09 November 2003. 206 Darlene Ketten and John R. Potter, “Manmade Noise: Negligible or Negligent Impact?” ACUSTICA vol. 85, suppl. 1, (Stuttgart, Germany: S. Hirzel Verlag, 1999), S67. 207 OSB-2000, 88. 203

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6.

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HOTSPOTS—SENSITIVE AREAS OF INTENSE ACOUSTIC ACTIVITY

Although it is uncertain whether ocean noise is increasing globally, a more compelling question has emerged: Is noise increasing in the particular areas where it can do the most damage—that is, where marine mammals and other important biota live in abundance? In light of the paucity of ambient noise data, a more direct approach to assessing ocean noise pollution and its effects is to consider where anthropogenic activities are concentrated and where they have the greatest potential to damage marine life. This requires a determination of where the most intense noise sources are located and where the most abundant and sensitive marine life is found. Such an approach is habitat-oriented and takes into account all sources of anthropogenic noise instead of focusing only on individual sources. This section, then, considers not only the direct effects of noise on marine mammals such as death and hearing loss, but how the indirect effects of noise change the nature of ocean ecosystems, ultimately resulting in habitat degradation. A first step in adopting a habitat-oriented approach to noise pollution is to identify habitats that are already exposed to high levels of anthropogenic noise.208 Because few historical records of anthropogenic noise exist, it can be inferred that noise levels are high in areas of intense activity; for example, shipping lanes, areas of oil and gas exploration, and locations of lowfrequency sonar sources. The second step is to identify areas of ecological significance: to pinpoint locations with high productivity and abundant marine life. This includes areas where living resources tend to predominate, such as upwelling regions, breeding grounds, and areas of abundant food supply such as plankton blooms. Areas where anthropogenic noise overlaps with sensitive marine life are referred to as “hot spots.”209 Several factors can contribute to, or intensify, a hot spot. They include consolidated shipping traffic, new shipping regimes, and certain bathymetric

208

As suggested in Jasny, Sounding the Depths: Supertankers, Sonar and the Rise of Undersea Noise, 16-17, supra note 94; and OSB - 2000, 88. The National Academy of Sciences has stated that protection of marine mammals cannot be achieved through regulation of individual sources. It claims that an alternative habitat-oriented approach is required 209 Jasny referred to “hot spots” in his document for the NRDC; see Jasny, Sounding the Depths: Supertankers, Sonar and the Rise of Undersea Noise 17, supra note 94. Similarly, a “high-risk management area” has been defined where a convergence of a strong density of whales or a critical reproduction or feeding area is situated on a boat passage or transit route. See “Discussion Draft For Right Whales And Ship Management Options,” ed. B. Russel and Amy Knowlton, (Boston, MA: New England Aquarium, March 2001.)

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effects. Shipping lanes, large ports (e.g., Rotterdam and New York), straits (e.g., Malacca and the Bosphorus), and canals (such as the Panama and Suez) are particularly noteworthy for consolidation of ship traffic. Furthermore, the advent of “hub and spoke” container shipping has led to larger ships carrying the majority of cargo and off-loading it in large-scale load centers to smaller ships bound for secondary feeder ports. This increased intensity of traffic in large port areas could lead to an even greater consolidation of noise.210 Certain types of bathymetric effects can also lead to intensification of noise: Ross discusses a “coastal enhancement effect” by which sounds generated in shallow water propagate much farther than expected due to a low transmission loss pathway.211 This effect is important in areas of high acoustic intensity, particularly areas where shipping lanes converge in shallow water such as the Straits of Gibraltar, the southwestern approaches to the English Channel, passages between certain islands, and several busy port areas. Noises from these areas often dominate receivers at great distances.212 Other types of shallow water effects such as reflection and other boundary interactions must be taken into account when considering noise from activities that are concentrated in shallow water and littoral regions such as recreational boating, dredging, and coastal construction.213 The US National Research Council has identified a need to monitor both human-generated sound and the vocalization of whales in acoustic hotspots.214 A recent report by the International Fund for Animal Welfare stressed that “in particular, attention should be given to studies where migration routes intersect with relatively high levels of shipping activity.”215

210

See The Business of Shipping, ed. Lane C. Kindall and James J. Buckley, ed. (New York: Cornell Maritime Press, 2001), 310-313. See also Bruce Marti, “Evolution of Pacific Basin Load Centres,” Maritime Policy Management 15 (1) (1988): 57-66 for an explanation of the “load centre concept.” Changes in intermodal transport and the concentration of cargo at hubs is also discussed in US Department of Transportation, An Assessment of the US Marine Transportation System: A Report to Congress, September 1999; and in David Luberuff and Jay Walder, “US Ports and the Funding of Intermodal Facilities: An Overview of Key Issues,” Transportation Quarterly 54(4) (2000): 23-45. 211 Ross, On Underwater Ambient Noise, supra note 91. 212 Ibid. 213 For a discussion of the highly variable shallow water effects on noise transmission, see generally Urick, Prinicples of Underwater Sound, Section 7.3, “Shallow Water Ambient Noise,” supra note 2. It discusses the ambient noise levels in coastal waters, bays, and harbors. Section 7.6 discusses the effect of depth on ambient noise level. 214 OSB- 2000, 88. 215 International Fund for Animal Welfare, Report of the Workshop on Right Whale Acoustics: Practical Applications in Conservation, ed. D. Gillespie and R. Leaper (Yarmouth Port, MA: IFAW, 2001), i.

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A list of these hot spots within the U.S. and Canada was created by the Natural Resources Defense Council and is found in Table 3. However, a literature review reveals that there has been no effort to define other international areas that are threatened by noise pollution.216 A global overview of anthropogenic activities and marine mammal distribution would help to identify the worldwide locations of hot spots. However, the availability of global whale migration patterns is limited.217 Similarly, information on the location and intensity of offshore oil and gas activities is limited and often proprietary. Significant data exist on US activities but much of the international information is not standardized. As a result, the development of a global picture of marine life distribution and anthropogenic activities at sea is difficult. Therefore, this section focuses on two areas that do have well-studied whale populations and known stresses from high coastal population density, shipping, acoustic research, and other anthropogenic activities. These areas are Stellwagen Bank in the North Atlantic and the Ligurian Sea in the Northern Mediterranean Sea.

216

This was confirmed in a report by Peter Scheifele, “Noise Levels and Sources in the Stellwagen Bank National Marine Sanctuary”, report for the Stellwagen Bank National Marine Sanctuaries, unpublished., 4.

217

The International Whaling Commission has indicated that there is considerable scientific uncertainty over the number of whales and different geographical stocks. Data is not standardized and little is known of the distribution patterns of many whales. See the IWC website on whale abundance at

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6.1

Stellwagen Bank

Stellwagen Bank, off the shore of Massachusetts, is the summer home to the United States’ most endangered marine mammal, Eubalena glacialis – the northern Right Whale.218 It is also the home of humpback, finback, and minke whales as well as dolphins, porpoises, and sea turtles.219 Moreover, many areas on Stellwagen Bank are considered nurseries for cod, flounder, sea clams, and lobster. Nutrient-rich waters support this vast food chain, culminating with the great whales; therefore, any disturbance here could have repercussions throughout the entire ecosystem. This intricate food chain must coexist with the area’s intense commerce, military, and academic activities. This delicate balance makes the area particularly vulnerable to threats from noise pollution.220 The Stellwagen Bank area supports a number of uses, all of which contribute to the problem of ocean noise pollution. The port of Boston, while not large by international standards, is a significant source of anthropogenic noise. Each year 2,700 vessels transport 20 million tons of cargo over the bank.221 Moreover, as shown in Figure 16, the approaches to the port run directly through the migration routes of the northern right whale.

218

Presently, fewer than 350 northern right whales are thought to exist. See Amy R. Knowlton et al., Shipping/Right Whale Workshop, Report 97-3 (Boston, MA: New England Aquarium, April 1997), 1. 219 See 220 For a thorough characterization of biological and geological resources of the Stellwagen Bank area, see the 1993 Sanctuary Management Plan located on-line at last accessed on January 16, 2003. It contains information on the sanctuary’s marine mammals, fisheries, geological and bathymetric features. For a general overview of George’s Bank, see George’s Bank, ed. R.H. Backus and D. W. Bourne (Cambridge, MA: Massachusetts Institute of Technology Press, 1987). A review of the cultural researches of the area is found in R. Barber, Archaeology and Palaeontology, Summary and Analysis of Cultural Resources Information on the Continental Shelf from the Bay of Fundy to Cape Hatteras. (Cambridge, Massachusetts: Institute for Conservation Archaeology, Harvard University, 1979). For general information on the ecology and oceanography of the Bank see D. F. Bumpus, Review of Physical Oceanography of Massachusetts Bay. NMFS contract 03-3-043-40. (Woods Hole, MA: Northeast Fisheries Center, 1974) and D. E. Campbell, System Ecology of the Gulf of Maine. (Augusta, Maine: Maine Department of Marine Resources, 1987). A general discussion of the distribution of marine mammals on Stellwagen Bank is found in Phil Clapham, Occurrence and Distribution of Marine Mammals in the Stellwagen Bank Region: A Summary. (Provincetown, MA: Center for Coastal Studies, 1989). 221 Center for the Economy and the Environment, Protecting our National Marine Sanctuaries (Washington, DC: National Academy of Public Administration, 1999). Also

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Figure -16. Stellwagen Bank National Marine Sanctuary and Anthropogenic Sources of Noise Source: Flora Lichtman, Marine Policy Center, Woods Hole Oceanographic Institution

While this path is considered to be the most efficient and safest route into and out of Boston Harbor, the numerous ships passing through endanger marine mammals that are at risk of being hit.222 Tugs and barges, moving north to Halifax and south to New York, pass directly through the area as well.223 As one of the more popular whale-watching sites in the world, 30 – 40 whale watching vessels operate on the Bank regularly.224 In addition, between 220 – 250 commercial fishing, research, and military vessels also operate in the area.225 Furthermore, the adjacent coast has been developed

see information from The Massachusetts Port Authority on line at 222 For a thorough discussion of this problem, see Amy Knowlton, Shipping/Right Whale Workshop, supra note 218. 223 The International Maritime Organization recently developed a new traffic separation scheme for Canada’s Bay of Fundy and Approaches in order to protect right whales from ship strikes in their prime breeding grounds. See IMO Sub-Committee on Safety of Navigation, session, July 2002, text available at <www.imo.org/Newsroom/mainframe.asp?topic_id&112&doc_id=2405> 224 See <www.sanctuaries.nos.noaa.gov/omsstellwagenmanag.html> 225 Ibid.

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for centuries and is among the most densely populated regions in the United States.226 To accommodate population growth, the city of Boston recently built a wastewater outfall and a dredging dumpsite on the edge of Stellwagen Bank that created significant drilling and construction noise.227 In addition, the Hibernia Transatlantic fiber optic cable, a connection from Boston to Ireland, transits the sanctuary.228 Other stresses on the area include the threat from offshore mineral and gravel mining, and at-sea disposal of dredged materials.229 In 2003, a Canadian natural gas company began seismic exploration in deep water 285 miles due east of Boston. Drilling was expected to begin the shortly thereafter.230 What’s more, two of the most active underwater acoustic research labs in the U.S. are located on the surrounding coast: the Woods Hole Oceanographic Institution and the US Navy’s Undersea Warfare Center. Both laboratories use the waters near Stellwagen bank for acoustic research and the Navy carries out limited military activity in the area.231

226

The 1990 census reports that the population density of Massachusetts in 767.6 per square mile. Only Rhode Island and New Jersey have a greater population density among the 50 states. From the Massachusetts Institute for Social and Economic Research, found at See also “Ranking Tables for States: Population in 2000,” at the US Census Bureau’s website located at last accessed on 12 March 2002. 227 Center for the Economy and Environment, Protecting our National Marine Sanctuaries, supra note 221. 228 National Marine Sanctuaries Program, “Fair Market Value Analysis for a Fiber Optic Cable Permit in National Marine Sanctuaries,” (Washington, DC: National Oceanic and Atmospheric Administration, 2002), 3. 229 See 230 See Gene Laverty, “Natural Gas Drilling planed 285 miles off Boston Shore”, The Providence Journal, June 22, 2003, F2. Also see Press Release from Canadian Superior Energy, “Canadian Superior Proceeding Full Steam Ahead with ‘Marquis’, ‘Mariner’ and ‘Mayflower’ Offshore Projects, June 16, 2003. Regarding other exploration projects in the area, see also R. Davis et al., “Environmental Assessment of Seismic Exploration on the Scotian Shelf, a report prepared for submission to the Canada/Nova Scotia Offshore Petroleum Board, August 5, 1998. 231 The Navy reports that the range is used at least once a year for tests involving one or two submarines, surface ships, and helicopters and at least one airplane for marine mammal watches during the experiment; personal correspondence with Phil Denolfo, Range Department, Naval Undersea Warfare Center, Newport, RI, August 27, 2003. See also the 1993 Management Plan for the Stellwagen Bank National Marine Sanctuary, Part 2, Sec. 2C5; located at last accessed on 16 June 2002; and “Dead Whale Could Halt Navy Bombing,” Providence Journal, June 30, 2002, C2.

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Stellwagen Bank was formally recognized as a biologically rich area of great environmental and economic importance in 1992 when it was designated a national marine sanctuary.232 The sanctuary encompasses 842 square miles of ocean.233 Its western boundary line is approximately 25 miles east of Boston, its southern boundary is three miles from Provincetown, MA and its northwestern boundary is three miles from Gloucester, MA. The entire sanctuary is within Federal waters (beyond the three-mile limit of Massachusetts jurisdiction).234 The ecological importance of the Stellwagen Bank National Marine Sanctuary (SBNMS) was further recognized in June 1994, when the area was designated “critical habitat” for northern right whales.235 Critical habitat, according to the Endangered Species Act, is defined as “specific areas within the geographical area occupied by the species… on which are found those physical or biological features essential to the conservation of the species and…which may require special management considerations or protection; and any other areas outside the geographical area occupied by the species…that are essential for the conservation of the species.”236 Despite these designations, many human activities continue unabated on Stellwagen Bank. The Stellwagen Bank Sanctuary Management Plan was designed to establish regulations that balanced traditional human uses with the protection of the environment. As a result, fishing, whale-watching, military, and other activities are still allowed.237 Can these uses continue without creating negative externalities from anthropogenic noise? Presently, there is no documented evidence of marine mammal health being compromised by anthropogenic noise in the area. In fact, ambient noise data from the area are minimal. Some data have been recorded over a four year period at six sites in the SBNMS.238 Preliminary data analysis shows that mean noise levels were consistent between years with the exception of the sites located near the shipping lanes. Inter-year variability

232

Established by Title III of the Marine Protection, Research, and Sanctuaries Act of 1972, Section 2202, on November 4, 1992. Public Law 92-532. 233 See the Stellwagen Bank website at http://www.stellwagen.nos.noaa.gov/about/setting.html 234 Ibid. 235 See 59 Federal Register 28793, codified at 50 C.F.R. 226.203. 236 16 U.S.C. §§ 1532 (A)-(C) (2002). 237 Randall Reeves, The Value of Sanctuaries, Parks, and Reserves (Protected Areas) As Tools for Conserving Marine Mammals (Bethesda, MD: Marine Mammal Commission, 2000), 22. See also “Review of issues from scoping comments (January 2000),” available at accessed on March 11, 2002. 238 Peter Scheifele, “Noise Levels and Sources in the Stellwagen BNMS,” report for the Stellwagen Bank National Marine Sanctuaries, unpublished.

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was attributed to seasonal increases in whale watching – the average noise levels remained constant from year to year.239 One theory does, however, link species viability with noise. It proposes that northern Right Whales are on the brink of extinction due to the abundant noise in their environment, primarily from shipping.240 Because the reproduction rate of the northern right whale is significantly lower than the rate of southern Right Whale, it has been suggested that the disparity in these rates is due to the loud, industrialized nature of the Northern Atlantic compared with the relatively quiet waters in the Southern Atlantic. Given its intense shipping activity, substantial whale-watching industry, and the presence of the endangered northern Right Whale, Stellwagen Bank clearly satisfies the criteria for a hot spot. The manner by which threats from noise are addressed in this area remains to be seen however. The 1993 Stellwagen Bank National Marine Sanctuary Management Plan, now in effect, makes no reference to noise, although an updated management plan that is now under development will likely consider it.241 In fact, preliminary scoping sessions held in support of the forthcoming management plan have revealed public concern over the impact of vessel noise and other human generated acoustics on marine mammals.242

239

A. Lobach et al., “Report on the Level of Ambient Noise in the Stellwagen Bank National Marine Sanctuary,” given at the Annual Presentations Conference of the Aquanaut Program at the University of Connecticut, August 1999. 240 This hypothesis was put forth by Dr. James Miller in a white paper entitled, “Geographic Dependence of Ambient Noise due to Shipping and Effects on Whale Reproduction: A Hypothesis and a Potential Solution.” It was also suggested by Jasny who questions why the southern Right Whale is recovering from centuries of hunting while the northern Right Whale is not. See Jasny, Sounding the Depths: Supertankers, Sonar and the Rise of Undersea Noise, 22. 241 Management plans are site-specific documents sued as blueprints to manage individual sanctuaries. They include regulations, set priorities, present existing programs and projects, and guide development of future activities. Congress requires a review of the management plans every five years. The first SBNMS plan was developed in 1993. Release of the new draft management plan is expected to occur during Summer 2003. The final management plan is expected to be completed during Summer 2004. It can be viewed at 242 The impacts of human activities on marine mammals are one of five specific issues raised in public scoping sessions held to review Stellwagen’s new Management Plan. The other four issues are alteration of seafloor habitat and ecosystem protection; condition of water quality; lack of public awareness, and effective enforcement. More detail on each of these issues is found at

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6.2

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The Ligurian Sea

The Ligurian Sea experiences many of the same user conflicts that contribute to ocean noise pollution on Stellwagen Bank. Located off the southern coast of France and the northwestern coast of Italy (see map, Figure 17), the Ligurian Sea is considered to be one of the most biologically rich areas in the Mediterranean Sea. Unlike most of the Mediterranean, this area is characterized by high levels of productivity. Because of its high biodiversity and complex ecology, the area supports a wide range of cetaceans and other top marine predators.243

Figure -17. Ligurian sea sanctuary. Source: The Tethys Institute

Marine mammals are significantly more abundant here than in the Adriatic Sea and the rest of the Mediterranean.244 In fact, the area is home to at least 17 species of cetaceans and is the principle feeding ground for fin

243

M. Simmonds and L. Nunny, “Cetacean Habitat Loss and Degradation in the Mediterranean Sea,” in Cetaceans of the Mediterranean and Black Seas: State of Knowledge and Conservation Strategies, ed. G. Notarbartolo di Sciara (Monaco: ACCOBAMS Secretariat, 2002), Section 7, 23. 244 In fact, the area has the highest sighting frequency of cetaceans in the Mediterranean. See the website of the Tethys Research Institute, a scientific research organization located in Italy that focuses on the Mediterranean Sea,

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whales.245 This relatively small population of fin whales (fewer than 4000) is considered reproductively isolated and, therefore, potentially vulnerable.246

Figure -18. Ferry Routes in the Ligurian Sea Source: Nicola Portunato, SACLANT Undersea Research Centre

But, coincident with this abundance of marine life are high levels of maritime traffic and other human activity. The Mediterranean is one of the busiest sea routes in the world: it accommodates 15 percent of world commercial traffic and is a transit route for 30 percent of the world’s hydrocarbon transport.247 Two thousand ships travel in Mediterranean waters daily, more than 250 of which are large oil tankers. Approximately 200 passenger vessels and ferries are in transit in the Mediterranean at any one time (see Figure 18).248 Specifically in the Ligurian Sea, traffic into the

245

Ibid. See 247 From the website for ICRAM, Istituto Centrale per la Ricerca Scientifica e Tecnologica Applicata al Mare. (The Central Insitute for Scientific and Technogical Research of the Sea). 248 Mediterranean Action Plan, “State of the Marine and Coastal Environment in the Mediterranean Region,” MAP Technical Report Series No. 1000, (Athens, Greece: United 246

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ports of Genova and Livorno, fast ferries to the islands of Elba and Corsica, and offshore speedboat competitions generate noise. The port of Genova is a large container port that handles over 44 million metric tons of cargo annually.249 The port of Livorno handles 20 million tons of goods every year and it is expected that the number of vessels and the number of passengers utilizing this port will increase.250 In addition to port activity, the city of Livorno is home to a major Italian naval base. Another large Italian naval base and a North Atlantic Treaty Organization (NATO) marine acoustic laboratory are located in the city of La Spezia where both groups carry out acoustic research in local waters.251 Furthermore, coastal areas of the Ligurian Sea have high population densities and an estimated 24 million people visit the area annually.252 More importantly, it is expected that the population of the Mediterranean coastal states will increase almost 30 percent from the year 2000 to the year 2025.253 Marine construction is considered a major source of noise in the Ligurian Sea.254 Sources of construction sounds such as pile-driving and jack hammers have been recorded with relatively high levels almost 50 km from shore (see Figure 19).255

Nations Environmental Program, 1996). See also Environmental News Network, “Flipper made Safer in the Med,” Thursday, March 29, 2001. Available at <www.enn.com/news/enn-sotries/2001/03/03292001/dolphin_42362.asp.> 249 “World Port Ranking, 1998,” American Association of Port Authorities found at <www.aapa-ports.org.> 250 See the Livorno Port Authority website at <www.portauthority.li.it/sitohtml/traffichtml.htm.> 251 For information on the NATO research lab, see <www.saclantc.nato.org.> See also L.E. Rendell and J. Gordon, “Vocal Response of Long-Finned Pilot Whales (Globicephala melas) to Military Sonar in the Ligurian Sea,” Marine Mammal Science 15 (1) (1999): 198-203. 252 Ibid. 253 The “Blue Plan” is a non-profit, research organization funded by the Mediterranean Action Plan under the United Nations Environmental Programme. For population forecasts, see the Blue Plan web site at last accessed on June 16, 2002. See also Mediterranean Action Plan, “State of the Marine and Coastal Environment in the Mediterranean Region.” Moreover, concerns exist that current Mediterranean biodiversity is undergoing rapid change due to global warming and human impacts. See C.N. Bianchi and C. Morri, “Marine Biodiversity of the Mediterranean Sea: Situation, Problems, and Prospects for Future Research,” Marine Pollution Bulletin 40(5) (2000): 367-376. 254 From Peter Tyack, “Research Program to Evlauate Effects of Manmade Noise on Marine Mammals in the Ligurian Sea,” Report of the Third Meeting of the Scientific Committee to ACCOABAMS, Istanbul, 20-22 November 2003, Document CS2/Inf. 13. 255 Ibid.

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Figure -19. Repetitive Noise generated by Pile Drivers in Monte Carlo Harbor. These sounds were measured by a sonobouy 47 km from Monte Carlo. Source: Gianni Pavan, Centro Interdisciplinare di Bioacustica e Ricerche Ambientali (CIBRA), Universita di Pavia, Italy

Though such construction sounds are intermittent (not continuous like shipping noise), they can take place over large areas for long periods of time. As such, they often dominate the ambient noise for many months.256 The increase in population density and the attendant stresses on the ecosystem from effluents such as sewage, and agricultural and industrial runoff only diminish the environmental quality of the area. The Mediterranean Sea has been described by Dr. Chris Clark, a marine mammal acoustician, as a “totally urbanized environment [that] sounds, underwater … as though you were sort of lying under the street in downtown San Francisco. It’s just clogged with noise.”257 Figure 20 illustrates the sounds from three different anthropogenic noise sources: a sonar, a fast ferry, and coastal construction over a ten second time period. It dramatically illustrates the dilemma created by multiple noise sources operating in one area at a given time. Regulation in such areas must focus on all sources of noise, not just one industry.

256 257

Ibid. Dr. Chris Clark, Cornell University, from a segment entitled “Bioacoustics” on the “Living on Earth” radio program, carried by National Public Radio, on August 3, 2001. The manuscript for the radio show can be found at

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Figure –20. Spectrogram illustrating noise from three manmade sources: impulse noises from a jackhammer used for construction in Monte Carlo, a fast ferry transiting the area, and a sonar operating from an unknown location. Source: Gianni Pavan, CIBRA.

The Ligurian Sea encompasses a vast array of sensitive natural resources in combination with intense anthropogenic uses – the two requirements that define a hotspot. Figure 21 illustrates this overlap in marine mammal and human acoustic activity that takes place in the Mediterranean. It shows the maximum source levels and frequency ranges of common shipping noises in the Mediterranean. Overlaid are the types of sounds created by Mediterranean cetaceans, their maximum source levels and frequency ranges. It can be seen from this illustration that there is significant overlap between the noise created by shipping and the communication and echolocation ranges of marine mammals in the Mediterranean Sea. For example, minke whales communicate in the 100 -1000 Hz range at a level of approximately 160 dB. This is the exact frequency range of supertankers; yet the minke whales emit at a source level lower than the ships’ level (approximately 180 dB.) This creates the potential for masking the whales’ communication and adversely affecting the animals’ behavior.

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Figure –21. Anthropogenic and marine mammal sounds - Mediterranean Sea. Source: Compiled from data provided by SACLANTCEN’s project SOLMAR

Like Stellwagen Bank, this area in the Mediterranean has been declared a marine sanctuary.258 The sanctuary agreement, signed by France, Italy and the Principality of Monaco in 1999, created a 100,000 square kilometer area in the waters between the French Riviera, Sardinia, and Tuscany, (see Figure 17, previously). The sanctuary agreement established the basis for regional cooperation between the three states on efforts to protect cetaceans. It is one of a few examples of a multilateral Marine Protected Area (MPA) that was established specifically to protect marine mammals. The agreement entered

258

Agreement Relative to the Creation of a Mediterranean Sanctuary for Marine Mammals, signed in Rome on November 25, 1999; English text available at

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into force on February 14, 2002 and forbids the deliberate taking or intentional disturbance of marine mammals.259 It also addresses the use of driftnets, whale watching activities, and the regulation of speedboat races. However, it does not ban any of these activities.260 Significantly, the Declaration at the end of the Agreement encourages studies on the effects of seismic and acoustic activities on marine mammals, and emphasizes the need to examine the “question of noise and speed of vessels...with regard to high-speed motorboat races.”261 The sanctuary was recently declared a “Specially Protected Area of Mediterranean Importance” (SPAMI) within the framework of the Barcelona Convention, a designation which may result in additional measure of protection to the area.262 Can the countless uses of the Ligurian Sea continue without harmful acoustic externalities? To date, there has been no definitive link between anthropogenic noise and the behavior of marine life in the Ligurian Sea. However, scientists and managers from Italian non-governmental organizations and government laboratories have warned of potential noise pollution problems in the area. They caution that the “increasing use of the sea for commercial, industrial and recreational activities is filling the marine environment with new sounds that overlap cetacean hearing ranges.”263 Table 4, found in a recent report by several leading European scientists, provides a summary of the effects of anthropogenic sound on cetaceans in

259

Ibid., Article 7. Ibid., Articles 7, 8, and 9. 261 Ibid., “Declaration.” 262 The Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention), entered into force February 12, 1978 (revised in Barcelona, June 10, 1995.) Text available at For the establishment of SPAMIs, see the June 1995 Protocol on Specially Protected Areas and Biological Diversity in the Mediterranean. The Protocol notably calls for the establishment of a list of Specially Protected Areas of Mediterranean Importance (SPAMI) in order to conserve biodiversity and to contain specific Mediterranean ecosystems. Other measures include, protection and conservation of species, regulation of non-indigenous or genetically modified species, and the improvement of the technical, scientific, and management research relevant to Specially Protected Areas. Information on the agreement can also be found on <www.accobams.mc>, last accessed on June 16, 2002. For a discussion on Mediterranean establishment of Marine Protected Areas, see G. Notarbartolo and A. Birkun, “Conservation Needs and Strategies,”in Cetaceans of the Mediterranean and Black Seas: State of Knowledge and Conservation Strategies. 263 From the Tethys Research Institute web page. For information on the Tethys Research Institute, see http://www.tethys.org/lfas.htm. 260

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the Mediterranean Sea.264 However, the scientists did not include noise pollution in a recent list of 18 priorities to be addressed in the Mediterranean from 2002 to 2006.265 Spatially, the Ligurian Sea is considered to be of the appropriate scale for a study of the correlation between marine mammal distribution and noise.266 In fact, a series of interdisciplinary measurements, known as SIRENA, are presently being carried out in the Ligurian Sea to acquire environmental data and information on marine mammal vocalization and behavior.267 The results of these experiments and other proposed studies in the Ligurian Sea are essential for the creation of appropriate regulation to address underwater noise pollution.

264

Cetaceans of the Mediterranean and Black Seas: State of Knowledge and Conservation Strategies, 13.18. 265 “International Implementation Priorities, 2002-2006,” Cetaceans of the Mediterranean and Black Seas: State of Knowledge and Conservation Strategies, Section 19. These international implementation priorities include such efforts as developing whale-watching regulations, investigating interactions between dolphins and fisheries, and developing photo-identification databases. 266 Report of the Third Meeting of the Scientific Committee to ACCOBAMS, Istanbul, 20-22 November 2003, “Research Program to Evaluate Effects of Manmade Noise on Marine Mammals in the Ligurian Sea,” Document CS2/Inf. 13. 267 See SACLANTCEN Annual Progress Report – 2002, “ Project 04F-1: Sound Oceanography and Living Marine Resources (SOLMAR),” (La Spezia, Italy: NATO SACLANTCEN, 2002), 111-116.

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6.3

Other Hot Spots

The Natural Resource Defense Council’s inventory of hotspots noted earlier was limited to North America. Not surprisingly, hot spots were identified around shipping lanes, population centers, and regions of oil exploration. Areas are particularly sensitive when several activities occur in one location. The southern coast of California is a good example. This area is an important migration corridor for humpback gray whales that travel up and down the coast. However, in the same area, offshore oil and gas activities are conducted, scientific research such as ATOC is carried out, and the port of Los Angeles continues to grow.268 Outside of the U.S., there are a number of areas where there are significant marine mammal populations combined with human activities. For example, the high density of shipping near major ports and trade routes contributes to hot spots in the Sea of Japan and the South China Sea.269 Singapore, home of the largest port in the world, is also home to several species of marine mammals. Furthermore, its has been estimated that noise from shipping and recreational boating has increased 30 dB in the frequency band from 10 to 100 Hz in Singapore Harbor.270 The straits of Gibraltar, the second busiest maritime route in the world, is also the location of three military firing ranges, intense commercial fishing activities, and a significant population of dolphins, killer whales, and pilot whales.271 The Baltic Sea supports significant fishing, oil and shipping industries and is a feeding

268

The port of Los Angeles is the world’s second fastest growing port. An average growth rate of 9.0 percent was reported from 1995-1999 by the ISL Port Database 2000, from the Institut fur Seeverkehrswirtschaft und Logistik, available at , last accessed February 2, 2002. 269 This is where several of the world’s largest ports exist. Based on cargo volume, 6 of the 10 largest ports in the world are here: Singapore; Hong Kong; Shanghai; Chiba, Japan; Ulsan, South Korea; and Nagoya, Japan. See port ranking from American Association of Port Authorities at <www.aapa-ports.org> last accessed on October 21, 2001. Anthropogenic noise in Hong Kong has been addressed to a limited extent in B. Wursig and C.R. Greene, “Underwater Sounds near a Fuel Receiving Facility in Western Hong Kong,” Marine Environmental Research 54(2) (2002): 129-145. 270 See John Potter and Eric Delory, “Noise Sources in the Sea and the Impact for those Who Live There,” Proceedings from Acoustics and Vibration Asia ’98, Singapore, 1998. 271 R. De Stephanis et al., “Issues Concerning Cetaceans in the Straits of Gibraltar,” Proceedings of the Fourteenth Annual Conference of the European Cetacean Society Cork, Ireland April 2-5, 2000, ed. P. Evans, R. Pitt-Aiken and E. Rogan. This paper specifically identifies noise pollution as a threat to whales in the area.

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ground for many species of marine mammals during the summer months.272 In The Bay of Fundy near Nova Scotia, harbor porpoise and right, fin, and minke whales are found in fishing grounds and shipping lanes. In the Persian Gulf, oil and gas industries and significant military activities coexist with 20 species of marine mammals including dolphin and dugong.273 In the North Sea, where minke, sperm, and migratory pilot whales are found, the ambient noise is dominated by the sounds from geophysical surveying.274 These hotspots represent only some of the high-risk areas and serve as a point of departure for further discussion of other threatened areas. Once identified, other hotspots can be targeted for further study. Acoustic monitoring could then serve to quantify anthropogenic noise levels in support of protection measures for marine mammal populations. Although anthropogenic ocean noise may no longer be increasing substantially, it is still of concern, particularly where acoustic activities coincide with an abundance of marine mammals. Stellwagen Bank and the Ligurian Sea are only two examples of such hot spots, where the greatest potential for negative impacts on marine life exists. This chapter has focused on the scientific and technical aspects of ocean noise. The next chapter discusses the role of non-governmental organizations in agenda setting and describes several of the events that focused the scientific community’s and the general public’s attention on ocean noise.

272

Many arctic mammals summer in the Baltic Sea. See Annex 1 of the ACCOBAMS agreement for a list of cetaceans of the Black Sea. Available at 273 See Chapter 2 of United Nations Environmental Programme, GEO-2000, (Nairobi: United Nations Environmental Program, 1999). See also M.M. Fouda, G. Hermosa, and S. AlHarthi, “Status of Fish Biodiversity in the Sultanate of Oman,” Italian Journal of Zoology, speciale 65, Supplement 1, (1998). 274 See John Potter and Eric Delory, “Noise Sources in the Sea and the Impact for those Who Live There,” supra note 270.

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Chapter 3 FOCUSING EVENTS

This chapter explains how the issue of ocean noise and its effects became a matter of international concern and captured the attention of those people inside and outside of government. Conditions (such as noise pollution in the ocean) become defined as problems through the strategic use of focusing events.1 Therefore, it is imperative to understand the concept of focusing events to grasp a problem in its entirety.

1.

WHAT ARE FOCUSING EVENTS?

Little systematic study has been carried out on the precise mechanisms by which events influence policy.2 However, the contributions of focusing events to the development of public policy have been widely addressed in the literature. Focusing events have been defined as “key events that cause members of the public as well as elite decision makers to become aware of a potential policy failure.”3 Noted policy specialists Cobb and Elder used a similar term, “circumstantial reactors,” which they define as unanticipated

1

Deborah A. Stone, “Causal Stories and the Formation of Policy Agendas,” Political Science Quarterly 104 (2) (1989): 299. 2 Ibid. See also Thomas A. Birkland, After Disaster: Agenda Setting, Public Policy, and Focusing Events (Washington, D.C.: Georgetown University Press, 1998), 2. 3 Thomas A. Birkland, “Toward a Theory of Focusing Events and Policy Change,” a dissertation proposal, University of Washington, April 1994. Also see Thomas A. Birkland, After Disaster: Agenda Setting, Public Policy, and Focusing Events. In this text, Birkland describes focusing events as “sudden, unpredictable events that influence the policy making process.”

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events that result in issue initiation. 4 Professor John Kingdon commented on the importance of “exogenous” events in opening “windows of opportunities” that permit advocates of policy initiatives to further their agendas. Authors Jenkins-Smith and St. Clair support Kingdon’s theory and further claim that these exogenous events present the opportunities (or obstacles) for the translation of certain coalitions’ beliefs and preferences into public policy.5 “Causal stories” have been defined by political scientist Deborah Stone as the core substance of the transformation of difficulties into political problems. And Downs described focusing events as a “dramatic series of events” precipitating an “alarmed discovery” of a problem by the public.6 All these terms underscore an important tenet of policy study: Some type of event usually propels an issue into the public view.7 Throughout this book, these events are referred to as focusing events. Examples of focusing events abound, even if one looks no further than the environmental domain. The burning waters of the Cuyahoga River in 1968, the Santa Barbara oil spill of 1969, and the Exxon Valdez oil spill of 1989 are but a few of the myriad events which have propelled environmental issues onto the public agenda and have led policymakers to take action.8 In an early paper on the power of focusing events, sociologist Harvey Molotoch argued that the Santa Barbara oil spill was a means by which broad-based public attention was drawn to the failure of regulation and that ultimately catalyzed reform.9 This role of focusing events in instigating reform will be explored later in this chapter as individual focusing events involving ocean noise are examined in detail.

4

Roger W. Cobb and Charles D. Elder, Participation in American Politics: The Dynamics of Agenda Building (Boston: Allyn and Bacon, 1972), 83. 5 Hank C. Jenkins-Smith and Gilbert St. Clair, “The Politics of Offshore Energy: Empirically Testing the Advocacy Coalition Framework,” in Policy Change and Learning: An Advocacy Coalition Approach, ed. Paul A. Sabatier and Hank C. Jenkins-Smith (Boulder: Westview Press, 1993), 152. 6 Anthony Downs, “Up and Down with Ecology – The Issue Attention Cycle,” The Public Interest 28 (1972): 39. 7 See Charles O. Jones, An Introduction to the Study of Public Policy, ed. (New York: Harcourt Brace, 1984), 65-69 for a discussion on “the dynamics of agenda setting.” 8 For a discussion of the burning of the Cuyahoga River, see Biliana Cicin-Sain and Robert W. Knecht, The Future of US Ocean Policy, (Washington, D.C.: Island Press, 2000), 176. Birkland’s text, After Disaster: Agenda Setting, Public Policy, and Focusing Events, focuses on the Exxon and Santa Barbara oil spills as case studies and also discusses the burning of the Cuyahoga River and several other environmental Focusing events. 9 See Harvey Molotoch, “Oil in Santa Barbara and Power in America,” Sociological Inquiry 40 (1970): 131-44.

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Focusing events “move situations intellectually from the realm of fate to the realm of human agency,” according to Deborah Stone.10 Cobb and Elder described this elevation of an issue to the realm of human agency as moving onto the “systemic agenda.”11 The crucial transition from “event status” to “agenda status” relies heavily on the policy advocates involved. Who are the policy advocates who moved the issue of ocean noise onto the systemic agenda? The next section outlines the role of non-governmental organizations in elevating the issue of ocean noise pollution to the “realm of human agency,” thereby, making the situation ripe for action.

2.

THE ROLE OF NON-GOVERNMENTAL ORGANIZATIONS IN AGENDA SETTING

An agenda has been described by John Kingdon as “the list of subjects or problems to which government officials, and people outside of government closely associated with those officials, are paying some serious attention at any given time.”12 Agenda setting is the process by which these problems are identified, acknowledged, and prioritized. The presence of the ocean noise issue on the front page of the New York Times and as the subject of several reports by the National Academy of Sciences, in addition to increased federal funding to study the effects of noise in the ocean indicates that ocean noise pollution has reached public agenda status. Nongovernmental organizations (NGOs) have played a significant role in defining the issue of ocean noise pollution and bringing it to the attention of the media and the public.13 The following sections examine the role of these organizations and their influence on public policy. These sections discuss techniques employed by environmental lobbyists in agenda setting and in mobilizing the public. Finally, this chapter attempts to answer the question: what is it about this issue that elevated it to the public policy agenda?”

10

Deborah A. Stone, “Causal Stories and the Formation of Policy Agendas,” 299, supra note 1. 11 Roger W. Cobb and Charles D. Elder, Participation in American Politics: The Dynamics of Agenda Building, supra note 4. 12 John Kingdon, Agendas, Alternatives, and Public Policies (New York: Longman Press, 1995), 3. 13 For a general discussion of the roles of environmental groups in the ATOC controversy, see Potter, “ATOC: Sound Policy or Enviro-Vandalism?Aspects of a Modern MediaFueled Policy Issue.” Journal of Environmental Development 3,2 (1994): 47-62.

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The following sections will focus on the public outreach efforts launched by the Natural Resources Defense Council (NRDC) and other groups in response to the use of low-frequency sonar in the ocean. Several of the lawsuits that were brought by these organizations and actions by other groups such as the Animal Welfare Institute, the Humane Society, and the Hawaii County Green Party will be considered. Finally, the formation of several new organizations in response to the issue of ocean noise pollution will be examined.

2.1

What Are Environmental NGOs?

Members of interest groups and NGOs share common values and attempt to influence the outcome of a process. NGOs have been defined as “private organizations not established by a government or by intergovernmental agreement which are capable of playing a role in international affairs by virtue of their activities.”14 NGOs can provide perspective to balance views from other interests and provide decision-makers with a wider range of options and points of view.15 They can also create political pressure and help shape public policy. Environmental NGOs focus specifically on issues such as pollution, wildlife conservation, and sustainable development. The first international meeting to address environmental protection is thought to have been the Congress of the Society for the Protection of Animals, held in I860.16 In 1910, the Eighth International Zoological Congress was the first meeting to specifically address the protection of whales.17 Since then, environmental NGOs have grown significantly in number.18 In 1970, well-publicized images of oil spills, polluted rivers, and

14

Hermann H.K. Rechenberg, ed., “Non-Governmental Organizations,” Vol. 9, Encyclopedia of Public International Law 276 (Heidelburg, Germany: Elsevier, 1986). 15 For a discussion of the role of NGOs in ocean management, see Grant Hewison, “The Role of Environmental Nongovernmental Organizations in Ocean Governance,” in Ocean Governance: Strategies and Approaches for the Century, Thomas Mensah, ed. (Honolulu: Law Of the Sea Institute, 1996). See also Steve Charnowitz, “Two Centuries of Participation: NGOs and International Governance,” Michigan Journal of International Law 18 (2) (1997): 183-286. 16 Union des Associations Internationales, International Congresses 1681 to 1899 (Brussels: UAI, 1960); see also Grant J. Hewison,, “The Role of Environmental Nongovernmental Organizations in Ocean Governance.” 17 Patricia Birnie and Alan Boyle, International Law and the Environment (New York: Oxford University Press, 1992), 76. 18 The number of international NGOs has doubled in the past fifty years; in 1999 it was estimated at 20,000. The increase in the number of NGOs is especially dramatic when compared to the 1939 estimate of 700. See Thomas G. Weiss, “International NGOs,

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urban harbors mobilized the public and led to the first Earth Day, which focused attention on the plight of the environment. In the U.S., the 1970s also witnessed the establishment of the Environmental Protection Agency and the enactment of the Marine Mammal Protection and Endangered Species Acts that resulted in the formation of many new environmental groups.19 Throughout the 1980s and 1990s, environmental groups were effective in convincing the public that the environment needed protection. During this time, ensuring the safety of marine mammals became a major goal of many environmental NGOs including Greenpeace, the World Wildlife Fund, and the Humane Society.20

2.2

Public Perceptions of Marine Mammals

The issue of underwater noise pollution has become controversial, in part, because of the public’s perceptions of marine mammals and the threat to them posed by noise. Whales command considerable scientific and moral support in the U.S. A study carried out by Yale University during the 1990s, found that widespread support existed among the great majority of Americans for the protection of marine mammals, especially whales.21 Most Americans indicated a willingness to make significant sacrifices to sustain marine mammal populations. The study found that a majority of Americans were in favor of modifying human activities in the marine environment to protect marine mammal populations. The broad base of support that marine

Global Governance, and Social Policy in the UN System,” (Helsinki, Finland: Finnish National Research and Development Centre for Welfare and Health, 1999). For an up to date listing of international NGOs see Union of International Associations, Handbook of International Organizations; ed. (Brussels: Union of International Associations, 1998). 19 The Environmental Protection Agency was established by Executive Order on 2 December 1970 by President Richard Nixon. “Marine Mammal Protection Act,” see P.L. 92-522; “Endangered Species Act,” see P.L. 93-205. The 1970s saw the establishment of the three NGOs involved in ocean noise pollution: the Natural Resources Defense Council, the Cetacean Society and Sea Shepherd. 20 Grant Hewison, “The Role of Environmental Nongovernmental Organizations in Ocean Governance,” supra note 15. Greenpeace started its anti-whaling campaign in 1975, see the Greenpeace website located at The World Wildlife website is located at ; the Humane Society website dedicated to marine mammals is located at . 21 The Yale study found that “most Americans indicate a willingness to render significant sacrifices to sustain and enhance marine mammal population and species.” See Stephen Kellert, American Perceptions of Marine Mammals and their Management, (New Haven, CT: Yale University of Forestry and Environmental Studies, May 1999), iv.

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mammals garner in the U.S. is found in many other countries as well.22 This overwhelming protective sentiment toward whales explains why a highly technical issue such as ocean noise could mobilize so many people and result in the efforts of several NGOs to protect marine mammals from man-made sound in the sea.

2.3

The Natural Resources Defense Council

Dozens of environmental groups are dedicated to protecting whales and other marine animals. Many of these groups have championed the issue of noise pollution and its effects on marine mammals, but the Natural Resources Defense Council (NRDC) has been one of the most active and vocal opponents of anthropogenic ocean noise.23 The NRDC has focused public attention on low-frequency sonar by alerting its membership and the public through mailings, the media, and the Internet.24 Another tactic employed by NRDC was the establishment of a web site that provides pre-drafted letters to the Secretary of the Navy and administrators at the National Marine Fisheries Service (NMFS) opposing the use of military sonars in sensitive areas.25 One of NRDC’s most significant contributions to the noise pollution issue was the 1999 publication of a book entitled Sounding the Depths—Supertankers, Sonar

22

For example, in Australia and Germany, a sizeable majority of the population opposes the hunting of whales under any circumstances. See Milton Freeman, “Public Attitudes to Whales: Results of a Six-Country Survey,” (Canadian Circumpolar Institute: Alberta, 1992). The study focused on six countries: Australia, England, Germany, the U.S., Japan, and Norway. Freeman also reports that there is common agreement in all both whaling and non-whaling countries regarding the great importance of protecting whale habitat from pollution and disturbance. 23 The Council was incorporated in New York in 1970 with the goal of protecting life and preserving the beauty of nature. With roughly 500,000 members nationwide, its operating income was more than $27 million in 1998. Its strategies for protecting the environment include (1) scientific research, (2) public education, (3) litigation, and (4) lobbying Congress to enact new legislation. See NRDC website, at 24 The NRDC website dedicated to protecting marine mammals from man-made sound is located at It contains copies of NRDC letters to the editor protesting the Navy’s use of sonar, newspaper articles on lowfrequency active sonar, and results of legal action initiated by the NRDC such as comments on Environmental Impact Statements. 25 The NRDC’s “Earth Action Center” contains an “activism toolbox” that lists members of Congress, state directories, and success stories. Copies of pre-drafted letters are also at this website. It is found on-line at

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and the Rise of Undersea Noise.26 This book was one of the first to address underwater noise as a type of pollution. It focuses not only on experimental and military sonars, but also on noise from shipping, oil exploration, and other marine-related activities and calls for the development of proactive policy to regulate underwater sound. The NRDC has also been extremely successful in transmitting its message to the wider public through the media.27 Well-timed press releases by NRDC in the summer and fall of 1999 resulted in the publication of statements by Joel Reynolds, an NRDC attorney, in several newspapers including the Los Angeles Times and USA Today.28 Furthermore, the NRDC has garnered the support of several high profile opponents to low-frequency active sonar including Jean-Michel Cousteau, the son of marine explorer Jacques Cousteau; attorney Robert F. Kennedy, Jr.; the singer James Taylor; and the actor Pierce Brosnan, all whom have acted as spokesmen for the group.29 Most visible was an op-ed piece in the Los Angeles Times coauthored by Kennedy, Cousteau, and Reynolds, which urged the California Coastal Commission to deny the US Navy’s application to operate a low frequency sonar system off the California coast.30 This low frequency sonar system, known as the Surveillance Towed Array Sensor System–Low Frequency Active (SURTASS-LFA), is designed to detect and track diesel and nuclear-powered submarine contacts at long range using loud, low frequency sound.31 The NRDC has focused on the Navy’s development of this system as a means of attracting attention to the issue of ocean noise.

26

See Michael Jasny, Sounding the Depths – Supertankers, Sonar and the Rise of Undersea Noise (Natural Resources Defense Council: New York, 1999). 27 John D. Cox, “Environmentalists: Ocean is Getting too Noisy”, Journal of Commerce, July 2,1999,9. 28 Deborah Schoch, “Noise Called a Serious Threat to Sea Creatures,” Los Angeles Times, June 27, 1999, A23; see also Tim Friend, “Man’s Roar Ripples Through Whales’ World,” USA Today, July 6, 1999, 8D. 29 See “A Message from James Taylor, Pierce Brosnan and Jean-Michel Cousteau,” on the website of the NRDC found at last accessed on 12 March 2002. 30 “We need Sound Sensibility on California’s Coast,” Los Angeles Times, December 6, 2000, 9. 31 The system operates between 100 – 500 Hz. A concise summary of the SURTASS system is found in Anthony J. Watts, ed., Jane’s Underwater Warfare Systems, (Surrey, England: Janes’ Information Group, 2000), 108-109. See also the SURTASS website at See also Marine Mammal Protection Act Bulletin, 21 (4) (Silver Spring, VA: National Marine Fisheries Service, 2000).

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The SURTASS system is subject to the requirements of the National Environmental Policy Act (NEPA), legislation that requires full disclosure of possible environmental impacts, alternatives and mitigation measures for any federal action.32 As such, NEPA opens SURTASS development to public involvement and scrutiny.33 Because the NEPA process often requires the creation of documents known as Environmental Assessments (EA) or Environmental Impact Statements (EIS), the failure to properly generate such reports can result in lawsuits brought by environmental groups and court issued injunctions.34 Litigation can delay or otherwise sideline a project until the required analyses have been carried out and properly documented. SURTASS is just the latest of many noise-generating activities that the NRDC has drawn attention to. Over the past ten years, the group has challenged the development of many other projects beginning with the Navy’s ship shock trials in 1994, followed by ATOC, Exxon High Energy Seismic tests, the Southwest Fisheries Pulsed Power Generator project, and recently another US Navy program known as Littoral Warfare Advanced Development (LWAD).35

32

The National Environmental Policy Act of 1969, P.L. 91-190. For an overview of the NEPA process, see Ray Clark, ed., Environmental Policy and NEPA: Past, Present, and Future (New York: CRC Press -St. Lucie Press, 1997). For a discussion on how the NEPA process is implemented and complied with, see Ronald Bass et al., The NEPA Book: A Step-by-Step Guide on How to Comply with the National Environmental Policy Act, ed. (Cleveland: Solano Press, 2001). 33 The “twin objectives” of NEPA are: to ensure federal agencies consider every significant aspect of the environmental impact of the proposed action; and to inform the public of potential impacts to the human environment and involve the public in the decision-making process. See Applying the NEPA Process: A Workshop Manual (Bethesda, MD: Shipley Associates, 1992). For an international perspective of NEPA, see Orlando E. Delogy, United States Experience with the Preparation and Analysis of Environmental Impact Statements: The National Environmental Policy Act (Morges, Switzerland: IUCN, 1974). 34 An EA is an analysis of the potential environmental impact of a proposed action. If it is not known beforehand whether an action will significantly affect the environment, an EA is prepared. If, on the basis of the EA, it is determined that the proposed action will not significantly impact the environment, no further analysis is required. Otherwise, an EIS needs to be prepared. An EIS provides full and unbiased discussion of significant environmental impacts and informs decision makers and the public of the reasonable alternatives that would avoid or minimize adverse impact or enhance the quality of the human environment. See Applying the NEPA Process: A Workshop Manual, Appendix C, 2-7 and 2-9. 35 Personal communication with Joel Reynolds, Attorney, NRDC, December 01, 2003. Detailed information on ship shock, ATOC, SURTASS, and LWAD are found in this text. For background on the Exxon High Energy Seismic project see “Notice of Issuance of an

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The NRDC remains one of the most active opponents of low frequency sonar and industrial sources of sound in the ocean. Through the application of NEPA and other environmental laws, the group has successfully challenged the ATOC, SURTASS, and LWAD programs on several occasions.

2.4

Other NGOs Involved in the Ocean Noise Pollution Issue

The Humane Society of the U.S. was founded in 1954 and has become one of the world’s largest animal protection organizations.36 Like the NRDC, it has conducted a major campaign to protect marine mammals from noise pollution.37 The group has submitted comments on the Draft EIS (DEIS) for the US Navy’s low frequency sonar and has strongly urged the Navy to abandon its plans to deploy the system.38 The Cetacean Society was started in 1974 as the Connecticut Cetacean Society.39 Its on-line newsletter, “Whales Alive!,” publishes many articles focused on the ATOC project as well as the Navy’s LFA research. One of its primary activities has been drafting detailed letters opposing the

Incidental Harassment Authorization for Exxon’s 3-D Offshore Seismic Activities in Southern California”, 60 Federal Register October 17, 1995, 53753-53760. For information on the SW Fisheries Pulsed Power Generator, see California Coastal Commission Consistency Determination No. CD-102-99, National Marine Fisheries Service, “Small Test of ‘Pulsed Power’ Acoustic Harassment Device to Protect Recreational Fishing from Sea Lions.” The results of a study on the pulsed power generator are found in J.J. Finneran et al., “Auditory and Behavioral Response of California Sea Lions (Zalophus californianus) to Single Underwater Impulses from an Arc-Gap Transducer,” 114(3) Journal of the Acoustical Society of America (2003): 16671677. 36 It has a staff of 250, nine domestic offices, an international branch, and seven million members worldwide. See “History of the Humane Society” at accessed on March 12, 2002. 37 See “Noise Pollution and Acoustic Harassment” at accessed on 12 March 2002. 38 Naomi Rose, “Interpreting Research Results: Government Regulation Of Anthropogenic Noise Sources”, Journal of the Acoustical Society of America 110(5) (2001): 2714. 39 It claims representatives in 26 countries and is involved in international efforts regarding human impact to cetaceans, stranding response, and rehabilitation efforts for marine mammals. It provides funds or equipment to an average of 15 projects a year. It also carries out educational programs and works with other environmental organizations. The group uses its website to expose what it deems to be irresponsible behavior that adversely affects marine mammals and claims that the Internet has become a major weapon in its protective efforts. See the website at

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development of the Navy’s low-frequency sonar and encouraging its membership to send them to government officials.40 Another NGO, the Ocean Mammal Institute, was formally established in 1994 to study the impact of human marine activities, including the generation of noise pollution, on marine mammals and directly applying the results to protect the animals and their environment. 41 To support this mandate, the Ocean Mammal Institute has encouraged the public to write to the National Marine Fisheries Service (NMFS) regarding the Navy’s LFA program.42 In 1998, the group requested a preliminary injunction, which was ultimately denied, to halt the use of the US Navy’s sonar off the coast of Hawaii.43 The Sea Shepherd Conservation Society is dedicated to the investigation of violations of international law, regulations, and treaties protecting marine wildlife species.44 Founded in 1977 by Captain Paul Watson, one of the original founders of Greenpeace, Sea Shepherd is one of the most controversial NGOs because it employs “direct action” – forceful intervention in activities that it opposes. The group carries out expeditions armed with cameras and videotape to document allegedly illegal exploitation of marine life. It then works closely with the media to publicize such events.45 The Center for Biological Diversity is an Arizona-based NGO that combines conservation biology with litigation and policy advocacy.46 It first

40

Cetacean Society International letter to J.S. Johnson, from William W. Rossiter, President, dated October 27, 1999, found in the US Navy’s Overseas Environmental Impact Statement for Surveillance Towed Array Sensor System – Low Frequency Active Sonar (SURTASS-LFA), Reports 1 and 2, (1999) [hereinafter SURTASS-EIS] at locator O-039. 41 See <www.ocean mammalinst.org> last accessed on 12 March 2002. 42 See pre-drafted letter to Donna Weiting, Chief of the Marine Mammal Conservation Division at NMFS and other actions that the public is encouraged to take at 43 See Ocean Mammal Institute v. Cohen, 164 F.3d 631 Cir. 1998). 44 See 45 Sea Shepherd’s comments on the US Navy’s SURTASS EIS are located in SURTASS FE1S , locator O-23. Also see http://www.seashepherd.org/issues/habitat/SSCSlognoise.htm last accessed January 2003. Sea Shepherd has also opposed Native American’s whaling activities. The group has been involved in a direct action campaign against the Makah tribe’s whaling activites in the Pacific Northwest. See for a discussion of the group’s opposition to whaling. 46 See Complaint for Declaratory Judgment and Injunctive Relief, Center for Biological Diversity v. National Science Foundation, filed in US District Court for the Northern District of California, October 18, 2002. The Center for Biological Diversity’s website is found at:

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became involved in the issue of ocean noise when it successfully sued the National Science Foundation to halt operations of a $1.6 million ocean floor survey aboard the R/V “Ewing”. The “Ewing”, a research vessel operated by Columbia University’s Lamont-Doherty Earth Observatory, was forced to cease airgun operations after two Cuvier’s beaked whales were found dead on a Mexican beach, some 50 kilometers away. Outside the U.S., several NGOs have also been involved in the issue of ocean noise pollution. In May 2001, the World Wide Fund for Nature (WWF) and the World Conservation Union (IUCN) published a report entitled The Status of Natural Resources on the High Seas.47 This report included a section on potential threats to cetaceans that stated: Noise pollution in the ocean is also a cause for concern for cetaceans. For example, intense ship trafficking and seismic testing, oil drilling ships and research involving low frequency sonars all result in substantial levels of noise pollution…Research indicates that industrial noise may be responsible for displacement from habitat, stranding, and physiological harm.48 The report suggested that the establishment of high-seas marine protected areas could contribute to the protection and re-establishment of many cetacean species and that a precautionary approach was critical to the survival of many of these species. Another European NGO that has played a significant role in the fight to prevent ocean noise pollution is the Environmental Investigation Agency, a London-based group established in 1984 to campaign against the destruction of the natural environment.49 In 1998, it prepared a report entitled, “A Review of the Impact of Anthropogenic Noise on Cetaceans.”50 This report was presented to the International Whaling Commission’s Scientific Committee in Oman.51 It proclaimed an “immediate need for systematic research regarding the effects of anthropogenic noise on cetaceans.” and called for an assessment of cumulative effects with other environmental threats, such as global climate change, in assessing the impact of noise.52

47

C.M.Baker et al, The Status Of Natural Resources On The High-Seas: An Environmental Perspective, (Gland, Switzerland, WWF/IUCN, 2001). 48 Ibid., 64. 49 See accessed on March 12, 2002. 50 Environmental Investigation Agency, A Review of the Impact of Anthropogenic Noise on Cetaceans, presented to the International Whaling Commission’s Scientific Committee, Paper SC/50/E9 (Oman: Environmental Investigation Agency, 1998). 51 Ibid. 52 Ibid.

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The Emergence of New Organizations

The growing controversy over ocean noise has led to a grass roots effort to fight all types of undersea noise pollution. The formation of several new internet-based organizations illustrates this phenomenon. These groups focus on the broader issue of noise pollution and resulting habitat degradation as opposed to many earlier NGOs that focus primarily on whales and other marine mammals. One such group, the Silent Oceans Project, was established as a worldwide program of stewardship and education that focused on the issue of ocean noise pollution. It celebrated a “Silent Oceans Day” in September 1999. According to its web site, the event “marked the beginning of a five-year process of global consciousnessraising, educational programs, and the creation of international standards concerning human-made sound pollution in the ocean.”53 Silent Oceans Day called for the observance of nine minutes of silence throughout the world’s oceans. The organization intended to focus attention on the issue of ocean noise and to propose international standards to address it.54 It remains unclear, however, whether the group actually accomplished these objectives as its website is defunct and attempted communication with its executive director remains unanswered. The Quiet Sea Coalition was a group primarily composed of opponents to ATOC and SURTASS-LFA who support scientific studies on the effects of underwater sounds on marine mammals. The group aimed to raise public awareness of the effects of noise on marine life and humans and proposed the creation of an international convention and treaty on undersea acoustic pollution. Like the Silent Oceans Project, its website no longer exists.55 Citizens Opposing Active Sonar Technology (COAST) was a 15-member group based in Maine that also no longer exists. It established a website to inform the public of a nationwide campaign to end the deployment of sonar technology and once again “restore peace and quiet to the world’s oceans”.56 One European-based group, the European Coalition for Silent Oceans (ECSO), remains active and recently filed a petition signed by 85,000 citizens against the use of military sonar systems. The petition, also

53.

Silent Oceans, Silent Oceans Events Calendar (September 19, 1999), at http://www. silentoceans.org (last visited Nov. 1, 1999). No longer available on November 19, 2003. 54. Ibid. 55. Quiet Sea Coalition, information found at http://www.maui.net/~mailbot/quietsea.html (last visited Dec. 4, 2000). No longer available on November 19, 2003. 56. Citizens Opposing Active SONAR Technology (COAST), at http://www.mauimuse.com/sonar (last visited Dec. 4, 2000). No longer available on November 19, 2003.

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supported by several representatives of the European Union Parliament, was handed over to NATO at a meeting in Brussels in October 2003.57 ECSO represents more than 40 European environmental organizations and its headquarters are provided by the Swiss Marine Mammal Protection Group (ACMS).58 The World Forum for Acoustic Ecology, founded in 1993, is a group that focuses on “soundscapes” as an ecologically balanced entity. As such, it is an international organization of affiliated associations, and individuals who are engaged in social, cultural, and ecological aspects of the sonic environment.59 Another related group, the US-based Acoustic Ecology Institute, was founded in 2003 to contribute to the development of ethical public policies regarding sound.60 Its activities to date include the dissemination of scientific research and the provision of an on-line clearinghouse for information on sound-related environmental issues. Although several of these groups have ceased their activities, their presence was indicative of a grass-roots effort that focused not just on protection of whales, but on the broader goal of preventing ocean noise pollution. It remains to be seen whether such NGOs dedicated exclusively to making the seas more silent will remain a presence. While the activities of these groups may not be significant in terms of environmental policy today, their actions represent harbingers of policy of the future – that is, a more holistic, ecosystem based approach to noise pollution.

3.

KEY FOCUSING EVENTS IN THE CONTROVERSY OVER OCEAN NOISE

While NGOs play an important role in agenda setting, they are rarely successful without focusing events that support or confirm their views. In the past, most users of underwater sound have not adequately considered the

57

See “Euro MPs Fight for Whales,” BBC News – World Edition, October 13, 2003 available on line at . Also “Handover of the Petition to NATO” press release by the European Coalition for Silent Oceans at . 58 See the website at . Personal communication with Dr. Marsha Green, February 18, 2004. 59 See the organization’s website at <www.interact.uoregon.edu/MediaLit/WFAE/home/index.html> 60 It is the fledging US chapter of the World Forum for Acoustic Ecology, personal communication with Jim Cummings, December 08, 2003. See the website at <www.acousticecology.org.>.

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many technical, political, and socioeconomic issues related to sound in the water. As a result, political and legal controversies have arisen within the U.S. and abroad. Events that led to several such conflicts will be examined in the following sections.

3.1

Ship Shock Testing

The controversy over ocean noise pollution is considered by some to have started in 1993 with the US Navy’s Ship Shock program. Ship shock testing requires the detonation of underwater explosives at various distances from naval vessels to determine the strength of the hull and ship systems in simulated battle conditions.61 On May 13, 1993, the Navy submitted an application for a permit to allow ship shock trials off the northernmost of the California Channel Islands.62 On February 3, 1994, the National Marine Fisheries Service published a final rule that authorized the “taking” of marine mammals incident to the shock tests for a five year period.63 It stipulated that no more than ten tests, involving no more than fifty-four detonations could be conducted each year. It also mandated specific monitoring and mitigation measures.64 Two months later, the Natural Resources Defense Council and other environmental organizations filed suit to enjoin the Navy from conducting the ship shock trial of the US AEGISclass destroyer John Paul Jones.65 The suit claimed that the Navy and NMFS failed to consider possible alternative sites for the trials and that an Environmental Impact Statement was required. The court agreed with the environmental groups, claiming that the failure of NMFS to consider alternative sites for the testing was a violation of the MMPA. An injunction was issued on April 26, 1994 and a settlement agreement was subsequently approved by the court in May.66 The court

61

“Major Systems and Munitions Programs: Survivability Testing and Lethality Testing Required before Full-Scale Production,” 10 U.S.C. 2366. 62 A summary of the administrative record on the John Paul Jones ship shock test is found in Natural Resources Defense Council, Inc. et al. v. United States Department of the Navy, et al. 857 F.Supp. 734. 63 The term “take” is statutorily defined to mean “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture or kill any marine mammal.” See Marine Mammal Protection Act, 16 U.S.C. 1402 section 3 para.(m). The NMFS final rule is found at 59 Federal Register 5111, February 3, 1994. 64 Ibid. 65 Natural Resources Defense Council, Inc. et al. v. United States Department of the Navy, et al. 857 F.Supp. 734. 66 Ibid. A consent decree was approved by the court in May and subsequently amended on June 15, 1994. See National Marine Fisheries Service, Marine Mammal Protection Act

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required that NMFS and the Navy conduct surveys to determine the optimal area for the tests, carry out more stringent monitoring, and prepare an EIS for the remaining detonations after the completion of the first ship shock trial.67 Ultimately, two shock tests of the John Paul Jones were conducted in June 1994 in an area recommended by the Natural Resources Defense Council. Each test involved the detonation of a single 10,000 pound charge. Post-test surveys indicated no dead or injured marine mammals, and all marine mammals in the post-test search zone were observed to be behaving normally.68 But the controversy over shock trials was not over. The John Paul Jones was just one in a series of naval vessels that were required to undergo shock testing. The debate eventually carried over to submarine shock tests (the Seawolf) and tests in the Atlantic Ocean (the Winston S. Churchill).69 Moreover, concern over the John Paul Jones shock tests resulted in the consideration of not just explosions, but all sources of noise, as threats to marine mammals. This became apparent in one of the most contentious events in the development of the ocean noise pollution issue: the controversy over acoustic thermometry.

3.2

Acoustic Thermometry of Ocean Climate (ATOC)

In the early 1990s, scientists at the Scripps Institution of Oceanography in San Diego developed a technique called acoustic thermometry, which used low-frequency signals to measure global warming. The plan involved the transmission of low-frequency sounds in the Indian Ocean and their detection by receivers thousands of kilometers away.70 Because sound

Annual Report, 1994, 90- 91 and Marine Mammal Commission, Annual Report to Congress, 1994, 224-228. See also Thom Weidlich, “Blocking Bombs Below the Sea,” The National Law Review, May 9,1994, A4. 67 See National Marine Fisheries Service, Marine Mammal Protection Act Annual Report, 1994, 90- 91 and Marine Mammal Commission, Annual Report to Congress, 1994, 224228. 68 Ibid. 69 For the Record of Decision for these two ship shock tests, see “Record of Decision for Shock Testing the Seawolf Submarine,” 64 Federal Register 13 (January 21,1999), 32803286; and Record of Decision for the Final Environmental Impact Statement for Shock Trial of Winston S. Churchill (DDG 81),” 66 Federal Register 87 (May 4, 2001) 2253622538. 70 The HIFT transmitted sound at a level of 221 dB and a frequency of 57 Hz at distances up to 16,000 kilometers. See Walter Munk & Arthur Baggeroer, “The Heard Island Papers,”

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travels faster in warmer water, the scientists hoped they would be able to detect long-term changes in ocean temperatures and obtain valuable information about global warming. This innovative experiment was referred to as the Heard Island Feasibility Test (HIFT) and it was a precursor to Acoustic Thermometry of Ocean Climate (ATOC). The ATOC program was the original focus of opposition to the use of low-frequency sound in the ocean. The program generated intense debate, bringing the need for regulation of underwater sound to the forefront of environmental law.71 ATOC continued the HIFT concept by transmitting from Hawaii and California to receivers throughout the Pacific.72 But while the HIFT was a short-term experimental prototype, ATOC involved long term (at least five years), repetitive sonar transmissions that were scheduled to begin in the mid-1990s.73 But in February 1994, before the ATOC sonar could begin transmitting, biologists at Dalhousie University launched an Internet discussion of the ATOC experiments and their potentially negative effects on marine mammals.74 Some biologists and environmental groups believed that the sound posed a threat to endangered marine mammal and sea turtle species. They were concerned that the noise could disrupt the animals’ breeding and migration patterns. The discussion heightened awareness of ATOC and

Journal of the Acoustical Society of America 96 (1994): 2327 (providing background information on the experiment and its precursor). 71 See Ann Gibbons, “What’s the Sound of One Ocean Warming?” Science 248 (1990): 33; See also Jon Cohen, “Was Underwater “Shot” Harmful to the Whale?” Science 252 (1991): 912; Joseph Alper, “Munk’s Hypothesis: A Slightly Mad Scheme to Measure Global Warming,” Sea Frontiers 37 (1991): 38; Ian Anderson, “Global Hum Threatens to “Deafen” Whales,” New Scientist 129 (1991): 19; William J. Broad, “Environmental Camps Feud over Noisy Ocean Experiment,” New York Times, April 5, 1994, C4; Forsyth Patterson Kineon, ATOC: A Case Study In The Effect Of Political Pressure On Science (1996) (University of Washington, unpublished Master’s of Marine Affairs Thesis) and John Potter,“ATOC: Sound OceanPolicy or Enviro-Vandalism?” 72 See Walter Munk & Arthur Baggeroer, “The Heard Island Papers.” On this topic, also see Eugene H. Buck, Acoustic Thermometry of Ocean Climate: Marine Mammal Issues, Report for Congress 95-603 (Washington, DC: Congressional Research Service, 1995); also, Phillip Yam, “The Man Who Would Hear Ocean Temperatures,” Scientific American 272 (1995): 38. More information on ATOC is available at (last visited February 5, 2001). 73 The ATOC sound source is 75 Hz and 195 dB. It also can travel thousands of kilometers. See OSB-2000,13-14,21. 74 On February 2, 1994, two population biologists, Lindy Weilgart and Hal Whitehead, posted a message on the MARMAM (marine mammal) listserver warning that the ATOC sound source planned to transmit sounds 10 million times louder than those known to cause pain in human airborne hearing. Full transcripts of the MARMAM forum can be obtained by sending a message to [email protected].

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galvanized environmental groups and their legal representatives. Even the general public was concerned. As a journalist for American Scientist wrote, “people may not be interested in acoustic thermometry but they are interested in whales.”75 At least two US Senators, Barbara Boxer and Dianne Feinstein, both of California, publicly condemned the ATOC program.76 Some members of Congress threatened to slash the budget of the National Oceanic and Atmospheric Administration (NOAA), Vice President Albert Gore received a briefing on the issue, and openly hostile crowds attended National Marine Fisheries Service (NMFS) hearings on the ATOC program.77 Interest groups soon became involved in the issue. The NRDC strongly opposed the ATOC experiment and lobbied vigorously to redirect ATOC resources to the study of sound on whales and other marine mammals.78 In

75

Laura Jean Penvenne, “A Lack of Sound Communication,” American Scientist, May/June (1995). 76 John Potter states that Senators Boxer and Feinstein wrote letters condemning ATOC. John Potter, “ATOC: Sound Ocean Policy or Enviro-Vandalism?” 56. A request was forwarded to Scripps for copies of these letters. Scripps has indicated that “they did receive copies of all letters from Congress or other “dignitaries” and a staff member is presently searching the warehouse for them. Repeated requests to the senator’s offices for copies of the letters remain unanswered. 77 Ibid., 56–57. Public meetings were held on research permits on March 22, April 14-15, and May 16, 1994 in Maryland, California, and Hawaii, respectively. Other public hearings were held on the creation of the draft EIS in California on January 6, 1995, see Federal Register December 2, 1994; for Hawaii hearings, see Federal Register January 17, 1995. For an overview of scoping actions in Caliornia, see Advanced Research Projects Agency, “Final Environmental Impact Statement/Environmental Impact Report for the California Acoustic Thermometry of Ocean Climate Project,” (Arlington, VA: ARPA, 1995). For an overview of scoping actions in Hawaii, see Advanced Research Projects Agency, “Final Environmental Impact Statement/Environmental Impact Report for the Kauai Acoustic Thermometry of Ocean Climate Project,” (ARPA: Arlington, VA, 1995). See Eugene H. Buck, “Acoustic Thermometry of Ocean Climate: Marine Mammal Issues,” 9, supra note 72. Buck also claims that the Senate Committee on Energy and Natural Resources organized a briefing on ATOC for House and Senate staff on April 26, 1994. No record of such briefings are kept however; personal communication with Richard Schmit, Senate Energy Committee, September 4, 2002. In regard to the briefing received by Vice President Al Gore as cited by John Potter, Walter Munk, the principle scientist of ATOC who served on a congressional committee with Gore at the time, does not recall a briefing, but rather an informal chat. Munk’s colleague, Peter Worcester, however, recalls an actual briefing. No briefing material has been located by Scripps however. Personal communication with Kathy Vigness of Marine Acoustics, Inc. and Susie Pike Humphrey of Scripps, August 29, 2002. 78 When the NRDC initially launched a program to fund suits against Pentagon sonar programs, the startup cash came from fees donated by a major New York law firm, Shearman and Sterling, which donated $50,000 in fees to the effort. See Tom Weidlich,

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addition to the NRDC, other environmental groups including the Environmental Defense Fund, the Sierra Club Legal Defense Fund, and the Center for Marine Conservation maintained that public hearings and the drafting of an Environmental Impact Statement was required before ATOC proceeded.79 These groups argued that the EIS had to address their major concerns and suggest benign alternatives to ATOC or else, they threatened, the project would be challenged in court.80 The groups also emphasized the need to follow the appropriate permitting processes of the California Department of Land and Natural Resources and the NMFS. As a result, ATOC was delayed until a Draft EIS (DEIS) was prepared.81 The consequent negotiations between Scripps and the NGOs resulted in measures to mitigate potential harm to marine mammals. For example, a marine ecologist from the Environmental Defense Fund testified at California Coastal Commission hearings and ultimately secured the establishment of safeguards to monitor animals before any sound was transmitted.82 Moreover, the negotiations resulted in the redistribution of funds for a major study on the effects of low-frequency sound on marine mammals.83 Because of pressure from NGOs, millions of dollars were diverted from the original scientific objective to scientific research on the effects of noise on marine mammals.84 The program established to study the effects of noise on marine mammals was called the Marine Mammal

“Pro Bono Publico: Fees Pay for Sea Life Program,” National Law Journal, January 9, 1995, A04, col.2. 79 The groups argued that due to the extent of the sound and the lack of data on its effects, an EIS should be created. See Eugene H. Buck, “Acoustic Thermometry of Ocean Climate: Marine Mammal Issues,” 9, supra note 72. 80 On 2 June 1995, Scripps announced an agreement with six environmental groups that the California portion of the ATOC project would be refocused as a two-year research program on the effects of the ATOC sound source on marine mammals. See CSI “Whales Alive! Newsletter,” Vol. V, No. 1, January 1996 available at last accessed on March 2, 2000. 81 See William Broad, “Environmental Camps Feud over Noisy Ocean Experiment,” The New York Times, 5 April 1994, C4. 82 Environmental Defense Fund marine ecologist, Dr. Rodney M. Fujita testified before the California Coastal Commission that the ATOC sound source was turned on before baseline monitoring and other safeguards were in place. See Environmental Defense Fund News Briefs, Vol. XXVII, No.2, (Los Angeles, CA: Environmental Defense Fund, March 1996). 83 Of an initial $35 million intended for the ATOC project, $2.9 million was re-allocated to a marine mammal research program. See Eugene Buck, “Acoustic Thermometry of Ocean Climate: Marine Mammal Issues,” see also OSB-2000, 23. 84 See Kineon, ATOC: A Case Study In The Effect Of Political Pressure On Science, 37–50, supra note 71.

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Research Program (MMRP) and was headed by scientists from Cornell University and the University of California at Santa Cruz.85 In December 1995, the ATOC source finally became operational. The MMRP found that although large whales could hear the transmissions, scientists felt that the observed effects were not biologically significant.86 Results from the initial transmissions indicated that the technique showed promise for the use of ocean temperature measurements to help validate climate models.87 However, an evaluation of the MMRP, carried out by the National Academy of Sciences, concluded that the ATOC program was “not able to demonstrate a lack of significant effects of ATOC transmissions on marine mammals.”88 This was attributed to the short duration of the MMRP’s experiments, the fact that all the data was not completely analyzed at the time of the NAS review, and that many of the results were ambiguous.89 The debate over ATOC continues to this day as the program has transitioned to a similar experiment called the North Pacific Acoustic Laboratory.90

3.3

The North Pacific Acoustic Laboratory (NPAL)

NPAL, implemented by Scripps and the University of Washington, proposed to retain in place and reuse the ATOC power cable and sound source for an additional five years.91 Under NPAL, transmissions would continue with approximately the same signal parameters and transmission schedule used in the ATOC project in order to 1) perform the second phase of research on the feasibility and value of large-scale acoustic thermometry;

85

Dr. Chris Clark and Dr. Daniel Costa were the principal investigators for the MMRP. For information on the MMRP, see 86 Peter F. Worcester, testimony before US Subcommittee on Fisheries Conservation, Wildlife, and Oceans, US House of Representatives, July 24, 2003. 87 ATOC Consortium, “Ocean Climate Change: Comparison of Acoustic Tomography, Satellite Altimetry, and Modeling,” Science 281 (1998): 1327-1332. 88 See OSB- 2000, 22. Chapter 2 of the text contains a detailed evaluation of the Marine Mammal Research Program. 89 OSB-2000, 22. 90 For information on NPAL, see 91 See “Final Environmental Impact Statement for the North Pacific Acoustic Laboratory,” (Arlington, VA: US Office of Naval Research, May 2001). The FEIS Notice of Availability was published in the Federal Register on May 25, 2001. The FEIS was accepted by the State of Hawaii Division of Land and Natural Resources on July 6, 2001. The Final Rule was published on August 17, 2001; see 67 Federal Register 43442. The Record of Decision for the Final EIS was published on February 11, 2002, see 67 Federal Register 6237-6239.

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2) study the behavior of sound transmissions in the ocean over long distances; and 3) conduct studies on the possible long-term effects from the sound transmissions on marine life.92 The NPAL project remains controversial and closely scrutinized. In spite of the substantial groundwork laid by ATOC, NPAL was still required to seek new authorizations and permitting from the US National Marine Fisheries Service. To operate the same source off the north shore of Kauai (which had been used by ATOC for two years) the NPAL scientists went through a long process of permitting before they were finally able to transmit in January of 2002— almost three years after they initially requested permission.93 In addition to the three years of lost time, the process cost the program over half a million dollars.94

3.4

Greek Whale Strandings and the North Atlantic Treaty Organization

The benchmark international focusing event involving underwater sound took place in 1996. On May 12 and 13, a number of Cuvier’s beaked whales were stranded alive on a 38-kilometer stretch of beach along the coast of the Kyparissiakos Gulf in Greece.95 At least seven animals died.96 At the time of that event, the North Atlantic Treaty Organization (NATO) and the US Navy were conducting a joint international experiment using a highpowered, low frequency sonar.97 In a correspondence to the journal Nature

92

See The National Marine Fisheries Service ruled that “due to the water depth of the NPAL source and the fact that it is not of sufficient intensity to result in hearing damage, NMFS has no scientific reason to suspect that the NPAL source could result in injury or death to marine mammals through either hearing or other body function impairments.” See NMFS Final Rule, Federal Register, Vol. 66, No. 160, August 17, 2001, at 43452. 94 Peter F. Worcester, testimony before US Subcommittee on Fisheries Conservation, Wildlife, and Oceans, US House of Representatives, July 24, 2003. 95 A. Frantzis, “Does Acoustic Testing Strand Whales?” Nature 392 (1998): 29. See also SACLANTCEN, Press Release, at (last visited December 9, 2000). 96 The number of whales reported stranded varied from 12-17, many of them were alive when they were beached. The number of dead animals could have been greater than 7 as most cetaceans sink when they die. See SACLANTCEN Summary Record, SACLANTCEN Marine Mammal Environmental Policy and Mitigation Procedures Panel, La Spezia, Italy, 17–19 June 1998, at 2-4, text located at http://www. saclantc.nato.int/whales/mammal.html (last visited December 9, 2000). 97 The experimental sonar system, known as the Towed Variable Depth Sonar (TVDS) transmits at a range of frequencies. In this sea trial, it was operating at a water depth of 93

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entitled “Does acoustic testing strand whales?” Dr. A. Frantzis, a biologist at the University of Athens, linked the deaths of the whales to the use of sonar in the immediate area (Figure 1).98 He claimed that the stranding of these types of whales was uncommon, and even when they do strand, it is usually within closer proximity in time and space. Moreover, Dr. Frantzis pointed out that deep-diving whales seem to be especially affected by lowfrequency sounds even at low levels.99 His letter created a maelstrom of controversy in the scientific community and resulted in a call for action by NGOs and environmentalists.100

Figure -1. Greek strandings. Source: SACLANT Undersea Research Centre. Xs mark the locations where whales beached. Runs 9 and 10 indicate the path of the ship as it operated the sonar source.

In June 1998, an international team of experts met in Italy to discuss possible explanations for the beached whale phenomenon and to develop a

approximately 75 meters at frequencies of 700 Hz and 3,000 Hz at source levels 226 – 228 decibels. 98. See Frantzis, “Does Acoustic Testing Strand Whales?” supra note 95. See also, “Quiet, Please. Whales Navigating,” The Economist (March 7, 1998): 85 (discussing Frantzis’s hypothesis that the May 1996 whale stranding was due to a sonar test by NATO); “Beached Whales and Military Testing,” The Washington Post, March 9, 1998, A2 (citing Frantzis’s hypothesis as a possible explanation of the May 12, 1997 whale stranding). 99 Frantzis, “Does Acoustic Testing Strand Whales?” 100 SACLANTCEN Summary Record, SACLANTCEN Marine Mammal Environmental Policy and Mitigation Procedures Panel, La Spezia, Italy, 17–19 June 1998, at http://www. saclantc.nato.int/whales/mammal.html (last visited December 9, 2000). See also “Sonar and Marine Research—A Risk for Whales,” Corriere Della Sera, June 14, 1998 (providing coverage of the SACLANTCEN meeting).

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NATO policy regarding sonar and marine life.101 Although scientists were not able to prove a link between the use of sonar and the whales’ deaths, the incident acted as a focusing event for the issue of unregulated underwater sound. Furthermore, the event underscored the regulatory challenges posed by the presence of a transboundary “pollutant” in the international arena: the sonar was owned by the US government; the ship was owned by the 16 NATO nations; the experiment was carried out in Greek waters; and the ship flew a German flag.102 Determining who might regulate the use of the sonar in this scenario was problematic and the international implications were significant. The challenge of regulating ocean noise in an international context, therefore, became disturbingly evident. National policy statements were presented at the meeting in Italy by most NATO members including the U.S., the Netherlands, Italy, Greece, Germany, France, Canada, and the U.K. A review revealed a wide variation of policies ranging from specific guidelines (the U.S., the U.K.) to vague statements subject to interpretation (France), to a complete lack of policy (Turkey).103 Therefore, no clear consensus among member states emerged. Not surprisingly, most states preferred self-regulation to new national or international legislation.104

3.5

Surveillance Towed Array Sensor System (SURTASS)

The controversy surrounding ATOC and the Greek whale strandings has carried over to the ongoing development of the US Navy’s newest lowfrequency sonar, SURTASS-LFA. In the 1980’s low frequency active

101

Ibid. For a discussion on why the NATO vessel flies a German flag, see personal e-mail correspondence from John Peterson, SACLANTCEN, May/June 1998. 103 The United States’ policy statement included a summary of laws and regulations that affect marine mammals, an outline of a research program to determine impacts of sound on the environment, and a general summary of research carried out to date. France’s policy statement proposed “to maintain the principle of internal care measures” but did not define what such measures were. Turkey did not submit comments on its policy. These individual policy statements are found in the annexes contained in the SACLANTCEN Summary Record, SACLANTCEN Marine Mammal Environmental Policy and Mitigation Procedures Panel, La Spezia, Italy, 17–19 June 1998, at http://www. saclantc.nato.int/whales/mammal.html (last visited December 9, 2000). 104 While SACLANTCEN is a scientific research arm of NATO, its funding originates in departments and ministries of defense of its various member states. Most states felt that their existing international and national law provided enough of a framework for selfregulation. 102

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acoustic technology was developed in response to the threats from third world diesel-electric submarines that operated on batteries and quieter Soviet submarines.105 The SURTASS-LFA system creates sound that can travel through entire ocean basins to search acoustically for enemy submarines. Deployed from a surface ship, it uses a string of 18 transducers suspended 160 feet into the water column to transmit low-frequency sound. It then listens for echoes with a mile-long “tail” of towed hydrophones. (see Figure 2).106

Figure -2. SURTASS Low Frequency Active Sonar System Source: US Navy

The NRDC first learned of the US Navy’s SURTASS-LFA experiments in 1995.107 Although the Navy had filed Environmental Assessments (EA) for some of these experiments, the NRDC pushed for the more extensive

105

Gordon Tyler, Jr., “The Emergence of Low-Frequency Active Acoustics as a Critical Antisubmarine Warfare Technology,” 13 (1) John Hopkins APL Technical Digest (1992) : 145-159. 106 The website dedicated to the SURTASS-LFA system is found at http://www.surtass-lfaeis.com. For a general explanation of the system, see also National Marine Fisheries Service, 21(4) MMPA Bulletin, (Washington, DC: NOAA Fisheries, 2000), 4. 107 Personal communication, Andrew Wetzler, NRDC, November 11, 1999. Mr. Wetzler said that the NRDC learned about the Navy’s LFA program from ATOC scientists.

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EIS.108 The group sent a letter to its membership that claimed, “the US Navy is preparing to launch an extraordinary assault on our ocean ecosystems…that will expose whales to noise pollution from massive transmitters at a level 200 billion times greater than that which is already known to disturb them.”109 The letter asserted, “millions of marine mammals may be harmed over the long-term.” 110 This appeal by the NRDC raised such a public outcry that in August 1995 the Navy began a dialogue with the group about the potential environmental effects of the LFA sonar and the analysis that would be necessary to allay the environmentalists’ concerns.111 In 1996, the Vice-Chief of Naval Operations concluded that a comprehensive Environmental Impact Statement, in fact, was required.112 Because of the high level of public interest, the Navy provided opportunities for public involvement and initiated a broad outreach effort to other government agencies and environmental groups to earn the confidence of interested stakeholders.113 In 1997, the Navy sponsored meetings in Monterey, CA, Woods Hole, MA and Washington, DC. During these meetings, SURTASS operation and mitigation measures were discussed and a plan was developed to carry out research on the effects of low-frequency sound on marine mammals, which

108

The National Marine Fisheries Service has published a chronological listing of SURTASS environmental permitting and NEPA documentation, including release of EAs, draft EIS, Final EISs, and public outreach meetings. The list is located at <www.nmfs.noaa.gov/prot-res/readingrom/MMSURTASS/LFA-History.pdf> last accessed on August 12, 2002. 109 Letter from John H. Adams, executive director of NRDC, to members, date unknown. 110 Ibid. 111 Jasny, Supertankers, Sonar and the Rise of Undersea Noise, 35, supra note 26. See also Glenn Garelik, “Submarine Tests too Loud for Whales,” UPI Science News, March 9, 1998, available at 112 Federal Register, July 18, 1996, 37452-53: see also Jasny, Supertankers, Sonar and the Rise of Undersea Noise 35, supra note 26. 113 Open houses were held on naval ships, public information briefs, public hearings, and question and answer sessions were held. A CNN interview was broadcast in March 1998, and a website for the EIS was established in May 1998. See the “Public Involvement” page on the SURTASS EIS website at <www.surtass-lfa-eis.com/Public/stage.htm.> See also the testimony of Vice Admiral Dennis V. McGinn before “Subcommittee on Fisheries, Conservation, Wildlife and Oceans of the House Committee on Resources on the MMPA and SURTASS-LFA” on October 11, 2001 available at http://resourcescommittee.house.gov/107cong/fisheries/2001oct1l/mcginn.htm.; and a section on public participation is found in Section S.1.1 of the US Navy’s Overseas Final Environmental Impact Statement for Surveillance Towed Array Sensor System – Low Frequency Active Sonar (SURTASS-LFA), Reports 1 and 2, (1999), [hereinafter SURTASS-FEIS].

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environmentalists felt was required before SURTASS could continue.114 The Navy agreed to fund a three-phase Scientific Research Program to help resolve some of the uncertainties about the impacts of SURTASS.115 The first two phases of the testing took place uneventfully off the coast of California in the fall of 1997. Phase III experiments were scheduled to begin on February 26, 1998 off the coast of the island of Hawaii. However, before testing began, a handful of legal battles and protests by NGOs ensued. A coalition of environmental groups including the Ocean Mammal Institute, the Animal Welfare Institute, Earth Island Institute, Greenpeace Foundation, and Earthtrust, represented by the Earthjustice Legal Defense Fund, argued that the Navy should be required to prepare a supplemental EIS before carrying out Phase III experiments. On February 24, 1998, a US District Court ruled the tests could continue because the NGOs had failed to prove the whales would be harmed.116 The Earthjustice Legal Defense Fund then requested a preliminary injunction to halt the testing, arguing that the sonar could harm endangered whale species by damaging their hearing and increasing mortality rates. This request was denied by the US Circuit Court of Appeals, which held that as the testing in the area had been completed the issue was moot.117 Another court ruling involved the Hawaii County Green Party’s claim for injunctive relief to halt the Navy’s testing. Again, a court declared the issue became moot when the Navy ended its testing in the area, thereby relieving the court of subject matter jurisdiction.118 An international e-mail campaign was initiated by several NGOs alerting the public to the events in Hawaii and urging the recipients to send protest letters to the White House, the Navy and other state and federal agencies.119

114

See SURTASS FEIS, Section S.1.1, “Public Participation,” ES-3. The program was a two-year, $10 million effort. 116 In the decision, the judge refused the group’s request for a temporary restraining order claiming that “the hardships do not tip sharply in favor of the plaintiffs, and it does not appear that they stand to suffer irreparable injury.” See “Navy Test on Whales can Continue, Judge Says,” Honolulu Star Bulletin, March 10, 1998. This suit was launched through the Earth Justice Legal Defense (formally the Sierra Legal Defense), see “Sound Testing on Whales Begins, Honolulu Star Bulletin, February 25, 1998. 117 The environmental groups argued that the testing would continue in other areas, and the issue met the exception of repeatability to the mootness bar, but the court felt that the 115

plaintiffs’ accusations were mere speculation. See Ocean Mammal Institute v. Cohen, 164 F. 3d 631 Cir. 1998). See also Ocean and Coastal Law Journal, Vol. 5:147 (Portland, ME: University of Maine Law School, 2000), 198. 118 And once again, the court ruled that issue did not fit under any exceptions to the mootness bar because any harm caused by the experiments was unlikely to be repeated. See Hawaii County Green Party v. Clinton, 14 F. Supp. 2d 1198 (D. Hawaii, 1998). 119 A listing of all public comments is found in the SURTASS-FEIS at Appendix E.

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The Navy received more than one thousand communications protesting its research program.120 NGOs also lobbied Hawaiian state legislators. In 1998, a House resolution was introduced that advised “that the state not allow the installation or deployment of any devices that would generate or be used in low frequency active sonar if current studies off the coast of Hawaii indicate low frequency active sonar would result in harm to marine life.”121 In 1999, a similar resolution was introduced to urge the US Congress to “ban any further tests of the low frequency active sonar system in Hawaiian waters.”122 This resolution was approved in the Hawaiian House and Senate and was forwarded to the US Congress. The Hawaii County Council unanimously agreed to draft a letter to President Clinton calling for suspension of the tests until further discussions could be undertaken.123 Direct action was carried out by the Animal Welfare Institute, which aggressively opposed the Navy’s testing off the coast of Hawaii. It organized local boat captains who volunteered to ferry swimmers out to the Navy’s transmitting ship, the “Cory Chouest” where the swimmers would enter the water. The protesters were able to stop the tests because the test protocol specified that the transmitter would have to be shut off if humans were in the water. For example, on March 31, 1998, Benjamin White, the international coordinator for the Animal Welfare Institute, swam up to the Navy’s research vessel waving a Hawaiian flag to protest the experiment. Consequently, 30 percent of the data was lost due to the cessation of transmissions.124

120

Ibid. HCR 134Legislature, 1998. Hawaiian Legislative Information Service. 122 SCR-187 Legislature, 1999. Hawaiian Legislative Information Service 123 See comments by Hawaii County Council member Julie Jacobson regarding the March 20, 1998 Council Agreement to sign a letter to President Clinton concerning SURTASS-LFA. Text located at last accessed on March 19, 2002. See also testimony of Hawaiian Congresswoman Patsy Mink, “In Opposition of the US Navy’s Deployment of SURTASS LFA Sonar,” April 28, 2001 located at <www.house.gov/mink/finalsonar.htm.>. For copy of the letter, see SURTASS FEIS at E1. 124 “Both Sides Claim Victory In Clash Over Tests On Whales,” Honolulu Star Bulletin, October 22, 1998. 121

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Figure -3. Protesters Swimming near SURTASS Ship Source: Lee Tepley

In spite of these protests and lawsuits, the Navy completed the Phase III testing on schedule. The results were incorporated into a Draft EIS, which was released in June 1999.125 The public comment period ended in October of that year and environmental groups subsequently released detailed statements in response to the Draft EIS.126 On October 22, 1999, the Federal Register published a request for a Letter of Authorization (LOA) for the Navy to fully operate the SURTASS-LFA.127 In January 2001, the Final EIS (FEIS) was released and a request for comment on the proposed rule was

125

Federal Register 64, September 14, 1999, Number 177, 49783-49784. The Draft Overseas EIS/EIS was completed in July 1999; see www.surtass_lfa_eis.com/EIA/index.htm accessed on January 31, 2003. 126 NRDC generated a 22 page response to the Navy’s draft EIS. It claimed that the EIS was deficient in numerous ways: it failed to acknowledge important data gaps and scientific controversy, it made unwarranted extrapolations from available data, it excluded contrary evidence and relied on a monitoring plan and geographical restrictions that were vague, and its alternatives analysis, it scope and its treatment of certain endangered species were inadequate. NRDC letter to Mr. J.S. Johnson, US Navy, October 26, 1999 located at O-28 in SURTASS-FEIS. The Cetacean Society International responded to the EIS by claiming it ignored deep diving whales and that a more conservative approach was needed regarding source levels. They emphasized that the EIS downplays risks and they suggest that scientists not associated with SURTASS-LFA review the research. See Cetacean Society International letter, “Response to the LFA Draft EIS”, 28 October 1999, located at O-39 in SURTASS-FEIS. 127 See “Advanced Notice of Proposed Rulemaking”, 64 Federal Register, Number 204, October 22, 1999, 57026-57029.

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published on March 19, 2001.128 Over 10,000 letters addressing 280 specific issues were received by the comment deadline of May 31, 2001.129 On July 15, 2002, NMFS released the Final Rule regarding the SURTASS system.130 The ruling allowed the Navy to deploy the controversial sonar for one year despite continuing questions about its potential to injure whales and other ocean life.131 In August 2002, the NRDC responded to the Final Rule by filing a lawsuit to block the deployment of SURTASS.132 The group claimed that the NMFS decision was backed by inadequate science and could result in the death of protected species in US waters, thus violating the Marine Mammal Protection Act and the Endangered Species Act.133 On October 31, 2002, the US District Court issued a decision that was heralded by both plaintiff and defendant as a victory: the Court found there was a military necessity to test and train with the SURTASS system, however, a preliminary injunction was granted as a result of several procedural violations made by the Navy and the NMFS. 134 This preliminary injunction temporarily blocked the Navy from deploying the SURTASS system until the two parties could design a plan that would balance environmental and military concerns.135 Two weeks later, an agreement was reached that required the Navy to temporarily scale back SURTASS testing

128

66 Federal Register, Number 53, March 19, 2001, 15375-15394. The proposed rule granted the US Navy a “small take” permit and was strongly contested by the NRDC among other environmental groups. 129 On May 31, 2001, the NRDC submitted a petition for a Supplemental EIS due to the events in the Bahamas where the deaths of several whales were linked to Navy sonar. 130 See 67 Federal Register Number 136, July 16, 2002, 46711-46789. 131 Ibid. Also see Marc Kaufman, “Navy Cleared to use a Sonar System Despite Fears for Whales,” Washington Post, July 16, 2002, at A3. 132 See “Environmental Groups Sue to Stop Global Deployment of Navy Low Frequency Sonar System,” a press release by the NRDC available on their web page at The NRDC formed a coalition with other environmental groups in filing the lawsuit. The other plaintiffs include the Humane Society, the League for Coastal Protection, the Cetacean Society International, and the Ocean Futures Society. See also Wendy Williams, “Sound Judgements,” Scientific American 285(4) (2001): 18. 133 See “Suit Alleges Sonar Can Hurt Marine Life,” The Providence Journal, August 8, 2002, A4. 134 See Natural Resources Defense Council, et al., v. Donald Evans, et al., 232 F. Supp. 2d 1003. Also Kenneth Weiss, “Judge Bars Navy’s Use of Whale-Harming Sonar,” Los Angeles Times, November 1, 2002. 135 Parties were ordered back to court on November 7, 2002 to work on an interim solution. See NRDC v. Donald L Evans, Sec. Of the US Dept. of Commerce et al., US District Court for the Northern District of California, Opinion and Order Granting Plaintiffs’ Motion for a Preliminary Injunction, October 31, 2002.

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for a seven month time period.136 Initially, the Navy had hoped to deploy the SURTASS system in 14 million square miles of ocean.137 Under the new agreement, the Navy had to limit the operation of SURTASS to about a million square miles of ocean around the Mariana Islands.138 In the seven month period following the agreement, no known impacts to marine mammals or fish stocks were reported to occur. In June 2003, the Navy applied for another one year permit in hopes of continuing operations off Japan, and expanding the use of SURTASS in areas off of Korea, Taiwan, China, and Hawaii.139 Two months later, NMFS approved the permit.140 On August 26, 2003, the Court upheld the scientific methodology and analysis used by the Navy and NMFS but reaffirmed many of its previous rulings regarding legal deficiencies.141 As a result, the court issued a temporary injunction and directed the parties to negotiate its terms including mitigation measures beyond those already required by NMFS. The court found that: …it should not impose the complete ban on peacetime use of LFA sonar that is requested by plaintiffs. Rather, the permanent injunction should be carefully tailored to reduce the risk to marine mammals and endangered species by restricting the sonar’s use in areas that are particularly rich in marine life, while still allowing the Navy to use this technology for testing and training in a variety of oceanic conditions.142

136

Associate Press report, “Navy to Limit Sonar Testing Thought to Hurt Sea Mammals,” on New York Times on line, at <www.nytimes.com/2002/11/17/science/17WHAL.html?todaysheadlines=&pagewanted= 11/18/02.> Accessed on November 17, 2002. 137 Ibid. 138 NRDC representatives say that this is “the least sensitive area of ocean we could get.” Ibid. 139 These areas were chosen based on military requirements. A Supplemental Overseas Environmental Impact Statement (S-EIS) was proposed by the Navy to cover the expanded operational area. See “Notice of Intent to Prepare a Supplemental Overseas Environmental Impact States for SURTASS LFA”, 68 Federal Register (144) July 28, 2003, 44311. 140 See “Notice of Issuance of Two Letters of Authorization” 68 Federal Register (161) August 20, 2003, 50123-50124. 141 These deficiencies include shortcomings in alternatives listed in the EIS and not citing the most relevant scientific information. See NRDC et al. vs. Evans et al. Opinion and Order on Cross Motions for Summary Judgment, Case # C-02-3805 EDL in District Court of Northern District of California, August 26, 2003. 142 Ibid.

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On October 14, 2003, the court formally imposed a permanent injunction, which included seasonal and geographic restrictions on SURTASS.143 Additionally, in exchange for eliminating the need for pre-operational surveys, the Navy agreed to forgo operations off Hawaii. The conditions of this permanent injunction were widely discussed in the international community.144 Some commentators felt that forcing the Navy to deploy the sonar only in Asia represented a form of “environmental racism”.145 It didn’t help that the permanent injunction was issued within days of a widely circulated article in the journal Nature, which linked military sonar to a spate of whale deaths in the Canary Islands in September 2002.146 On November 24, 2003, President George W. Bush signed the “Defense Authorization Act,” which provides legislative changes that could allow more widespread use of SURTASS. 147 It changes the definition of “harassment” in the Marine Mammal Protection Act, and also provides exemptions from the MMPA for certain military activities. Presently, it appears that testing of the US Navy’s SURTASS system will continue—and so will the controversy surrounding its use.

3.6

Bahamas Strandings

In the middle of the ongoing debate over SURTASS, a new controversy emerged over the stranding of beaked whales in the spring of 2000. During the week of March 13, seventeen whales representing four species beached themselves in the Bahamas. This occurred at the same time the US Navy was conducting acoustic antisubmarine activities in the area (See Figures 4

143

See “Stipulation Regarding Permanent Injunction”, NRDC et al. vs. Donald L. Evans et al., Civ. No. 02-3805-EDL, filed October 14, 2003. 144 The decision was the topic of an editorial in the International Herald Tribune, “Whale Deaths and Sonar”, October 16, 2003. See also Marc Kaufman, “Navy Agrees to Injunction Limiting Sonar Use”, Washington Post, October 14, 2003, A03. 145 David Allen and Chiyomi Sumida, “Environmentalists Upset Over Sonar Plans”, Stars and Stripes, October 21, 2003. Also see Jeff Shaw, “The Sound and the Worry: Okinawan Sea Life Likely to Suffer Under Navy Sonar Deal,” Grist on-line magazine, October 23, 2003, text available at . 146 P.D. Jepson et al., “Gas-Bubble Lesions in Stranded Cetaceans”, 425 Nature (October 9, 2003): 575. 147 See H.R. 1588, “National Defense Authorization Act for Fiscal Year 2004” available on http://thomas.loc.gov. See also Marc Kaufman, “Activists Plan Fight for Marine Mammals; Exempt from Some Rules to Protect Animals, Navy Might Seek to Alter Sonar Limits,” Washington Post, November 16, 2003, at A11, and Rex Dalton, “Defence Bill Erodes Marine Protection,” Nature news service, November, 12, 2003, available on line at www.nature.com/nsu/031110/031110-10.html.

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and 5).148 Preliminary investigations indicated that the animals had experienced some sort of acoustic or impulse trauma that led to the stranding and subsequent deaths of at least seven of the whales. In response to the incident, a coalition of environmental groups held a press conference in Washington, D.C., and presented evidence that they claimed directly linked the March strandings to the Navy’s operations.149

Figure -4. Locations of Whale Strandings in the Bahamas. Source: Paul Stewart, US Navy. This chart illustrates the locations of animals were reported stranded in the Bahamas on March 15-17, 2001. Zc = Cuvier’s beaked whale; Md = Balinville’s beaked whale; Ba = Minke whale; and Sf = spotted dolphin.

In December 2001, after nine months of study, the National Marine Fisheries Service and the US Navy issued a joint interim report that found, “tactical mid-range frequency sonars aboard US Navy ships that were in use during the sonar exercise in question were the most plausible source of this acoustic or impulse trauma.”150 The report emphasized that the cause of the 148.

Associated Press, “Whale Death in Bahamas Prompt Investigation: Navy Denies Connection to Anti-sub Exercises as Biologist Calls for Halt,” March 22, 2000. See also Ken Balcomb & Diane Claridge, Bahamas Marine Mammal Survey, correspondence to Michael Braynen, Director of Fisheries, Nassau, Bahamas, March 23, 2000. 149. Press release, Animal Welfare Institute, “Navy Denies a Deadly Threat to Whales and Dolphins,” May 9, 2000. “Initial Report Suggests Link Between Navy Sonar, Whale Deaths,” The Providence Journal, June 15, 2000, A15. See also Marc Kaufman, “Navy Drops Criticized Sonar Test Off N.J.; Scientists Say Equipment’s Submarine Detection Blasts Can Harm Sea Life,” Washington Post, May 27, 2000, at A2. 150 US Department of Commerce and US Navy, Joint Interim Report, Bahamas Marine Mammal Stranding Event of 15-16 March 2000, at ii. Available on line at http://www.nmfs.gov/prot_res/overview/publicat.html. See also, “Whale Deaths Tied to Navy Tests,” Boston Globe, January 1, 2002, A2.

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stranding was a combination of intensive use of multiple mid-range sonar transmissions over an extended period of time in the presence of excellent noise propagation conditions, unusual underwater bathymetry, a constricted channel with limited egress, and the presence of beaked whales that appeared to be sensitive to the frequencies produced by these sonars.151

Figure -5. Dead Whales in Bahamas. Source: Diane Claridge, Bahamas Marine Mammal Survey

The report emphasized that the strandings had no relationship to the new, controversial SURTASS-LFA. In fact, the mid-range tactical sonars used in the Bahamas event were not new at all—they were older sonars that have been used worldwide for many years.152 As a result of this focusing event, the report made two recommendations for the Navy: to understand the mechanisms by which sonars affect marine mammal tissue or behavior; and to put into place mitigation measures that will protect animals to the maximum extent possible without jeopardizing national security.153 To address the first of these objectives, in April 2002, NMFS held a workshop on acoustic resonance as a source of tissue trauma in cetaceans. The

151

Ibid, ii. The US Navy’s AN/SQS-53C sonar and the AN/SQS-56 sonar were operational at the times of the whale strandings. The AN/SQS-53C is considered the most advanced surface ship sonar in the US Navy inventory although it has existed since 1986. Its frequency of operation in the Bahamas incident was 2.6 and 3.3 kHz, much higher than many anthropogenic sources. The AN/SQS-56 sonar was first approved for service in 1980 and was operating at 6.8-8.2 kHz in the Bahamas. Over 100 of these sonars exist and are owned by the US Navy (53 systems and 10 trainers), Australia (4 systems), Saudi Arabia (7), Turkey (6), Italy (6), Spain (18), Greece (4) and Morocco (1). For more information, see Anthony J. Watts, ed., Jane’s Underwater Warfare Systems (Surrey, England: Jane’s Information Group, 2000), 102-103. 153 US Department of Commerce and US Navy, Joint Interim Report, Bahamas Marine Mammal Stranding Event of 15-16 March 2000, vi. 152

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resulting report indicated that resonance in air-filled cavities in the whales’ bodies was not likely to have been a direct cause of the Bahamas strandings. 154 A final report summarizing the findings of the entire investigation is pending peer review.155

3.7

LWAD

Concurrent with the SURTASS lawsuit and controversy over the Bahamas stranding, the NRDC filed a lawsuit on September 10, 2001 alleging the US Navy had violated NEPA by failing to prepare a programmatic-wide EIS for its Littoral Warfare Advanced Development (LWAD) program.156 This program carries out testing of experimental antisubmarine warfare technologies including low-frequency active sonars in coastal waters. The Bush administration responded to the suit by claiming that NEPA does not apply beyond US territorial waters, which generally extend three miles from shore. (NRDC’s interpretation was that NEPA covers all activity in the nation’s exclusive economic zone (EEZ) which extends 200 miles from shore.)157 The significance of this claim was attested to by its presence on the front page of the New York Times.158 Some environmentalists felt that if NEPA no longer applied to the EEZ – an area larger than the continental U.S.—the Bush administration’s new policy would be “the single greatest rollback of environmental protection ever.”159

154

See US Department of Commerce, Report of the Workshop on Acoustic Resonance as a Source of Tissue Trauma in Cetaceans, April 24 and 25, November 2000. 155. The final report is pending further input from marine mammal scientists. Personal communication with Roger Gentry, National Marine Fisheries Service, November 20, 2003. 156 Information on the LWAD program is available at www.onr.navy.mil/sci_tech/ocean/projects/lwad/default.htm. 157 Katherine Q. Seelye, “U.S. Seeks to Limit Environmental Law’s Reach Over Coastal Waters,” New York Times, August 10, 2002, A1. 158 Ibid. See also “Undermining Environmental Law,” New York Times, September 30, 2002, A24. 159 See “Defending NEPA from Bush’s Environmental Assault,” October 3, 2002, an NRDC press release, located at See also Seth Borenstein, “Critics Fear Bush’s Mark on Key Environmental Law,” The Miami Herald October 4, 2002. On the other hand, the US military is becoming increasingly concerned about what it calls “environmental encroachments” – conservation-based restrictions on deploying new technology. See Marc Kaufman, “Sonar Dispute Grows Louder Between Navy and its Critics,” Boston Globe April 17, 2002. The Bush administration has continued its pursuit of looser interpretations of environmental regulations with a recently passed law that provides the military with exemptions to the MMPA, see H.R. 1588, “National Defense Authorization Act for Fiscal Year 2004”

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On September 19, 2002, a federal judge in Los Angeles ruled that NEPA does, in fact, apply to activities such as the testing of Navy sonar, which are conducted beyond territorial waters but within the nation’s exclusive economic zone.160 The court, however, also ruled that the Navy was not required to carry out a programmatic EIS because the LWAD did not qualify as a program under NEPA.161

3.8

Other Focusing Events

Several other focusing events have occurred, some of which are still being investigated. These include stranding incidences in the Canary Islands, which were linked to Spanish-led military exercises; strandings in Puget Sound, which were coincident with mid-frequency sonar operations conducted by the US Navy’s guided missile destroyer, Shoup; and strandings off the coast of Scotland’s Western Isles, which were similarly linked to the U.K. Navy.162 In each of these cases, whale strandings were coincident with the use of military sonar.

available on http://thomas.loc.gov. Also see Jennifer Lee, “Military Exemption on Harming Environment,” The New York Times, March 6, 2003, A25, and Mark Schrope, “Environmental Laws Face Military Manoeuvres,” Nature 413 (September 6, 2001): 7. 160 See Natural Resources Defense Council v. US Dept. of the Navy (C.D. Cal. Sept. 19, 2002); also Gary Polakovic, “Environmental Review of Navy’s Sonar Testing Upheld,” Los Angeles Times, September 20, 2002. For a discussion of the geographical scope of NEPA, see Deirdre Goldfarb, “NEPA: Application in the Territorial Seas, the Exclusive Economic Zone, the Global Commons, and Beyond”, 32 Southwestern University Law Review 735 (2003). See also Josh Schnell, “NRDC c. US Navy: The District Court for the Central District of California Applies NEPA to the US EEZ for the First Time,” 16 Tulane Environmental Law Journal 215 (2003). 161 Natural Resources Defense Council v. US Dept. of the Navy (C.D. Cal. Sept. 19, 2002). 162 Initial notification of the Canary Islands strandings in Spain were posted on the MARMAM listserver on September 25, 2002 by Vidal Marin of the Society for the Study of the Cetaceans in the Canary Archipelago. Further information on the strandings is found in P.D. Jepson et al., “Gas-Bubble Lesions in Stranded Cetaceans,” 425 Nature 575, Ocotber 9, 2003. In regard to the strandings in Puget Sound, see e.g., Carla Wilson, “U.S. Destroyer’s Sonar Probed as Cause of Whale Disturbance,” Victoria Times Colonist, May 7, 2003, A1. Necropsies are presently being carried out on the animals stranded in this incident. Regarding European strandings, see “MoD Pressed Over SONAR Threat to Whales,” The Herald (Glasgow) July 24, 2000, 5; John Elliot, “New Navy Sonar Linked to Spate of Whale Deaths,” The Sunday Times (London), August 27, 2000, 11.

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Figure -6. USS Shoup between Vancouver and San Juan Islands. A pod of killer whales is seen in the foreground. Source: Ken Balcomb, Center for Whale Research.

But stranding events are not limited to military activities. In 2003, seismic exploration by Columbia University’s Lamont-Doherty Earth observatory was curtailed after several whales were found dead. In this case, an environmental NGO, the Center for Biological Diversity successfully filed for an injunction to stop the research.163 Other events that did not involve strandings were not as widely publicized. Often these events involved disagreements over the issuance of NMFS permits to conduct activities such as seismic exploration, rocket launches, and the construction of oil and gas production facilities.164

163

Center for Biological Diversity v. National Science Foundation, Plaintiff’s Motion for a Temporary Restraining Order granted. See 2002 U.S. Dist. LEXIS 22315, October 30, 2002. 164 See Incidental Harassment Authorization issued to Exxon Corporation for conducting a 3D seismic survey in the Santa Barbara Channel, California. Also, see the Small Take Authorization granted to Lockheed Corporation for launches of rockets from Vandenberg Air Force Base, California and the Incidental Harassment Authorization ranted to the US Air Force for launches of Delta II rockets from Vandenberg. For a description of these authorizations, see Marine Mammal Protection Act of 1972 Annual Report for 1995, (Washington, DC: National Marine Fisheries Service, 1995): 32-33. Regarding oil and gas exploration, see Final Regulations governing authorization of the unintentional take of small numbers of marine mammals during the course of oil and gas exploration, development, and production facilities in the Beaufort Sea; 65 Federal Register 102, May 25, 2000, 34013-34032.

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OTHER FACTORS CONTRIBUTING TO THE OCEAN NOISE CONTROVERSY

The previous section described how focusing events coalesced to form a broad range of environmental groups in the fight against increasing ocean noise. Although acoustic pollution is still considered a largely unrecognized problem, the activities of these NGOs are steadily elevating the issue to the public agenda.165 However, several other factors have also contributed to the visibility of the ocean noise pollution issue. As previously noted, one of the factors making the issue of noise politically visible is the “attractiveness” of marine mammal issues. The broad base of support that marine mammals enjoy in the U.S. and abroad certainly has contributed to the “media appeal” and “marketability” of the issue. Another factor that has specifically affected the public’s perception of low-frequency sonar is the demise of the Cold War. The public has questioned why sonars such as SURTASS are needed if the Soviet Union is no longer a threat. A lingering distrust of the US Department of Defense has led to suspicion that understanding global warming was not the only goal of the ATOC experiment and that, in fact, the Department of Defense has some other use for the technology.166 An additional factor that has contributed to the rise of the ocean noise debate is the increasing reliance of NGOs on the Internet as a low-cost tool for reaching a broad audience.167 In his paper on the media and the Internet’s role in ATOC, Dr. John Potter of Scripps Institution of Oceanography claimed that ATOC was a “modern mediafueled” policy issue. He maintained that the controversy was in part, due to

165

See for example, Helen Briggs, “Doomed Love Songs of Whales,” BBC news on-line, June 19, 2002, at which discusses the “unrecognized status” of ocean noise pollution. 166 See John Potter, “ATOC: Sound Policy or Enviro-Vandalism?” 47-48, supra note 13. Also see Kineon, ATOC: A Case Study In The Effect Of Political Pressure On Science, supra note 71. Interestingly, the ATOC program was funded by the congressionally mandated Strategic Environmental Research and Development Program, which was specifically created to convert former defense budget items into environmentally beneficial programs and products. In fact, one of the allegations of one NGO, the Great Whales Foundation, was that Scripp’s Environmental Impact Statement did not reflect the military obective of the experiment. In truth, of course, there was not military component to ATOC although the funds came from the Defense Department’s Advanced Research Projects Agency. For more information on the Strategic Environmental Research and Development Program, see <www.serdp.org.> 167 J. Zelwietro, “The Politicization of Environmental Organizations through the Internet,” in The Information Society 14 (1998): 45-56.

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the “extremely rapid and broad dissemination of information made possible by the information highway” and asserts that as information (and misinformation) about the experiment was broadcast across the Internet, “news of the ATOC project spread like electronic wildfire.”168 Regardless of the outcome of programs such as ATOC and SURTASS, these controversies provide a focal point for discussion and policy analysis with respect to underwater noise pollution. NGOs, primarily the NRDC, clearly have been instrumental in bringing the issue of ocean noise to the attention of governments and international organizations such as NATO. The active participation of NGOs has been instrumental in placing the issue of ocean noise on the public policy agenda. Their efforts in notifying and educating the public, deftly utilizing the Internet and the media, and constantly threatening litigation contributed in large part to the “route to government” for ocean noise pollution.169 Ocean noise can now be viewed as an “agenda item” in the U.S. and abroad. The next chapter examines the policies in place to address this new agenda item, discusses how ocean noise can be viewed within the framework of existing international law, and explores the route to government that other transboundary pollution issues have followed in the past.

168

Howard Stiff, “ATOC Pudding,” Science, (May 1994). See also Potter, “ATOC: Sound Policy or Enviro-Vandalism?”, supra note 13. 169 The “route to government” and agenda-setting are concepts developed in works by Thomas Birkland, “Focusing Events, Mobilization, and Agenda Setting,” in Journal of Public Policy 18 (1998), 53-74. See also Harold Lasswell, “The Decision Process: Seven Categories of Functional Analysis,” in Politics and Social Life, ed. Nelson W. Polsby et al. (Boston: Houghton Mifflin, 1963). Charles O. Jones, argues that the “routes that problems take to government are varied.” See Jones, An Introduction to the Study of Public Policy, ed. (New York: Harcourt Brace College Publishers, 1984), 65; and W. Roger Cobb and Charles D. Elder, Participation in American Politics: The Dynamics of Agenda Building (Boston: Allyn and Bacon, 1975).

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Chapter 4 POLICY DEVELOPMENT

This chapter examines the route to government that international pollution issues have followed in the past. It first validates the notion of ocean noise as a pollutant and emphasizes its transboundary nature. The chapter then discusses the evolution of international policy for radiation, thermal, and air pollution. It evaluates the development of air pollution regulation as a possible framework for noise pollution, focusing specifically on the evolution of the Convention on Long-Range Transboundary Air Pollution. Finally, the international legal framework provided by the 1982 United Nations Convention on the Law of the Sea and other pertinent international organizations and regional agreements is examined.

1.

TRAIL SMELTER AND INTERNATIONAL REGULATION OF TRANSBOUNDARY POLLUTANTS

Transboundary pollution law confronts an enormous challenge: it seeks to address environmental problems irrespective of boundaries in an international legal system that values, above all, territorial sovereignty of individual States. Over the years, several international disputes have stemmed from damage that occurred when pollutants from one state crossed into the territory of another state. As far back as 1909, a treaty between the United States and Great Britain provided that neither Canada nor the U.S.

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would allow the pollution of boundary waters to injure the health or property of the other.1 Almost 20 years later, the United States submitted a claim to the International Joint Commission (IJC), a mediating body that was established by the treaty, concerning damage to the State of Washington. The U.S. alleged that fumes from a smelter located seven miles across the international border with Canada were causing pollution in Washington.2 In 1931, the IJC decided that the Canadian smelter should limit its emissions and pay the U.S. compensation for damages.3 Conditions at the smelter did not improve, however, and harmful emissions continued. This led to the establishment of an arbitral tribunal in 1935 that was charged with determining whether damage had occurred, whether restrictions should be imposed upon the smelter, and whether the U.S. should be compensated.4 In March 1941, the final arbitral decision was issued: It asserted that a state has responsibility for any environmental damage it causes within or beyond its territorial limits.5 Specifically, the tribunal found that based on principles of international law:

1

See “Treaty Related to the Boundary Waters and Questions Arising Along the Boundary Between the U.S. and Canada,” signed at Washington, January 11, 1909; entered into force May 5, 1910. 36 Statutes at Large, 2448. See also Gerhard Von Glahn, Law Among Nations: An Introduction to Public International Law ed. (Boston: Allyn and Bacon, 1996), 139. 2 The International Joint Commission (IJC) was established by the 1909 Boundary Waters Treaty. It has six members; three appointed by the President of the U.S., and three appointed by the Prime Minister of Canada. Article X of the Boundary Waters Treaty allows for the IJC to make a decision regarding “any questions or matters of difference arising between the ... Parties” involving their rights, obligations or interests by the consent of the two parties. “A majority of the Commission has the power to render a decision of finding upon any of the questions or matters so referred.” 3 On August 7, 1928, the issue was referred to the IJC, which submitted a report on February 28, 1931 that recommended compensation and remedial measures. Eventually, Canada agreed to pay $350,000 for damages caused up to 1932. 4 An emissions convention, which established the Tribunal, was signed by the two parties on April 15, 1935. It was composed of Jan Frans Hostie, Belgium; Robert A.E. Greenshields, Canada; and Charles Warren, USA. The tribunal determined that the Government of Canada should pay the United States US$78,000 for damage that the Trail Smelter had done to the State of Washington from 1932 to October 1, 1937. This compensation was primarily for damage done to land along the Columbia River valley in the United States. A second arbitral decision followed and became known as the Trail Smelter Case. See Arbitral Tribunal, Montreal 16 April 1938 and 11 March 1941; United Nations Reports of International Arbitral Awards 3 (1947): 1905; American Journal of International Law 33 (1939): 182, and 35 (1941): 716. 5 Trail Smelter Arbitration (U.S. v. Can.), 3 U.N. Rep. Awards 1905, 1965 (1941), reprinted in 35 Am. J. Int’lL. (1941): 684 - 734 [hereinafter Trail Smelter]. See also Zygmunt J.B.

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no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or person therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.6 This decision in the Trail Smelter Case of 1941 is considered the landmark case of transboundary pollution litigation.7 Trail Smelter underscored the fact that environmental effects know no boundaries; they can spill across geopolitical frontiers. The most significant aspect of the case was that it required States to do more than make reparation for environmental damage—it also recognized the duty of States to take appropriate measures to protect the environment.8 The Tribunal emphasized that “a State owes at all times a duty to protect other States against injurious acts by individuals from within its jurisdiction.”9 The decision endorsed the concept that a sovereign state owes surrounding states protection from pollution that is created within its jurisdiction. The Trail Smelter case was one of the first cases to address an amorphous type of transboundary pollution. In fact, it remains the only international adjudication on the subject of air pollution to date.10 Noise in the ocean is analogous to the smoke and noxious fumes of Trail Smelter: it also can be considered a form of transboundary pollution.11 The

Plater et al., Environmental Law and Policy: Nature, Law, and Society, ed. (Minneapolis, MN: West, 1998), 1186. The Tribunal also found that Canada should pay the U.S. $78,000 for damage done to the State of Washington from 1932 through 1937. It also mandated that the smelter maintain equipment to measure wind velocity and direction, turbulence, atmospheric pressure and provide other data monthly to each government to ensure compliance. 6. Trail Smelter, 716. 7 Patricia Birnie discusses the role of Trail Smelter in the evolution of customary law concerning transboundary pollution and environmental harm in Chapter 3 of P. Birnie & A. E. Boyle, International Law and the Environment ed. (New York: Oxford University Press, 2002). Also see Cesare P.R. Romano, The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach (Kluwer Law International: The Hague/London/Boston 2000), 261-278; and generally John D. Wirth, Smelter Smoke in North America: The Politics of Transborder Pollution (Lawrence: University Press of Kansas, 2000). 8. Trail Smelter, 717–26 (stating that operations of the smelter should be subject to some control to avoid future damage). 9 The Tribunal was quoting Professor Clyde Eagleton in his book Responsibility of States in International Law (The New York University Press: New York, 1928), 80. 10. Birnie and Boyle, International Law and the Environment, 505, supra note 7. 11 See Harm M. Dotinga and Alex G. Oude Elferink, “Acoustic Pollution in the Oceans: The Search for Legal Standards,” (discussing ocean noise as a pollutant) 31 Ocean Development and International Law (2000). See also Kenneth Brink, “The Silence of the

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1982 United Nations Convention on the Law of the Sea defines marine pollution as: the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.12 Because acoustic emissions involve the introduction of energy into the marine environment and may involve deleterious effects to marine mammals, noise can clearly be considered pollution under the 1982 UN Convention on the Law of the Sea.13

2.

THE POLLUTION PROVISIONS OF THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the international legal framework for nearly all ocean uses. It has been ratified by 138 states and the European Union and is considered a model for the evolution of international environmental law.14 The Convention codified law requiring states to prevent pollution in Part XII, which contains 45 articles that deal with protecting and preserving the

Sea: Noise Pollution May be Fatal to Whales,” The Providence. Journal, September 17, 2000, E13. 12. United Nations Convention on the Law of the Sea, December 10, 1982 art. 1(1)(4), 21 I.L.M. 1261, 1271 (1982) [hereinafter UNCLOS]. 13 Other international conventions have adopted the same definition of pollution. See for example the Convention on Long-Range Transboundary Air Pollution, 18 ILM 1442 (1979) and the OSPAR Convention, text located at <www.ospar.org/eng/html/welcome.html.> 14 See United Nations Doc. A/44/461, Report of the UN Secretary General on the Protection and Preservation of the Marine Environment (1989). See also Patrica Birnie and Alan Boyle, International Law and the Environment, 48 supra note 7. For the latest developments concerning the status of the Convention (in force from November 16, 1994), see the U.N. Division for Ocean Affairs and Law of the Sea website at

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marine environment.15 These articles cover pollution from land-based sources, the atmosphere, vessels, and dumping, among other provisions.16 The pollution provisions of the 1982 United Nations Convention on the Law of the Sea are based on the principle expounded in Article 192, which provides that “states have the obligation to protect and preserve the marine environment.”17 Article 192 codifies the principle put forth in the Trail Smelter case that all states have a requirement to act proactively to avoid transboundary damage to other states. This Article is an essential component of the Convention’s comprehensive approach to protecting and preserving the environment. Moreover, Article 192 is the first explicit statement of a general obligation to protect and preserve the marine environment found in a global treaty.18 Article 194 of the Convention extends the principle of Trail Smelter to areas beyond the jurisdiction of individual states. Specifically, it requires that: States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.19 While Trail Smelter only applied to territory owned by individual states, the pollution prevention obligation of the 1982 United Nations Convention on the Law of the Sea implies that environmental protection is mandated even for the high seas. Article 194 links the general principle contained in Article 192 to the formal rules of law found in the subsequent articles of Part XII.20 For example, Article 197 clearly supports multilateral efforts to prevent pollution prevention and reliance on international organizations, two approaches that are essential to address transboundary pollutants such as

15

See UNCLOS, Part XII, Articles 192-237. UNCLOS, Arts. 208-212. 17 See Article 192, “General Obligation,” in UNCLOS, Section 5, “International Rules And National Legislation To Prevent, Reduce And Control Pollution Of The Marine Environment.” 18 Myron Nordquist, ed. United Nations Convention on Law of the Sea 1982; A Commentary, Vol. IV (Dordrecht: Martinus Nijhoff Publishers, 1990): 36. 19 UNCLOS. Art. 194 (2). 20 Myron Nordquist, ed. United Nations Convention on Law of the Sea 1982; A Commentary, Vol. IV, 53, supra note 18. 16

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noise. Specifically‚ this article mandates cooperation on a global or regional basis by requiring that: States shall cooperate on a global basis and‚ as appropriate‚ on a regional basis‚ directly or through competent international organizations‚ in formulating and elaborating international rules‚ standards and recommended practices and procedures consistent with this Convention‚ for the protection and preservation of the marine environment‚ taking into account characteristic regional features.21 This article formulates the obligations of states to cooperate on a global or regional basis‚ directly or through competent international organizations‚ in developing international rules and standards to protect and preserve the marine environment. Similarly‚ Article 200 requires that states carry out studies‚ research programmes and exchange of information and data— another requirement for the effective management of ocean noise pollution.22 The need for monitoring the risks or effects of marine pollution is embodied in Article 204‚ which requires that: 1. States shall‚ consistent with the rights of other States‚ endeavour‚ as far as practicable‚ directly or through the competent international organizations‚ to observe‚ measure‚ evaluate and analyse‚ by recognized scientific methods‚ the risks or effects of pollution of the marine environment. 2. In particular‚ States shall keep under surveillance the effects of any activities which they permit or in which they engage in order to determine whether these activities are likely to pollute the marine environment.23 The provisions in this article‚ linked to the requirement in Article 200 for international cooperation‚ establish the base from which an effective management system can be developed.24 21

UNCLOS‚ Art. 197‚ “Cooperation on a global or regional basis.” UNCLOS‚ Art. 200‚ “Studies‚ research programmes and exchange of information and data.” Myron Nordquist emphasizes that a comprehensive approach to the marine environmental protection requires an adequate data base‚ research and study programs‚ and free and broad dissemination of data. This is particularly important with regard to the oceans where pollutants can commonly spread over vast areas. See Myron Nordquist‚ ed. United Nations Convention on Law of the Sea 1982; A Commentary‚ Vol. IV‚ 91‚ supra note 18. 23 UNCLOS‚ Art. 204‚ “Monitoring of the risks or effects of pollution.” 24 Myron Nordquist‚ ed. United Nations Convention on Law of the Sea 1982; A Commentary‚ Vol. IV‚ 112‚ supra note 18. 22

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Article 206 contains a provision that requires an assessment of the potential effects of activities that may cause substantial pollution: When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment‚ they shall‚ as far as practicable‚ assess the potential effects of such activities on the marine environment.. .25 This Article’s requirement to make environmental assessments is related to the duty of monitoring expressed in Article 204. However‚ Article 206 requires an assessment of planned activities before they begin. It contributes to a comprehensive environmental management system and specifically embodies the obligation of States to “take all necessary measures to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment” as enunciated in Article 194 (2).26 In summary‚ Part XII of the 1982 United Nations Convention on the Law of the Sea provides a comprehensive framework for international efforts in pollution prevention. It is broad enough in scope that it can apply to newly emerging forms of pollution‚ such as noise‚ yet specific enough to impose some requirements on States to act proactively in preventing harm from such pollutants. Other Articles in the 1982 United Nations Convention on the Law of the Sea also narrowly apply to some aspects of undersea noise pollution. For example‚ Article 246 addresses the use of explosives during marine scientific research in the exclusive economic zone and on the continental shelf of a coastal State. It is one of the few references in the Convention that specifically applies to the use of noise or explosives. If explosives are used during scientific research‚ the Article provides that coastal states may “in their discretion withhold their consent to the conduct of a marine scientific research project of another State or competent international organization.”27 The Convention does not refer to the use of explosives for purposes such as oil exploration or marine construction. No other references to underwater acoustics or the use of sonar is found in the text of the 1982 UN Convention on the Law of the Sea.28

25

UNCLOS‚ Art. 206‚ “Assessment of potential effects of activities.” Myron Nordquist‚ ed. United Nations Convention on Law of the Sea 1982; A Commentary‚ Vol. IV‚ 122‚ supra note 18. 27 Ibid.‚ para. 5. 28 A search was done on the words “acoustic‚” “noise‚” “sound‚” and “sonar” within the text of UNCLOS. 26

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Some sections of the Convention‚ however‚ deal specifically with the conservation of marine mammals and therefore‚ may apply to ocean noise. For example‚ Article 64‚ “Highly Migratory Species” applies to several families of cetaceans.29 It requires the conservation and optimum utilization of species that habitually move through extensive areas of ocean space‚ both within and beyond the exclusive economic zone. More specifically‚ Article 65 applies directly to marine mammals‚ requiring states to co-operate “with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation‚ management and study.”30 It clearly indicates that marine mammals are to be given particular consideration.31 In conclusion‚ the 1982 United Nations Convention on the Law of the Sea contains several provisions that apply to pollution prevention‚ and others that apply specifically to marine mammal management. Together‚ these provisions provide a framework for the evolution of international regulation of underwater sound.

3.

OCEAN NOISE AS A TRANSBOUNDARY POLLUTANT

At the time of the Trail Smelter controversy‚ scientists and legislators could not have anticipated the negative effects from the increasing presence of a similar‚ seemingly innocuous type of pollutant—ocean noise. At first glance‚ the effects from ocean noise are subtler than the environmental effects of air pollution‚ but nevertheless can constitute a threat to the marine ecosystem. One of the earliest references to ocean noise as a pollutant is found in a 1993 report by the Worldwatch Institute‚ a non-profit public policy research organization.32 The report specifically listed ten types of marine pollution‚ their causes‚ and their effects.33 Noise‚ the tenth pollutant on the list‚ was

29

See UNCLOS‚ Annex I‚ “Highly Migratory Species.” UNCLOS‚ Art. 65‚ “Marine mammals.” 31 Myron Nordquist‚ ed. United Nations Convention on Law of the Sea 1982; A Commentary‚ Vol. II (Dordrecht: Martinus Nijhoff Publishers‚ 1993): 660. 31 UNCLOS. Art. 194 (2). 32 Abandoned Seas: Reversing the Decline of the Oceans‚ Worldwatch Paper 116‚ (Worldwatch Institute: Washington‚ D.C.‚ 1993). For more information on the Worldwatch Institute‚ see its webpage at www.worldwatch.org last accessed on November 18‚ 2002. 33 Ibid.‚ 18. 30

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attributed to supertankers and other large vessels and machinery. Since then‚ concerns over ocean noise pollution have continued to grow and have garnered more attention from the mass media.34 In 1994‚ the US National Academy of Sciences stated “Noise is widely acknowledged to be an environmental pollutant for humans and many other terrestrial species‚ and it is no doubt a pollutant for marine animals as well.”35 In an interview on National Public Radio broadcast in August 2001‚ Dr. Chris Clark‚ the director of the Center for Bioacoustics at Cornell University‚ referred to human activities in the ocean as creating a type of “acoustic smog.”36 This book suggests that anthropogenic noise in the ocean can be viewed as a transboundary pollutant. To validate this‚ ocean noise must be shown to be first‚ transboundary‚ and second‚ a pollutant. Chapter Two laid the groundwork for the claim that ocean noise is transboundary in nature. It explained the physics of sound and the unique characteristic of noise in the ocean that makes it transboundary—namely its ability to travel over great distances. Chapter Three furthered the discussion by identifying examples of noise crossing boundaries (as in the case of ATOC and SURTASS) and the international consequences of its effects (as in the case of the Greek whale strandings). This chapter then developed the concept of noise as a pollutant. It focused on the definition of “pollutant” found in UNCLOS‚ which clearly states that a pollutant can be considered a substance or energy. The 1982 UNCLOS definition also requires that such a substance or energy result in deleterious effects. The ability of loud sounds in the ocean to kill or injure marine mammals and affect their behavior satisfies this requirement. This establishes the basis on which ocean noise can be considered a transboundary pollutant. Its transboundary nature implies that sound can create negative externalities over across political and legal boundaries and affect marine mammal populations. As such‚ it is comparable to air pollution in Trail Smelter‚ the landmark legal case concerning transboundary pollution. 34

For discussions of treatments of noise as a pollutant‚ see Kenneth Brink‚ Silence of the Sea‚ supra note 11; OSB-1994‚ OSB-2000; See also‚ Dotinga and Elferinke‚ “Acoustic Pollution in the Oceans: The Search for Legal Standards” supra note 11; Jasny‚ Sounding the Depths: Supertankers‚ Sonars‚ and the Rise of Undersea Noise (New York: Natural Resources Defense Council‚ 1999); and E. McCarthy‚ “International Regulation of Transboundary Pollutants: The Emerging Challenge of Ocean Noise‚” 6(2) Ocean and Coastal Law Journal‚ 2001: 257-292. 35. OSB – 1994‚ 9. 36 From a segment entitled “Bioacoustics” on the Living on Earth radio program‚ carried by National Public Radio‚ on August 3‚ 2001. The manuscript for the radio show can be found online at

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Because of its transboundary nature‚ ocean noise is best regulated with an international‚ rather than purely national‚ approach. The International Maritime Organization (IMO) has articulated the need for globally (as opposed to regionally or locally) uniform regulations to prevent pollution by adopting a resolution that states‚ “As regards operational pollution there is a strong preference within IMO and its Member States for the development of globally uniform regulations rather than a proliferation of diverse regional or local standards.”37 Patricia Birnie‚ a noted scholar of international environmental law‚ points out several problems with addressing transboundary pollution solely through national law. She claims no common legal standards will govern the remedies available in states unless there is “parallel progress in harmonizing environmental standards and liability for damage.”38 Furthermore‚ she observes that “even where adequate [national] laws exist‚ problems of jurisdiction‚ the availability of remedies‚ and enforcement in transboundary cases may limit the usefulness [of a national approach.]”39 The shortcomings of a purely national approach to ocean noise became apparent after the 1996 Greek whale strandings when liability questions arose. In this incident‚ it was unclear who was responsible because the noise source belonged to one state‚ while the emissions were controlled by another‚ and the effects occurred in an area under the jurisdiction of a third. This incident‚ along with the international litigation resulting from externalities from other transboundary pollutants such as air pollution‚ demonstrates the need for a multilateral approach to ocean noise. Because noise pollution can be considered a pollutant as defined by the 1982 Law of the Sea Convention and an international regulatory approach is clearly mandated‚ an investigation of the UN’s treatment of other types of pollutants could clarify how anthropogenic ocean noise should be regulated. The following section lays the groundwork for potential regulation of undersea noise pollution and discusses how it might evolve.

37

See IMO Resolution A.720(l 7)‚ para. 1.4.3. This Resolution has been superceded by Resolution A.927(22) of November 29‚ 2001. 38 Birnie and Boyle‚ International Law and the Environment ed.‚ 268‚ supra note 7. 39 Ibid.

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PREVIOUS INTERNATIONAL REGULATION OF OTHER TYPES OF POLLUTION: THE SEARCH FOR ANALOGIES

Because the 1982 Convention on the Law of the Sea’s treatment of pollution is comprehensive‚ any type of substance or energy can be considered a pollutant even if it is not referenced explicitly in the Convention text.40 The Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) originally defined pollution as the introduction of “substances” to the marine environment.41 Later‚ the definition was expanded to include the term “energy”‚ to encompass thermal pollution as well.42 This deliberate inclusion of energy to the definition of pollution clearly indicates that heat and radiation‚ two forms of energy‚ can also be considered pollutants. Like heat and radiation‚ noise is a form of energy and shares with them some important characteristics. Accordingly‚ the treatment of heat and radiation may provide some guidance as to the appropriate approach to noise pollution.

4.1

Thermal Ocean Pollution

Thermal ocean pollution is created by the emission of heated waters into the sea after it is used to cool generators and other industrial equipment.43 The increasing number of nuclear power generating plants has led to concern that heated discharge water from these plants could raise ambient water temperature several degrees and have adverse effects on the ecology of local waters.44 Two of the major effects of thermal pollution are an increase in the metabolic rates of aquatic organisms and a decrease in oxygen solubility‚

40

For a discussion of the comprehensive nature of the UNCLOS III marine pollution regime, see Alan E. Boyle, “Marine Pollution Under the Law of the Sea Convention,” American Journal of International Law 79 (1985): 347-359. 41 GESAMP, Doc. GESAMP 1/11 of July 17, 1969, at 14, para. 35. Also, Doc. GESAMP II/11, Annex V, 16-17. 42 See M. Tomczak, “Defining Marine Pollution: A Comparison of Definitions Used by International Conventions,” Marine Policy 8 (1984): 311-322. See also Dotinga and Elferink, “Acoustic Pollution in the Oceans: The Search for Legal Standards,” 158, supra note 11; and Myron Nordquist, ed. United Nations Convention on Law of the Sea 1982; A Commentary, Vol. IV, 40-41, supra note 18. 43 For a background on thermal ocean pollution, see Food and Agriculture Organization, “Thermal Discharges in the Marine Environment,” Rep. Stud. GESAMP, (24), 1984. 44 See Max N. Edwards, “Legal Control of Thermal Pollution,” Natural Resources Law 2(1) (1969).

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both of which can lead to mortalities in animals and changes in the ecosystem.45 One example of the negative impacts of thermal discharges is found in the Brayton Point Power Station located on the border of Rhode Island and Massachusetts in the U.S.46 Evidence has shown that the hot water discharged from Brayton Point‚ New England’s largest fossil fuel power plant‚ is adversely affecting fish populations in Mount Hope Bay.47 The power company presently flushes 95-degree water into the shallow‚ narrow bay‚ raising the average temperature in the bay. Because power plants are usually located on land‚ the effects of their discharges are geographically limited. But as seen in the Brayton Point‚ which sits on the boundary of two states‚ such discharges still can have transboundary effects. However‚ thermal energy is not a concern on the high seas because the geographical scope of the affected area is confined to the plume of hot water and its immediate surroundings. For example‚ the thermal effects of the Brayton Point Power Station are limited to a section of Mount Hope Bay‚ which‚ in its entirety encompasses only 14 square miles.48 Other effects are even more geographically limited: The outfall from the Diablo Canyon nuclear power plant on the California coast affects only 7‚000 square meters.49 As a result‚ the legal control of thermal pollution has historically been at local‚ not international levels.50

4.2

Radiation

Radiation‚ like ocean noise‚ can be a naturally occurring phenomenon. Seawater is radioactive due to the presence of potassium-40‚ uranium‚

45

R.B. Clark‚ Marine Pollution‚ ed. (Oxford: Clarendon Press‚ 1997)‚ 122-124. For a overview of the Brayton Point Plant‚ see the EPA website dedicated to the permitting of the plant at For environmentalists’ perspective on the plant‚ see the Save the Bay website at See also David Arnold‚ “Environmental Fix Ordered at Massachusetts Utility‚” Boston Globe‚ July 23‚ 2002‚ A1. 47 Biologists say that the warm water is not lethal to adult fish but is devastating to fish larvae. Fish populations declined precipitously after 1984 when plant operators converted a previously closed cooling system to a system open to the bay. This increased the plant’s discharge of warm water by 45%. 48 See David Arnold‚ “Environmental Fix Ordered at Massachusetts Utility.” 49 R.B. Clark‚ Marine Pollution‚ ed.‚ 124‚ supra note 45. 50 See Max N. Edwards‚ “Legal Control of Thermal Pollution‚” supra note 44; also Donald P. de Sylva‚ “The Unseen Problems of Thermal Pollution‚” Oceans Magazine 1 (1968): 38. Waste heat is already acknowledged as a pollutant in the United States where it is included in Section 502 of the Federal Water Pollution Control Act. 46

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thorium‚ and tritium‚ and other radionuclides.51 Marine sands have even greater radioactivity due to the accumulation of radionuclides in the seabed.52 However‚ radioactivity from humans was first introduced to the marine environment near the end of WWII with the detonation of the first nuclear weapons. These inputs continued despite the 1963 Nuclear Test Ban Treaty signed by the U.S.‚ the U.K.‚ and the former U.S.S.R.53 From 1963 to 1974‚ atmospheric tests were conducted by France and China; since then‚ testing has been generally conducted underground.54 Another source of radioactive waste in the oceans is the cooling water that is discharged at sea by nuclear reactors. Nuclear powered ships and submarines emit some radioactivity‚ but it is widely distributed and‚ therefore‚ considered to be trivial in comparison to that discharged by nuclear weapons testing‚ nuclear power stations and fuel reprocessing plants.55 Pollution resulting from dumping nuclear wastes into the ocean has been an ongoing problem for the international community and has been addressed within the framework of international law.56 Article 25 of the 1958 Convention on the High Seas provided that each State “shall take measures to prevent pollution of the seas from the dumping of radioactive waste‚ taking into account any standards and regulations which may be formulated by the competent international organizations.”57 This treaty also required that “all states shall cooperate with the competent international organizations in taking measures for the prevention of pollution of the seas or air space above‚ resulting from any activities with radioactive materials or other harmful agents.”58

51

R.B. Clarke, Marine Pollution, ed., 99. Table 7.1, “Natural levels of radioactivity in surface seawater,” supra note 45. 52 Ibid. 53 “Treaty Banning Nuclear Weapon Tests In The Atmosphere, In Outer Space And Under Water,” August 5, 1963, entered into force October 10, 1963. American Journal of International Law 57 (1963): 1026. 54 See R.B. Clarke, Marine Pollution, ed., 99-100, supra note 45. 55 R.B.Clarke, Marine Pollution, ed., 101, supra note 45. 56 E.D. Brown, “International Law and Marine Pollution: Radioactive Waste and “Other Hazardous Substances,”” Natural Resources Journal 11 (1971): 221; Jack Wm. Hodges, “International Law and Radioactive Pollution by Ocean Dumping: “With all their Genius and with all their Skill,”” San Diego Law Review 11 (1974): 757. See also, International Atomic Energy Agency, “Principles for Establishing Limits for the Release of Redioactive Materials into the Environment,” IAEA Saf. Serv., 45, 1978. 57. Convention on the High Seas, April 29, 1958, art. 25, para. 1, 13 US Treaties 2312, 2314, 450 U.N.T.S. 6465, 6482. 58. Ibid., Para. 2.

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Ocean dumping of radioactive solid wastes was first practiced in 1946‚ and has been slowly brought under international control.59 Initially‚ the 1972 London Convention prohibited the dumping only of “high-level” radioactive matter‚ and allowed the dumping of low-level waste.60 However‚ growing opposition by a number of convention parties and pressure from NGOs led to a voluntary 1983 moratorium on all radioactive dumping‚ pending further research.61 In the early-mid 1990’s‚ the London Dumping Convention’s agenda became increasingly concerned with enhancing its environmental standards. This culminated in the agreement‚ in November 1996‚ of a new London Convention Protocol‚ which made the moratorium on radioactive dumping of all materials binding on all parties.62 This protocol is presently undergoing a process of ratification and has not yet entered into force.63 Once entered into force‚ its single most significant effect will be to move away from a list of materials which may not be disposed at sea to a list of materials which may be considered for dumping‚ all others being prohibited. Noise is similar to radiation in several ways: both are forms of energy‚ both can be created as a byproduct of other activities‚ and both can result in serious negative externalities. But several very important differences exist as well. For example‚ radiation lingers; the half-life of caesium-137‚ a radioactive pollutant found in the ocean‚ is 30 years.64 Conversely‚ acoustic energy in the ocean travels approximately 1500 meters per second and can dissipate rapidly.65 Radiation also differs from sound in that it can be

59

R.B. Clarke‚ Marine Pollution‚ ed.‚ 103‚ supra note 45. Dumping was to occur in compliance with guidelines provided by the International Atomic Energy Agency. See IAEA Doc. INFCIR/205/Add. 1‚ (1975). 61 London Dumping Convention (LDC) Resolution 14(7)‚ 1983 and LDC Resolution 21(9)‚ 1985. 62 Except for Russia‚ which objected. Resolution LC.51 (16); text of 1996 Protocol‚ Annex I found at International Legal Materials 36(1) (January 1997): 21. See also de la Fayette‚ 13 IJMCL (1998)‚ 515; IMO‚ Report of the Consultative Meeting‚ LC 21/13 (1999)‚ para. 6. Also‚ the UK reserved the right to resume dumping of low-level radioactive waste in the future. See Birnie‚ International Law and the Environment ed.‚ 423‚ supra note 7; also Hansard‚ HC Debs‚ vol. 153‚ col. 464 (1989). 63 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter‚ December 29‚ 1972‚ art. IV § 1‚ 26 U.S.T. 2403‚ 2407‚ 11 I.L.M. 1294‚ 1297. The 1996 Protocol led to the new title‚ London Convention. For the status of the protocol‚ see the London Convention website at <www.londonconvention.org.> 64 Ibid.‚ 102. 65 George L. Pickard and William J. Emery‚ Descriptive Physical Oceanography‚ ed. (New York: Pergamon Press‚ 1982)‚ 23. 60

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concentrated by organisms and passed on to higher trophic levels. This ability to bioaccumulate or biomagnify sets it apart from ocean noise.66 But perhaps the most fundamental difference between the two forms of energy is that radiation can be treated as a substance. As such‚ radioactive substances‚ rather than the emissions‚ are usually regulated. Therefore‚ bans on the dumping of radioactive substances or materials can clearly be monitored and enforced.67 In fact‚ most references to radioactive materials in the ocean define them as hazardous wastes and the laws in place generally apply to dumping or maritime transport of radioactive materials. This practice of dumping is relevant to radioactive materials but cannot be applied to noise.68 Noise in the ocean cannot be treated as a deliberate “waste” in the way that radioactive materials have been. The consideration of “radiation” vis-à-vis “radioactive materials” leads to a compelling question that recurs in this study: should a pollution source be regulated or should its emissions be regulated? In the case of radiation‚ it is the source that has been regulated historically. Legal instruments such as the London Convention illustrate this approach.69 No laws expressly prohibit the emission of radiation at sea; instead‚ the laws control the source (e.g.‚ nuclear reactors on ships).70 Is this source-based approach appropriate for the regulation of ocean noise? Not surprisingly‚ regulating the source presents a challenge: The sources of noise at sea are numerous‚ diverse‚ and transient. Because of the sheer number of sound sources and their widespread distribution‚ it would be problematic to monitor and enforce regulations. Also‚ due to the reliance of

66

However‚ the long-term‚ cumulative effects of noise on marine life cannot be ignored and are becoming of increasing concern. See for example‚ “Cumulative Impacts‚” in OSB2000‚ 71-72. 67 The essence of the London Convention is that matter may not be dumped at sea without a permit issued by the relevant national authorities. See 1972 London Dumping Convention‚ Article 4. No dumping may take place within the internal waters or territorial sea of another state without its consent. Article 7 of the London Convention requires parties to take measures regarding vessels registered in its territory or flying its flag that are loading matter which is to be dumped. The question of high seas enforcement however‚ remains open as port state enforcement is confined to actual loading. 68 “Dumping” has been defined as the “deliberate disposal at sea of wastes or other matter from vessels‚ aircraft‚ platforms or other manmade structures.” See the IMO website on the London Convention at <www.imo.org/Conventions.> 69 “Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter‚” December 29‚ 1972‚ 11 ILM 1294‚ 1297. 70 Chapter VIII‚ “Nuclear Ships‚” of SOLAS provides basic requirements for nuclear-powered ships and is especially focused on radiation hazards. See International Convention for the Safety of Life at Sea‚ 1184 UNTS 2; in force 25 May 1980 and subsequently amended. See <www.imo.org/conventions.>

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many industries on underwater sound‚ it would be difficult to equitably establish rules that impose decibel limits on individual sources finders‚ sonars‚ ship’s engines‚ oil drilling rigs) without opposition from industry groups. Furthermore‚ a competent and empowered international organization would have to oversee all the sources of noise in the ocean. What organization could carry out that task? Herein lies another important distinction between radiation and noise. The IMO regulates the dumping of radioactive materials from ships‚ and the International Atomic Energy Agency oversees other radioactive discharges.71 But no international instrument or agency currently exists that has a mandate to oversee all sources of noise in the ocean. Although politically challenging and fraught with controversy‚ the establishment of such an international convention or the designation of responsibility to existing international organizations will likely be required if effective regulation of ocean noise is to occur.72

71

The IMO is responsible for the Secretariat duties related to the London Convention. As such‚ it provides the listing of materials that may be dumped‚ found in Annex 1 of the London Convention. For an overview of the duties and responsibilities of the IMO‚ see their website at <www.imo.org.> The IAEA is an independent intergovernmental‚ organization‚ in the United Nations family‚ that serves as the global focal point for nuclear cooperation. As such‚ it assists its member states in planning for and using nuclear science and technology for peaceful purposes. It also develops nuclear safety standards and verifies that states comply with non-proliferation agreements and use nuclear material only for peaceful purposes. For an overview of the mission of the IAEA‚ see As many radioactive sources are within the confines of individual states (as opposed to the high seas)‚ the control over radioactive sources is often left to such states. The IAEA director‚ General Mohamed ElBaradei‚ has pointed out that many countries lack the resources or the national structures to effectively control radioactive sources. See on-line article‚ “Inadequate Control of World’s Radioactive Sources” at on January 31‚ 2003. 72 In the U.S.‚ the National Research Council’s Committee on Potential Impacts of Ambient Noise in the Ocean on Marine Mammals has recommended that a mandate be provided to a single federal agency to coordinate ocean noise monitoring and research. See OSB2003‚ 5. Some environmental agencies have called for a similar mandate for an international organization.

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137

Air Pollution

Air pollution has numerous sources and its effects can prove devastating to entire ecosystems.73 Following the Trail Smelter case‚ the effects of air pollution were not addressed again internationally until the early 1950s when the phenomenon of acid rain was first identified.74 Specifically‚ it was found that sulfur emissions could be deposited as acid rain and snow and harm flora and fauna.75 Scandinavian environmentalists were alarmed by the damage caused by acid rain‚ especially because much of it had transboundary origins—most of the sulfur in the air over Scandinavia came from northern and Eastern Europe.76 Similarly‚ American environmentalists were concerned when they realized the extent to which the U.S. and Canada exchanged airborne pollutants.77 Because air pollutants could travel several thousand kilometers before deposition and consequent damage‚ cooperation at an international level was necessary to address the problem of acidification.78 Concerns over sulfur emissions and acid rain led to the creation of the Convention on Long-Range Transboundary Air Pollution (CLRTAP).79 In

73

See generally‚ Transboundary Air Pollution: International Legal Aspects of the Cooperation of States‚ ed. Cees Flinterman‚ Barbara Kwiatkowska‚ and Johan Lammers (Hingham‚ MA: Kluwer Academic Publishers‚ 1986) and United Nations‚ Transboundary Air Pollution: Effects and Control: A Report Prepared Within The Framework Of The Convention On Long-Range Transboundary Air Pollution (New York: United Nations‚ 1986). 74 Armin Rosencranz‚ “Current Developments: The ECE Convention of 1979 on Long-Range Transboundary Air Pollution‚” American Journal of International Law‚ 75 (1981): 975. 75 Jorgen Wettestad‚ “Clearing the Air: Europe Tackles Transboundary Pollution‚” Environment‚ 44(2) (2002): 34. 76 Armin Rosencranz‚ “Current Developments: The ECE Convention of 1979 on Long-Range Transboundary Air Pollution‚” 975‚ supra note 74. 77 Ibid. 78 A statement by President Leonid Brezhnev of the Soviet Union at the 1975 East-West meeting of the Conference on Security and Cooperation in Europe in Helsinki created the opportunity for an international agreement on transboundary air pollution. He challenged attendees to reach multilateral solutions to three compelling problems that affected all of Europe: energy‚ transport‚ and the environment. Swedish and Norwegian delegates then seized the opportunity to resolve the problem of long-range transport of air pollutants to their countries. See Armin Rosencranz‚ “Current Developments: The ECE Convention of 1979 on Long-Range Transboundary Air Pollution‚” supra note 74. 79 The ECE Convention of 1979 on Long-Range Transboundary Air Pollution‚ text reprinted in 18 ILM 1442 (1979); also available on-line at <www.fletcher.tufts.edu/multi.atmos.html>. [hereinafter referred to as CLRTAP.] “Longrange transboundary air pollution” is defined as pollution having effects at such a distance

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1979‚ thirty-four members of the United Nations Economic Commission for Europe signed the first multilateral accord on air pollution and the first environmental agreement to involve all the states of North America and Eastern and Western Europe.80 Entered into force in 1983‚ the Convention represented an international‚ legally binding instrument that dealt with the problems of air pollution on a regional basis. When created‚ the convention was touted by its chairman‚ Sweden’s Olof Johansson‚ as “a breakthrough in the development of international environmental law.”81 As such‚ it created the essential framework for controlling and reducing the damage to human health and the environment from transboundary air pollution and laid the foundation for other environmental treaties to follow.82 However‚ the Convention had many weaknesses.83 Foremost‚ it required that sulfur emissions be reduced with the “best available technology” only when “economically feasible.”84 Furthermore‚ it allowed each party to decide for itself how best to reduce sulfur dioxide within its borders.85 Also‚ the agreement contained a provision that required states planning to increase their export of sulfur to consult with the potential “importers”—that is‚ those states that would suffer the effects of the resulting acid rain.86 But this provision applied only to sulfur discharges that were “significant‚” a determination subject to conjecture.87 These untenable obligations were due to a compromise between the United Kingdom and the Federal Republic of Germany (two of Europe’s

that “it is not generally possible to distinguish the contributions of individual emission sources or groups of sources.” See Article 1(b) of CLRTAP. 80 Armin Rosencranz‚ “Current Developments: The ECE Convention of 1979 on Long-Range Transboundary Air Pollution‚” supra note 74. See also Birnie and Boyle‚ International Law and the Environment‚ ed.‚ 508‚ supra note 7. 81 Amasa Bishop‚ “High-Level Meeting Within the Framework of the ECE on the Protection of the Environment‚ 13-16 November 1979‚” Environmental Conservation 2(1980): 165. 82 For example‚ the 1985 Vienna Convention for the Protection of the Ozone Layer similarly had to reconcile the interests of a number several groups‚ including developing countries (such as India‚ China and Brazil)‚ European countries‚ and the U.S. See Convention for the Protection of the Ozone layer‚ ILM 26 (1987)‚ 1529. 83 . See Armin Rosencranz‚ “Current Developments: The ECE Convention of 1979 on Long-Range Transboundary Air Pollution‚” 980. 84 CLRTAP‚ Article 6‚ supra note 13. 85 Rosencranz‚ “Current Developments: The ECE Convention of 1979 on Long-Range Transboundary Air Pollution‚” 980‚ supra note 74. 86 ECE Convention of 1979 on Long-Range TB Air Pollution‚ Arts. 5 and 8. See also an interview by Armin Rosencranz with Henri Smets of the OECD Environmental Section‚ in Paris‚ on 19 November 19‚ 1979. Cited in Rosencranz‚ “Current Developments: The ECE Convention of 1979 on Long-Range Transboundary Air Pollution‚” 977‚ supra note 74. 87 The term “significant’ was used in Article 5 and 8 of the treaty.

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largest polluters)‚ and Norway and Sweden (who suffered some of the most severe environmental consequences from transboundary acid rain).88 As one author summed it up‚ the Convention was the “perfect solution to the victim countries’ need for international recognition of the acid rain problem and the polluting countries’ need to continue to pollute.”89 Clearly‚ the agreement lacked the authority to ensure effective action. Although it called for the sharing of data‚ continued monitoring of pollutants‚ and collaborative research‚ it contained no limits‚ timetables‚ monitoring procedures‚ or enforcement provisions.90 It was considered to be weak‚ containing no common strategy for acid rain control or abatement‚ nor a provision for third party settlement of disputes.91 Since the Convention entered into force in 1983‚ it has been extended by eight protocols that have provided more specific requirements for member states.92 For example‚ the 1985 Protocol on the Reduction of Sulfur Emissions required that polluters reduce emissions or their transboundary fluxes by 30 percent by 1993.93 Since 1985‚ concerns over air pollution have expanded to include not only acid rain but also ground-level ozone and eutrophication. As a result‚ more recent protocols address specific pollutants such as nitrogen oxide‚ volatile organic compounds‚ heavy metals‚ and persistent organic pollutants.94 In addition to laying down the general principles of international cooperation for air pollution abatement‚ the convention now establishes an institutional framework for research and

88

A discussion of the negotiations leading up to the agreement is found in Rosencranz‚ “Current Developments: The ECE Convention of 1979 on Long-Range Transboundary Air Pollution‚” supra note 74. 89 Ibid.‚ 980. 90 The convention called for multilateral research (article 7)‚ the use of best available technology feasible (article 4) and the monitoring of sulfur dioxide flow across national borders (Aricle 9.) An executive body was established by article 10. 91 See Article 13 which states that “if a dispute arises between two or more Contracting Parties to the present Convention.. .they shall seek a resolution by negotiation or by any other method of dispute settlement acceptable to the parties to the dispute.” 92 The convention remains under the auspices of the Economic Commission for Europe and now has 48 parties‚ primarily from western and eastern Europe‚ the U.S. and Canada. For more information on the convention and its protocols‚ see 93 Protocol on the Reduction of Sulphur Emissions or their Transboundary Fluxes‚ ILM 27 (1988)‚ 707. 94 See www.unece.org/env/lrtap for a list of the eight protocols and their implementation. For a discussion of the protocol‚ a multi-effects and multi-pollutant protocol designed to abate acidification‚ eutrophication and ground-level ozone‚ see Harm Dotinga‚ “Longrange Transboundary Air Pollution: New Protocol‚” Environmental Policy and Law 29 (23)‚ (1999): 68-69.

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policy: Five cooperative programs for assessing and monitoring the effects of air pollution and a mapping center are now in operation.95 The Convention has clearly gained authority and proven its effectiveness since its inception.96 For example‚ in 1993‚ all 21 parties to the 1985 Sulfur Protocol met the required reduction targets.97 In March 2002‚ a further “strengthening of policy” was reported by Jorgen Wettestad‚ who accurately measured gains in policy effectiveness after the 1994 Sulfur Protocol to CLRTAP.98 He reported‚ “The overall picture of emission reductions in 2002 is clearly one of substantially strengthened commitments.”99 The Convention has been cited as a successful example of what a combination of intergovernmental cooperation and solid scientific research can achieve.100 Does CLRTAP provide a model for regulation of underwater sound? Some similarities between sound and air pollution do exist. The diverse and widespread sources of both pollutants are commonalities‚ as is the potential for them to create externalities at great distances. However‚ a fundamental difference between air pollution and ocean noise pollution is that the effects of the former are generally more quantifiable. Furthermore‚ the sources of air pollution (power plants‚ factories) and the affected resources (freshwater fish‚ crops) are generally fixed. Conversely‚ the sources of noise pollution (ships‚ sonar) and the resources that may be damaged (migrating whales‚ dolphin habitat) are transitory in nature and more difficult to quantify. Moreover‚ the effects of air pollution are better understood than the effects of ocean noise pollution. The scientific uncertainty associated with the effects of noise on marine mammals and their habitat is an obstacle to the

95

See <www.unece.org/env/lrtap> For recent assessments on the success of CLRTAP‚ see Jorgen Wettestad‚ “Clearing the Air: Europe Tackles Transboundary Pollution‚” Environment‚ 44(2) (March 2002): 33-40; and Harm Dotinga‚ “Long-Range Transboundary Air Pollution: New Protocol‚” 68-69. Oran R. Young uses emissions of airborne pollutants as a case study for evaluating the successes of international regimes. See “Inferences and Indices: Evaluating the Effectiveness of International Environmental Regimes‚” Global Environmental Politics 1 (2001): 1. 97 See “Convention on Long-Range Transboundary Air Pollution – Implementation‚” Paragraph A. Found at Last accessed on 9 July 2002. 98 Jorgen Wettestad‚ “Clearing the Air: Europe Tackles Transboundary Pollution‚” 33-40‚ supra note 75. 99 Ibid.‚ 34. 100 See the United Nation’s web page on the Convention on Long-Range Transboundary Air Pollution at <www.unece.org/env/lrtap.> See also Birnie and Boyle‚ International Law and the Environment‚ ed.‚ 508 who consider CLRTAP “one of the most successful of the older environmental regimes.” 96

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drafting of a convention such as CLRTAP. Historically‚ victims of pollution call for the reduction and prevention of pollution and polluters call for proof of damage and resolution of scientific uncertainties. But the economic impacts from ocean noise pollution are not yet as great as those from acid rain‚ and scientific uncertainty persists.101 One must also consider the difficulty of obtaining political consensus for any multilateral agreement. This is evident given the many compromises implicit in the establishment of international conventions as well as the failure of many states to ratify such conventions. The overall benefits must outweigh costs by a clear margin for states to become parties to international agreements. Yet‚ many states have not even acknowledged the problem of ocean noise pollution‚ thus creating one of the most significant challenges to the establishment of a multilateral treaty. CLRTAP’s role in publicizing the issue of air pollution is one of its most important accomplishments. As an international instrument‚ CLRTAP may not provide a solution‚ but it does provide problem recognition‚ a first step in addressing the issue. Furthermore‚ it creates an added source of pressure on polluters by requiring mandatory reports‚ data sharing‚ and international emissions monitoring. The establishment of CLRTAP resulted in several innovative concepts that could be applied to the regulation of ocean noise. One important component of the Convention is the provision for monitoring pollutant levels.102 This should be a fundamental component of any agreement on ocean noise. While acoustic monitoring may have been more politically sensitive during the Cold War‚ it is less of an issue now.103 Other useful

101

For a discussion on the integration of acid rain policy and science‚ see L. Hordijk‚ “Linking Policy and Science: A Model Approach to Acid Rain‚” Environment‚ 30(2) (March 1988): 16-22. 102 CLRTAP‚ Art. 9. 103 In fact‚ monitoring was an initial concern within the CLRTAP agreement as well. It was required to be carried out by all parties. Yet the Eastern Bloc states would not disclose their emissions data because it contained sensitive economic information. This economic sensitivity has diminished‚ as have similar concerns over ocean noise monitoring and national security. See Rosencranz at 979. The monitoring effort carried out under Article 9 of CLRTAP is known as the European Monitoring and Evaluation Program (EMEP). It is funded by UNEP‚ and coordinated by the World Meteorological Organization. It consists of stations throughout the world that monitor air and precipitation. Each nation finances its own monitoring and conducts its own measurements. Similar monitoring efforts have been called for regarding ambient noise measurements. The US National Research Council has recommended that a long-term ocean noise monitoring program over a broad frequency range (1 Hz to 200 kHz) be initiated. See OSB-2003‚ 8.

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provisions in CLRTAP include requirements for the sharing of data and coordination of scientific research among states.104 Ultimately‚ the decision of a state to become party to a multilateral instrument that addresses transboundary pollutants is not always governed by good environmental stewardship‚ but often by national self-interest.105 CLRTAP started as a framework convention with little regulatory force‚ yet evolved into one of “the most sophisticated environment agreement[s] ever negotiated.”106 Perhaps the regulation of ocean noise will follow this path as well. In conclusion‚ CLRTAP can be considered an appropriate framework upon which to model the evolution of environmental policy relating to ocean noise for several reasons. First‚ like noise‚ the effects of air pollution are transboundary in nature. Second‚ a great degree of scientific uncertainty is inherent in predicting the effects of both noise and air pollution. Third‚ because CLRTAP initially had little regulatory force‚ parties to the Convention were not required to significantly compromise their sovereignty. This became a major incentive for states to ratify the Convention. This initial lack of regulatory force may also be needed for any international agreement designed to address ocean noise. Fourth‚ important elements of the CLRTAP agreement include monitoring‚ data sharing‚ and coordination of research - all components needed to properly address ocean noise. Fifth‚ and most important‚ the establishment of CLRTAP provided immediate problem recognition by the international community‚ which is essential for further development of ocean noise policy.

5.

EXISTING INTERNATIONAL REGULATORY FRAMEWORK

The previous section pointed out many of the challenges in addressing ocean noise pollution: it is transboundary‚ it is a form of energy‚ and limited knowledge exists regarding its effects. Furthermore‚ no international agreements have been adopted to regulate it‚ and existing international organizations have not yet undertaken the task of doing so.

104

CLRTAP‚ Arts. 7‚ 8. Note‚ for example the United States reluctance to become party to the Kyoto Protocol due to economic pressures. 106 Former CLRTAP Secretary Lars Nordberg referring to the 1999 CLRTAP Protocol. See United Nations Economic Commission for Europe‚ “New Air Pollution Protocol to Save Lives and the Environment” press release ECE/ENV/99/11‚ November 24‚ 1999. 105

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The need for international cooperation is apparent in all cases of transboundary pollution. Although no international organization has specifically been tasked with overseeing ocean noise‚ the international community has the ability to effect and enforce the general obligation of states to protect and preserve the marine environment. Existing cooperative agreements and international bodies have an important role in this. International organizations‚ particularly the United Nations Environmental Programme and the International Maritime Organization‚ are critical to the protection of the marine environment as mandated by UNCLOS. The remainder of this chapter examines the existing international regulatory framework‚ the international agencies and regional agreements that exist within it‚ and their potential to regulate ocean noise.

5.1

The United Nations Environmental Programme

Because the 1982 UN Convention on the Law of the Sea provides the framework for addressing ocean noise pollution‚ it follows that United Nations organizations could be involved in the development of appropriate policy for its regulation. The movement toward the creation of international solutions for transboundary environmental problems was reflected in the establishment of the United Nations Environmental Programme (UNEP) in 1972.107 Established by the UN General Assembly‚ it was designed to serve as a focal point for environmental action and coordination within the UN system. UNEP’s mission is to “provide leadership and encourage partnership in caring for the environment by inspiring‚ informing‚ and enabling nations and peoples to improve their quality of life without compromising that of future generations.”108 While UNEP initially focused on issues such as ozone protection‚ transboundary movements of hazardous wastes‚ and establishing the Regional Seas Programme‚ its focus has broadened.109 Its programs now address more global environmental issues such as climate change and the

107

See United Nations General Assembly Resolution 2997‚ (XXVII). For more information on UNEP‚ its structures and programs‚ see <www.unep.org.> 108 United Nations Environmental Programme Organization‚ information available at (last visited Jan. 24‚ 2000) . 109 For a discussion of the emergence of UNEP as a prominent player in international environmental affairs‚ see Oran R. Young‚ “International Organizations and International Institutions: Lessons Learned from Environmental Regimes‚” in Environmental Politics in the International Arena‚ ed. Sheldon Kamieniecki (Albany: State University of New York Press‚ 1993).

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loss of biological diversity.110 UNEP is considered a strong leader in the environmental arena that has achieved a reputation for technical competence and for stressing the technical aspects of marine pollution issues while downplaying the political dimensions of issues.111 Its present priorities include enhanced coordination of environmental conventions and development of policy instruments. One of its focus areas is marine and coastal regions.112 In fact‚ UNEP has a long history of addressing marine pollution issues‚ including the establishment of a number of programs such as Global Program of Action for the Protection of the Marine Environment from Land-Based Activities‚ the Regional Seas Programme‚ the World Conservation Monitoring Center‚ and the Global Environmental Outlook Programme.113 Some UNEP Regional Seas documents specifically address marine pollution and define a category of “other pollutants” that includes dissolved organic substances‚ particulate organic matter‚ particulate inorganic matter‚ soluble inorganic substances‚ microorganisms‚ and thermal discharges.114 Underwater sound has not been specifically identified as a pollutant. However‚ it has been addressed as a threat to marine mammals in UNEP documentation. In 1985‚ for example‚ UNEP published “Marine Mammals: Global Plan of Action‚” which called for the international community to study the longterm threat of anthropogenic noise in the ocean. Specifically‚ the report noted the “possibility that underwater noise from vessels and other human activities such as geological surveying by sonic techniques can constitute a form of noise pollution to which the cetaceans may be seriously sensitive on account of their dependence on acoustic processes for such purposes as communication and location of prey.”115 Initially‚ there was considerable support for the plan. However‚ although almost $12 million had been anticipated for its implementation‚ significantly less was allocated.116

110

Ibid. Ibid. 112 accessed on January 31‚ 2003. 113 accessed on January 31‚ 2003. 114. United Nations Environmental Programme‚ Marine Pollution‚ UNEP Regional Seas Reports and Studies‚ No. 25 (1982): 4 . See also The State Of The Marine Environment. UNEP Regional Seas Reports and Studies No. 115. UNEP‚ 1990. 115. United Nations Environmental Programme‚ Marine Mammals: Global Plan of Action‚‚ UNEP Regional Seas Reports and Studies‚ No. 55 (1985): 15. 116. $11.842 million had been included in the “Draft Financial Plan.” Ibid.‚ 93. A review of UNEP-supported contributions to the implementation of the Global Plan of Action is found in Annex IV of United Nations Environmental Programme‚ Marine Mammals Plan 111

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In 1988‚ UNEP performed an evaluation of the global plan of action for marine mammals‚ and it was found to be “not . . . satisfactory.”117 This was attributed to changing government priorities‚ severe budget constraints‚ a lack of clear framework for action‚ and insufficient effort by all collaborators.118 The failure was primarily blamed on lack of funding however. The evaluation makes no mention of the previously stated goal for the international scientific community to study the long-term threat of ocean noise. To date‚ no other UNEP program has called for a study of underwater noise pollution.

5.2

The International Maritime Organization

The International Maritime Consultative Organization was established in 1948 to foster cooperation in the regulation of international shipping; in 1982 its name was changed to the International Maritime Organization.119 Its original mandate was to advance the economic interests of maritime states.120 It has since evolved into an organization that promotes the “general adoption of the highest practicable standards in matters concerning the maritime safety‚ efficiency of navigation and prevention and control of marine pollution from ships.”121 Considering the significance of vessel generated noise‚ the IMO‚ potentially‚ could be important in addressing the problems of ocean noise. The International Convention for the Prevention of Pollution from Ships of 1973‚ as amended by the Protocol of 1978 (MARPOL)‚ is the major IMO vehicle for addressing pollution from vessels.122 In Article 2(2) and 2(3) of

of Action: Evaluation of its Development and Achievement‚ UNEP Regional Seas Reports and Studies‚ No. 102 (1988): 25. 117 .Ibid.‚ 2. 118 .Ibid. 119 See the 1948 Convention Establishing the International Maritime Consultative Organization‚ (changed to IMO in 1982). 289 UNTS 48. 120 Lettie Wenner‚ “Transboundary Problems in International Law‚” in Environmental Politics in the International Arena‚ ed. Sheldon Kamieniecki (Albany: State University of New York Press‚ 1993)‚ 172. 121 See the 1948 Convention Establishing the International Maritime Consultative Organization‚ Art. 1. (changed to IMO in 1982). 289 UNTS 48. An increased emphasis on the prevention of marine pollution resulted from a recommendation of the 1972 Stockholm Conference that established the Marine Environmental Protection Committee within the IMO. See IMO Res. A.297 (VIII)(1973). 122 .See International Convention for the Precention of Pollution by Ships [hereinafter MARPOL 73]‚ 12 International Legal Materials (1973)‚ 1319‚ Amended by Protocol

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MARPOL‚ pollution is defined as consisting of harmful substances; unlike the 1982 Convention on the Law of the Sea‚ there is no mention of energy.123 Because a substance is defined as “that which has mass and occupies space‚” the MARPOL definition of pollution does not include noise.124 Thus‚ it appears that the MARPOL agreement does not apply to undersea noise pollution. Furthermore‚ noise is not addressed in Annexes One through Six of MARPOL‚ which specifically address pollution associated with: oil‚ noxious liquid substances‚ harmful packaged substances‚ sewage‚ garbage‚ and air pollution.125 Although the IMO has not explicitly acknowledged noise as a pollutant‚ Agenda 21‚ the UN’s plan of action for the environment for the twenty-first century‚ included a general recommendation for the IMO to adopt further regulatory measures to prevent degradation of the marine environment.126 The recommendation asserts: States‚ acting individually‚ bilaterally‚ regionally or multilaterally and within the framework of IMO and other relevant international organizations‚ whether subregional‚ regional or global‚ as appropriate‚ should assess the need for additional measures to address degradation of the marine environment.127 This recommendation resulted in the emergence of a new concept of environmental protection known as Particularly Sensitive Sea Areas (PSSAs).128 These are defined as “areas which need special protection through action by IMO because of their significance for recognized ecological‚ socio-economic or scientific reasons‚ and which may be

Relating to the Convention for the Prevention of Pollution from Ships [hereinafter MARPOL 78]‚ 17 International Legal Materials (1978)‚ 546. 123. MARPOL 73‚ 1320. 124. The American Heritage Dictionary of the English Language‚ ed.‚ s.v. “substance.” 125 .MARPOL 73‚ 1335–1438. 126 Agenda 21‚ adopted in 1992‚ is a United Nations comprehensive plan of action for every area in which humans impact the environment. It consists of 40 chapters – chapter 17 focuses on an integrated strategy for managing the oceans. It is discussed in greater depth in Chapter 5 of this study. The IMO’s need to prevent degradation of the marine environment is addressed in Agenda 21‚ Chapter 17.30‚ See United Nations Council on Economic Development‚ Report‚ I (1992). See also Report of the 1MO to the Commission on Sustainable Development‚ IMO Doc. MEPC 37/Inf. (1995) and Report on Follow-Up Action to UNCED‚ MEPC 37/10/1‚ March 23‚ 1995. 127 See Agenda 21‚ Chapter 17.30. 128 Chapter 17.30 para. (a) (iv) requires that shipping assess “the state of pollution caused by ships in particularly sensitive areas identified by IMO and [take] action to implement applicable measures‚ where necessary‚ within such areas to ensure compliance with generally accepted international regulations.”

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vulnerable to damage by maritime activities.”129 A member state or coalition of states can apply to the IMO’s Marine Environment Protection Committee to designate an area as a PSSA. Then‚ all vessels flying the flag of an IMO member state must adhere to the specific protective measures in the PSSA . It is within the context of PSSAs that the IMO has recognized noise as a hazard to the marine environment.130 Specifically‚ IMO resolution A.927 (22)‚ adopted in 2002‚ asserts “in the course of routine operations and accidents‚ ships may‚ release a wide variety of substances either directly into the marine environment or indirectly through the atmosphere... Such pollutants include oil and oily mixture (sic)‚ noxious liquid substances‚ sewage‚ garbage‚ noxious solid substances‚ anti-fouling paints‚ foreign organisms and even noise.”131 An earlier 1991 IMO resolution states‚ “Concern has been expressed that the underwater sound generated by ships may disturb marine mammals‚ in particular through interference with the echolocation capabilities of such species.”132 The IMO‚ therefore‚ specifically identifies noise as a form of operational pollution from ships but indicates that no measure is presently available within its framework to regulate it nor are there any efforts underway to do so.133 The establishment of PSSAs may hold some promise in protecting areas of important habitat from noise pollution. The PSSA guidelines designate a category of special measures that incorporate speed restrictions and special construction requirements that could potentially be directed toward controlling acoustic emissions.134 Currently there are five designated PSSAs: the Great Barrier Reef‚ Australia; the Sabana-Camagüey Archipelago‚ Cuba; Malpelo Island‚ Colombia; the Florida Keys‚ United States‚ and the Wadden

129

See A. Blanco-Bazan‚ “The IMO Guidelines on Particularly Sensitive Sea Areas (PSSAs)‚” Marine Policy 20 (1996): 343-349. 130 Initially‚ noise was addressed by IMO Resolution A.720 (17) of 16 November 1991 on Guidelines For The Designation Of Special Areas And The Identification Of Particularly Sensitive Sea Areas‚ paras. 1.2.1 –2;and 1.2.11‚ and 1.4. This Resolution was revoked on November 29‚ 2001 by IMO Resolution A.927(22) which adopts similar‚ but less specific language. 131 Interestingly‚ here the IMO has referred to noise as a substance. See IMO Resolution A.927 (22) of November 29‚ 2001 on Guidelines For The Designation Of Special Areas And The Identification Of Particularly Sensitive Sea Areas‚ para. 2.2. 132 See IMO Resolution A.720(17) para. 1.11. 133 Personal communication with Sokratis Dimakopoulos‚ Implementation Officer‚ Marine Environmental Division‚ IMO‚ March 23‚ 2004. See also Resolution A.720(17)‚ para. 1.4.2. 134 See IMO Resolution A.720 (17) para. 3.8.3.

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Sea in northern Europe.135 To date‚ however‚ the IMO has not specifically addressed noise as a threat to any of these areas.136 Not surprisingly‚ the IMO has commented on the need for an international regulatory approach rather than a purely national approach regarding general treatment of pollution from vessels. In addressing pollution‚ the IMO expresses a strong preference “for the development of globally uniform regulations rather than a proliferation of diverse regional or local standards.”137 The establishment of PSSAs represents a spatial‚ ecosystem-based approach to pollution prevention as opposed to earlier approaches that focused on individual activities. Furthermore‚ they are consistent with the identification of “hotspots‚” a finding discussed earlier in this book.

5.3

International Whaling Commission

Given concerns regarding the effects of noise on marine mammals‚ the International Whaling Commission is an appropriate body to address ocean noise as it relates to whales. The International Whaling Commission (IWC) was established in 1946 under the International Convention for the Regulation of Whaling to provide for the orderly development of the whaling industry and the proper conservation of whale stocks.138 Increasingly‚ however‚ the IWC has come to play the role of protector of the

135

The Great Barrier Reef was designated a PSSA in 1990‚ See IMO Res. MEPC.44 (30) of November 16‚ 1990‚ “Identification of the Great Barrier Reef Region as a Particularly Sensitive Area.” Sabana-Camagüey Archipelago was designated a PSSA in September 1997‚ see MEPC.97(47)‚ “Identification of Sabana-Camagüey Archipelago as a Particularly Sensitive Area.” Malpelo Island and the Florida Keys were designated in 2002; see MEPC.97(47)‚ “Identification Of The Sea Area Around Malpelo Island As A Particularly Sensitive Sea Area”; and MEPA.98(47)‚ “Identification Of The Sea Area Around The Florida Keys As A Particularly Sensitive Sea Area;” the Wadden Sea was designated a PSSA on October 11‚ 2002‚ MEPC.101(48)‚ “Identification of the Wadden Sea as a Particularly Sensitive Area.” 136 A review of each of these five resolutions did not find the terms “sound‚” “acoustic‚” “sonar‚” or “noise” in their texts. Augustine Blanco-Bazán identified a potential problem with the establishment of PSSAs as the tendancy for ships to avoid ports or areas where PSSAs are established and simply call on ports with less stringent environmental standards. See See A. Blanco-Bazán‚ “The IMO Guidelines on Particularly Sensitive Sea Areas (PSSAs)‚” 348‚ supra note 129. 137 See IMO Resolution A.720(17)‚ para. 1.4.3. 138 International Convention for the Regulation of Whaling of 2 December 1946 (entered into force on 10 November 1948)‚ 161 UNTS 72‚ Article III. See also the IWC’s website at <www.iwcoffice.org.>

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world’s whales.139 As such‚ it would appear to have a role in protecting whales from the adverse effects of underwater sound. In fact‚ in recent years the Commission has discussed threats to whales including the effects of pollution and degradation of habitat. Disturbance of marine mammals by noise generated during whalewatching activities was addressed by the IWC in 1996. Specifically‚ the IWC noted: cetacean species may respond differently to low and high frequency sounds‚ relative sound intensity or rapid changes in sound; vessels operators should be aware of the acoustic characteristics of the target species and of their vessel under operating conditions; particularly of the need to reduce as far as possible production of potentially disturbing sound.140 The IWC then recommended that whale watching vessels‚ engines‚ and other equipment be designed‚ maintained‚ and operated to reduce adverse impacts on the target species and their environment and that vessel design and operation should minimize the risk of injury to cetaceans if contact should occur.141 The Commission recommended that propellers be shrouded to reduce both noise and risk of injury and that operators of whale-watching vessels avoid sudden changes in speed‚ direction‚ or noise.142 At the 50th and 51st meetings of the IWC in the late 1990s‚ the IWC’s Scientific Committee also addressed noise and its effects on whales. At that time‚ the Standing Working Group on Environmental Concerns (part of the Scientific Committee) brought attention to the potential for adverse effects of anthropogenic noise on cetaceans. 143 Its report stressed the need for further research and called for measures to mitigate adverse effects of noise wherever possible. Recognizing that degradation of whale habitat might threaten stocks‚ the group identified the effects of environmental change on cetaceans as one of its major concerns. However‚ when the Scientific

139

For a discussion of the evolution of the IWC, see William C. Burns, “The International Whaling Commission and the Future of Cetaceans: Problems and Prospects,” Colorado Journal of International Environmental Law and Policy 8, 31, (1997): 42-45; and José Truda Palazzo, Jr., “Whose Whales? Developing Countries and the Right to Use Whales by Non-Lethal Means,” Journal of International Wildlife Law and Policy 2(1) (1999): 6978. 140 “Whale Watching Guidelines,” IWC Resolution 1996-1, IWC Chairman’s Report of the Annual Meeting, June 24–28, 1996, Appendix 2, Principle 2. 141 Ibid. 142 Ibid., at Principle 2 and 3. 143 .“Report of the Scientific Committee,” IWC/51/4, para. 11.4.1 and Annex H, para. 7.1 reprinted in Journal of Cetacean Research Management. (Supp. 1999): 1.

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Committee released its report on pollution initiatives‚ it identified its two concerns with pollution as PCBs and validation/calibration of sampling techniques. Underwater noise pollution was not identified as a priority. 144 At the annual IWC meeting held in Japan in 2002‚ the Whale Watching Subcommittee of the Scientific Committee‚ however‚ did hold a special session on noise.145 The subcommittee’s report contains a section on “whale-watching activities and noise impacts.”146 It underscored that “despite increasing concerns about noise pollution‚ it still receives little attention from policy makers.”147 Furthermore‚ the report emphasized‚ “The need to study the implications of changing the marine acoustic environment has never been greater.”148 In spite of these warnings‚ the IWC has yet to make any policy decisions on noise and whales and‚ to date‚ no scientific research on the effects of noise on marine mammals has been promulgated by the IWC.149

5.4

International Seabed Authority

The International Seabed Authority (ISBA) is an autonomous agency created by the 1982 UN Convention on Law of the Sea.150 Its purposes are to organize and control activities for the exploitation of mineral resources especially valuable polymetallic nodules in the seabed‚ ocean floor‚ and

144

Ibid.‚ 4. See personal correspondence between Dr. Mark Simmonds‚ IWC Scientific Committee member and E. McCarthy‚ June 30‚ 2002. 146 See IWC/54/4‚ “Report of the IWC Scientific Committee‚” Annex L‚ Report of the Subcommittee on Whalewatching‚ May 2002. Located at www.iwc.office.org/reports.htm last accessed on July 16‚ 2002. 147 See IWC/54/4‚ “Report of the IWC Scientific Committee‚” Annex L‚ Report of the Subcommittee on Whalewatching‚ May 2002‚ Section 6. 148 Ibid. 149 It should be emphasized that all decisions concerning pollution and habitat degradation are of a non-binding nature as the IWC’s regulatory competence is restricted to the direct taking of whales. See International Convention for the Regulation of Whaling of 2 December 1946 (entered into force on 10 November 1948)‚ 161 UNTS 72‚ Article V. The Convention would require an amendment before manatory measures could be imposed to prevent acoustic disturbance of whales. See Dontinga and Elferink at 168. Some environmental NGOs have encouraged the IWC to carry out a a review of the effects of sound pollution in the seas. See for example‚ “Harpoons Readied – Time to Save the Whales... Again‚” The Animal Welfare Institute Quarterly‚ 49(4) (Fall 2000)‚ text available at 150 UNCLOS‚ Articles 156-170; 145

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subsoil beyond the limits of national jurisdiction.151 The ISBA is also responsible for adopting rules, regulations, and procedures to protect the marine environment from pollution during such activities.152 As such, it could play a role in regulating noise generated from seabed mining activities. Although a number of studies have addressed noise generated from oil and gas operations in the U.S. and the U.K., there are presently no international legal standards that explicitly address noise from seabed activities.153 A search through the on-line documents of the ISBA yields no references to noise and acoustic disturbances. The Legal and Technical Commission of the ISBA prepared a draft recommendation for the assessment of the possible environmental impacts arising from exploration for polymetallic nodules.154 This document called for the establishment of an environmental baseline study for all exploration but did not specifically address noise generated from seabed mining. It should be emphasized that the ISBA is concerned only with deep seabed mineral resources—initial proposals to broaden the scope of its authority to include protection of the entire marine environment have not been pursued.155 This may explain, in part, why the organization has yet to examine the issue of undersea noise.

5.5

The European Union

The European Union, a supranational body made up of an increasing number of European states, has addressed the issue of ocean noise in the context of habitat conservation. Specifically, European Council Directive

151.

UNCLOS, Articles 156-170, and Annexes III-IV. These provisions must be read together with the 1994 Agreement Relating to the Implementation of Part XI, 33 ILM (1994), 1309. 152 See UNCLOS Article 143; also Annex II, Article 17. Also 1994 Agreement Relating to the Implementation of Part XI, Annex, Section 1.5. 153 See Dotinga and Elferink, “Acoustic Pollution in the Oceans: The Search for Legal Standards,” 165, supra note 11. For examples of studies carried out on the environmental effects of noise from seabed activities see, e.g. R. S. Gales, “Effects of Noise of Offshore Oil and Gas Operation on Marine Mammals – An Introductory Assessment,” US Navy Technical Report No. 844, vols. 1 & 2 (1982), and C.W. Turl, “Possible Effects of Noise from Offshore Oil and Gas Drilling Activities on Marine Mammals: A Survey of the Literature,” NOSC Technical Report 776 (1982). 154 See “Recommendations for the Guidance of the Contractors for the Assessment Of The Possible Environmental Impacts Arising From Exploration For Polymetallic Nodules in the Area,” ISBA/7/LTC/Draft of 7 February 2001 available at <www.isa.org.jm/en/documents> accessed on July 17, 2002. 155 See Draft Articles for the Preservation and Protection of the Marine Environment, UN Doc. A/CONF.62/C3/L/2 (1974).

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92/43/EEC, on the Conservation of Natural Habitats and of Wild Fauna and Flora, requires Member States to take measures to prevent inter alia deliberate disturbance of cetaceans.156 This directive lists all species of cetaceans as in need of strict protection.157 A group within the European Parliament has raised concerns about the use of the US Navy’s low frequency sonar in areas within the territorial waters of some EU member states and has requested that the European Commission discuss the issue with the US government.158 The Commission, however, has declined to raise the matter in the context of relations with the United States.159 In a recent debate, the European Commission did pledge to formally request independent scientific bodies such as the International Council for the Exploration of the Sea to assess the current situation of lowfrequency sonar.160 In the same debate, members of Parliament requested that a study be carried out on the environmental impacts of LFA and that the subject be raised in the transatlantic dialogue.161 Although there is presently no legislation pending in the EU, there is a draft resolution in the European Parliament, which proposes the adoption of a moratorium on the deployment of LFA until a global assessment of its cumulative impacts can be prepared.162 It also requests that an inquiry be made into legal remedies to address the uncontrolled use of LFA in the ocean, and that a multinational task force be formed to develop international agreements that regulate noise in the world’s oceans.163

156

Council Directive 92/43/EEC of May 21, 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora – OJ L 206, 22.7.1992, amended by the Act of the Accession of Austria, Finland and Sweden – OJ L 1, 1.1.1995. 157 Ibid. Annex IV. 158 The concern was specifically over the use of LFA in Portugese waters. This effort has been spearheaded by Caroline Lucas, a member of Parliament from Great Britain. See written question E-2797/02 of October 7, 2002 by Member of European Parliament, Caroline Lucas. 159 See the response on behalf of the Commission, November 29, 2002. 160 See Debates of the European Parliament, January 16, 2003, comments on behalf of the European Commission. 161 See Debates of the European Parliament, January 16, 2003, comment from Caroline Lucas. 162 Personal communication with Dr. Caroline Lucas, December 4, 2003 and Dr. Marsha Green, February 18, 2004. 163 “Petition for Action on the Use of High-Intensity Active Sonar”, signed by Liz Sandeman, Sigrid Lueber et al., draft copy provided by Caroline Lucas, December 4, 2003.

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The Use of Regional Agreements

International management of ocean activities is of growing importance due to a greater reliance on marine resources and technological advances. Ocean management may be carried out unilaterally, bilaterally, regionally, or globally. Unilateral measures and bilateral agreements are commonly used for coastal zone planning, fisheries management and pollution prevention.164 Internationally, more than 200 agreements address ocean issues such as biodiversity, sustainable use of ocean resources, fisheries, and pollution.165 Regional agreements address specific areas of ocean space that are usually bounded by several states or in which states have a presence through fishing, shipping or some other activity. Examples of such regional agreements include the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries and the Convention on the Conservation of Antarctic Marine Living Resources.166 Recently, several regional agreements have addressed the issue of ocean noise pollution. The following section examines five such regional agreements and how they reflect growing concern with noise in the ocean.

5.6.1

The OSPAR Convention

In July of 1971 the Dutch ship, Stella Maris, departed from the port of Rotterdam to dump chlorinated waste in the North Sea. Due to pressure from several states and negative public sentiment, the ship was obliged to return to port without carrying out her mission. This focusing event led to

164

In the U.S., see for example the Magnuson Fishery Conservation and Management Act, US Public Law 94-265. Bilaterally, an example is the Pacific Salmon Treaty established between the U.S. and Canada on March 18, 1985 for the conservation, rational management and optimal production of pacific salmon. Text of agreement available at last accessed on July 18, 2002. 165 See “International Agreements on Ocean Issues,” Connect: UNESCO International Science, Technology and Environmental Education Newsletter, 22(3-4) (1997): 2. A database of multilateral ocean treaties is presently under development by Dr. Lawrence Juda, University of Rhode Island, Department of Marine Affairs. 166 Generally, see Lewis Alexander, Regional Arrangements in Ocean Affairs, (Alexandria, VA: Fleet Analysis and Support Division, Office of Naval Research, 1977). See also Proceedings of the Symposium on Marine Regionalism, ed. Lawrence Juda (University of Rhode Island: Kingston, RI, 1979). The text of the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries of October 24, 1978 is available on-line at <www.nafo.ca > and the text of the Convention on the Conservation of Antarctic Marine Living Resources of April 7, 1982 (CCAMLR) is found at

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the establishment of the Oslo Convention eight months later.167 The Oslo Convention was designed to regulate and control the dumping of sewage sludge, dredged materials, and industrial wastes at sea. At the same time, a similar document, the Paris Convention, was established to prevent marine pollution by discharges of dangerous substances from land-based sources, waterways, and pipelines.168 A joint meeting of the Oslo and Paris Commissions in 1992 resulted in the merger of the two conventions into a new, modernized agreement called the Convention for the Protection of the Marine Environment of the North-East Atlantic, known as the OSPAR Convention.169 OSPAR entered into force in March 1998 and covers the North-East Atlantic. Parties to the agreement are: Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, the Netherlands, Norway, Portugal, Spain, Sweden, the United Kingdom, Luxembourg, Switzerland, and the Commission of the European Communities.170 Specifically, OSPAR covers the sea area extending west to the east coast of Greenland, east to the continental North Sea coast, south to the Straits of Gibraltar and north to the North Pole. The Baltic and Mediterranean Seas are not covered by the Convention. (See Figure 1 below)

Figure -1. Ocean areas covered by OSPAR Convention.

167

See the Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, entered into force on April 7. 1974. Text located at last accessed on July 28, 2002. 168 See the Convention for the Prevention of Marine Pollution from Land-Based Sources, entered into force May 6, 1978. Text located at last accessed on July 28, 2002. 169 Text of the OSPAR Convention is located at http://www.ospar.org/eng/html/welcome.html last accessed on July 28, 2002. 170 Information on the OSPAR Convention and its Secretariat can be found at the OSPAR web site located at <www.ospar.org.>

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OSPAR contains provisions for the application of the “precautionary principle,” implementation of the “best available technology,” and the use of “best environmental practice,” three common approaches to pollution prevention that are discussed in greater detail in Chapter Five of this book.171 Moreover, it contains five annexes that directly address pollution from landbased sources; pollution from dumping or incineration; pollution from offshore sources; assessment of environmental quality; and the protection and conservation of ecosystems and biological diversity.172 There is no mention of noise or acoustic disturbance as a type of pollutant in the text of the Convention.173 However, a report prepared by the OSPAR Commission in 2000 does include a chapter on “Human Activities” which expresses concern over the noise created by power generation—specifically that from windmills.174 The report states, “the problems with [wind] power generation] are the space required as well as visual and noise impacts which can be especially detrimental to birds .... [T]he effects of noise and electro-magnetic impact on fish and marine mammals are under consideration.”175 Surprisingly, the same report addressed military activities, oil and gas exploration, and shipping, yet made no mention of any concerns of an acoustic nature.

5.6.2

The Arctic Council

In the late 1980s, due to reforms occurring in the Soviet Union, new opportunities arose for Arctic circumpolar cooperation. Environmental protection was identified as a first step in promoting comprehensive security in the region. As a result, in 1991 the Ministers of the eight Arctic countries (Canada, Denmark, Finland, Iceland, Norway, Sweden, USSR, and the U.S.) adopted the Arctic Environmental Protection Strategy (AEPS).176 Five years later, foreign ministers of the Arctic states agreed to form the Arctic Council,

171

See 1992 OSPAR Convention, Annex V, “The Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area,” Article 3 para (b)(ii). For the provisions requiring the application of BAT and BEP, see Article 1, para. 1; also Appendix 1, para. 1-9. 172 See OSPAR Convention, Annexes I-V. 173 There were no occurrences of the words “acoustic” and “noise” throughout the convention text, its annexes, appendices, articles, and declarations. 174 See OSPAR/Quality Status Report 2000, Chapter 3, “Human Activities” at section 3.7.3. Available on line at last accessed on July 17, 2002. 175 Ibid. 176. “Arctic Environmental Protection Strategy,” I.L.M. 30 (November 1991): 1624. [hereinafter AEPS].

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a high level, broad-based intergovernmental organization that provides a “mechanism to address the common concerns and challenges faced by the Arctic governments and the people of the Arctic.”177 The Artic Council provides a forum for all dimensions of social, economic and environmental development.178 The Rovaniemi Declaration on the Protection of the Arctic Environment, signed in 1991, commits member states to act jointly to study a number of pollutants, in particular, noise. More specifically, the AEPS, which is the mechanism that provides a blueprint for environmental protection for member states, identifies underwater noise as a problem and priority in the Arctic region.179 It states that the effects on fish and wildlife of cumulative exposure to noise was largely unknown but that moving sound sources, such as ships, seemed to be more disturbing than stationary sound sources.180 Actions identified to address the noise pollution issue included: conducting research on marine mammals, developing noise exposure assessment techniques, and incorporating and evaluating the impact of noise on planning and approval processes.181 In a list of gaps in international mechanisms, the AEPS document emphasized that: existing legal instruments do not address the effects of noise on the Arctic ecosystem. There may be a need for Arctic countries to agree on the adoption of procedures to ensure that in the planning and conduct of activities in the Arctic, measures are taken to facilitate the adequate monitoring of the potential disturbance from noise...182 But in 1998, the Arctic Monitoring and Assessment Programme (AMAP), the group established to implement components of the AEPS, published an assessment report on arctic pollution monitoring efforts from 1991–97 that did not indicate that any noise pollution monitoring whatsoever had been carried out.183 A representative from the AMAP stated that at

177

The Council was established on September 19, 1996 in Ottawa, Canada. See the Arctic Council’s web site at <www.arctic-council.org.> 178 See www.arctic-council.org/about.html. 179. Ibid., 1640. Section 3.4 is entitled “Noise” and summarizes many of the concerns with anthropogenic noise in the Arctic. The Rovaniemi Declaration also 180. Ibid., 1641. 181. Ibid., 1653. Section 5.4 addresses Actions required to address noise. 182 AEPS, at Section 4.4, 1645. 183. AMAP Assessment Report: Arctic Pollution Issues, (Oslo, Norway: Arctic Monitoring and Assessment Programme, 1998), available at http://www.amap.no/asess/soaer-cn.htm (last visited February 27, 2001). The AMAP’s current objective is “providing reliable and sufficient information on the status of, and threats to, the Arctic environment, and providing scientific advice on actions to be taken in order to support Arctic governments

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present the program is fully engaged in studying the impacts of climate change and will not, in fact, address noise pollution.184 In fact, the October 2002 meeting of the AMAP contained no discussions on ocean noise—the symposium was dominated by presentations on global warming, heavy metals, and persistent organic pollutants.185

5.6.3

ASCOBANS - Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas

Some states have chosen to formalize their concerns about the increase in man-made noise in the ocean, particularly from oil and gas exploitation. The highly industrialized nature of the North Sea and public concern for the safety of marine mammals led the Northern European States to create the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS).186 Parties to the agreement include the eight countries bordering the Baltic and North Seas: Belgium, Denmark, Finland, Germany, the Netherlands, Poland, Sweden and the United Kingdom. ASCOBANS is also open for accession by other states, known as range states (any state that exercises jurisdiction over any part of the range of a species covered by the Agreement or whose flag vessels engage in operations adversely affecting small cetaceans in the Agreement area). Presently, there are six non-Party range states: Estonia, France, Latvia, Lithuania, Norway, and the Russian Federation. A map of parties and range states is shown in Figure 2. All states cooperating with ASCOBANS share the common concern that high bycatch rates, habitat deterioration, and anthropogenic disturbances are likely to jeopardize the existence of small cetaceans in the Baltic and North Seas.187 A regional, multilateral agreement was created because migrating cetaceans regularly cross national boundaries and their effective protection can therefore only be accomplished through international cooperation.

in their efforts to take remedial and preventive actions relating to contaminants.” See the AMAP website at last accessed on November 18, 2002. 184 Personal correspondence, via e-mail from Dr. Tom Murray of AMAPS, January 11, 2000. 185 See “Second AMAP International Symposium on Environmental Pollution of the Arctic”, Rovaniemi, Finland, 1-4 October 2002, AMAP Report 2002:2. This document found at 186. “Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas,” March 17, 1992, reprinted in The Marine Mammal Commission Compendium of Selected Treaties, International Agreements, and Other Relevant Documents on Marine Resources, Wildlife, and the Environment, (Washington, D.C.: Marine Mammal Commission, 1994): 1616 [hereinafter ASCOBANS]. 187 See <www.ascobans.org> for information on the Agreement and its parties.

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Figure -2. Area map of range states and parties to ASCOBANS.

Entered into force in 1994, ASCOBANS is one of the few regional agreements that specifically requires all parties to address underwater noise pollution. Parties to the agreement resolve to work towards “the prevention of other significant disturbances [to small cetaceans], especially of an acoustic nature.”188 Moreover, at a July 2000 ASCOBANS meeting in England, a resolution was adopted which specifically dealt with acoustic disturbance. This resolution recognized “the difficulty of proving the detrimental effects of acoustic disturbance on cetaceans necessitates a precautionary approach,” but also acknowledged that there are “national sensitivities in relation to [acoustic] military activities.”189 The resolution commended the development of the U.K.’s Regulatory Guidelines on Seismic Surveys and suggested measures and procedures for mitigating

188. 189

ASCOBANS, Annex, “Conservation and Management Plan,” para. 1 (d), supra note 186. See “MOP3:Resolution No. 4 – Disturbance” from the Session of the Meeting of the Parties, Bristol, United Kingdom, 26-28 July 2000. Located at <www.ascobans.org/documents/.>

Policy Development effects of seismic surveys and military activities.190 surveys, the resolution invited parties to:

159 Regarding seismic

a) alter the timing of surveys and minimize their duration; b) reduce noise levels as far as practicable; c) avoid starting surveys when cetaceans are known to be in the immediate vicinity; d) introduce further measures in areas of particular importance to cetaceans; e) develop a monitoring system that will enable adaptive management of seismic survey activities.191

With respect to military and other activities, the resolution invites parties to: a) work with military authorities to introduce codes of conduct such as environmental impact assessments and standing orders to reduce disturbance of small cetaceans; b) report to the Advisory committee meeting in 2003 on approaches to reducing disturbance to small cetaceans by military activities; c) support further research into the effects of acoustic harassment devices and gillnet pingers; d) support research into the effects of shipping and high-speed ferries and methods of mitigating their adverse effects; e) support further research on behavioral changes in cetaceans caused by acoustic disturbances which encompass biologically significant effects; f) develop and introduce guidelines and other measures to reduce other forms of disturbance to small cetaceans; and g) support efforts by the European Cetacean Society to elaborate a protocol for the removal of ears from cetacean carcasses for investigation of possible damage to the auditory system as part of further research into possible effects of noise on the hearing of cetaceans.192

This resolution contains some of the most specific language of any international instrument to address ocean noise. It represents one step forward in carrying out ASCOBANS’ 1994 “Resolution on the

190

The most recent version of “Guidelines on Minimizing Acoustic Disturbance to Marine Mammals,” dated February 18, 2002 was prepared by the Joint Nature Conservation Committee of the U.K. government. It can be found at <www.jncc.gov.uk/marine/seismic_survey/NounderlineMinAcoustic.pdf.> 191 Ibid. 192 “MOP3:Resolution No. 4 – Disturbance” from the Session of the Meeting of the Parties, Bristol, United Kingdom, 26-28 July 2000.

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Implementation of the Conservation and Management Plan,” which called for the introduction of guidelines to reduce disturbance of any kind to small cetaceans.193 However, the conservation measures of the agreement have been criticized as being vague and hortatory, and lacking in prescriptive language—shortcomings partially attributed to a dearth of science.194 Although ASCOBANS is a free-standing treaty it contains few substantive obligations or guidelines that add anything to the pre-existing state of the law. It is considered to function as a forum for promoting and coordinating research, and a stimulus for the adoption of conservation measures by other international organizations.195 However, the treaty is of normative significance, an important consideration in elevating the issue of ocean noise to the international institutional agenda.

5.6.4

ACCOBAMS – The Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area

In November 1996, an intergovernmental agreement was created to reduce threats to cetaceans throughout the Mediterranean and Black Seas. It

193

See “MOP1: Resolution on The Implementation Of The Conservation And Management Plan” adopted in Stockholm, 1994, para. III (i) found at <www.ascobans.org/documents/.> It should be noted that the effectiveness of ASCOBANS has been criticized. One commentator claims that the agreement has failed to reach its stated conservation objectives in regard to bycatch reduction, considered to be the most significant threat to small cetaceans globally. He suggests that a solution to the bycatch problem may lie in parties “affording a higher priority to implementing ASCOBANS commitments” and in researchers becoming more aware of the Agreement, its objectives, and the obligations it places on parties. See H. McLachlan, “Is ASCOBANS Meeting its Conservation Objectives?” Proceedings of the Fourteenth Annual Conference of the European Cetacean Society, ed. P. Evans, R. Pitt-Aiken and E. Rogan, Cork, Ireland April 2-5, 2000. Another analysis of ASCOBANS is found in Robin Churchill, “Sustaining Small Cetaceans: A Preliminary Evaluation of the Ascobans and Accobams Agreements,” in International law and Sustainable Development: Past Achievements and Future Challenges,“ Alan Boyle, ed. (New York: Oxford University Press, 1999), 221-252; also see Hugo Nukamp and Andre Nollkaemper, ”The Protection of Small Cetaceans in the Face of Uncertainty: An Analysis of the ASCOBANS Agreement,” 9 The Georgetown International Environmental Law Review (1997)281-302. 194 Robin Churchill, “Sustaining Small Cetaceans: A Preliminary Evaluation of the Ascobans and Accobams Agreements,” in International Law and Sustainable Development: Past Achievements and Future Challenges,” Alan Boyle, ed. (New York: Oxford University Press, 1999), 225-252. 195 Ibid.

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entered into force in June 2001 and is known as The Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS).196 This agreement was the first of its kind to require countries of these two areas to work together toward a common goal.197 The parties to the agreement are: Bulgaria, Georgia, Romania, Croatia, Malta, Monaco, Morocco, and Spain. Membership is also open to non-coastal states with vessels engaged in activities that may affect marine mammals in the area. Generally, ACCOBAMS calls on its members to assess and manage human-cetacean interactions, carry out research and monitoring, develop information, training and public education programmes, and implement emergency response measures.198 Although noise is not directly addressed in the agreement text or the appendices, it was examined in detail in a report presented to the ACCOBAMS Secretariat in Monaco. The report, Cetaceans of the Mediterranean and Black Seas: State of Knowledge and Conservation Strategies, contains separate chapters on noise disturbance to cetaceans in the Mediterranean and Black Seas.199 Each chapter outlines the acoustic threats to its respective seas and then proposes several mitigation measures. These measures include decreasing vessel speed, maintaining propellers and other ship systems, monitoring the presence of marine mammals, scheduling activities when mammals are likely not to be present, changing the locations of activities if marine mammals are present; and utilizing the best available technology to reduce noise emissions during oil and gas operations.200 The report also defines major shipping lanes in the Black Sea that coincide with cetacean habitats and migration pathways (Figure 3). The report, however,

196

The Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area of November 24, 1996 (ACCOBAMS). Text of agreement located at [hereinafter ACCOBAMS]. 197 Although the common goal of ACCOBAMS is protection of cetaceans, it has been argued that incentives to join regional environmental agreements in the Black Sea region are shaped by individual states’ anticipation of net economic gains, rather than concerns for sound environmental stewardship. See Mary Matthews, “Economic Incentives for Environmental Cooperation : the Evolution of the GEF in the Black Sea Region.,” presented at the Black Sea Regional Symposium, March/April 2001, Leesburg, VA. Text available at <www.irex.org/programs/black-sea.> 198 See Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area, Article II, “Purpose and Conservation Measures,” para. 1-3. See also Annex 2, “Conservation Plan,” para. 1-6. 199 See chapter 12 and 13 of Cetaceans of the Mediterranean and Black Seas: State of Knowledge and Conservation Strategies, ed. G. Notarbartolo di Sciara. A report to the ACCOBAMS Secretariat, Monaco, February 2002. 200 Ibid. 13.13 – 13.14.

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was written merely to provide background to the contracting parties to the Agreement; ACCOBAMS does not directly provide its membership with explicit rules or guidelines to prevent acoustic disturbances.

Figure -3. Main Harbors and Shipping Ports in the Black Sea Source: Cetaceans of the Mediterranean and Black Seas

However, within ACCOBAMS, the precautionary principle is explicitly prescribed and the treaty shows signs of moving toward the inclusion of more precise and specific conservation measures.201 For example, initially, noise was not one of the major actions identified in a list of eighteen International Implementation Priorities for ACCOBAMS.202 At the time these priorities were established, it was considered more urgent to concentrate on the protection of populations and habitats rather than specific problems such as anthropogenic noise.203 By the time of the first meeting of The Scientific Committee however, the

201

Robin Churchill, “Sustaining Small Cetaceans: A Preliminary Evaluation of the Ascobans and Accobams Agreements”, supra note 194. 202 See Annex 1, “International Implementation Priorities for 2002-2006”, Cetaceans of the Mediterranean and Black Seas: State of Knowledge and Conservation Strategies, supra note 199. 203 Personal communication with Giuseppe Notarbartolo di Sciara, January 23, 2003.

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Committee took a strong stand against the use of AHDs to alleviate conflicts between cetaceans and fisheries. The Committee also recommended against the use of less invasive pingers or Acoustic Deterrent Devices (ADD), which it felt could produce significant noise pollution and possibly exclude cetaceans from certain areas. Member countries were urged to “strictly regulate the use of these potentially harmful devices.”204 At the second meeting of the Scientific Committee, a research program to evaluate effects of manmade noise on marine mammals in the Ligurian Sea was described in a paper by Dr. Peter Tyack.205 This multiagency program involves a large number of researchers from Europe and North America. The paper suggested that the scientific committee of ACCOBAMS make a strong endorsement for additional research that focuses on testing the relationships between noise exposure and adverse marine mammal impact. Specifically, it recommended that ACCOBAMS request major sources of industrial noise in the area support an experiment in which activities such as shipping and construction be stopped for a week or two to enable comparison of noise exposure and whale distribution.206 In this regard, ACCOBAMS could make a significant contribution by working with the governments of its member states to cease industrial operations during the control interval. This is precisely the type of activity that requires the coordination of a multi-lateral organization such as ACCOBAMS. ASCOBANS and ACCOBAMS could be the first in a series of interlocking regional agreements to address the conservation of cetaceans. However, parties to the treaties have yet to make any substantive decisions regarding the protection of small cetaceans.207 Generally, the agreements are considered too flexible and rely too often on “further study” instead of tangible action. ASCOBANS and ACCOBAMS have correctly identified the problem of ocean noise and its potential effects on small cetaceans: the specific measures by which the problems are mitigated remain to be worked out. But because both treaties were established in a political environment of

204

205

206 207

Report of the First Meeting of the Scientific Committee to ACCOBAMS, Tunis, 3-5 October 2002, Annex 12, Recommendation 1.1. Report of the Third Meeting of the Scientific Committee to ACCOBAMS, Istanbul, 20-22 November 2003, “Research Program to Evaluate Effects of Manmade Noise on Marine Mammals in the Ligurian Sea,” Document CS2/Inf. 13. Ibid., 12. Robin Churchill, “Sustaining Small Cetaceans: A Preliminary Evaluation of the Ascobans and Accobams Agreements”, supra note 194.

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strong government support, they eventually could become important players in integrated environmental marine management.208

5.6.5

The North Atlantic Treaty Organization (NATO)

Due to the well-publicized and highly controversial deaths of Cuvier’s beaked whales off the coast of Greece in 1996, NATO’s acoustic research laboratory, known as the SACLANT Undersea Research Center (SACLANTCEN), now has an environmental policy in place that specifically addresses underwater sound. Having recognized that “environmental responsibility and soft legislation potentially demand consideration and mitigation of [the effects of high power sound on humans and marine mammals],” NATO developed guidelines for its scientists, planners, and ships’ crews to follow when conducting acoustic research at sea.209 The “SACLANTCEN Human Diver and Marine Mammal Environmental Policy” is a thirty-one-page document developed as a self-regulatory approach and is not legally binding.210 However, all NATO members agreed on the approach for mitigation of harmful effects from hydroacoustics during NATO oceanographic research activities. The policy relies on the precautionary principle as the standard of conduct to comply with NATO’s duties of environmental protection.211 It contains specific guidelines for assessing risks to humans and marine mammals from high level sounds during experimental acoustic research, but it does not apply to shipping or

208

Ibid. Other commentators have been less optimistic. One has written, “It is difficult to be sanguine about the prospects for ACCOBAMS if one reviews the implementation history of other regional treaties that are directly relevant to its objectives.” Williams Burns, “The Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS): A Regional Response to the Threats Facing Cetaceans,” 1(1) Journal of International Wildlife and Policy (1998): 113-133. 209 See SACLANTCEN Instruction No. 77-01, Human Diver and Marine Mammal Risk Mitigation Rules, Annex A-1 (La Spezia, Italy: NATO SACLANTCEN Undersea Research Centre, June 2001). 210. When the guidelines were initially created, it was emphasized that they were selfregulatory, not legally-binding, and developed in the absence of a formal NATO environmental policy. See the initial document, Human Diver and Marine Mammal Environmental Policy and Risk Mitigation Rules, (La Spezia, Italy : NATO SACLANTCEN Undersea Research Centre, June 1998), 2. Available at http://www.soclantc.nato.int/whales/diver.html (last visited Feb. 13, 2001). 211 SACLANTCEN Instruction No. 77-01, A-5, supra note 209.

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military activities.212 Most importantly, the policy has the potential to set precedents for similar regulations to be adopted by NATO States.213 In conclusion, at this time, regional agreements provide little guidance for employing sound in the ocean. Individual organizations such as SACLANTCEN, and the US Navy; the British, American, and Australian seismic industries; and various university research programs, have independently developed limited guidelines specific to their operations.214 It is not clear, however, which set of guidelines are to be followed during joint experiments or on the high seas. US government agencies must always comply with the National Environmental Policy Act (NEPA), but beyond this broad mandate, there is little policy framework in place.215 Moreover, the greatest source of noise in the ocean, shipping, remains completely unregulated in regard to waterborne noise emissions. The offshore oil and gas industry is noticeably absent from the previous review of existing international organizations and regional agreements. This is because most oil and gas exploration and extraction work is carried out on the continental shelf and in territorial waters of most states. As a result, the offshore oil and gas industry is primarily regulated by individual state government agencies (such as the US Minerals Management Service) and by

212

It should be emphasized that SACLANTCEN is a research group within NATO. Its vessels are not military ships and its employees are primarily civilian scientists. A list of precautions to be taken is found in Human Diver and Marine Mammal Environmental Risk Mitigation Rules, B-2 - B-4, supra note 210. 213 Mr. Ron Howard, General Counsel to SACLANTCEN emphasized that this NATO environmental policy may influence national policies. See Summary Record, SACLANTCEN Marine Mammal Environmental and Mitigation Procedures Panel, (La Spezia, Italy : NATO SACLANTCEN Undersea Research Centre, June 1998): 3-2. 214 Regarding oil and gas industry guidelines for mitigating seismic effects on marine mammals in the U.K., see JNCC, “Guidelines on Minimizing Acoustic Disturbance to Marine Mammals, supra note 190. For guidelines on Australian seismic exploration, see Australian Petroleum Production and Exploration Association, “Seismic Operations – Guidelines for Minimising Acoustic Disturbance to Whales,” (2001), Draft Copy available at www.environment.gov.au/marine/species/cetaceans/index.ht. For US efforts, generally see IAGC, “IAGC Task Force on Marine Seismic Effects on Marine Mammals,” (2001). In the U.S., university-based ocean research is conducted under the auspices of the University-National Oceanographic Laboratory System (UNOLS). Presently UNOLS does not have an overarching set of guidelines. However, individual universities are in the process of developing them (for example, Lamont-Doherty). Personal correspondence, Dennis Nixon, counsel to UNOLS, dated September 12, 2002. 215. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321– 4370d (1994). As discussed earlier, the reach of NEPA has been challenged by the Bush Administration that claims it does apply beyond US territorial waters.

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industry groups (such as Australia’s Petroleum Production and Exploration Association).

6.

SUMMARY

This chapter examined the development of international pollution policy as it applies to ocean noise. In doing so, it identified ocean noise as a transboundary pollutant that merits international attention. Because noise falls within the definition of pollution as outlined in the 1982 UN Law of the Sea Convention, its effects can be harmful, and it is transboundary in nature, anthropogenic noise can be considered a transboundary pollutant. As a transboundary pollutant, noise mandates an international approach to address its sources and its effects, which can occur in different states or even on the high seas. Furthermore, the jurisdictional controversy over the 1996 Greek whale strandings and other international litigation over other transboundary pollutants such as air pollution justify the development of an international regulatory approach to ocean noise pollution. This chapter also explored two other types of energy pollutants, heat and radiation, in an attempt to find an appropriate model for the development of international ocean noise policy. These two models, however, were ultimately found to be of limited value, as the effects of heat are geographically limited, and radiation is more often treated as a substance than a form of energy. Furthermore, radiation is more often treated as deliberate waste, which international legal instruments regulate as dumping, a concept that does not easily transfer to ocean noise. A more relevant model was found, however, in the evolution of long-range transboundary air pollution policy and the CLRTAP convention that addresses it. Furthermore, this chapter proposed that the 1982 United Nations Convention on Law of the Sea provides the appropriate international legal framework to address noise pollution. This Convention is considered the “comprehensive restatement of almost all aspects of the Law of the Sea.”216 It defines, among other objectives, “a legal order for the seas and oceans which will facilitate … the study, protection and preservation of the marine environment.”217 It requires that states take all necessary measures “to prevent, reduce and control pollution of the marine environment from any

216 217

See Birnie and Boyle, International Law and the Environment UNCLOS, Preamble.

ed., 348, supra note 7.

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source.”218 Furthermore, it provides the framework for other international conventions that address marine pollution, such as MARPOL and Agenda 21.219 Because the definition of “pollutant” found in the 1982 UN Convention on Law of the Sea intentionally includes energy, the Convention is clearly applicable to ocean noise pollution. As such, it sets the groundwork for control and regulation of ocean noise pollution. This chapter also examined how existing international instruments and organizations currently address ocean noise. A review of relevant and existing treaties and regional agreements (including MARPOL, ASCOBANS, OSPAR) indicates a lack of consideration of the problem of ocean noise pollution. Even when ocean noise is identified as a threat (in the Arctic Council’s Environmental Protection Strategy, for example) no specific rules and standards are provided. In the U.S., NMFS has acknowledged the lack of a coherent policy for use in all oceans involving all sources of anthropogenic noise. Furthermore, it has identified the need for oversight by international bodies.220 The lack of formal provisions for ocean noise pollution in existing international agreements attests to the need for international instruments that define the specific rules and standards required to govern anthropogenic sound in the ocean. In light of this, the establishment of an international conference or convention (perhaps under the umbrella of UNCLOS) or the designation of responsibility to an existing international organization may be required in the future. Initially, this might take the form of a joint meeting made up of existing organizations, such as the IMO, UNEP, and the IWC.221 In conclusion, at present no international treaties or laws specifically address the use of sonar or the emissions of underwater sound in territorial

218

UNCLOS, article 194, para. 1. The relevancy of these agreements to ocean noise pollution are discussed in Chapter 4 and 5. 220 NMFS has found that many sources of maritime noise are by activities outside US jurisdiction. For such activities the agency has suggested a new approach through international bodies. In this regard, NMFS “expects to complete a draft acoustic policy in the near future and is also planning to convene a workshop on commercial shipping noise and impacts on marine mammals.” See comment MMPAC35 in SURTASS Final Rule, 67 Federal Register 46711-46789, July 16, 2002. A NMFS workshop on marine mammals and shipping noise is scheduled for May 2004. 221 Some international meetings have been held but have primarily addressed scientific and biological issues of ocean noise pollution. Most recently, the European Cetacean Society held a meeting that focused on marine mammals and noise during which some conservation measures were discussed. See “Marine Mammals and Sound,” The Seventeenth Annual Congress of the European Cetacean Society, Las Palmas de Gran Canaria, March 2003. 219

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waters or the high seas. However, international law applies to the issue of underwater sound to a limited extent. The 1982 UN Convention on the Law of the Sea includes underwater noise in its definition of pollution and requires states to take all necessary measures to prevent pollution of the marine environment from any source. Noise pollution prevention is implicitly mandated—the means by which this prevention is accomplished remain to be developed. Although there is a need for greater scientific understanding of the effects of noise on the marine environment, international events have arisen which reveal the need for policy guidance as well. Clearly, the establishment of international rules and standards is the next step in implementation of the environmental protection principles in the UN Convention on the Law of the Sea. Determining the appropriate international institutions with the jurisdictional capacity and expertise to develop such rules and identifying the challenges in implementing them is the focus of the next chapter.

Chapter 5 POLITICS, POTENTIAL SOLUTIONS, AND OBTACLES TO EFFECTIVE POLICY

Having examined existing institutional arrangements that have specifically addressed noise in the previous chapter, this chapter focuses on international organizations with the jurisdictional capacity and scientific expertise to address a transboundary pollutant such as noise. It considers both global and regional approaches to regulating ocean noise. In particular this chapter explores conventional methods of pollution control and evaluates how they might be applied to ocean noise. Finally, it addresses the political dynamics surrounding the issue of ocean noise and identifies obstacles to establishing effective policy.

1.

INTERNATIONAL INSTITUTIONS WITH THE JURISDICTIONAL CAPACITY TO ADDRESS UNDERWATER NOISE

1.1

The Value of International Regimes and Organizations

International regimes are “constellations of agreed-upon principles, norms, rules and decision-making procedures that govern the interactions of actors in specific issue areas.”1 Regimes are considered social institutions

1

Oran R. Young, a “International Organizations and International Institutions: Lessons Learned from Environmental Regimes,” in Environmental Politics in the International

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that provide the “rules of the game” that define generally accepted social practices. By contrast, international organizations are material entities composed of staff, offices, budgets, and legal personality.2 They are often important, but they are not essential to implementing and administering the provisions of international regimes.3 Oran Young provides an illustration of both international organizations and regimes. He explains that the United Nations Environmental Programme (UNEP) is an international organization. In contrast, the environmental protection arrangements for the Mediterranean Sea, established by the 1976 Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution and its Related Protocols, are an example of an environmental regime.4 International organizations play an important role in contributing to the negotiations that give rise to environmental regimes.5 Conversely, international regimes can contribute to the evolution of international organizations. UNEP is a good example of an organization that has operated in both capacities – initially serving as an instrument of regime formation and then playing a role in the administration of the regime it helped to form.6 International environmental law experts Patricia Birnie and Alan Boyle claim that international organizations offer the best means of ensuring a

Arena, ed. Sheldon Kamieniecki (Albany: State University of New York Press, 1993), 145. For a general discussion on international regimes International Regimes ed. Stephen D. Krasner (Ithaca, N.Y.: Cornell University Press, 1983); see also Oran R. Young, International Cooperation: Building Regimes for Natural Resources and the Environment (Ithaca, N.Y.: Cornell University Press, 1989). 2 Oran R. Young, “International Organizations and International Institutions: Lessons Learned from Environmental Regime.” Ibid. 3 Ibid. The relationship between international regimes and organizations is discussed in Chapter 2 of Oran R. Young, International Cooperation: Building Regimes for Natural Resources and the Environment. See also Mary Beth West, “International Considerations in Regional Oceans Governance,” in Workshop on Improving Regional ocean Governance in the United States December 9, 2002, ed. Biliana Cicin-Sain and Bud Ehler, 47-51; text available at <www.udel.edu/CMS/csmp/pdf/Regional Proceedings.pdf.> 4 Ibid. Young also provides another example of an environmental regime consisting of the environmental protection measures for stratospheric ozone set forth in the 1985 Vienna Convention for the Protection of the Ozone Layer, in combination with the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer. 5 Young emphasizes, though, that regimes can encompass formal and informal elements. Regarding the dynamics of regime building negotiations, see Negotiating International Regimes: Lessons Learned from the UN Convention on Environment and Development, ed. Bertram I. Spector et al. (Cambridge: Graham and Trotman, 1994). 6 Ibid.

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generally accepted, minimum level of environmental protection.7 In fact, several intergovernmental organizations (IGOs ) are already charged with implementing and overseeing pollution control in the world’s oceans.8 These IGOs play several important roles in the development of policies and regulations for addressing an emerging pollutant such as noise. They can place and maintain issues on the international agenda and provide a locus for negotiations and multilateral bargaining.9 They can provide a source of leadership and serve as architects for the establishment of agreements that emerge from negotiations among states.10 Further, they can establish programs to achieve specific objectives and set standards for behavior within the international community.11 All of these activities contribute to an overall regime for protecting the world’s oceans. Birnie and Boyle describe international regulatory regimes as “the setting of common standards, supervised by international institutions.”12 The benefits of such international regulatory regimes are garnered by the global community, but the burdens of compliance fall on national governments, which by participating in an international regime, lose a degree of control in determining the appropriate balance of safety and risk in their own territories. This balance between the benefits gained by the international community and the loss of states’ sovereignty can be a major obstacle to the establishment of international regimes.13 In many cases of marine pollution,

7

Ibid. Several of these IGOs were discussed in the previous chapter and include the IAEA (to oversee radioactive pollutants) and the IMO (to oversee oil and other ship-borne pollutants) among others. 9 See Oran R. Young, “International Organizations and International Institutions: Lessons Learned from Environmental Regimes,” supra note 1. 10 A previously cited example of this is the role of UNEP in negotiating with the Food and Agriculture Organization, the IMO, the IAEA, and other organizations to join forces to develop the Mediterranean Action Plan in the 1970s. Another example is the institutional bargaining that went on between UNEP and the World Meteorological Organization to develop an international regime to address climate change. See Oran R. Young, “International Organizations and International Institutions: Lessons Learned from Environmental Regimes,” 147, supra note 1. 11 One example of a program established by UNEP is the Global Programme of Action for the Protection of the Marine Environment from Land Based Activities (GPA). Information on this program can be found on line at 12 P. Birnie & A. E. Boyle, International Law and the Environment ed. (New York: Oxford University Press, 2002), 348. 13 For a general discussion on international regimes and the balance of benefits between the international community and sovereign states, see generally International Regimes, ed. Stephan Krasner; and Oran R. Young, International Cooperation: Building Regimes for Natural Resources and the Environment, supra note 1.. 8

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nevertheless, states have chosen an international regulatory regime for problems that were considered sufficiently serious. The present international regime for the protection of the ocean environment is a mosaic of different global and regional instruments (treaties, action plans, etc.) consisting of both hard law (legally binding documents) and soft law (non-binding agreements, recommendations, guidelines, resolutions).14 In the absence of a comprehensive legal regime, marine life could be protected from ocean noise pollution on a piecemeal basis by a series of treaties, protocols, conventions and regional agreements. However, the existing regime is considered inadequate for dealing with transboundary environmental problems and poses a particular challenge to the development of a comprehensive policy on ocean noise pollution.15 Before a comprehensive policy can be developed, therefore, further definition of the problem and its international implications is required. The global nature of activities that produce underwater noise and the transboundary migrations of affected species necessitate the involvement of IGOs and the establishment of some type of international regulatory regime. Because noise is a form of pollution as defined in the United Nation’s 1982 Law of the Sea Convention, UN bodies are the appropriate venue for research, oversight and regulation. But policy development cannot be made without a clear definition of the problem.16 In the case of ocean noise, this task is best undertaken by marine

14

Legally-binding documents are often referred to as “hard law.” The definition of “soft law’ is less explicit but Birnie and Boyle consider it to include international codes of practice, recommendations, guidelines, resolutions, declarations of principles, and standards. These instruments are not necessarily legally-binding, but they do not lack all authority; they usually have some normative significance. Furthermore, soft law often can define the path of future hard law. See Birnie and Boyle, International Law and the Environment, ed., supra note 12. For a comprehensive discussion on the development of hard and soft law, see Kenneth W. Abbott and Duncan Snidal, ”Hard and Soft Law in International Governance,“ International Organization 54 (2000): 421-456. See also A.C. De Fontaubert, ”Institutional and Legal Framework of Marine Protected Areas,“ in Marine and Costal Protected Areas, A Guide for Planners and Managers ed. Salm and Clark (Gland, Switzerland: IUCN, 2000). 15 For one perspective concerning the inadequacies of transboundary pollution policy, see Gabriella Kutting, and Gauci Gotthard, ”International Environmental Policy On Air Pollution From Ships,“ in Environmental Politics 5(2) (Summer 1996): 345-353. Also see G. Handl, ”Territorial Sovereignty and the Problem of Transnational Pollution,“ American Journal of International Law 69 (1975): 50; and D.B. Magraw, ”Transboundary Harm: the International Law Commission’s Study of International Liability,“ American Journal of International Law 80 (1986): 305. 16 See Charles O. Jones, An Introduction to the Study of Public Policy (Albany: SUNY Press, 1993), 27 for the 11 steps in his policy process framework.

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mammal biologists and underwater acousticians who understand the issue at its most fundamental, scientific level. In the United States, relevant work has been conducted by the Committee on Low-Frequency Sound and Marine Mammals under the Ocean Sciences Board of the National Academy of Sciences. Internationally, the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) could be given responsibility for examining and defining the problem, following the lead of the US National Academy of Sciences.17

1.2

GESAMP

GESAMP was established in 1967 to advise its sponsoring agencies on the scientific aspects of marine pollution only. In 1993, its sponsors agreed to expand the role of GESAMP to cover “all scientific aspects on the prevention, reduction and control of the degradation of the marine environment to sustain its life support systems, resources and amenities.”18 Today it is cosponsored by eight organizations: the United Nations, the International Maritime Organization, the Food and Agriculture Organization (FAO), UNESCO’s Intergovernmental Oceanographic Commission (IOC), the World Meteorological Organization (WMO), the World Health Organization (WHO), the UN Environmental Programme (UNEP), and the International Atomic Energy Agency (IAEA).19 The majority of GESAMP’s research is composed of specific projects carried out at the request of one or more of its eight sponsors.20 This research is carried out by scientific experts who are nominated by each sponsoring organization (from one to four experts per organization). Some

17

The GESAMP website is found at <www.gesamp.imo.org>. The GESAMP Secretariat is located in Paris and each of the eight sponsoring organizations share the costs for participation in sessions by the experts it nominates and for maintaining contact with such experts. Conference services and documentation pertaining to sessions of the Joint Group are also paid for by the sponsoring organizations. 18 An example of such specific projects includes “safe and effective use of chemicals in coastal aquaculture” and the “sea-surface microlayer and its role in global change.” For a list of specific reports generated by GESAMP, see 19 A background profile of GESAMP is found at the United Nations System-Wide Earthwatch system, located at <www.unep.ch/earthw/scpGESAMP.htm> accessed on January 14, 2002. 20 In addition to the Secretariat, located in London, GESAMP is made up of 9 members including a chairman and a vice-chairman who reside at institutions in their home countries. For a list of members and their nationalities, see To date, more than 750 experts have participated in the work of GESAMP.

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experts are nominated to serve for a period of up to four years, while others are appointed as the occasion demands specifically to address particular problems.21 Defining the problem of noise pollution requires input from physical and biological scientists, natural resource managers, and policy experts. Consequently, GESAMP is the appropriate institutional choice because it is an international, multidisciplinary body with substantial scientific expertise in ocean pollution problems. Furthermore, because the GESAMP definition of pollution is functionally identical to that of the 1982 Law of the Sea Convention (i.e., it is concerned with both substances and energy), ocean noise pollution clearly falls within its mandate.22 GESAMP should carry out a “scoping activity” to assess the issue of underwater noise pollution and report the results to its sponsors, particularly the IMO, UNEP, and UNESCO’s Intergovernmental Oceanographic Commission (IOC). This would involve convening a multidisciplinary group of scientists with expertise in underwater acoustics, marine mammal communication and behavior, and international ocean policy. The results of the scoping activity would be reported to the Executive Heads of the sponsoring organizations, which make such reports available to governments and, as appropriate, to other international organizations, institutions and individuals concerned with marine pollution problems. There are problems with GESAMP, however, that may adversely affect its ability to define the issue of ocean noise pollution. Perhaps the most restrictive problem is that the group’s funding has often been insufficient and unstable.23 Currently, the group has no full time secretariat, and only eight scientific experts are still enlisted due to budgetary constraints.24

21

An explanation of the GESAMP membership is located at Presently, the organization’s 2002 members include 2 American scientists, and one scientist from the Netherlands, the U.K., Ireland, Nigeria, Spain, and Australia. 22 GESAMP defines pollution as the “introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries) resulting in such deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing, impairment of quality for use of seawater, and reduction of amenities.” from GESAMP: Environmental Capacity: An Approach To Marine Pollution Prevention, UNEP Regional Seas Reports and Studies, No. 80, (Nairobi: UNEP, 1986). 23 See Jan Stefan Fritz, Report on International Advisory Processes of the Environment and Sustainable Development, UNEP/DEIA/TR.98-1 (Nairobi: UNEP, 1998) Annex 2, 19-20. 24 From an e-mail from Dr. V. Vandeweerd, UNEP Technical Secretary of GESAMP, on November 18, 2002. Dr. Vandeweerd states that GESAMP is “developing a business plan and assessing how GESAMP could be of use for the new Global Marine assessment

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Furthermore, the term limit of its experts’ tenure is often ignored. As a result, many experts have acquired a “semi-permanent status,” thus limiting the opportunity for new ideas and approaches.25 Significantly, the most recent GESAMP report contains no reference to undersea noise pollution.26 Dr. Robert Duce, GESAMP’s chairman, has indicated that there have been no requests from UN agencies for GESAMP to address the issue of ocean noise.27 With an appropriate mandate, however, GESAMP could provide an unbiased, scientific approach to problem definition—an essential foundation for good policy development. Consideration of ocean noise by GESAMP would represent a significant step toward global recognition of the problem. An initial scoping activity and subsequent report from GESAMP would assist provide the impetus needed to begin addressing ocean noise pollution with international instruments such as IMO annexes, UNEP Regional Seas protocols, and other UN environmental agreements.28 What would the next step entail? Should noise regulation be based on the regional control of noise-producing activities, or should ocean noise be addressed on a global basis by a single, overarching multilateral treaty regime? Some argue that the development of a comprehensive international instrument is a necessary step in addressing undersea noise pollution.29 But what international legal controls can realistically be implemented and enforced? And how can non-party states be prevented from continuing to

process. But at the end of the day everything is brought back to the willingness of governments to fund such an endeavor.” 25 See Jan Stefan Fritz, Report on International Advisory Processes of the Environment and Sustainable Development, supra note 23. However, a recent GESAMP report states that after May 2002, the term of membership in GESAMP will be strictly limited. See United Nations Environment Programme, “Proceedings of the Technical Workshop for Establishing a Regular Process for the Global Assessment of the Marine Environment” UNEP Governing Council Decision 21/13, March 2002 at para. 17 (c) (ii). 26 Report of the Thirtieth Session, GESAMP Report No. 69, Monaco, May 22-26, 2000. Available on line at <www.gesamp.imo.org.> 27 From an e-mail from Dr. Robert Duce, chairman of GESAMP, March 2, 2002. 28 The Natural Resource Defense Council has recommended that marine environmental noise standards should be included in multilateral treaties and conventions, each governing a major source of pollution. See Jasny, Sounding the Depths: Supertankers, Sonar, and the Rise of Undersea Noise, (New York: Natural Resources Defense Council, 1999), 59. 29 Ibid. See also the Silent Oceans website, located at <www.silent-oceans.org> (calling for an “international treaty and convention of undersea acoustic pollution”). Also see an email from Dr. Paul K. Anderson at University of Calgary which states that “the only responsible approach is a search for international agreements banning the use of ...powerful mid-to-low frequency sonars.” Posted on MARMAM listserver on January 20, 2002. Available at [email protected].

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pollute the world’s oceans with noise? Is an international treaty a possible solution? The following section attempts to answer these questions and to address some of the policy implications of enforcing a comprehensive, international treaty on ocean noise. Several of the limitations of such an approach are identified and recommendations for preliminary steps toward ocean noise regulation that utilizes the existing international framework for protecting the marine environment are outlined.

1.3

The Development of an International Treaty on Ocean Noise

Several significant obstacles exist to the creation of an international treaty on undersea noise pollution. First, many states are currently concerned with more immediate environmental matters and, therefore, they have not yet acknowledged the issue. This lack of visibility implies that the issue is not yet ripe for a treaty. For the problem to be formally recognized, unbiased representatives of the international community, such as GESAMP, must raise public awareness of ocean noise. This recognition is complicated by the intangible nature of sound in the sea combined with the significant scientific uncertainty that surrounds its effects on marine life. A second obstacle is the challenge inherent in drafting rules and regulations that are both feasible and enforceable, yet still would be able to accomplish concrete objectives. A third obstacle is getting states to ratify a treaty that would limit their sovereignty, a common problem in multilateral agreements. A fourth obstacle is that the enforcement of a treaty requires continuous global noise monitoring. Finally, because sound is incidental to a wide variety of ocean uses, such as shipping, a fifth obstacle concerns the economic repercussions that are likely to result if limits on acoustic emissions are imposed. Opposition from stakeholders is not uncommon when creating a multilateral instrument. In the controversy over underwater noise pollution, the United States and other countries with strong defense and oil industries might not ratify an international regulatory instrument or might attempt to slow progress, citing concerns over scientific uncertainty or national defense. Opposition from a strong shipping industry is also possible. Shipquieting technology is costly and may be difficult to enforce on vessels registered under flags of convenience.30 Added costs from reducing noise emissions would greatly affect flag states with large commercial fleets such as Panama or Liberia. If an international treaty were drafted, would these

30.

Ibid, 55.

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countries become parties or would they oppose the agreement? The issue of ocean noise pollution has received little attention from the shipping industry to date. The president of the American Institute of Maritime Shipping has said, “What do they want, no ships in the ocean? ... We have water pollution, air pollution—the latest thing was our ballast water. Noise pollution? That’s a whole new one.”31 Given the context of scientific uncertainty and the potential economic ramifications that could result, the establishment of a global treaty solely to regulate underwater noise is improbable for political reasons. Although new international policy is needed, it will likely need to be developed and implemented by existing organizations. Moreover, it is reasonable to anticipate that regulation of noise initially will be established on a regional (e.g., Mediterranean Sea, Northeast Atlantic) and sectoral basis (e.g. shipping, oil and gas), vis-à-vis the establishment of an overall global treaty. But even before such regional and sectoral approaches can occur, initial efforts must focus on further understanding the scientific aspects of ocean noise, gaining international recognition of the issue, and garnering the necessary political support. To achieve these objectives, the following steps could be taken: 1) Allocate funds to continue and expand scientific research on noise and its impacts on marine mammals. This step underscores two fundamental requirements for the development of good environmental policy: funding and sound science. Lack of funding was considered the primary reason for the failure of the UN’s Global Plan of Action for Marine Mammals. It has also been claimed that lack of funding contributed to failure in some regional Moreover, the reliance of science on funding is seas programmes.32 undeniable: in the face of scientific uncertainty concerning the effects of noise on the ocean ecosystem, funding is required to support new research on the long-term, cumulative effects of anthropogenic noise on marine mammals and its potential to cause environmental degradation. 2) Highlight specific guidelines in existing regional agreements that have recognized anthropogenic noise as a threat to the marine environment. These agreements include ACCOBAMS, ASCOBANS, and OSPAR (discussed in detail in Chapter Four). While these agreements identify noise

31.

Richard C. Paddock, “Beneath the Not So Silent Sea,” Los Angeles Times, May 3, 1994, A1. 32 Birnie and Boyle, International Law and the Environment, ed., 359, supra note 12.

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as a threat, they do not explicitly direct parties to reduce or prevent acoustic disturbances.33 3) Encourage institutions such as the IWC to pay more attention to the problems of noise pollution. Because the focus of the IWC is primarily on commercial whaling activities, this step represents more an acknowledgment of the problem than a statement of policy. However, the IWC’s acknowledgement of noise as a threat to whales would be of normative significance in the international community. Moreover, since its inception, the IWC has encouraged and funded much of the scientific research on whales.34 Funding research on the effects of anthropogenic noise on whales would be in keeping with the IWC’s claim that there is an immediate need to study the marine acoustic environment.35 4) Create a new annex in MARPOL that defines noise as a type of pollutant. To do so, the MARPOL definition of pollution would have to be changed to incorporate energy in addition to substances. Only then could a seventh annex on noise be added to the existing six annexes, which presently pertain to oil, noxious liquid substances, harmful packaged substances, sewage, garbage, and air pollution.36 5) Include ocean noise pollution in UNEP Regional Seas protocols. This step is proposed as a means of addressing ocean noise pollution on a smaller geographical scale while still pursuing international acknowledgement of the global nature of the problem. The UN Regional Seas Programme was initiated in 1974 as a global program to be implemented through regional components. At present, it includes thirteen regions involving more than 140 coastal states and territories.37 It is action-oriented and focuses not only

33 34 35

36 37

The use of zoning would be appropriate in such cases and is addressed later in this chapter. See the IWC website at See IWC/54/4, “Report of the IWC Scientific Committee,” Annex L, Report of the Subcommittee on Whalewatching, May 2002, Section 6. As discussed in Chapter Four, all decisions concerning pollution and habitat degradation are of a non-binding nature as the IWC’s regulatory competence is restricted to the direct taking of whales. See International Convention for the Regulation of Whaling of December 2, 1946 (entered into force on November 10, 1948), 161 UNTS 72, Article V. The Convention would require an amendment before manatory measures could be imposed to prevent acoustic disturbance of whales. See Dontinga and Elferink, “Acoustic Pollution in the Oceans: The Search for Legal Standards,” Ocean Development And International Law 31 (2000): 168. MARPOL 73, 1335-1438. For information on the Regional Seas Programme, see the website at See also Stjepan Keckes, “The Regional Seas Programme – Inegrating Environment and Development: The Next Phase,” in Ocean Governance: Sustainable Development of the Seas, ed. Peter Bautista Payoyo (United Nations University Press: New York, 1994). See also Philomene Verlaan and Anbreen S.

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on the mitigation or elimination of pollution but also on the causes of environmental degradation. UNEP and its Regional Seas Programme have a reputation for strong leadership and technical competence, prerequisites for developing policy for a highly technical, controversial issue such as ocean noise.38 Furthermore, the Regional Seas Programme is known for its tendency to downplay the political dimensions of issues and to stress their technical aspects, a useful approach to addressing ocean noise. Regional Seas Action Plans are geographically specific, formally adopted, intergovernmental plans designed to link assessment of the quality of the marine environment and the causes of its deterioration with strategies for its management. Each action plan consists of five components: environmental assessment, environmental management, environmental legislation, institutional arrangements, and financial arrangements. Many action plans are specific enough to include a detailed protocol that requires member states to consider noise as a pollutant.39 For example, the Mediterranean Sea Action Plan is supported by a legal framework that includes the Barcelona Convention and six Protocols that address specific environmental themes.40 These protocols allow the Action Plan to be updated when necessary to reflect environmental trends and advances in science.41 Presently, these six Protocols address dumping from ships and aircraft, pollution from oil and other harmful substances in cases of emergency, pollution from land-based sources and activities, specially protected areas and biological diversity, pollution resulting from exploration and exploitation of the continental shelf, and transboundary movements of

Khan, “Paying to Protect the Commons: Lessons from the Regional Seas Program,” Ocean and Coastal Management 31 (1996): 83-104. 38 Oran Young, “International Organizations and International Institutions: Lessons Learned from Environmental Regimes,” supra note 1. 39 For example, its Mediterranean Action Plan, the Strategic Action Program (SAP) includes specific recommendations for reducing pollution. Noise, however, is not yet addressed in the document as a pollutant. The (SAP) may be found on line at http://www.unepmap.org/pdf/sap.pdf. In general, the consideration of noise by the Regional Seas Programme is consistent with the 1982 UNCLOS and builds on elements already found in the Convention and in line with the objectives outlined in Agenda 21; see Birnie and Boyle, International Law and the Environment ed, 359, note 12. 40 For a discussion of the Mediterranean Action Plan, see Arsen Pavasovic, “The Mediterranean Action Plan Phase II and the Revised Barcelona Convention: New Prospective for Integrated Coastal Management in the Mediterranean Region,” Ocean and Coastal Management 31 (1006): 133-182. Also see “Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean,” (1995) not in force. 41 See the Mediterranean Action Plan website at <www.unepmap.gr.>

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hazardous wastes.42 The addition of a protocol or the incorporation of noise into existing protocols would be in keeping with the Mediterranean Action Plan’s stated need to take into account recent developments in environmental law and science and in “intersecting with the other sub-regional agreements,” such as the Agreement Relative to the Creation of a Mediterranean Sanctuary for Marine Mammals .43 Several international institutions exist with the jurisdictional capacity and expertise to address underwater noise including the IMO (to address noise from shipping), the IOC (to address noise generated by oceanographic research), and UNEP (under which the Regional Seas Programme could address the effects of noise on an ecosystem basis in regional sea areas). However, GESAMP is the appropriate international organization to initially assess the broad extent of ocean noise pollution and to provide recommendations to the relevant international organizations (e.g. UNEP, IMO). Once GESAMP acknowledges and defines the issue, the burden of pollution prevention will fall on other international organizations. These organizations then must adopt specific techniques and approaches to pollution prevention in order to implement their strategies. The next section identifies such pollution control techniques, discusses several of the most common approaches to pollution prevention, and examines the potential of international organizations to prevent underwater noise pollution.

2.

CONVENTIONAL APPROACHES TO POLLUTION CONTROL

Many inputs to the sea are manmade and do not occur naturally (e.g. plastics, pesticides.) Other substances exist naturally yet are nonetheless considered pollutants (e.g. radiation, oil, organic matter). Contamination has been described as occurring “when an input from human activities increases the concentration of a substance in seawater, sediments, or organisms above

42

43

The text of these protocols and the status of signatures and ratifications can be found on These objectives are outlined on the MAP web page at . The Agreement Relative to the Creation of a Mediterranean Sanctuary for Marine Mammals was Signed in Rome on November 25, 1999. Text of this agreement is located at <www.icram.org.english.ricerca.amp.accordoing.htm.>

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the natural background level for that area and for the organisms.”44 But pollution, as previously defined by the UN Convention on the Law of the Sea, requires that the input be damaging.45 The utilization of pollution control measures is well-documented and many have been successfully implemented in the marine environment for decades.46 Pollution is often viewed from two standpoints: the release of emissions and the effects on the environment. From the emissions perspective, solutions often involve the use of new technologies to reduce pollution. From the environmental perspective, solutions often rely on the ocean’s ability to tolerate or absorb pollutants (e.g. best practicable environmental approach, the determination of environmental capacity— which are discussed later in this chapter).47 Many pollution control approaches have proven useful when regulating the release of a substance, but their application may be more problematic when applied to the transmission of energy, such as noise. Several conventional approaches to pollution control and their applicability to ocean noise pollution are discussed in the following sections.

2.1

Environmental Capacity

To some extent, the environment has the ability to tolerate an influx of pollution or wastes without suffering significant damage. This level varies depending on the waste and the area in question. Environmental capacity,

44

R.B. Clark, Marine Pollution, ed. (Oxford: Clarendon Press, 1997). For a discussion of the practical implications of contamination vis-à-vis pollution, see R.B. Clark, Marine Pollution, 6. GESAMP was recently tasked with clarifying confusion regarding its definitions of the terms “pollution” and “contamination.” See GESAMP Report of the Thirtieth Session, GESAMP Report No. 69, at para. 7.14, Monaco, May 2226, 2000. Available on line at <www.gesamp.imo.org.> 46 For approaches to marine pollution control, see generally R.B. Clark, Marine Pollution; Luc Cuyvers, Ocean Uses and their Regulation (New York: John Wiley and Sons, 1984); Marine Pollution ed. R. Johnston (Academic Press: New York, 1976). For a thorough discussion of the environmental policy tools available to prevent pollution, see US Congress, Office of Technology Assessment, Environmental Policy Tools: A User’s Guide, OTA-ENV-634 (Washington, DC: US Government Printing Office, September 1995). 47 Alternatively, four general methods of controlling pollution are outlined by economists Allen Kneese and Charles Schultze. These are: (1) changing the way an activity is carried out so that it generates less pollution to begin with; (2) treating pollutants as they emerge to render them less harmful; (3) increasing the capacity of the environment to absorb pollutants; and (4) diverting pollutants to a different environmental medium. See Allen V. Kneese and Charles L. Schultze, Pollution, Prices, and Public Policy (Washington, D.C.: The Brookings Institution, 1975). 45

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also known as absorptive or assimilative capacity, requires determining the amount of pollution that can be safely assimilated within a particular area.48 Specifically, it is defined by GESAMP as the ability of the environment “to accommodate a particular activity or rate of activity (e.g. volume of discharge per unit time, quantity of dredgings dumped per unit time, quantity of minerals extracted per unit time) without unacceptable impact.”49 GESAMP emphasizes that the determined capacity is an upper limit. The measure has commonly been used when evaluating effluents into drinking water supplies and in determining safe levels of radioactive materials in the ocean.50 An environmental capacity approach generally requires monitoring to ensure that the response of the ecosystem to the influx of the pollutant is within an acceptable range. As with several other approaches to marine pollution reduction, this approach requires substantial scientific knowledge and good baseline data. Unfortunately, in the case of anthropogenic noise pollution, much of this information is lacking. For this technique to be useful, damage thresholds and the long-term, cumulative effects of noise on marine life would have to be well understood. No good baseline data for ambient noise in the ocean exists, and few historic datasets are available.

48

49

50

See generally, IMO/FAO/Unesco/WMO/WHO/IAEA/UNEP Joint Group of Experts on the Scientific Aspects of Marine Pollution, “Environmental Capacity: An Approach to Marine Pollution Prevention,” GESMAP Reports and Studies No. 30 (Rome: FAO, 1986); also see IMQ, Strategies for Marine Environmental Protection, GESAMP Reports and Studies No. 45 (London: IMO, 1991); and Peter H. Sand, Lessons Learned in Global Environmental Governance, (New York: World Resources Institute, 1990). For environmental capacity as it relates to the precautionary principle, see A.R.D. Stebbing, “Environmental Capacity and the Precautionary Principle” Marine Pollution Bulletin 24 (1992): 287-295. For scientific research on determination of environmental capacity, see W.B. Neely, Chemicals In The Environment - Distribution, Transport, Fate, Analysis (New York: Marcel Dekker Inc., 1980) and G.L. and R. Lassiter. “Prediction Of Environmental Pollutant Concentration,” in Estimating The Hazard Of Chemical Substances To Aquatic Life, ed. J. Cairns, Jr.,R.L. Dickson and A.W. Maki. ASTM Spec. Tech.Publ., (657)05-54, 1978. In regard to the specific case of environmental capacity and the Mediterranean Sea, see UNEP/UNESCO/FAO, Eutrophication on The Mediterranean Sea. Receiving Capacity And Monitoring of Long-Term Effects. Mediterranean Action Plan Tech.Rep. (21), 1988. IMO/FAO/Unesco/WMO/WHO/IAEA/UNEP Joint Group of Experts on the Scientific Aspects of Marine Pollution, “Environmental Capacity: An Approach to Marine Pollution Prevention,” GESMAP Reports and Studies No. 30 (Rome: FAO, 1986) at section 2.2. See for example, J. Alabaseter and R. Lloyd, Water Quality Criteria for Freshwater Fish, ed. (London: Butterworth, 1982); also International Atomic Energy Agency, Principles for Establishing Limits for the Release of Radioactive Materials into the Environment IAEA Saf.Ser., (45), 1978 and C.M. Slansky, “Principles for Limiting the Introdcution of Radioactive Waste into the Sea,” Atomic Energy Review 9 (1971).

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Furthermore, the unpredictable and transient nature of underwater sound makes the application of environmental capacity even more challenging. Determination of environmental capacity is an approach to noise pollution prevention that holds much promise but requires more research.

2.2

The Precautionary Approach

The precautionary approach emerged from the German principle of Vorsorge, or foresight, and developed into a fundamental tenant of German environmental law in the early 1970s.51 At the international level, it was first introduced at the 1984 Conference on Protection of the North Sea, where fears about the damaging effects of dumping wastes into the ocean led to the formalization of a precautionary approach.52 The precautionary approach governs the way activities that present threaten the environment ought to be addressed in the absence of hard scientific data. It requires that in the face of scientific uncertainty, errors be made on the side of excess environmental protection. The precautionary approach mandates that an activity must be proven not to create unacceptable impacts on existing resources or species for the activity to continue. The burden of proof falls on the proponents of a specific activity under this approach.53

51

Joel Tickner et al., “The Precautionary Principle in Action: A Handbook,” Lowell Center for Sustainable Production, (Lowell, MA: University of Massachusetts, 1998), 2-3. 52. Specifically, the precautionary principle was first used internationally in 1984 in the North Sea Conference, Birnie and Boyd, International Law and the Environment ed., 116, supra note 12. The U.S. prefers the term “precautionary approach” rather than “precautionary principle” in the belief that “approach” offers greater flexibility and is potentially less restrictive than “principle.” For background on the precautionary principle and the precautionary approach, see generally Freestone and E. Hey, The Precautionary Principle and International Law (The Hague: Kline Law International, 1996); Interpreting the Precautionary Principle ed. C. O’Riordan and Cameron (London: Prescott, Inc.,1994); Harald Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law (Boston: Kluwer Law International, 1994); Nollkaemper, The Legal Regime for Transboundary Water Pollution (Bonn: Dordrech, 1993); John M. Macdonald, “Appreciating the Precautionary Principle as an Ethical Evolution in Ocean Management,” Ocean Development and International Law 26 (1995): 255 – 267; R.C. Earll, “Commonsense and the Precautionary Principle: An Environmentalist’s Perspective,” Marine Pollution Bulletin 24(1992): 182-6; and A.R.D. Stebbing, “Environmental Capacity and the Precautionary Principle,” Marine Pollution Bulletin, 24 (1992): 287-95. 53 Concerning this burden of proof, see generally David Appell, “The New Uncertainty Principle,” Scientific American (January 2001); 18-19. See also Margot Higgins, “Conservation Lessons: Marine Mammal Act Shifts Burden of Proof,” Environmental

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Since 1984, the precautionary principle has been incorporated in a number of international agreements and declarations, among them the 1992 Rio Declaration on Environment and Development.54 Specifically, Principle 15 of the Rio Declaration states that: ...to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.55 With the advent of the precautionary approach, the state of today’s environmental law has shifted to emphasize the custodial relationship of states with the environment.56 Chapter 17 of Agenda 21, the UN’s blueprint for the global environment, refers to the need for “new approaches to marine and coastal area management and development, at the national, sub-regional, regional and global levels, approaches that are integrated in content, and are precautionary and anticipatory in ambit.”57 Political scientist Lettie Wenner observed that “[t]he history of international environmental controls shows [incremental change] away from bilateral diplomatic negotiation [over] damages that have already occurred to a more multinational attempt to

54

55. 56. 57.

News Network, October 7, 2000, found on line at <www.enn.com/enn-newsarchive/2000/10072000/mmpa_32113.asp.> “United Nations Conference on Environment and Development: Rio Declaration on Environment and Development,” I.L.M. 31 (1992): 874 - 879. Since 1990, the precautionary approach has also been incorporated into several treaties or instruments that deal with marine pollution, international watercourses, air pollution, climate change, transboundary trade in hazardous waste, and endangered species. See Birnie and Boyle, International Law and the Environment ed. for a list of these treaties and instruments. For a discussion on the precautionary principle in the Oslo and Paris Conventions, see Ellen Hey, “The Precautionary Approach: Implications of the Revision of the Oslo and Paris Conventions,” Marine Policy (July 1991): 244-254. Ibid., 879. Birnie and Boyle, International Law and the Environment ed., 85, supra note 12. Agenda 21 is “a comprehensive plan of action to be taken globally, nationally, and locally by organizations of the United Nations System, governments, and major groups in very area in which humans impact the environment.” It was adopted by more than 178 governments at the UN Convention on Environment and Development in Rio de Janero in June, 1992. It consists of forty chapters covering a variety of issues including the environment, poverty, and development. For the text of Agenda 21 which addresses the use of precaution in protection of the seas, see “Protection of the Oceans, All Kinds of Seas, Including Enclosed and Semi-Enclosed Seas, and Coastal Areas and the Protection, Rational Use and Development of their Living Resources,” Agenda 21, ch. 17, para. 17.1, available at

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prevent harm before it occurs.”58 This multilateral, proactive approach focuses more on protection and less on restitution and liability, which normally take place after damage has occurred. The essence of the precautionary approach has been described by David Freestone, an international law scholar: The precautionary approach then is innovative in that it changes the role of scientific data. It requires that once environmental damage is threatened action should be taken to control or abate possible environmental interference even though there may still be scientific uncertainty as to the effects of the activities.59 Jon Van Dyke, a proponent of the precautionary approach, emphasizes that it imposes specific burdens on users of the ocean. These include the rejection of “the notion that the oceans have an infinite or even a measurable ability to assimilate wastes” and acknowledgement that mankind’s knowledge of the oceans’ ecosystems remains incomplete and that policy makers must err on the side of protecting the environment.60 The application of the precautionary approach, however, raises some difficult questions concerning interpretation and implementation. First, there is no international agreement concerning the level of harm that would invoke the precautionary approach.61 Second, determining the obligations of the proponents of an activity and its acceptable risks can be problematic.62 For example, the European Commission concedes that “judging what is an

58.

Lettie Wenner, “Transboundary Problems in International Law,” in Environmental Politics in the International Arena, ed. Sheldon Kamieniecki (Albany: State University of New York Press, 1993), 166. 59 David Freestone, “The Road from Rio: International Environmental Law after the Earth Summit,” Journal of Environmental Law 6 (1994): 211. 60 Jon M. Van Dyke, “Applying the Precautionary Principle to Ocean Shipments of Radioactive Materials,” Ocean Development and International Law 27 (1996): 379-397. 61 For a discussion concerning levels of harm, see John Moffet, “Legislative Options for Implementing the Precautionary Principle,” Journal of Environmental Law and Practice 7 (1997): 157 - 160. Birnie discusses the different thresholds of harm: Rio Principle 15 and the Climate change Convention require a risk of ‘serious or irreversible harm’ before the principle applies, while treaties on the marine environment do not. In some cases the principle involves a reversal of the burden of proof, in others it merely lowers the standard of proof, but to what level remains uncertain. See Birnie and Boyd, International Law and the Environment ed.,119, supra note 12. 62 Birnie claims that the consequences of applying the precautionary approach vary widely. Principle 15 of the Rio Declaration requires a consideration of scientific uncertainty in identifying whether a risk exists, yet it does not provide guidance on how to control the risk or what level of risk is acceptable. No general principle exists for determining what standards to adopt, supra note 12.

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‘acceptable level’ of risk for society is an eminently political responsibility.”63 Furthermore, critics claim that the precautionary approach is simply too vague to serve as a regulatory standard.64 One commentator argues that it is “not very helpful as a prescription for international action, but it nevertheless does indicate an important change in policy and perspective with wider potential implications.” 65 Others claim that if the principle is strictly applied, there is no place for science in decision making; the slightest suspicion that something has a damaging effect would be accepted as sufficient to warrant its control, without any consideration of scientific evidence.66 Nonetheless, several environmental groups have advocated the application of the precautionary principle to acoustic activities. The US Humane Society has claimed that recent decisions by NMFS interpreted results of scientific studies too loosely in an attempt to justify sweeping regulatory decisions that violate the precautionary principle.67 The members

63

Emphasis in the original. From the European Commision’s Communication on the use of the precautionary principle, February 2000. See announcement at <www.jiwlp.com/contents/PPCommission.htm. See also European Environment Agency, “Late Lessons from Early Warnings: The Precautionary Principle 1896 – 2000,” (EEA: Cophenhagen, 2001). 64. John Moffet, “Legislative Options for Implementing the Precautionary Principle,” Journal of Environmental Law and Practice 7 (1997): 157 - 160. Birnie and Boyd also emphasize that “the concept of precaution appears to mean different things in different contexts.” They claim that application of a precautionary approach may imply that when faced with uncertainty, one must be more cautious in identifying risks, or it might mean that one must be more cautious in taking meausres to deal with those risks. Birnie and Boyd, International Law and the Environment ed., 116, supra note 12. 65 Alan E. Boyle, “Protecting the Marine Environment: Some Problems in Developments of the Law of the Sea,” Marine Policy (Mar. 1992) : 79-85. 66 R.B. Clark, Marine Pollution, 10, supra note 44. Three challenges in implementing the precautionary principle are discussed in this paper. Others are addressed by David Vanderzwaag, who cites seven reasons that make the precautionary principle difficult to implement. These include: differences in terminology; definitional variations; definitional generalities; the spectrum of precautionary measures; ongoing philosophical debates; differing socioeconomic interests; vagueness over who should be responsible for precautionary decisions; and limited interpretation by international tribunals. See David Vanderzwaag, “The Precautionary Principle and Marine Environmental Protection: Slippery Shores, Rough Seas, and Rising Normative Tides,” Ocean Development and International Law 33 (2002): 165-188. 67 From a speech, “Interpreting Research Results: Government Regulation Of Anthropogenic Noise Sources”, by Naomi Rose of the Humane Society U.S. at the Acoustic Society of America meeting in Ft. Lauderdale, FL on 5 December 2001. Text of speech is also available via the MARMAM listserver at [email protected] on the December 10, 2001 postings.

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of the board of the Tethys Research Institute in Italy, along with the Italian Central Institute for Applied Marine Research, have called for an application of the precautionary principle in their statement on the use of low frequency sonar and ATOC in the Mediterranean Sea. They stated that, “in light of the precautionary principle, our suggestion is to be very careful in dealing with this kind of [acoustic] experimentation, that has the potential for jeopardizing cetacean populations that already have to face unsustainable stress levels and threats in the Mediterranean Sea.”68 They argue that the scientific uncertainty associated with cetacean populations and critical habitat requirements mandates the adoption of the precautionary principle in Mediterranean waters.69 Within the marine policy community, Emily Gardner has studied the applicability of the precautionary principle to marine acoustic activities.70 Her research focused on the US Navy’s SURTASS program, finding that “[b]ecause the SURTASS program is international in scope and has the potential to effect [sic] living resources in international waters as well as in the exclusive economic zones of countries other than the United States, under international law the Navy should be required to apply the precautionary principle to its full capability.”71 She also found that the Navy’s existing actions do not clearly satisfy the requirements of the precautionary approach. Gardner emphasized that there is still substantial scientific uncertainty surrounding the use of SURTASS technology and claimed that additional research was required. She proposed several potential solutions to address the scientific uncertainties including: 1) restricting the use of the technology to areas where good animal response data exists; 2) prohibiting the use of the technology until further research is completed to rule out long-term harm and harm to species other than those already tested; and 3) developing criteria for safe levels of sound intensity and/or frequency that are adequately conservative and which cannot be exceeded.72 NMFS currently limits SURTASS received levels to a threshold of 180 dB for whales, claiming that above these levels physical damage cannot be

68

November 20, 1999, “Statement on Low Frequency Active Sonars and acoustic pollution in the Mediterranean Sea.” Available at Last accessed March 20, 2002. 69 Ibid. 70 Emily A. Gardner, “The Precautionary Principle as Applied to Marine Acoustic Activities,” Emerging Issues in National Ocean and Coastal Policy, (Nov. 1998): 9–14. 71 Ibid., 11. 72 Ibid., 12.

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ruled out.73 Gardner claims that this criterion for determining safe exposure for marine mammals (based on physical damage as opposed to behavioral disruption) is not in keeping with the precautionary principle and more in line with the environmental capacity approach. Instead, she advocates developing criteria for safe levels of sound that are based on the occurrence of behavioral disruption rather than physical damage.74 Gardner’s discussion illustrates the challenges inherent in the precautionary approach. Her suggestions are valid, but they may prove difficult to implement. This is particularly clear in regard to her second suggestion, which proposes a prohibition on the use of certain technology until studies on long-term and cumulative damage can be carried out. This recommendation raises questions such as: How long is long-term? What if no long-term effects are observed? Does this simply mean that the study has not been carried out long enough? How can cumulative effects be measured? Is it enough to study only individual species of whales or should the entire ecosystem be monitored? These questions illustrate the challenges in implementing the precautionary approach in the face of scientific uncertainty.75 Because the issue of ocean noise pollution is largely a result of new technology (louder sonars, more powerful ships, increased drilling, new types of acoustic research), much uncertainty exists over the effects of such technologies on ocean ecosystems. As a result, regulatory agencies must make assessments in spite of gaps in scientific theory and data that are often incomplete. For example, in the United States, the “lack of data [on the effects of noise on marine mammals] has been identified as a problem for the National Marine Fisheries Service, which in order to publish noise standards for marine mammals, must base them on established facts.”76 The US National Academy of Sciences has concluded that “regulation of sound in the ocean is based on inadequate information and that more information

73

74

75

76

An expert panel of marine biologists and acousticians met in September 1998 at NMFS headquarters in Silver Spring, MD to establish criteria for thresholds of physical harm and disturbance of marine mammals. See Gardner, “The Precautionary Principle as Applied to Marine Acoustic Activities,” 14, supra note 70; and OSB-2000, 65-71. Specifically, Gardner supports the use of a 120 dB criterion, which has been proposed as the received level above which behavioral disruption of marine mammals was thought to occur. A discussion of the difficulties inherent in developing policy in the face of scientific uncertainty, see D. Hiep Truong, “How Does an Administrative Agency Distinguish Valid Science from Junk Science?” Akron Law Review 33 (2000): 365. Office of Protected Resources, NOAA, “The Effects of Manmade Noise on Marine Mammals,” Marine Mammal Protection Act Bulletin, Issue 19/20, quarter 2000, 9.

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needs to be collected.”77 Determining the appropriate level of precaution in the face of such scientific uncertainty is a significant obstacle to effectively applying the precautionary approach to underwater acoustic activities.

2.3

Environmental Impact Assessment

Environmental Impact Assessments (EIAs) have been used extensively in the underwater sound controversy—particularly by the military and the oil industry in the United States and by the seismic industries in Australia and the U.K. When a new type of potentially harmful discharge is proposed, a detailed EIA, which predicts the effects of the discharge, is prepared. Based on this assessment, a regulatory authority may issue or deny a permit or stipulate needed modifications. In the United States, the National Environmental Policy Act (NEPA) mandates the EIA process for any federally funded or federally permitted project or program with the potential for significant environmental impacts.78 Several large-scale scientific, military, and industrial projects that created significant anthropogenic sound have generated Environmental Impact Statements (EIS), the formal document subject to public review that is required by NEPA. These projects include ATOC,79 the US Navy’s SURTASS and ship shock programs,80 and several oil and gas drilling programs.81 In the European Union, the creation of a similar document,

77.

OSB – 1994, 5. See generally National Environmental Policy Act of 1969, Public Law 91-190. See also 42 U.S.C.A. §§ 4321 – 4370d. For an international perspective on the EIS process in the United States, see Orlando E. Delogu, United States Experience with the Preparation and Analysis of Environmental Impact Statements: The National Environmental Policy Act (Morges, Switzerland: IUCN, 1974). For an analysis of how the NEPA process can initiate policy changes, see Richard N.L. Andrews, Environmental Policy and Administrative Change (Lexington, MA: D.C. Heath and Co, 1976). 79 Advanced Research Projects Agency, “Final Environmental Impact Statement/Environmental Impact Report for the California Acoustic Thermometry of Ocean Climate Project,” (ARPA: Arlington, VA, 1995); also. Advanced Research Projects Agency, “Final Environmental Impact Statement/Environmental Impact Report for the Kauai Acoustic Thermometry of Ocean Climate Project,” (ARPA: Arlington, VA, 1995). 80 See US Navy’s Overseas Environmental Impact Statement for Surveillance Towed Array Sensor System–Low Frequency Active Sonar (SURTASS-LFA), Reports 1 and 2, (1999). Also see US Navy, Final Environmental Impact Statement, Shock Testing the Seawolf Submarine, May 1998. 81 See for example, Minerals Management Service, “Final Environmental Impact Statement on the Proposed Use of Floating Production, Storage, and Offloading Systems on the Gulf of Mexico Outer Continental Shelf, Western and Central Planning Areas,” February 2001. See also 78

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known as a Strategic Environmental Assessment (SEA), is mandated for member states who are required to carry out an assessment of the environmental effects of public and private projects that are likely to have significant effects on the environment.82 In the U.K., the outer continental shelf oil and gas industry has created several strategic environmental assessments that takes into account the effects of seismic energy on marine mammals.83 An environmental impact assessment serves many functions. First, it establishes a factual base upon which to make decisions. Second, it provides a clearinghouse for a wide range of information and opinions concerning a proposed action’s merits. In this regard, it is intended to be comprehensive, thus avoiding the shortsighted and narrow decision-making often inherent in statutes that govern single issues or activities. Third, it forces consideration of potential externalities as well as alternatives to the proposed action. Fourth, it provides a threshold test for determining when a project’s environmental impacts require further review. Fifth, and perhaps most importantly, it opens up decision-making to public scrutiny, and ideally can build public confidence in government institutions and decisions.84 The most sophisticated EIA laws are found in the United States, Canada, and the European Union.85 A major difference between the United States and other countries in implementation of the EIA process is that in the former, the EIA process is mandated only for federally funded or permitted projects or programs, while in the latter, the EIA requirements are primarily for undertakings financed by the private sector.86 EIA analyses attempt to forsee what will happen, but the actual impacts may be quite different. According to a study of the accuracy of predictions made in Australian EIAs, more than 50 percent of the predictions

Minerals Management Service, “Draft Environmental Impact Statement, Beaufort Sea Planning Area, Sales 186, 195, 202: Oil and Gas Lease Sale,” July 2002. 82 See Council Directive 85/337/EEC, “On the Assessment of the Effects of Certain Public and Private Projects on the Environment,” Official Journal no. L175, 05/07/1985, 00400048. Also, Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001” On The Assessment Of The Effects Of Certain Plans and Programmes on the Environment,” Official Journal no. L197 July 21, 2001, 0030. 83 See the Strategic Environmental Assessments for the UK Continental Shelf found at http://www.offshoresea.org/sea. 84 These functions are expanded upon in Chapter 4 of Environmental Decisionmaking in a Transboundary Region ed. Alison Rieser et al., (New York: Springer-Verlag, 1986). 85 See Canadian Environmental Assessment Act, SC 1992, c.37. Regarding the European Union, see EC Directive 85/337, OJEC 1985 L175, 40 as amended by EC Directive 97/11, OJEC 1997 L73,5. 86 Birnie and Boyd, International Law and the Environment ed., 170, supra note 12.

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substantially underestimated or overestimated the environmental impact of discharges.87 In Canada, one of the most crucial deficiencies in the environmental assessment process was identified as the lack of effort to monitor the actual effects of a project.88 Successful monitoring evaluates the accuracy of initial EIA predictions and determines if additional measures are needed to abate or avoid damage.89 For this reason monitoring is crucial and should be carried out after permits have been issued and a project has begun. In the United States, the environmental assessment process has been criticized as weak, procedural, dilatory, and costly.90 These criticisms stem from the fact that the assessments inevitably are inexact and contestable. Experts agree on the need to monitor and evaluate results from previous projects to determine how closely predictions match reality.91 Because the EIA process in the United States does not require follow-up monitoring, actual impacts remain undisclosed or unknown, and there is no guarantee that impacts will remain below predicted, and therefore acceptable, thresholds. A study carried out by the US Department of Transportation’s Office of NEPA Facilitation highlighted several problems with the EIA process. It cited the top three reasons for delays in EIA projects as: lack of funding (32 percent); local controversy (16 percent); and intense complexity of a project (13 percent).92 The EIA process is valuable in that it represents a methodical, proactive approach to assessing the potential environmental effects of a proposed activity. It incorporates the viewpoints of multiple government agencies, thereby representing the interests of many constituencies.93 Furthermore, it

87

In 1997, Clark reported that “there have been no other surveys of the reliability of the EIA, but it is unlikely that the experience in Australia is unique.” See R.B. Clark, Marine Pollution, 9, supra note 44. 88 See Chapter 4 of Environmental Decisionmaking in a Transboundary Region ed. Alison Rieser et al., supra note 84. 89 UNCLOS defines monitoring as a process whereby states “observe, measure, evaluate and analyze, by recognized scientific methods, the risks or effects” of pollution or environmental harm. See 1982 UNCLOS, Article 204. 90 Bradley C. Karkkainen, “Toward a Smarter NEPA: Monitoring and Managing the Government’s Environmental Performance,” Columbia Law Review 102 (2002): 903. 91 The need for monitoring and subsequent adjustment was called for in Chapter 4 of Environmental Decisionmaking in a Transboundary Region ed. Alison Rieser et al. supra note 84; and Bradley C. Karkkainen, “Toward a Smarter NEPA: Monitoring and Managing the Government’s Environmental Performance,” Ibid. 92 See “Reasons for EIS Project Delays,” on the US Department of Transportation website, located at <www.fhwa.dot.gov/environemnt.strmlng/eisdelay.htm.> 93 Juda, Lawrence. “Ocean Policy, Multi-Use Management, and the Cumulative Impact of Piecemeal Change: The Case of the United States Outer Continental Shelf.” Ocean Development and International Law 24 (1993): 355-376.

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provides an opportunity for the public to challenge government actions in the public forum as well as in the court system.94 At the state level, the process has merit for activities and effects that remain within a state’s borders. The implementation of true transboundary international environmental impact assessments can be more problematic, however. In the United States, Executive Order 12114 (pertaining to the “Environmental Effects Abroad of Major Federal Actions”) extends NEPA requirements beyond US territory for all federal activities.95 Attempts to internationalize the US NEPA process through the establishment of a treaty have been unsuccessful, never progressing beyond a declaration issued by UNEP in 1987.96 In February 1991, however, the U.S. and 25 other states signed the Convention on Environmental Impact Assessment in a Transboundary Context (EIA Convention).97 The EIA Convention is the first multilateral agreement to require transboundary procedural obligations in cases of environmental risk.98 It applies to a variety of proposed activities that are likely to create adverse transboundary impacts, including waste disposal sites, power stations, nuclear installations, oil refineries, and smelters.99 It entered into force in 1997, but it has not been ratified by the United States.100 Another source of international support for the EIA process is found in Principle 17 of the 1992 Rio Declaration. It states:

94

Ibid. The ability of the public to scruntinize and delay government action is referred to as the “squawk factor” in William Rodgers, Jr., “Benefits, Costs, and Risks: Oversight of Health and Environmental Decisionmaking,” Harvard Environmental Law Review 4 (1980): 212-213. 95 Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions,” 3 C.F.R. 356 (1979). 96 US Senator Clairborne Pell advocated for the international treaty on environmental assessment, see “International Environmental Assessment” S. Res. 49, Cong. 2d Sess. (1978). Also see UNEP Governing council Decision 14/25, “Goals and Principles of Environmental Impact Assessment,” UN doc. UNEP/GC.l4/17/Annex III (1987). 97 “Convention on Environmental Impact Assessment in a Transboundary Context,” February 25, 1991, 30 I.L.M. 800. Entered into force on September 10, 1997. For text of the treaty, see <www.unece.org/env/eia/welcome.html.> For an assessment of the Convention for the US standpoint, see John H. Knox, “The Myth and Reality of Transboundary Environmental Impact Assessment,” American Journal of International Law 96 (2002): 291. 98 Birnie and Boyd, International Law and the Environment ed., 128, supra note 12. 99 Ibid. 100 For a discussion of why the U.S. may be postponing its ratification of the Convention, see Laura Carlan Battle, “A Transnational Perspective on Extending NEPA: The Convention on Environmental Impact Assessment in a Transboundary Context,” Duke Environmental Law and Policy Forum 5 (1995): 1.

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Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant impact on the environment and are subject to a decision of a competent national authority.101 Despite growing support for the EIA process, significant hurdles remain, the greatest of which results from the need to assess impacts that are difficult to predict. In particular, far-field and cumulative impacts are difficult to assess due to their inherently elusive nature and, more generally, because of the scientific uncertainty associated with many threats to the environment.102 Birnie and Boyle point out several other shortcomings of the EIA process. Foremost is that “it sets a threshold for foreseeability which must be met before the obligation to do an EIA arises.” In other words, the EIA process is required to determine whether harm is likely, yet the obligation to conduct an EIA only arises once it is suspected that harm could occur.103 One remedy to this catch-22 would be to set a very low threshold of risk and to rely on the precautionary approach when assessing whether an EIA should be conducted.

3.

POLICY INSTRUMENTS FOR ADDRESSING TRANSBOUNDARY NOISE POLLUTION

At this point, this book has examined the existing regulatory framework for pollution prevention and discussed several conventional approaches to pollution control. While some approaches may offer a general level of protection from all pollutants, they do not mandate or even suggest explicit instruments to control noise pollution in the ocean. The following sections identify specific policy instruments that could prove effective in regulating ocean noise pollution. Policy instruments are tools for accomplishing a particular objective, in this case, controlling anthropogenic noise in the marine environment.104 Such instruments can

101

Declaration of the UN Convention on Environment and Development, UN doc. A/CONF.151/26/Rev.l, Report of the UNCED, Vol. 1 (New York); Patricia Birnie and Alan Boyle, Basic Documents on International Law and the Environment (Oxford: Oxford University Press, 1995), 9. 102 Chapter 4 of Environmental Decisionmaking in a Transboundary Region, ed. Alison Reiser et al, supra note 84. 103 See Birnie and Boyd, International Law and the Environment ed., 134, supra note 12. 104 For the discussion on the various attributes of particular environmental policy instruments, see Peter Bohm and Clifford S. Russell, “Comparative Analysis of Alternative Policy Instruments,” in Handbook of Natural Resource and Energy Economics, vol. 1, ed. A.V.

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generally be divided into two categories: market-based instruments, such as subsidies, bonds, and permits; and command-and-control (CAC instruments) which are mandated by international treaties and national governments, such as technological standards, bans, zoning, marine protected areas.105 This section outlines some of the benefits and shortcomings of several of these policy instruments and comments on their applicability to the regulation of underwater sound.

3.1

Taxes

Taxes are one of the simplest market-based methods to force polluters to account for the social costs of their activities, and thereby to control pollution.106 Taxes have been used to reduce externalities—the costs imposed on society as the result of pollution. Usually the amount of a tax or penalty equates the private costs of an externality with its social costs.107 Historically, both unit taxes and flat taxes have been used to reduce externalities. A unit tax is designed to increase production costs to a point where the polluter must reduce output to socially or economically efficient levels.108 Ideally, a flat-tax is set equal to the cost of damages from the pollution. Determining the amount of either tax, of course, is problematic when the extent of the damage is unknown. In spite of the uncertainties concerning the effects of ocean noise, taxes still may have a place in addressing noise pollution. Taxes could be used to encourage technological innovation (e.g. quieter ships, more efficient blasting methods) because noise producers would have an incentive to modify their technologies to avoid the tax. Also, the revenue from taxes

Knesse and J.L. Sweeney, (Amsterdam: Elsevier Science Publishers, 1985). See also Chulho Jung and Kerry Krutilla, “Incentives for Advanced Pollution Abatement Technology at the Industry Level,” Journal of Environmental Economics and Management, 30(1) (1996): 95; and OECD, Economic Instruments for Environmental Protection (Paris: Organization for Economic Cooperation and Development, 1989). 105 For a general overview of these instruments and a discussion of government intervention to correct environmental externalities, see Chapter 3 in James R. Kahn, The Economic Approach to Environmental and Natural Resources, ed., (New York: Harcourt Brace, 1998). 106 One example is the tax on cigarettes which is used to offset public health costs generated by cigarette smoke. See Jane Gravelle and Dennis Zimmerman, “Cigarette Taxes to Fund Health Care Reform,” National Tax Journal 47 (1994): 575-90. 107 D.D. Ofiara and J.J. Seneca, Economic Losses from Marine Pollution (Washington, DC: Island Press, 2001), 12. 108 An extreme example is the tax imposed on cigarettes, which amounts to a much greater cost than the cigarettes themselves.

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could provide compensation to harmed parties and resources. Severe limitations exist, however, in taxing ocean noise polluters. First, due to the transboundary nature of undersea noise, it would be challenging to implement an international tax scheme on underwater noise emissions. Second, it would be difficult to levy taxes against government agencies such as defense organizations, hydrographic institutions, and academic groups, all noteworthy contributors to sound in the ocean. Pollution taxes might be effective in certain sectors such as shipping; however, unilateral taxes levied against shipping companies could be interpreted as a barrier to trade. Finally, the use of taxes for restitution is particularly challenging because of the difficulty in determining the extent of harm, attaching a monetary value to marine mammals and their habitat, and deciding who should be compensated.109 The idea of a tax for “ocean noise polluters” was first raised by Naomi Rose, a scientist with the US Humane Society, at a December 2001 meeting of the Acoustical Society of America meeting.110 She underscored the need for additional scientific research on the effects of noise on marine mammals and suggested that if a tax were levied on ocean noise “polluters,” the money generated could go to funding such research.111 The scientific uncertainty concerning the effects of noise on the environment would make it difficult to levy such a tax. The efficient use of taxes relies on knowing the full cost of an externality, yet the costs of externalities due to noise are unknown. Furthermore, taxes are normally used to reduce the externalities known to result from pollution—in this case, Rose’s suggestion was to fund scientific research to determine, in fact, what the externalities are.112

109

See E.M. McCarthy, “Use of Nonmarket Methods to Value the Northern Right Whale Resource,” unpublished manuscript, University of Rhode Island, December 2000; also, J.M. Bowker and J.R. Stoll, “Use of Dichotomous Choice Non-Market Methods to Value the Whooping Crane Resource,” American Journal of Agricultural Economics, 70 (1988): 372-381. For a discussion of the benefit-cost approach, see K.J. Boyle and R.C. Bishop, “Valuing Wildlife in Benefit-Cost Analyses: A Case Study involving Endangered Species,” Water Resources Research, 23(5) (1987): 943-950. 110 Naomi Rose, “Interpresting Research Results: Government Regulation of Anthropogenic Noise Sources,” Journal of the Acoustical Society of America 110 (5) (2001): 2714. 111 Ibid. Text of the speech is also available via the MARMAM listserver at <[email protected]> on the December 10, 2001 postings. 112 The full cost of the damage or externality must be known with certainty for tax instruments to achieve a socially efficient level. However, in the Humane Society’s proposition, the full cost of damages is not known – in fact, the damage itself is still unqualified.

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Performance Bonds and Subsidies

Other market-based policy instruments that could be used to prevent noise-related pollution include the provision of performance bonds and subsidies to industries that voluntarily reduce their noise output. Performance bonds require that a potential polluter place a large sum of money in an escrow account. The bond provides that, in the event of environmental damages, a sum of money will be available to remediate the damage or to compensate others who have been adversely affected. The bond also ensures compliance by potential polluters. If the environment is not damaged, the bond money is returned, otherwise it is forfeited. Performance bonds have commonly been used to control pollution arising from strip mining and the transport of oil and other toxic substances.113 Performance bonds present the challenge of justly allocating monies to harmed parties. Other obstacles to the use of performance bonds include the determination of liability, the assignment of property rights to migratory species such as whales, and the determination of who should administer such bonds. Subsidies provide a financial incentive to change behavior or defray costs of mandatory pollution reduction measures.114 The subsidy provider bears part of the cost of the environmentally beneficial controls or behavior imposed by mandatory standards.115 Governments traditionally provide subsidies, although provision by other parties is becoming more common.116 The Natural Resources Defense Council has proposed that manufacturers and operators who voluntarily reduce the noise generated by their vessels should be subsidized.117 Such a proposal would be difficult to monitor and enforce in the absence of international organizations with the mandate to control underwater noise pollution. Subsidies, like taxes, may work for

113

See Chapter 8, “Energy and the Environment” in Kahn, The Economic Approach to Environmental and Natural Resources, for a discussion of oil performance bonding, supra note 105. 114 US Congress, Office of Technology Assessment, Environmental Policy Tools: A User’s Guide, OTA-ENV-634 (Washington, DC: US Government Printing Office, September 1995), 11. 115 For an economic explanation of polluter behavior when subsidies are provided, see James R. Kahn, The Economic Approach to Environmental and Natural Resources, cd. (New York: Dryden Press, 1995), 80-84, supra note 105. 116 US Congress, Office of Technology Assessment, Environmental Policy Tools: A User’s Guide, OTA-ENV-634 (Washington, DC: US Government Printing Office, September 1995), 11. 117 Jasny, Sounding the Depths: Supertankers, Sonar, and the Rise of Undersea Noise, 55, supra note 28.

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commercial ventures such as oil exploration and fishing, but they would be ineffective for government agencies that carry out defense activities and research.

3.3

Permits

Marketable pollution permits have historically provided an economic incentive for pollution reduction. A marketable permit system requires the determination of a target level of pollution and the subsequent allocation of the amount of pollution allowed for each polluter. Once this initial allocation is made, polluters can buy and sell rights to pollute.118 A different type of permit program however, exists in the United States to mitigate adverse effects on marine mammals including the effects of noise. The permits are not marketable: they represent a command-andcontrol approach to pollution, rather than an economic approach. This permitting process, outlined by the Marine Mammal Protection Act (MMPA), is administered by NMFS and the US Fish and Wildlife Service. Although the MMPA prohibits “takes”— statutorily defined as to “harass, hunt, capture, or kill or attempt to harass, hunt, capture, or kill any marine mammal,” the permit program allows for takes by certain activities that involve marine mammals. Such activities include public display, commercial or educational photography, or “bona fide” scientific research.

3.3.1

Scientific Research Permit

Scientific research using sound directed at marine mammals usually requires a “Scientific Research Permit” under the MMPA. This type of permit applies to research that has the potential to disturb or, depending on the species, even injure marine mammals.119 In the past, this type of research

118

See “Marketable pollution permits” in James R. Kahn, The Economic Approach to Environmental and Natural Resources, ed., 75, supra note 105. See also Erhard Joeres and Martin Heidenhaim David, Buying a Better Environment: Cost-Effective Regulation through Permit Trading (Madison,WS: The University of Wisconsin Press, 1983). 119 For most activities Level A harassment is defined as “any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild.” See MMPA, Section 3, subparagrah (r) (2); Level B harassment is defined as “any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.” See MMPA,

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has included marine mammal tagging and playback experiments and the development of sonar-based marine mammal detection systems.120 Applicants must provide an estimate of the environmental impacts of their research and explain any potential social and economic effects from their proposed work. The issuance of a permit constitutes a “major federal action”, the impacts of which usually are evaluated by environmental impact analysis.121 The process of issuing scientific research permits can be lengthy and complex. Before NMFS can issue a permit, the application must be reviewed by the Marine Mammal Commission in consultation with its Committee of Scientific Advisors.122 The permit process then requires a public comment period after which NMFS must review all public input and then either issue or deny the permit. An applicant or anyone opposed to permit decision may obtain judicial review of the terms and conditions of a permit or its denial.123 The entire process can take as long as eight months. Figure 1 illustrates the path of a typical permit request.

Section 3, subparagraph (r) (3). However, the “Defense Authorization Act,” has changed the definition of “harassment” in the Marine Mammal Protection Act for military readiness or scientific research activities conducted by or on behalf of the federal government. See Public Law 108-136, “National Defense Authorization Act for Fiscal Year 2004” signed November 24, 2003 available on http://thomas.loc.gov. 120 See Peter Stein Permit number 1048-1717 (for the development of an active sonar for the detection of marine mammals) and Peter Tyack Permit number 981 -1707 (for tagging and vessel-based playback experiments) at http://www.nmfs.noaa.gov/pr/PR1/Permits/pr1 permits_review.html. 121 In the US, this means that either an Environmental Assessment and a Finding of No Significant Impact must be carried out and issued, or the more involved EIS must be created. If the activity has no affect on the environment, a Categorical Exclusion is issued. See generally, the National Environmental Policy Act 42 U.S.C.A. §§ 4321-4370d. 122 The Marine Mammal Commission (MMC) was established by the MMPA, see 16 U.S.C. §§ 1401-1407. Among many duties, the MMC is tasked with reviewing “all applications for permits for scientific research, public display, or enhancing the survival or recovery of a species or stock.” See 16 U.S.C 1402, § 202 (a) para. (2). The MMC is required to consult with the Committee of Scientific Advisors on Marine Mammals on all applications for permits for scientific research. See U.S.C 1403, § 203 (c). 123 16 U.S.C. 1374 §§ 104 para. (d)(6).

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Figure -1. The NMFS Permitting Process Source: National Marine Fisheries, Office of Protected Resources.

A permit may include mitigation requirements or operational restrictions that are developed on a case-by-case basis depending on the type of activity and its location.124 Mitigation measures may include: restriction of operations to daylight hours; cessation of an activity if mammals are detected within a designated safety zone; delay of operations if weather or sea conditions make monitoring impossible; a gradual increase (ramping up) of sound sources; restrictions on boat traffic and aircraft; and seasonal restrictions based on the migration and calving seasons of the animals.125

124

Eugene Nitta, National Marine Fisheries Service, Office of Protected Resources, MMPA Non-Fisheries Interaction Program, “A Summary of LOAs Issued Over the Last Three Years,” a presentation given at the Acoustical Society of America Meeting, December 4-6, 2001, Fort Lauderdale, FL. 125 For a list of mitigation measures required for the operation of the US Navy’s SURTASS system, see the NMFS Letter of Authorization para. 6 (a) – (e). For monitoring requirements, see para. 7 (a) – (d). Reporting requirements are outlined in para. 8 (a) –

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3.3.2 Incidental Harassment of Marine Mammals – The Small Take Program The MMPA permitting process also allows for other types of permits or authorizations to be issued for non-fisheries activities that have the potential for incidental (but not intentional) harassment of marine mammals, such as seismic exploration, rocket launches, or underwater demolition.126 This authorization process, known as the “small take” program, applies to US citizens whose activities affect only small numbers of marine mammals, have a negligible impact on the species, and do not affect the availability of marine mammals intended for subsistence uses. Two types of permits are granted under the small take program: a Letter of Authorization (LOA) and an Incidental Harassment Authorization (IHA). The former is issued when the potential for serious injury or mortality exists; the latter, when no such threats exist. While both types of authorizations require the number of takes to be “small”, the IHA is generally issued for short term projects while the LOA is valid up to five years. For a small take authorization, applicants must first determine whether they require an IHA or the more involved LOA. The applicant then must submit a written request to the NMFS Office of Protected Resources and to the appropriate NMFS Regional Office where the specified activity is planned. This request must include detailed responses to14 questions regarding the anticipated impact of the activity including the properties of the source, how long it will be used, and how quickly the sound will attenuate.127 Furthermore, applicants must identify the types and estimate the number of marine mammals known to occur in the project area.128 IHAs are issued within four months, instead of the six to eight months required for the issuance of an LOA.

(b). This Letter of Authorization is available at 126 Regarding takings, see 16 U.S.C. 1373, “Regulations on Takings of Marine Mammals.” In regard to permits, see 16 U.S.C. 1374 §§ 104. 127 For a listing of these 14 points, see the NMFS Permitting website at Also see presentation by Simona Perry Roberts, National Marine Fisheries Service, Office of Protected Resources, MMPA Non-Fisheries Interaction Program. Given at the Acoustical Society of America Meeting, December 4-6, 2001, Fort Lauderdale, FL. 128 Ibid.

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Most of the LOAs and IHAs issued in the past have involved harassment of marine mammals by noise. NMFS indicates that the activities with the greatest potential for noise harassment include: seismic air guns, ship and aircraft noise, high-energy sonars, and explosives detonations.129 During 1999-2001, seven LOAs were issued: three to oil and gas interests, three to the military, and one to a nuclear power plant operator.130 In the same time period, 12 IHAs were granted.131

3.3.3

Summary - Permits

Because the permit program requires decision making based on high levels of uncertainty, policy and legal debates have ensued. For example, how does one interpret the statutory definitions of “small”, “negligible” and “take?”132 Past practice indicates that NMFS considers “harassment” to have occurred if a marine mammal has a “significant” behavioral response during a biologically important activity.133 Yet some environmentalists have suggested that “harassment” can occur when a single seal lifts or turns his head to look at a passing pedestrian, offshore vessel, or aircraft, or when a dolphin rides a boat’s bow wave.134 Scientific issues also cloud the permitting process: there is a lack of standardized baseline data, along with the need for a cumulative impact assessment of noise in the ocean. Furthermore, the biology of “disturbance” and the effect of noise on

129 130 131

132

133

134

Ibid. Eugene Nitta, supra note 124. From a telecon with Simona Perry Roberts, of the NMFS Office of Protected Resources, March 20, 2002. Several comments to the US Navy SURTASS-EIS stated that the definition of “harassment” was too vague and did not protect animals sufficiently. See Comment MMPAC13, 14, 15. Other concerns were expressed over the definition of “small.” See Comment MMPAC19 and 20. 67 Federal Register 136,46711-46789, July 16, 2002. Although these terms are defined in 16 U.S.C. 1362, “Definitions,” they are subject to much interpretation. In fact, on November 24, 2003, President George W. Bush signed the “Defense Authorization Act,” which changed the definition of “harassment” in the Marine Mammal Protection Act for military readiness or scientific research conducted by or on behalf of the federal government. See Public Law 108-136, “National Defense Authorization Act for Fiscal Year 2004” signed November 24, 2003 available on http:/thomas.loc.gov. See 66 Federal Register 43442, August 17, 2001; 66 Federal Register 22450, May 4, 2001; 66 Federal Register 9291, February 7, 2001; and 67 Federal Register 46763, July 16, 2002. See NMFS’s response to comment MMPAC13 located in 64 Federal Register 136 at 46763, July 16, 2002.

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fecundity and marine mammal prey species are not well understood.135 Moreover, NMFS has acknowledged that many sources of ocean noise result from activities that are not subject to the MMPA or do not qualify for authorizations under the MMPA (e.g., non-US flag shipping).136 For these activities, the existing permitting system is clearly inadequate. Negative perceptions of the permitting program exist. Many applicants feel that the program is just one more regulatory process constraining the advancement of scientific research or the progress of other maritime activities. Several of the shortcomings in the permitting process were outlined in Congressional testimony given by Peter Worcester, an oceanographer at the Scripps Institution of Oceanography. 137 His North Pacific Acoustic Laboratory (NPAL) project required a NMFS Letter of Authorization in order to operate a low-frequency sound source off the north shore of Kauai. Dr. Worcester started the application process in the spring of 1999 and finally was able to operate his system in late January 2002: it took nearly three years and over half a million dollars to obtain the required permits.138 He testified that the costs of permitting and its associated legal fees could be as expensive as the research itself. He maintained the regulatory burden in the case of NPAL bore little relation to the potential environmental impacts of the project.139 Some scientists believe that the lengthy permitting process has become a major impediment to conducting ocean research; even the research needed to better understand the effect of noise on marine mammals.140

135

See generally W. John Richardson et al., Marine Mammals and Noise (New York: Academic Press, 1995); also Office of Protected Resources, NOAA, “The Effects of Manmade Noise on Marine Mammals,” Marine Mammal Protection Act Bulletin, Issue 19/20, quarter 2000, 9. 136 See Comment MMPAC35 from the SURTASS Final Rule, 67 Federal Register 136, July 16, 2002, 46711-46789. 137 Peter Worcester, testimony before the US Subcommittee on Fisheries Conservation, Wildlife and Oceans, US House of Representatives, July 24, 2003. 138 See Final Rule, 66 Federal Register No. 106, August 17, 2001, 43441-43549. 139 Peter Worcester House testimony, supra note 137. 140 See Peter Tyack testimony before Subcommittee on Fisheries Conservation, Wildlife, and Ocean, US House of Representatives, July 24, 2003; Peter Worcester House testimony, supra note 137; also OSB-1994, 29.

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Figure -2. Peter Worcester, North Pacific Acoustic Laboratory (NPAL) Principle Investigator, with the stacks of environmental documentation required to obtain the permits needed to carry out his acoustic thermometry research.

Some environmentalists, however, have called for changes in the law to make it more stringent: they feel that the permit program is designed to allow maritime development to continue unabated despite environmental regulations.141 The Natural Resources Defense Council, for example, claims that “...the permit system established under the MMPA has largely failed to meet the new challenges that noise pollution presents and should be overhauled by Congress.”142

141

From the December 5, 2001 presentation by Simona Perry Roberts of NOAA’s Office of Protected Resources at the Acoustical Society of America’s annual meeting in Ft. Lauderdale, FL, supra note 127. This was also discussed at a meeting held by the Office of Naval Research in Dallas, TX in December 2000 at which acoustic researchers from universities throughout the U.S. expressed their frustration at the permit process they were required to go through to carry out their basic research. 142 Jasny, Sounding the Depths: Supertankers, Sonar, and the Rise of Undersea Noise, 54, supra note 28. The NMFS has recognized the need for a more streamlined process and has suggested changes be made. See testimony of Penelope Dalton, Assistant Administrator

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The National Marine Fisheries Service is clearly under pressure by both permit applicants and those opposed to certain permitted activities. From 1999 to 2001, the number of permit applications increased by 25 percent.143 In addition to the burden of this increased workload, NMFS has identified other problems with the permitting process. The agency states that approximately 50 percent of the applications are incomplete, and applicants often do not plan for permitting requirements, which results in the need to fast-track many applications.144 The current MMPA permitting process is not an optimal solution to regulating ocean noise. Many industries that create incidental noise, such as shipping, commercial fishing, and recreational boating have yet to apply for a permit. Moreover, MMPA permits are not transferable, they have no cash value, and no limit exists on the number of permits that can be issued.145 The few advantages of the present permitting system are that it provides at least some control and oversight to NMFS and it may provide limited data on the effects of noise on marine mammals.146 The present US permitting system should not be adopted internationally. Not only would implementing such a program on a global scale prove challenging, but its benefits are few and would come at great expense.

for Fisheries, NMFS, June 29, 1999, text located at: last accessed on July 31, 2002. 143 In 1999, 59 permit actions where processed. By October of 2001, 75 permit actions had been processed. Data from a presentation by Eugene Nitta on 5 December 2001 at the Acoustical Society of America’s annual meeting in Ft. Lauderdale, FL, supra note 124. 144 Ibid. 145 Aside from the marketable permit used in pollution control (usually to regulate air pollution), another example of a type of permit is the individual transferable quota (ITQ), sometimes used in fisheries management. These are permits that allow fishermen a prescribed allocation of fish each year. For a general discussion of the use of ITQs in fisheries management, see generally, Lee G. Anderson, The Economics of Fishery Management (Baltimore: Johns Hopkins University Press, 1986). 146 As previously mentioned, monitoring and reporting are two requirements that are often mandated in a NMFS Letter of Authorization. See for example, the NMFS Letter of Authorization to the US Navy for the SURTASS system, para. 7 (a) – (d) (monitoring) and para. 8 (a) – (b) (reporting). This Letter of Authorization is available at

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205

Technological Standards

Scientific innovation and the establishment of technological standards hold much promise for protecting the world’s oceans from noise pollution.147 The amount of ambient noise in the ocean has likely decreased in the past twenty years due to advances in technology. Further advances in technology could mitigate environmental damages from ocean noise pollution.

3.5

Best Available Technology (BAT) and Best Practicable Technology (BPT)

Best Available Technology (BAT) is a technological approach to pollution control that requires the use of state of the art processes, facilities, and methods to reduce pollution and minimize the creation of damaging substances. It is defined to mean “the latest stage of development (state of the art) of processes, of facilities or of methods of operation which indicate the practical suitability of a particular measure for limiting discharges.” 148 Not surprisingly, this type of policy instrument is a highly controversial method because it can be quite costly – the cost of abatement and its economic ramifications are not an explicit consideration.149 Furthermore, the application of BAT to a single source of a small quantity of non-persistent pollution may be over-protective for a large body of water, where its effects are likely to be diluted, and under-protective when applied to several sources in a confined environment, where pollutants may cause long-term cumulative effects.150 Because of these shortcomings, Best Practicable Technology (BPT) was developed as a compromise that takes into account technology costs. It has been widely accepted although it often offers much less protection to the environment.151

147

They have been proposed in the past. Jasny includes a list of suggested mitigation measures for polluters. See Sounding the Depths: Supertankers, Sonar, and the Rise of Undersea Noise, 54-59, supra note 28. 148 From the Helsinki Commission’s Annex II, Regulation 3, para. 2. having regard to Article 13, Para. (b) of the Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area, entered into force January 17, 2000. Text available at 149 It has been argued however, that before it is possible to consider technology as being available, it must not only be technically feasible, but also economically feasible. See Andre Nollkaemper, The Legal Regime for Transboundary Water Pollution: Between Discretion and Constraint (Boston: Graham and Trotman, 1993). 150 R.B. Clark, Marine Pollution, 10, supra note 44. 151 For example, the BAT and BPT approach to environmental protection has been adopted by the European Economic Community as the procedure preferred by most of the member

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Both BAT and BPT do have several advantages. If legally required, they remove from states the discretion to determine for themselves how to prevent pollution and thus provide a greater chance of actually reducing it.152 They also provide consistency, making it easier to determine and measure the impacts of regulation. Furthermore, by dictating the measures to be employed by each state, BAT and BPT foster cost-sharing among polluters.153 Although both approaches could contribute to the reduction of ocean noise, they must be mandated and overseen by international institutions like the IMO. The obligation to use BAT and BPT has been formalized in several international instruments including the Helsinki Convention, the Rhine Chemical Pollution Convention, and the Paris Convention.154 In the United States, its use is mandated by several oversight agencies including the Department of Energy (for radioactive effluent control)155 and the Environmental Protection Agency (under the Clean Water Act).156 BAT and BPT could also play a role in the reduction of underwater noise pollution, particularly from commercial shipping. Most of the sound generated by shipping is an unintended byproduct of the ship moving through the water. The military developed ship-silencing technologies during the Cold War and, if declassified, these techniques could significantly

countries for the implementation of the Directive on Pollution Caused by Certain Dangerous Substances Discharged to the Aquatic Environment of the Community. See EEC Council Directive of May 4, 1976 (76/464/EEC). Official Journal of European .Community Legislation, 19(L129):23-9. See also R.B.Clark, Marine Pollution, 10. 152 See Andre Nollkaemper, The Legal Regime for Transboundary Water Pollution: Between Discretion and Constraint, 128, supra note 149. 153 Ibid.,129. 154 See Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki), Art. 3(1)(c), in force January 17, 2000. text available at http://www.helcom.fi/helcom/convention.html; the Convention on the Protection of the Rhine Against Chenical Pollution (Bonn), Article 5(2), 16 ILM (1977) 242, in force February 1, 1979; and Convention for the Protection of the Marine Environment of the N.E. Atlantic (Paris), art. 2(3)(b) and Art. 1 of Annex I, 32 ILM (1993), 1072, in force March 25, 1998. 155 “Application of Best Available Technology for Radioactive Effluent Control,” DOE Standard March 1997. A draft of this standard is available on-line at 156 The Clean Water Act, P.L. 92-500, October 18, 1972. BAT is defined by the EPA as “the most appropriate means available on a national basis for controlling the direct discharge of toxic and nonconventional pollutants to navigable waters.” BAT effluent limitations guidelines, in general, represent the best existing performance of treatment technologies that are economically achievable. See EPA on-line glossary at

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reduce the amount of noise generated by large commercial ships.157 These technologies include propeller quieting, vibration isolation, and improved maintenance techniques that can reduce noise generated from pumps, loose bearings, and fouled hulls.158 Although much of this work remains classified, some non-proprietary ship-quieting technology is available to reduce ship noise that radiates from the propeller, the hull, and the power plant.159 New technologies could allow the shipping industry to reduce its noise output significantly. It must be determined, though, if the implementation of silencing technologies would be too costly and if the industry could still operate effectively with reduced noise emissions. If unacceptable costs are involved, and ship silencing is mandated, strong opposition from organized, well-funded pro-shipping lobbies is likely to emerge. Tax breaks and subsidies could provide incentives to develop new technologies however. The oil industry might also benefit from new technologies for noise reduction. Potential technological innovations include the use of remotely operated vehicles instead of drill ships, quieter drilling rigs, and new sub bottom profilers that no longer rely on high-energy seismic surveys. Moreover, given its expertise in underwater acoustics, the oil and gas industry would be adept at developing and implementing new silencing techniques. Nevertheless, the oil industry’s strong reliance on underwater acoustics such as SUS (signal underwater sound) charges and air guns might make it costly to reduce the amount of noise even with the new technologies. Again, tax incentives and subsidies could be utilized to promote such techniques. Technological innovations could also reduce noise created by other industries such as fishing, research, and recreational boating. All users of underwater sound could benefit from the development of new algorithms for better signal detection to reduce the amount of energy necessary for transmission and detection. For fisheries, the development of more intelligent pingers activated only by the close proximity of a target species could reduce noise. Although it would be difficult to reduce noise intentionally introduced into the water for scientific experiments such as ATOC, ship-silencing techniques could be used on research and support

157

For examples of US Navy ship silencing technologies, see the Navy Ship Silencing Program web page at 158 General ship quieting techniques are documented in Ross, Mechanics of Underwater Noise. For information on specific US Navy ship-silencing systems, see 159 Ibid.

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vessels.160 Finally, although ship silencing has not been a concern of most recreational boaters, the four-stroke outboard has created a much quieter engine.161 Also, the recent public outcry against jet skis may force manufacturers to incorporate more silencing technologies into their products.162

3.6

Best Practicable Environmental Option

The best practicable environmental option (BPEO) requires that given equally effective techniques, the one that involves the least environmental damage should be used. The concept was first introduced in a 1976 report by the United Kingdom’s Royal Commission on Environmental Pollution.163 The best practicable environmental option is designed to assist decision makers in situations where controlling pollution in one environmental medium (e.g., air) can lead to increased pollution in another (e.g., water).164 This means that decisions are made with the environment as the prime consideration. It is particularly useful for waste disposal in densely populated areas and in confined bodies of water. In those instances, it is important not to solve a problem in the sea by creating another on land.165 This requires the adoption of a disposal method that will cause the least

160

A variety of devices can be used to reduce ship machinery noise. These include resilient mounts, distributed isolation material, flexible connectors. For info on these devices, see the Military Analysis Network Website on Ship Silencing at <www.fas.org/man/dod101/sys/ship/weaps/silencing.htm.> Information on US Navy system to mask ship radiated noise using air emissions is found on the website for the Naval Sea Systems Command at Carderock located at <www.dt.navy.mil/div/capabilities/accomplishments/B8.html.> An overview of the Navy’s surface ship silencing program is found at <www.fas.org/man/dod-101/navy/docs/swos/stu2/NEWIS9_7.html> 161 For example, the newest Honda 4-stroke outboard engines have special rubber mountings that absorb vibration and large-capacity air intake silencers and idle chambers that reduce air intake and exhaust noise. This results in an engine that is significantly quieter than previous models. From <www.honda-marine.com.> 162 In fact, manufacturers have already modified the jet ski design. They have “changed materials in the exhaust system to make it less prone noise, changed air intake and muffler designs, and insulated certain parts with acoustical foam. All of these improvements have incrementally reduced noise levels.” See Reagan Haynes, “Can A New Breed Of PWC Stem Sales Decline?” Soundings, February 2002. 163 See the Royal Commision on Environmental Pollution, Fifth Report, “Air Pollution Control: An Integrated Approach,” (London: HMSO, 1976). 164 For an example of this approach, see A.J.Bond and D.J Brooks, “A Strategic Framework to Determine the Best Practicable Environmental Option (BPEO) for Proposed Transport Plans in Great Britain,” Journal of Environmental Management 51(3) (Nov. 1997): 305. 165 R.B. Clark, Marine Pollution, supra note 44.

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environmental damage—although it might still create damage, it is preferable to all other methods available.166 A BPEO assessment requires that all feasible options have been identified and compared on the basis of their effects on the health and wellbeing of the environment as well as on their technical features and financial costs.167 This approach is useful when the science of a pollutant is well known and several options are available, such as choosing between ocean dumping and land-based dumping. It would be more difficult to apply ocean noise pollution because a great degree of scientific uncertainty exists concerning the effect of noise on marine life. Furthermore, noise cannot be considered a “waste” in every situation, as it is often created intentionally and applied beneficially (e.g., sonar or seismic work). However, the best practicable environmental option can be applicable to noise when determining, for example, the safest place to locate low-frequency transmitters such as those used in the ATOC experiments

3.7

Bans and Zoning

If a substance is unacceptably dangerous, a ban on its manufacture and use may be imposed. This regulatory approach may restrict production, processing, distribution, use, or disposal of substances that present unacceptable health or environmental risks. It focuses specifically on the substance itself, rather than on the polluting by-products. This type of wholesale ban of a pollutant has been used in the past concerning substances such as DDT, copper-based antifouling paints, mercurial wood preservatives, and lead paint.168 However, the ban of a pollutant is drastic and has severe limitations. Often, banning a substance from use does not eliminate its negative externalities in the short term if, as with lead paint and PCBs, pollutants that have accumulated over many years

166

See Royal Commission on Environmental Pollution, “The Best Practicable Environmental Option,” report, (London: HMSO, 1987). 167 The term “practicable” is determined by financial, social, and economic costs as well as technical feasibility. In addition to financial factors, these costs include impacts on local communities, employment, effects on tourism and other social effects. 168 The use of lead paint in residential buildings was banned in 1992, see Residential LeadBased Paint Hazard Reduction Act of 1992, P.L. 102-550, October 28, 1992. See also, the Federal Insecticide, Fungicide, and Rodenticide Act, P.L. 80-104, 1964, codified as 7 U.S.C. 136 – 136y. Also the Toxic Substances Control Act, P.L. 94-469, 1976, codified as 15 U.S.C. 2601-2671. These are examples of US statutes with a specific product focus.

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and continue to present a health threat. Also, an acceptable replacement that is not damaging must be available.169 A ban on sound in the sea has little relevance to the issue of ocean noise pollution because at very low-levels noise has no known environmental externalities. Furthermore, noise occurs naturally in the ocean. Even in its man-made form, sound in the sea can be a by-product of many beneficial activities. Therefore, it is neither feasible nor reasonable to categorically eliminate anthropogenic sound in the ocean. Rather, there may be a need to control or limit its use in certain areas—a concept embodied in zoning. Zoning is a type of ban, or partial ban, within a geographical limit. It is a proactive approach to balancing needs and separating conflicting uses in an orderly, planned way. It has been proposed to prevent and reduce conflicting uses of ocean space by spatially separating incompatible uses, and it is widely viewed as an effective way to protect critical habitat.170 Furthermore, zoning is essential for resolving user conflicts, achieving varied objectives, and accommodating multiple uses of resources. Historically, zoning has been used to separate incompatible uses on land, such as playgrounds and factories.171 It has also been used to attain certain commercial objectives in the sea (e.g., shipping lanes, fisheries management areas).172

169

One example of a ban that was enacted without consideration of an acceptable replacement is the ban on DDT. Thirty years after the ban millions have died from malaria without the pesticide. See “Fighting Malaria with DDT,” New York Times, December 23, 2002, A24. 170 See John Ogden, “Ocean Zoning: Report of a Symposium Session on Designated Use Areas in the Coastal Ocean,” presented at the Second Symposium on Marine Conservation Biology, June 2001, San Francisco State University; see also Hilary Sargent, “Group Seeks Zoning Rules for Oceans,” The New York Times, May 10, 2000, NE1; and Pamela Ferdinand, “A Sea Change in Saving Ocean Resources: Zoning,” Washington Post, July 2, 2001, A07. In the U.S., conservationists have called for a system of zoning in the waters off the New England coast. They claim that new forms of ocean zoning or area management need to be explored as proactive mechanisms for resolving programmatic conflicts between user groups and competing programs. Specifically, the zones would designate areas for scuba diving, whale watching, sailing, diving, and fishing. See testimony of Peter Shelley, Vice President of the Conservation Law Foundation, before the US Commission on Ocean Policy on July 24, 2002. Text of his speech is available at <www.clf.org/advocacy/looking_forward_managing_gom.pdf.> See also “Zoning the Oceans,” The Boston Globe, December 24, 2000. 171 J.C. Juergensmeyer and Thomas Roberts, Land Use Planning and Control Law (Washington, DC: West Wadsworth, 1998). 172 For information on international shipping traffic separation schemes, see the web page for the IMO subcommittee for safety of navigation at www.imo.org. Regarding fisheries management areas, see generally Managing Marine Fisheries in the U.S. (Arlington, VA: Pew Oceans Commission, 2003).

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But the use of zoning necessitates the establishment of geographic areas of protection. In the ocean, such areas are known as Marine Protected Areas (MPAs).

3.8

Marine Protected Areas

One of the most promising policy instruments to address the complex issue of underwater noise pollution is the Marine Protected Area (MPA).173 The World Conservation Union defines an MPA as “any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment.”174 MPAs represent a departure from the traditional sector or species-specific type of management in that they allow policymakers to regulate not only individual species, but entire habitats or ecosystems. This ecosystem-based method of ocean management represents an integrated and sustainable approach to international ocean policy.175

4.

THE TREND TOWARD AN ECOSYSTEM BASED APPROACH TO OCEAN MANAGEMENT

The past decade has witnessed a subtle shift from a focus on incidental, individual sources of pollution to a more holistic approach that incorporates

173.

For a background on Marine Protected Areas, see generally M. Tundi Agardy, “Advances in Marine Conservation: The Role Of Marine Protected Areas,” Trends in Ecology and Evolution 9 (7) (1994): 267; and G.W. Allison et al., “Marine Reserves are Necessary But Not Sufficient for Marine Conservation,” Ecological Applications 8 (1) (Supp. 1998): S79–S92. See also Stephen Palumbi, Marine Reserves: A Tool for Ecoystem Management and Conservation (Arlington, VA: Pew Ocean Commission, 2003). Graeme Kelleher argues that MPAs are an important component of any coastal management plan. See G. Kelleher, “Marine Protected Areas: Are They Necessary?” Connect: UNESCO International Science, Technology, and Environmental Education Newsletter, Vol. 22, Issue 3/4, (1997). 174. Graeme Kelleher, Guidelines for Marine Protected Areas, World Commission on Protected Areas, Best Practice Protected Areas Guideline Series No. 3 (Gland, Switzerland: IUCN, 1999). 175 For an overview of trends in ocean management, see Lawrence Juda, International Law and Ocean Use Management: the Evolution of Ocean Governance (London: Routledge, 1996).

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cumulative and long-term effects.176 This includes a trend in ecosystembased management efforts that focus on preservation of habitats rather than the protection of individual species.177 For example, the recently adopted Annex V of the Protection of the Marine Environment of the Northeast Atlantic (OSPAR Convention) specifically addresses ecosystems and is but one illustration of this trend in managing natural resources utilizing an holistic, ecosystem-based management approaches.178 Another example is found in Agenda 21, the United Nations Conference on Environment and Development’s blueprint for the environment. Agenda 21 is a program of action that consists of forty chapters that cover a variety of issues including the environment, poverty, and development.179 The need for an integrated, ecosystem-based management of the world’s ocean basins is underscored in Chapter 17 of Agenda 21, which devotes its first program area to “integrated management and sustainable development of coastal and marine areas.”180 The evolution of the Barcelona Convention from 1976 to 1995 provides yet another example. This framework Convention was created to protect the Mediterranean Sea from pollution, as reflected in its original 1976 name: “Convention for the Protection of the Mediterranean Sea Against

176

General trends in ecosystem-based approaches to protecting ocean spaces can be found in all aspects of ocean management, (e.g., fisheries, oil and gas; tourism and development.) For a general overview, see Lawrence Juda and Richard Burroughs, “The Prospects for Comprehensive Ocean Management,” Marine Policy 14 (1990): 23-36; also International Environmental Negotiations Process, Issues and Context ed. Gunnar Sjostedt (Sage: Stockholm, 1993). In regard to fisheries, see A. Laurec and D. Armstrong, “The European Common Fisheries Policy and its Evolution,” in Global Trends: Fisheries Management ed. E.K. Pikitch et al. (American Fisheries Society: Bethesda, MD, 1997), 61-72; and Lawrence Juda, “Rio Plus Ten: The Evolution of International Marine Fisheries Governance,” Ocean Development and International Law 33 (2002): 109-144. 177 See for example, Lawrence Juda and Timothy Hennessey, “Governance Profiles and the Management of the Uses of Large Marine Ecosystems,” Ocean Development and International Law 32 (2001): 47-67. 178 “Convention for the Protection of the Marine Environment of the North-East Atlantic,” September 22, 1992, (entered into force on Mar. 25, 1998) Annex V. Council Decision 2000/341/EC of 8 May 2000 concerning the approval, on behalf of the Community, of the new Annex V to the Convention for the Protection of the Marine Environment of the North-East Atlantic on the protection and conservation of the eco-systems and biological diversity of the maritime area and the corresponding Appendix 3, Law of the Sea Bulletin 23 (1993): 32. 179 UNCED, Report, I (1992). For information on Agenda 21, see the web site at 180 Agenda 21, Chapter 17, para. 1.

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Pollution.”181 The renamed and rewritten Convention, adopted 20 years later, reflects the newer, ecosystem-based ocean management approach. Now called the “Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean,” its focus is no longer solely on pollution but on all activities that pose a threat to the environment.182 A final example of the evolution of ocean management to a more comprehensive, ecosystem-based approach is embodied in the name of GESAMP, the UN’s group of scientific experts on marine pollution, discussed earlier in this chapter. Originally known as the “Joint Group of Experts on the Scientific Aspects of Marine Pollution,” its name was changed to reflect a broader approach to pollution prevention.183 After the adoption of Agenda 21, GESAMP reviewed its role as an advisory body on marine pollution in light of its direct bearing on the future work of all its sponsoring agencies. As a result, it changed its name to “Group of Experts on the Scientific Aspects of Marine Environmental Protection” in 1993, emphasizing that “marine environmental protection” requires the acquisition and application of scientific knowledge to the prevention, reduction and control of the degradation of the marine environment to sustain its life support systems, resources and amenities. The organization’s new name demonstrates the shift from a focus solely on pollution to one that encompasses protection of the entire marine environment.184 The central element of integrated ocean management is the movement “away from a fragmented, sectoral, and one-dimensional approach to the development and implementation of overall policy and a management strategy.”185 This takes into account the interdependence of man and the

181

“Convention for the Protection of the Mediterranean Sea Against Pollution,” in force February 12, 1978, 15 ILM (1976), 290. 182 The original Convention was modified by amendments adopted on June 10, 1995 (see UNEP(OCA)/MED IG.6/7). Recorded as the “Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean,” it has not yet entered into force. For a discussion of the new Barcelona Convention, see Arsen Pavasovic, “The Mediterranean Action Plan Phase II and the Revised Barcelona Convention: New Prospective for Integrated Coastal Management in the Mediterranean Region,” Ocean and Coastal Management 31 (1996): 133-182. 183 From the “Origins of GESAMP” webpage at 184 In fact, this name change illustrates another trend in ocean management: one that embraces the precautionary principle by emphasizing a proactive, preventative approach that takes action before pollution occurs. The precautionary approach and trends in its use were discussed in depth earlier in this chapter. 185 See United Nations General Assembly Report, A/57/57, Oceans and Law of the Sea March 7, 2002, 100.

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environment, as well as the complex interplay between all components of the ecosystem. In the past, the focus of most transboundary pollution litigation has been on catastrophic events such as air pollution and oil or chemical spills that are universally recognized as disasters.186 In the ocean, however, ambient noise exists at all times. The cumulative and long-term transboundary noise pollution caused by continuous industrial activities such as shipping and construction, therefore, must be addressed. But it must be addressed within the context of all other ocean noise—both man-made and naturally occurring. Ocean noise needs to be considered in a new light—that of the ecosystem or habitat. This approach should take into account all sources of noise, both incidental and continuous. It should bear in mind not only the direct effects of noise on marine mammal physiology, but also the indirect, cumulative effects on their behavior. Additionally, it should consider effects on other marine life and the cost to humans of controlling the noise. For example, if supertankers and seismic surveying are allowed in an area where an individual high-powered sonar source like ATOC is prohibited, the protection afforded the entire ecosystem would be seriously compromised. Furthermore, because the long-term cumulative effects of noise on the marine environment are not known, it is possible that the omnipresent noise from shipping could create more serious and long-term consequences than those from the occasional use of a distinct sonar source. This hypothetical example illustrates the dangers of regulating single sources and only considering short-term effects of noise. Another scenario illustrates the problem of focusing on individual species instead of the ecosystem as a whole. If ocean noise policy were to focus solely on the effects of noise on large whales, it would follow that regulations should prohibit the generation of noise in the frequency range of the whales’ hearing inside a whale sanctuary. But if, for example, the use of acoustic gillnet pingers is not prohibited, the whales’ prey species could be affected. These pingers could drive the whales’ prey out of the area and ultimately leave the whales with no food source.187 Both of these scenarios make a strong case for developing an ecosystem-based management strategy that incorporates all species and all sources of sound.

186.

Plater, Zygmunt et al. Environmental Law and Policy: Nature, Law and Society ed., (St. Paul, MN: West, 1998), 998. 187 One theory has been proposed that gillnet pingers designed to keep harbor porpoise from gillnets work not because they drive away the harbor propoise, but because they keep away herring, a major food source of the porpoise. See S.M. Dawson, “Pingers, Porpoises, and Power: Uncertainties with Using Pingers to Reduce Bycatch of Small Cetaceans,” Biological Conservation 84 (2000): 141-146.

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Not surprisingly, until now, most actions to reduce noise pollution have been directed toward individual and incidental sources of noise, rather than continuous, aggregate sources. Clearly, regulations that incorporate the cumulative, long-term impact of all sources of noise on species and habitats are necessary. In fact, the US National Research Council (NRC) has emphasized that, “the issue of cumulative impacts from human-generated noise is best dealt with as a habitat degradation issue.”188 The NRC has urged policymakers to employ a habitat-based approach to the issue of lowfrequency sound affects on marine mammals.189 The US Park Service has directed its managers to treat natural terrestrial soundscapes as a resource.190 A soundscape is the totality of sounds in a given area; a natural soundscape is the soundscape with all anthropogenic noise removed. The consideration of soundscapes as a natural resource implies that they can be protected like other resources such as air, water, or wildlife. Perhaps a similar approach should be adopted for sound in the sea. A habitat-based management method is preferable to one that considers only the impact of single sound sources on an individual basis.191 But an administrative trap arises because government agencies are sectoral in their approach (transportation, energy, defense). In contrast, the ecological approach to habitat protection requires the integration of many factors in addition to interdisciplinary teamwork. It also requires limitations on a wide range of human activities and demands the involvement of a diverse group of stakeholders who often conflict with one another (fishermen, oil companies, environmentalists, the military). International governance of ocean ecosystems is in the throes of substantial change. Ocean management is shifting from fragmented, sectoral approaches to an integrated, strategic approach. This new paradigm for ocean management may be controversial and challenging to implement, but it represents a comprehensive and proactive method of managing living resources in the sea, and it offers the potential for greater attention to ocean noise and its effects on the environment.

188

OSB – 2000, 63. Ibid. 190 From a segment entitled “Bioacoustics” on the “Living on Earth” radio program, carried by National Public Radio, on August 3, 2001. The manuscript for the radio show can be found at See also William B. Schmidt, “The Analysis and Protection of the Natural Soundscape in National Parks,” presented at Vital Signs Monitoring Meeting, Denver, CO, August 13-16, 2002. Document available at 191 Dotinga and Elferink, “Acoustic Pollution in the Oceans: The Search for Legal Standards,” 31 Ocean Development and International Law (2000). 189.

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Given the emerging ecosystem-based approach to ocean governance, specific measures to address noise pollution should be based on a habitatfocused regulatory structure to minimize cumulative risks from all ocean activities rather than focusing exclusively on individual activities. This approach applies to noise policy as well as other elements of ocean management.

5.

POLICY INSTRUMENTS - A SUMMARY

Patricia Birnie has pointed out “many environmental treaties do not necessarily contain clear, detailed, or specific rules capable of being instantly enacted into municipal law.”192 Multilateral treaties and regional agreements sometimes specify policy instruments, but generally, such agreements use broad, all-encompassing language about how to accomplish a particular objective. These types of agreements defer the choice of appropriate policy instruments to individual states, and often require additional protocols. Examples of these types of “framework” agreements include the 1992 Climate Change Convention and the 1985 Convention for the Protection of the Ozone Layer.193 Even if multilateral treaties are in place, policy instruments are still required to address particular objectives. As discussed in the previous section, all policy instruments have shortcomings. Generally, command and control techniques require oversight, a daunting task considering the transboundary nature of underwater noise. Furthermore, these techniques are costly to enforce and require some determination of what constitutes an acceptable level of pollution. Taxes can be economically efficient when the full cost of an externality is known. But in a situation of scientific

192 193

See Birnie and Boyle, International Law and the Environment ed.,14, supra note 12. Framework Convention on Climate Change, 31 ILM 851 (1992). Convention for the Protection of the Ozone Layer, 26 ILM 1529, (1987). Both of these treaties require more specific agreements, the addition of protocols and annexes, or the adoption of guidelines or recommendations.

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uncertainty, like that surrounding ocean noise pollution, economic efficiency is not easily achieved.194 Other policy instruments such as the establishment of zoning ordinances and MPAs may be more effective in addressing ocean noise pollution and are discussed in greater depth in the next chapter.

194

Dougals Ofiara and Joseph J. Deneca, Economic Losses from Marine Pollution, (Washington: Island Press, 2001), 12-13.

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Chapter 6 THE USE OF MARINE PROTECTED AREAS

Marine Protected Areas (MPAs) are policy instruments that foster ecosystem-based management. They. are established for a variety of reasons—to protect essential fish habitat, to preserve underwater archeological sites, or to provide diverse areas for recreation and tourism.1 Only a small number of the world’s MPAs have been created for the explicit purpose of conserving and protecting marine mammals.2 This chapter focuses on how MPAs could be used to protect marine mammals from ocean noise pollution. It discusses the establishment of some MPAs both domestically and internationally and comments on their effectiveness in protecting marine mammals and the ecosystems in which they live.

1.

UNILATERAL MARINE MAMMAL MPAS IN THE UNITED STATES AND ABROAD

The establishment of marine mammal protected areas and whale sanctuaries dates back to 1913 when authorities in Western Australia declared a sanctuary to prevent Norwegian whalers from hunting in whale calving grounds.3 Since then, a number of MPAs have been established in

1

Stephen Palumbi, Marine Reserves: A Tool for Ecosystem Management and Conservation (Arlington, VA: Pew Ocean Commission, 2003). 2 Randall R. Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals (Bethesda, MD: Marine Mammal Commission, 2000), 27. 3 The area was later opened to whaling in 1955 and has remained open since. See J.N. Tonnessen and A.O. Johnson, The History of Modern Whaling (Berkeley: University of California Press, 1982).

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the United States and abroad with the specific goal of protecting marine mammals. In the United States, the National Marine Sanctuaries Program has designated one sanctuary specifically to protect whales and their habitat. Known as the Hawaiian Islands Humpback Whale Sanctuary, it was established by Congress in 1992 with several purposes in mind.4 It was designed to: protect humpback whales and their habitat within the sanctuary; educate the public on the relationship of humpback whales to the Hawaiian Islands marine environment; manage human uses of the sanctuary consistent with the Hawaiian Islands National Marine Sanctuary Act and the National Marine Sanctuary Act; and help to identify marine resources for possible inclusion in the sanctuary.5 Figure 1 illustrates the area of the Hawaiian Islands included in the Sanctuary.

Figure -1. Hawaiian Islands Humpback Whale National Marine Sanctuary. Source: NOAA National Marine Sanctuaries Program

4

Hawaiian Islands Humpback Whale Sanctuary Act, November 4, 1992, see 15 C.F.R. IX, part 922, subpart Q. 5 Ibid.

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Several activities are prohibited within the sanctuary boundaries. These activities include: 1) approaching, or causing a vessel or other object to approach, within the Sanctuary, by any means, within 100 yards of any humpback whales except as authorized under the Marine Mammal Protection Act ...and the Endangered Species Act; 2) operating any aircraft above the Sanctuary within 1,000 feet of any humpback whales except as necessary for takeoff or landing from an airport or runway, or as authorized under the MMPA and the ESA; 3) taking any humpback whale in the Sanctuary except as authorized under the MMPA and ESA; 4) possessing within the Sanctuary (regardless of where taken) any living or dead humpback whale or part thereof taken in violation of the MMPA or the ESA; 5) discharging or depositing any material or other matter in the Sanctuary; altering the seabed of the Sanctuary; or discharging or depositing any material or other matter outside the Sanctuary if the discharge or deposit subsequently enters and injures a humpback whale or humpback whale habitat [if such an activity requires a federal permit and is conducted without such a permit not in compliance with such a permit].6 It is clear that some of these restrictions are intended to apply to activities that create noise, such as the transit of boats and aircraft in the area. Their applicability to other activities is less certain. For example, the prohibition on discharging or depositing applies only to “material or other matter” and therefore does not apply to energy. As such, noise is not explicitly addressed in the Hawaiian Islands Humpback Whale Sanctuary but several noise-making activities are regulated. Other US sanctuaries, such as Stellwagen Bank Marine Sanctuary, were not established solely to protect whales, but they do include the protection of marine mammals as an important component of their management plans.7 Yet none of the marine sanctuaries established in the United States specifically ban noise or impose limits on its sources. Unilateral marine mammal protected areas have also been established under the umbrella of the United Nations system. The UN Educational, Scientific and Cultural Organization (UNESCO) administers the Biosphere

6

Hawaiian Island Humpback Whale Sanctuary Act, Subpart Q, Section 922.184, “Prohibited Activities,” para (a)(l) – (a)(5). See 15 C.F.R. Chapter IX, §§ 922.184, “Prohibited Activities.” 7 See for an on-line version of SBNMS’s 1993 management plan and a more recent management plan review. Last accessed on March 20, 2002.

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Reserve Program, which creates zoned, multiple-use reserves to reconcile economic growth with ecological complexity and diversity.8 Two oceanic biosphere reserves are found in Mexico, at El Vizcaino and at the Upper Gulf of California, established to protect the gray whale and the vaquita respectively.9 The El Vizcaino Biosphere Reserve was approved by the government of Mexico in 1988 and by UNESCO in 1993. A draft management plan was written in 1994 and is now approved.10 A management plan for the Upper Gulf of California Biosphere Reserve was published in 1995 but to date little progress has been made in reducing threats to the vaquita, one of the world’s most critically endangered marine mammals.11 Other examples of unilateral whale sanctuaries are found in Germany (the Wadden Sea National Park of Schleswig-Holstein); in Ireland (The Irish Whale and Dolphin Sanctuary); and in the Dominican Republic (the Silver Bank National Humpback Whale Sanctuary).12 In fact, a report prepared for the US Marine Mammal Commission in December 2000 lists over 30 unilaterally proclaimed protected areas outside of North America that are intended to benefit marine mammals.13 Recently, two new unilateral whale sanctuaries were created in the South Pacific. In September 2001, the Cook Islands Government established a whale sanctuary throughout its exclusive economic zone (EEZ) that covers

8

The UNESCO Conference on the Conservation and Rational Use of the Biosphere launched the Man and the Biosphere (MAB) Program in 1968 to help countries strike a balance between conserving biodiversity, promoting economic and social development, and maintaining cultural values. The Program currently includes more than 350 sites in 90 countries. See also Randall R. Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals, 24, supra note 2. 9 See S. Dedina and E. Young, Conservation and Development in the Gray Whale Lagoons of Baja California, Mexico, (Bethesda, MD: Marine Mammal Commission, 1995). 10 The management plan took over six years to approve and implement. The UNEP web site reports that a management plan is now in place. See <www.unepwcmc.org/sites/wh/vizcaino.html> last accessed on November 21, 2002. For information on the development of the management plan, see M.P. Rossler et al, Report on the Mission to the Whales Sanctuary of El Vizcaino (Mexico) from 22 August to 28 August 1999, Information document provided to the Bureau of the World Heritage Committee, Paris, WHC-99/CONF. 208/INF.6. See also S. Dedina and E. Young, “Conservation and Development in the Gray Whale Lagoons of Baja California, Mexico.” 11 Randall R. Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals, 27. 12 Ibid., Appendix 1; at 41-47. 13 Ibid.

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some two million square kilometers of ocean.14 The establishment of the Cook Islands reserve was designed to send a message to whaling nations that hunting whales is a “thing of the past and the future lies in conservation.”15 It is the largest whale sanctuary declared by an individual state but its effectiveness remains to be seen.16 It could prove difficult for a territory as small as the Cook Islands to enforce its sanctuary’s rules over such a vast area of the ocean. Similarly, the Prime Minister of Papua New Guinea recently declared the EEZ of his country a marine mammal sanctuary.17 These efforts, however, are largely to protect whales by prohibiting deliberate killing of the animals. Management measures do not yet include restrictions on noise or industrial activities.18

2.

MULTILATERAL MARINE MAMMAL MPAS

Although many marine species and ecosystems extend beyond national jurisdictions, bilateral and multilateral management plans are rare. Only limited efforts have been carried out to coordinate conservation through MPAs across political lines.19 The International Whaling Commission, however, has established two highly controversial whale sanctuaries that ban commercial whaling within their boundaries.20 The IWC Indian Ocean Sanctuary was established in 1979 to protect baleen and sperm whales. It was renewed by the IWC in 1992 for an indefinite period, subject to

14

See “Cook Islands Declaration on the Establishment of a Whale Sanctuary - September 2001,” Journal of International Wildlife and Policy 4 (2001): 167-168. 15 Draft press release from Cook Islands, September 20, 2001, sent to MARMAM listserver by Nan Hauser of Cook Islands Whale Research, Avarua, Rarotonga. See also “Press Release,Government of New Zealand, New Zealand Welcomes Cook Islands Whale Sanctuary, September 21, 2001,” in Journal of International Wildlife and Policy 4 (2001): 165-166. 16 Ibid. 17 See posting on MARMAM listserver, “Creation of Marine Mammal Sanctuary in Papua New Guinea,” posted on May 7, 2002. 18 The declaration of the Cook Islands whale sanctuary list activities that the government supports (e.g. non-lethal scientific research), but does not explicitly prohibit any activities other than “the deliberate take of whales.” See “Cook Islands Declaration on the Establishment of a Whale Sanctuary - September 2001,” Journal of International Wildlife and Policy 4 (2001): 168. 19 University of Washington, “International MPA Plans are Emerging Slowly, Amid Obstacles”, MPA News, 2(1) (July 2000): 1. 20 International Convention for the Regulation of Whaling, December 2, 1946 (entered into force on Nove. 10, 1948), 161 U.N.T.S. 72, Article V(1)(c).

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review.21 Similarly, in 1994, the IWC adopted the Southern Ocean Sanctuary as another area in which commercial whaling is prohibited. (See Figure 2 for location of these IWC whale sanctuaries.)

Figure -2. International Whaling Commission Sanctuaries Source: The International Whaling Commission

The existence of these sanctuaries has been vehemently opposed by whaling states such as Japan and Norway. In fact, at the IWC meeting in May 2002, Japan proposed to eliminate the provision for the Southern Ocean Sanctuary.22 More recent attempts to establish additional IWC whale sanctuaries in the South Pacific (proposed by Australia and New Zealand) and the South Atlantic (proposed by Brazil and Argentina) were recently defeated in the IWC.23 These controversies arise from the disparate opinions

21

Randall R. Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals, 44, supra note 2; also see IWC/54/5, “Report of the IWC Scientific Committee,” Annex N, Report of the Working Group to Review Sanctuaries and Sanctuary Proposals, May 2002, located at <www.iwc.office.org/reports/htm> last accessed on July 25, 2002. 22 The proposal was not adopted. 17 countries voted for it, 25 against and 2 abstentions. See the press release from the IWC Annual Meeting in Shimonoseki, Japan, located on-line at <www.iwcoffice.org/2002PressRelease.htm.> 23 Proposals for sanctuaries in the South Pacific (24 votes for, 16 against and 5 abstentions) and South Atlantic (23 votes for, 18 against and four abstentions) failed to gain the necessary three- quarters majorities to be adopted. See “No Whale Sanctuaries Approved,” Environmental News Service, May 21, 2002, text available at
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on the sustainability of whaling among the states in the IWC. Whaling states, such as Japan and Norway, strongly oppose measures to establish whale sanctuaries, which would limit their opportunities for whaling. While international reserves are uncommon, some progress has been made on the establishment of tri-lateral projects. In November 1999, France, Italy, and Monaco signed a joint declaration that established the Ligurian Sea Cetacean Sanctuary for the protection and conservation of marine mammals.24 All direct takes, intentional harassment of marine mammals, and large-scale pelagic drift net fishing are forbidden in the sanctuary. Furthermore, the sanctuary management plans to regulate invasive research activities and whale watching and eventually ban all offshore speedboat competitions.25 This sanctuary is new and, for the time being, it represents a declaration of political intent and a first step in multilateral whale conservation efforts. The sanctuary’s designation as a Specially Protected Area of Mediterranean Importance (SPAMI) under the Barcelona Convention ensures that all Mediterranean parties to the Convention respect the conservation rules established by the Sanctuary agreement.26 As with

news.com/ens/may2002/2002-05-21-03.asp>. Also see the press release from the IWC Annual Meeting in Shimonoseki, Japan, located on-line at <www.iwcoffice.org/2002PressRelease.htm.> 24 Ligurian Sea Cetacean Sanctuary, signed in Rome on 25 November 1999; English text available at This joint declaration was the first time that two G-8 member states have agreed to set up a cetacean protection sanctuary. The Tethys Research Institute is a non-profit organization dedicated to the study and conservation of the marine environment, through research, public awareness and education. See their website at 25 These restrictions are outlined in , last accessed on March 20, 2002. 26 The Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention); adopted on February 16, 1976, in force February 12, 1978; revised in Barcelona, Spain, June 9-10, 1995 as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (not yet in force); see The Protocol Concerning Mediterranean Specially Protected Areas (SPA Protocol); adopted in Geneva Switzerland, on April 2, 1982, in force 1986, revised in Barcelona, Spain on June 9-10, 1995 as the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA and Biodiversity Protocol). For text of these instruments, see http://www.unep.ch/seas/main/hconlist.html. In the Mediterranean, an updated Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean was adopted in June 1995. The Protocol calls for the establishment of Specially Protected Areas of Mediterranean Importance (SPAMI) and outlines such measures as protection and conservation of species, regulation of the introduction of non-indigenous, and the improvement of the scientific, technical, and management research relevant to Specially Protected Areas. Protected sites in the

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many international agreements, however, monitoring and enforcement is problematic and the power of individual states is limited. The establishment of this sanctuary and its concern with acoustic activities was discussed in greater depth in Chapter Two.

3.

THE POTENTIAL OF MPAS TO PREVENT ACOUSTIC DISTURBANCE

In the case of ocean noise pollution, the value of an MPA is in its ability to contribute to species conservation and habitat preservation. The site selection of MPAs to prevent acoustic disturbances of marine life should incorporate breeding and feeding grounds, migration paths, and other areas of large populations or critical habitat. Other particularly sensitive areas of important marine habitat that are subject to high levels of anthropogenic noise should be identified and protected accordingly. These MPAs could then include provisions that would take into account noise and its effects on the ecosystem. For example, MPA management plans could prohibit obvious noise-producing activities, such as oil drilling and mining, or they could be even more restrictive and prohibit any activity with the slightest potential to harm marine life, such as scientific research and whale watching. In addition to the conservation benefits gained from the establishment of MPAs, economic benefits could also result, including increased productivity in adjacent fisheries and greater revenues from tourism. Tourism is especially significant for MPAs that protect marine mammals and allow whale watching within their boundaries. In fact, it has been suggested that marine sanctuaries could use the promotion and regulation of whale watching as a rationale for their existence.27

4.

ZONING IN MPAS

It is one thing to designate an MPA, but quite another to ensure that it achieves its goals. One tool that may be used to accomplish the objectives of an MPA is zoning. The use of ocean zoning within existing MPAs may be the most direct method of protecting marine mammals from noise

27

Mediterranean now number in the hundreds. See Center for the Economy and the Environment, Protecting Our National Marine Sanctuaries (Washington,D.C.: National Academy of Public Administration, 1999.)

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pollution.28 Zoning has been acknowledged as an important component of MPA management plans: it is particularly relevant to protecting threatened resources that are well-defined geographically because conservation efforts are focused on the areas at greatest risk.29 Zoning can be used to establish boundaries for specific activities and permitted uses, to specify which activities will be permitted or prohibited in certain areas, and to prescribe rules of use and restrictions on various activities.30 The number and type of zones can vary to satisfy the criteria for which an MPA is established. Types of zones include: strict “no take” or “no activity” areas where access is severely limited; areas where controlled activities are allowed under certain specified conditions; and areas where activities are regulated depending on the season or other time periods, to accommodate activities such as breeding or migration.31 The first step in controlling ocean noise pollution is to incorporate zoning ordinances into existing MPAs. Ordinances are laws enacted by a body to govern matters not already covered by state or federal laws.32 If relevant MPA legislation is in place, specific guidelines could be created to provide restrictions on acoustic activities that harm or disturb marine mammals in protected areas. These activities might include whale watching, shipping, aircraft flyovers, scientific research, and oil and gas exploration. Ordinances would not necessarily prohibit such activities, but they should provide guidelines and limits on when, where, and to what extent they are allowed. For example, ordinances could ensure that certain activities such as seismic operations do not take place at times when whales are migrating through a region. They could also prohibit the operation of whale-watching 28

Regarding zoning in US waters, see generally Jeff Brax, “Zoning the Oceans: Using the National Marine Sanctaries Act and the Antiquities Act to Establish Marine Protection Areas and Marine Researces in America,” Ecology Law Quarterly 29 (2002), 71. For a study on the use of zoning within an existing MPA, see S.M. Muchiri and V. Kalehe, “Management Of Marine Resources By Zoning: The Case Of Kisite/Mpunguti Marine Protected Area Of Kenya’s South Coast” in Proceedings of the Conference on Advances on Marine Sciences in Zanzibar, Tanzania, 28 June -1 July 1999, Institute of Marine Sciences, Dar es Salaam University, Zanzibar, Tanzania; and P. Francour et al., “A Review Of Marine Protected Areas In The Northwestern Mediterranean Region: Siting, Usage, Zonation And Management.” Aquatic Conservation-Marine and Freshwater Ecosystems 11(3) (2001):155-188. 29 See “Canada’s National Framework for Establishing and Managing Marine Protected Areas,” a presentation available at <www.eastport.com.> See Canada’s Ocean Act of December 18,1996, c. 31, text available at 30 Ibid. 31 Ibid. 32 J.C. Juergensmeyer and Thomas Roberts, Land Use Planning and Control Law.

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vessels without ship-silencing technologies or limit the number of ships that can transit through a breeding area. Seasonal closures or restrictions could be adopted, and site-specific measures to regulate human activities could be incorporated in management plans.33 These specific ordinances might prove easier to follow and enforce than much of the vague language found in existing laws. As an example, in the United States, the MMPA prohibits any act of annoyance that has the potential to disturb a marine mammal by causing disruption of behavioral patterns including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.34 Adherence to this law, as well as its enforcement is difficult because no specific guidelines exist.

4.1

Activity-Specific Zones

In the United States, many sanctuary management plans call for prohibitions or spatial and temporal restrictions on certain activities.35 Several US ordinances are already in place that limit noise-making activities. For example, in Glacier Bay National Park, in southeastern Alaska, cruise ships must adhere to pollution and noise minimization protocols to protect humpback whales while in the bay.36 For a cruise ship to enter the National Park, it must submit, have approved, and implement a pollution minimization plan. The plan must ensure, to the fullest extent possible, that a ship, if permitted to travel within Glacier Bay, will apply the industry’s

33

Some sanctuary managers, however, do not see any restrictions on noise coming down the pike in the near future (according to an e-mail from Ben Haskell, Operations and Program Coordinator at SBNMS, 11 October 2001), although others have considered it (see email from Anne Walton, Sanctuary Manager at Channel Islands NMR, November 01, 2001.) 34 See MMPA definition of “harassment,” at 16 U.S.C. 1362 (18)(A)(ii). 35 See for example, the management plan for Stellwagen Bank National Marine Sanctuary (on line at http://stellwagen.nos.noaa.gov/management/sections/managementPlan/1993PlanHome.ht ml) and the Canadian North Atlantic Right Whale Recovery Plan (Alberta: World Wildlife Fund and the Canadian Dept. of Fisheries and Oceans, 2000), 82. Both documents suggest zoning and prohibitions of certain classes of activities. 36 Randall R. Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals, 19, supra note 2. See also, the Marine Mammal Commission Annual Report to Congress - 1994, 78-80. See the Vessel Management Plan at <www.nps.gov/glba.> Also see CFR 36, section 13.65 for restrictions on vessel traffic in Glacier Bay. See Environmental Impact Statement for Vessel Quotas and Operating Requirements, under preparation, available at <www.glba.ene.com/brochure_01.htm> last accessed on July 27, 2002.

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best approaches toward vessel oil-spill response planning and toward prevention and minimization of air and underwater noise pollution.37 Furthermore, explicit noise restrictions are in place in Glacier Bay each year from June 1 through August 31, except on vessels in transit or as otherwise permitted by the park superintendent. These restrictions prohibit the use of generators and other non-propulsive motors (except a windless) from 10:00 p.m. until 6:00 a.m. in certain parts of the National Park. In addition, the guidelines confer upon the park superintendent the authority to, at any time, “impose operating conditions to prevent or mitigate air pollution, water pollution, underwater noise pollution or other effects of cruise ship operation.”38 These guidelines are among the most stringent measures found in any sanctuary or national park in the United States. At the Point Reyes National Seashore near San Francisco, jet skis are prohibited altogether and National Park Service personnel are exploring other ways to implement no-take zones within the area.39 In the Channel Islands Marine Protected Reserve in California, acoustic activities are not currently regulated but have been categorized as an “emerging issue” in the sanctuary management plan.40 Reserve managers have expressed a desire to understand the issue more fully before they attempt to regulate noise.41 In both the Stellwagen Bank Marine Sanctuary and the Hawaiian Islands Humpback Whale Sanctuary, existing regulations that prohibit other practices could eventually apply to noise-creating activities.42 For example, both sanctuaries have restrictions on discharging or depositing any material inside or outside the sanctuaries that could ultimately injure a sanctuary resource or quality.43 These regulations do not attempt to control ocean noise pollution, however. The wording of any sanctuary ordinance would have to include “energy” in addition to “material or other matter” for it apply to activities that generate ocean noise.

37 38 39

40

41 42

43

36 C.F.R. 13.65 36 C.F.R. 13.65. Randall R. Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals 19, supra note 2. Anne Walton, manager of the Channel Islands MPR met with representatives from the NMFS Office of Protected Resources and agreed to start working on the issue of acoustic regulations in US protected areas. From an e-mail from Anne Walton, on November 01, 2001. Ibid. From an e-mail by Ben Cowie-Haskell, Operations and Program Coordinator at SBNMS, 11 October 2001. See 15 C.F.R. §§ 922.142 l(ii) in Stellwagen, and subpart Q, Section 922.184 Para. (a)(5) in Hawaiian Islands.

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In the U.K., the establishment of MPAs has been proposed by the Department of Trade and Industry, which oversees oil and gas exploration and production.44 Known as Special Areas of Conservation (SAC), these areas are designed to provide protection for a range of species. To date, however, none have been implemented to mitigate the effects of seismic exploration on marine mammals.45

4.2

Individual Source-Specific Zones

The restrictions and guidelines discussed in the previous section apply to all activities within the boundaries of an MPA. But in addition to activityspecific regulation, there are also precedents for the regulation of individual acoustic sources. One case of specific source-related zoning is found in the Final Rule issued by NMFS regarding the operation of the Navy’s SURTASS sonar system. This rule provides specific measures for mitigating the acoustic effects of the SURTASS sonar on marine mammals. It establishes a 180 dB mitigation zone around the SURTASS transducers.46 If a marine mammal is observed entering this zone, any sonar transmission must be immediately delayed or suspended. The rule requires the Navy to ensure that the SURTASS sound field does not exceed 180 dB within 12 nautical miles of any coastline.47 More specifically, NMFS has imposed special provisions that apply to areas of particular importance to marine mammals. The Monterey Bay National Marine Sanctuary (prohibits received sonar levels greater than 180 dB throughout the sanctuary); the Gulf of Farallones and Cordell Bank National Marine Sanctuary (prohibits received levels greater than 180 dB, including those areas of the sanctuary that extend beyond 12 nm); the Olympic Coast National Marine Sanctuary (prohibits received levels greater than 180 dB from within 23 nm of the shore in the months of December, January, March, and May); and the Hawaiian Islands Humpback Whale

44

For more information on the U.K’s Department of Trade and Industry, see www.dti.gov.uk. See Department of Trade and Industry, “Position Paper on the Mitigation and Management of Oil and Gas marine Seismic Surveys,” September 2003, text available at www.og.dti.gov.uk/consultations/mmss_pp.doc. 46 The establishment of this zone has been highly controversial. NMFS acknowledges that “there are areas of insufficient knowledge that must be accounted for when estimating the potential effects on marine mammals.” See Final Rule, SURTASS, 67 Federal Register July 16, 2002, 46781. 47 Ibid. 45

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National Marine Sanctuary (prohibits received levels greater than 180 dB from December through May.)48 Furthermore, the Navy has identified “Offshore Biologically Important Areas” (OBIAs), regions where marine mammals congregate in large numbers to feed, migrate, breed, and calve. The NMFS rule prohibits the use of SURTASS systems in such areas.49 NFMS established three OBIAs, one in each of the following regions: the North American East Coast; the Antarctic convergence zone; and the waters off Costa Rica.50 In addition, NOAA has established a fourth OBIA inside the Humpback Whale National Marine Sanctuary off Molokai, Hawaii, from November through April, when humpback whales use it as a breeding ground.51 The US Navy also has established a safety zone for SCUBA divers that limited SURTASS levels to 145 dB around all known commercial and recreational diving sites. These restrictions represent a temporally and geographically fluid type of zoning that changes in response to the location of the noise source in addition to the location of the species to be protected. One of the greatest challenges to zoning is that of monitoring and enforcing regulations in the ocean effectively. This challenge is particularly daunting when attempting to control a type of energy that can travel thousands of kilometers—noise may be generated by activities outside the protected zone yet create significant effects within it. Moreover, the potential for acoustic disturbance is dependent on two highly unpredictable factors: the variability of noise transmission and the widespread distribution of marine mammals.

4.3

Buffer Zones

Uncertainty over the geographic extent of the effects of ocean noise may necessitate the establishment of buffer zones around MPAs to ensure an

48

Ibid. For more information on these US National Marine Sanctuaries, see http://www.sanctuaries.nos.noaa.gov/. 49 Ibid.; also see Richard R. Burgess, “NOAA, Navy Seek Accord On SURTASS,” Sea Power May 2001; text available on line at 50 The exact lat/long of these areas is found in the Final Rule, SURTASS, 67 Federal Register July 16, 2002. 51 It is emphasized that “establishment of OBIAs is not intended to apply to other Navy activities and sonar operations, but has been established ...as a mitigation measure to reduce incidental takings by SURTASS sonar.” See Final Rule, SURTASS, 67 Federal Register July 16, 2002.

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additional measure of safety. Buffer zones generally surround an MPA’s core “no take” area and permit some limited activities, yet still protect the MPA from the encroachment of human activities that may damage important species or habitats.52 Article 5 of the Protocol Concerning Mediterranean Specially Protected Areas has formalized the concept of buffer zones. It states that “[t]he parties may strengthen the protection of a protected area by establishing, within the area to which this Protocol applies, one or more buffer areas in which activities are less severely restricted while remaining compatible with the purposes of the protected area.”53 Biosphere Reserves, established by UNESCO, are required to have at least a core area of maximum protection and at least one buffer area with less severe restrictions on human activities.54 Many biosphere reserves also encompass a transition zone. The biosphere concept mandates full protection in core areas that restrict all human activity, except for approved research and monitoring.55 A buffer zone surrounds or is contiguous to the core area. In the buffer zone, activities are regulated so that they do not hinder the conservation efforts of the core area, but rather help protect it.56 A buffer zone is often used for experimental research and may accommodate educational and tourism activities such as whale watching.57 Finally, an 52

The term “buffer zone” has been defined by the Living Oceans Organization in the context of fishing, at <www.livingocean.org>; also in Canada, See “Canada’s National Framework for Establishing and Managing Marine Protected Areas,” a presentation available at <www.eastport.com.> See also text of Canada’s Ocean Act. The establishment of precautionary buffer zones has been suggested by the Surfrider Organization for protection of seabirds, see <www.surfrider.org/specialplaces/ocean_zoning.htm.> Hyrenbach claims that this “corebuffer” concept provides a way of dealing with the geographic “uncoupling” of foraging habitats and prey densities from physical forcing mechanisms responsible for elevated production and water-column mixing. See K.D. Hyrenbach et al, “Marine Protected Areas and Ocean Basin Management,” Aquatic Conservation: Marine and Freshwater Ecosystems 10 (2000): 437-458. 53 The Protocol Concerning Mediterranean Specially Protected Areas of April 3, 1982, Article 5. Text available at 54 As of January 2000, there were 368 biosphere reserves located in 91 countries throughout the world; about 25% of them have a marine or coastal component. See <www.unesco.orb/mab/wnbr.> 55 See “How are Biosphere Reserves Organized?” at <www.unesco.org/mab/nutshell.htm.> 56 Ibid. 57 The use of buffer zones to protect whales from commercial whale-watching activities is well-established. For example, operating guidelines issued by NMFS for whale watching vessels in the northeastern United States recommend larger buffer zones around whales, specific speed limits, and dedicated lookouts to prevent harassment of and injury to large whales. See NMFS Northeast Regional Fisheries Office website at

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outer transition area may accommodate activities of economic and social significance such as fishing or aquaculture. Figure 3 illustrates the biosphere zoning model established by UNESCO’s “Man and the Biosphere” program (MAB).

Figure -3. UNESCO’s zoning plan. Source: UNESCO’s Man and Biosphere Program. Note the use of buffer zones beyond the core area

Buffer zones are not always used in tandem with MPAs. In the United States, they have been used to mitigate the effects of Navy sonar on marine mammals. Specifically, the US Navy’s SURTASS program has called for the establishment of “interim buffer zones” which extend an additional onekilometer of safety around the standard 180 dB mitigation zone.58 The Final Rule issued by NMFS for the US Navy’s SURTASS system claims that “NMFS has concluded that the 180 dB safety zone needs to be augmented to ensure to the greatest extent practicable that marine mammals are not subject to potential injury. In that regard, as an added safety measure, NMFS has established an interim ‘buffer zone’ extending an additional 1 km beyond the 180 dB LFA mitigation zone.”59 Scientists in the U.K. have similarly

In the San Juan islands, similar buffer zones are recommended. See whale watching guidelines at 58 Federal Register, Vol 67, Number 136, July 16, 2002 at 46780-1. 59 Ibid.

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proposed the use of “stand-off” ranges to protect fixed locations such as breeding grounds and marine mammals reserves from the potential effects of sonar.60 In summary, zoning that incorporates spatial and temporal restrictions together with the use of buffer zones may be one of the most effective measures for mitigating some effects of anthropogenic sound on sensitive species. However, effective zoning requires strongly worded laws, efficient monitoring, a recognized authority with adequate oversight, and sound science, including knowledge of the protected species and their temporal and spatial variability. Furthermore, the designation of such zones also requires international recognition from the appropriate organizations.61 The Natural Resources Defense Council has commented on how “seldom geographic and seasonal restrictions are used by wildlife agencies to protect habitats from noise pollution.”62 But the infrequent use of such restrictions may be changing: a recent report to the US Marine Mammal Commission on the use of MPAs for whale conservation recommended the establishment of a federal interagency task force to “consider site-specific zoning and measures to regulate human activities, such as commercial and recreational fishing, aquaculture, vessel traffic, whale-watching, mineral exploration, and dredging.”63 Such a task force is desirable, but would be faced with myriad challenges. Many of these challenges are discussed in depth in the following section, which focuses on the problems inherent in establishing MPAs and zoning.

5.

CHALLENGES IN IMPLEMENTING MPAS AND ZONING

Effective zoning is difficult to institute. Should specific activities be proscribed or should specific maximum noise levels be enforced? For example, should drilling or shipping activities be explicitly banned or should ordinances be created that prohibit the generation of any sound greater than

60

See the discussion of calculation of stand-off ranges for the purposes of mitigation in A.D. Heathershaw et al., “The Environmental Impact of Underwater Sound,” 23(4) Proceedings of Institute of Ocean Acoustics (2001). 61 An example of international recognition of specially zoned areas includes PSSAs within the IMO and SPAMIs within the Barcelona Convention. 62 M. Jasny, Sounding the Depths: Supertankers, Sonar, and the Rise of Undersea Noise, (New York: Natural Resources Defense Council, 1999), 16. 63 Randall R. Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals, 31, supra note 2.

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200 dB within the sanctuary? Establishing MPAs and appropriate zoning ordinances within them present a variety of legal, political, economic, and social obstacles.

5.1

Split or Mixed Jurisdiction

One of the greatest obstacles to effective ocean governance stems from split or mixed jurisdiction.64 In the offshore zones of a number of countries, the central government controls some ocean uses and resources while regional or provincial governments may control others. Further, other states often have rights to utilize offshore areas under the Law of the Sea Convention (e.g., navigation). This mixed pattern of jurisdiction is further complicated by the presence of highly migratory species. Whales may come under the jurisdiction of a number of different states during the course of their lives and their habitat can include the high seas. Several sectors of government, therefore, must be involved in regulating acoustic activities: state, national, and international. Effective monitoring and management of sanctuaries requires a commitment from the many sectors that often compete with one another for resources and influence. In the United States, for example, balancing state and federal mandates to protect whales is complex. The National Marine Sanctuary Program is charged with protecting living resources within sanctuary waters, yet the National Marine Fisheries Service must manage fisheries in the same area.65 Likewise, in Canada, the responsibility of the Canadian Parks Service to manage particular areas of the ocean is often at odds with that of the federal Canadian Department of Fisheries and Oceans.66 This competition among the various government agencies responsible for environmental protection is viewed by some as the “greatest inhibition to progress in achieving successful MPA establishment and management.”67

64

For a discussion of the challenges resulting from jurisdictional conflicts, see Jens Sorenson, “National and International Efforts at Integrated Coastal Management: Definitions, Achievements, and Lessons,” Coastal Management 25(1997): 3-41. 65 Center for the Economy and the Environment. Protecting our National Marine Sanctuaries (National Academy of Public Administation, Washington, D.C.: 1999), supra note 27. 66 D.A. Duffus and P. Dearden, “Marine Parks: The Canadian Experience,” in Parks and Protected Areas in Canada: Planning and Management, ed. P. Dearden and R. Rollins (Oxford University Press: Toronto, 1993). 67 G. Kelleher, “A Global Representative System of Marine Protected Areas,” George Wright Forum 15 (3): 17-24.

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Protecting A “Moving Target”

The establishment of an effective MPA requires analysis and planning at the ecosystem level and recognition of the interactions among species, processes and habitats.68 Whales alter their movement over time in response to their changing environment. They migrate, reproduce, and search out new sources of food.69 Accounting for this variability is a challenge for MPAs, which usually rely on traditional fixed boundaries. The wide range of highly migratory marine mammal species also makes it difficult to manage them effectively. For example, in the 1970s and 1980s, the stocks of herring on Georges Bank and the northern Gulf of Maine collapsed due to overfishing.70 Consequently, sand lance, which compete with and are preyed upon by herring, became more abundant in the southwestern Gulf of Maine (including Stellwagen Bank). Sand lance became an alternate and readily available food choice for humpback whales, which began to feed on them intensively. By the time a decision was made to establish a sanctuary on Stellwagen Bank in the early 1990s, use of the area by these same whales had diminished as they moved back to George’s Bank in pursuit of recovered stocks of herring, their preferred food source.71 This example points out the challenges in designing a sanctuary to protect an opportunistic and mobile species like the humpback whale. In general, an MPA can be a useful conservation measure only where the spatial components of threats can be defined. Many ecological problems are not amenable to policy solutions that involve fixed boundaries – especially solutions that are designed to protect a highly migratory animal like whales from a transboundary pollutant such as noise. Clearly, MPA boundaries are

68

Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals, 5, supra note 2. 69 Most marine mammals depend on pelagic food webs. The timing and location of highdensity zooplankton patches that whales feed on is variable. See for example, K.F. Wishner, “Abundance, Distribution, and Population Structure of the Copepod Calnus finmarchicus in a Springtime Right Whale Feeding Area in the Southwestern Gulf of Maine,” Continental Shelf Research 15 (1995): 475-507. For a discussion of the migratory and opportunistic nature of whales, see generally The Conservation of Whales and Dolphins, ed. Mark P. Simmonds and Judith D. Hutchinson (New York: John Wiley and Sons, 1996). 70 This shift in humpback whale distribution is put forth in a paper by M.M. Weinrick at al., “ A Shift in Distribution of Humpback Whales, Megaptera novaeangliae, in Response to Prey in the Southern Gulf of Maine,” Fishery Bulletin 95 (1995): 82-836. 71 Weinrick’s hypothesis is also discussed in Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals, 22, supra note 2.

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not impenetrable; because noise can travel long distances, there is no way to prevent it from being generated elsewhere and crossing into an MPA. Nonetheless, the establishment of an MPA could still benefit marine mammals, as long as the dynamic nature of whales and the transboundary nature of ocean noise are considered.

5.3

MPA Site Selection

It has been suggested that if species were exclusively habitat-specific, it would be more important to protect some types of habitat than others.72 Areas inhabited by whales often have characteristics such as high biological productivity or significant biodiversity that are, in themselves, compelling reasons for inclusion in an MPA. These characteristics define areas that are critical. Such areas should be a priority when selecting the location of MPAs. Ecologist H.R. Pulliam proposed a useful approach to identifying areas of significant importance to marine mammals.73 It requires the identification of three types of ocean spaces: static systems, persistent hydrographic features, and ephemeral habitats.74 In this approach, static systems are defined as areas with fixed, topographic features such as seamounts, reefs, and canyons. Persistent hydrographic features, such as frontal systems and currents, require that a larger area be protected to accommodate their spatial variability. Ephemeral habitats are areas characterized by certain wind patterns, ocean eddies, and upwelling. Pulliam’s three types of ocean spaces could be combined with a fourth type of ocean space, that of intense acoustic activity, to yield optimal locations for MPAs that protect marine mammals from noise—areas that have been referred to as “hotspots” earlier in this book. In the past, areas have been selected for protection based on feeding, breeding and migration patterns and this method has been presumed to be

72

H.R. Pulliam, “Sources, Sinks, and Population Regulation,” American Naturalist 132 (1998): 652-661. See also S.K. Hooker, H. Whitehead and S. Gowans, “Ecosystem Consideration in Conservation Planning: Energy Demand of Foraging Bottlenose Whales in a Marine Protected Area,” Biological Conservation 104 (2002): 51 -58. 73 Another method of MPA site selection involves the use of spatial multiple-criteria analysis. This method was proposed by Villa Ferdinando et al., in “Zoning Marine Protected Areas through Spatial Multiple-Criteria Analysis: The Case of the Asinara Island National Marine Reserve of Italy,” Conservation Biology 16(2) (2002): 515. 74 This approach was proposed by K.D. Hyrenbach et al., “Marine Protected Areas and Ocean Basin Mangement,” Aquatic Conservation: Marine and Freshwater Ecosystems 10 (2000): 437-458.

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optimal. The gray whale refuges in Baja California, Mexico, and the humpback whale sanctuary in Hawaii are examples of this type of MPA optimization.75 These areas were chosen specifically to protect whale breeding grounds. Another way to optimize MPA selection is to establish temporary whale management zones around concentrations of feeding or migrating whales.76 This approach has been implemented by the NMFS off the East Coast of the United States to protect whales from shipping and fishing. In conjunction with the Army Corps of Engineers, the Coast Guard, and the Navy, NMFS has developed a real-time monitoring system that provides a moving “box of protection” around right whales. Called the “Early Warning System,” it requires aerial surveys to be conducted daily, weather permitting, during right whale breeding and migration season.77 The surveys cover more than 1,000 square miles of ocean and focus primarily on shipping channels. The survey team is made up of a pilot, a data recorder, and two observers. When a whale is spotted, its location is radioed to ship traffic controllers, and vessels in the area are directed to change course or speed to avoid hitting the whale.78 NMFS has also proposed similar types of dynamic protection areas to prevent right whale entanglement in fishing gear. Referred to as “dynamic area management” (DAM), this technique requires the closure of fishing grounds to all lobster and sink gillnet gear when a sighting of three or more right whales occurs at a density of 0.04 (or greater) right whales per square nautical mile.79 In the case of noise pollution, should management measures target areas of intense commercial activity or focus on areas that are still pristine and

75

See Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals, 25-27, supra note 2, for a discussion of the El Vizcaino Reserve. 76 Reeves states that he is unaware of concrete examples in which either persistent hydrographic features or ephemeral habitats have been used to define the fluid boundaries of an MPA, although consideration has been given recently to the idea of establishing such areas off the E. Coast of N. America to protect right whales. See Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals, 6, supra note 2. 77 The Early Warning System is in place December through March off the coast of Georgia and Florida, and in the summer months off the coast of New England. These closures attempt to protect the animals’ feeding and breeding grounds throughout the year. For an overview of the NMFS Early Warning System. See http://whale.wheelock.edu/whalenetstuff/Right_EWS98.html. 78 Also note the variable boundary of the Antarctic Convergence Zone, an example of an international dynamic protected area. 79 See Federal Register, December 21, 2001 and 50 CRF part 229.

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free of noise? Perhaps the answer is to protect the areas where there is the most at stake – that is, the areas with the greatest abundance of marine mammals and other marine life.80

5.4

Scientific Uncertainty

The successful implementation of an MPA relies on biological, ecological economic, and social factors. Ordinances that protect marine mammals from noise depend on functional and distributional data on both whales and human activity. Furthermore, long term acoustic monitoring within MPAs is needed to establish ordinances successfully.81 The integration of this information can illustrate the inter-relationships and conflicts between marine mammals, their critical habitats, and man. University of Virginia ecologist G.C. Ray and his colleagues outlined the use of integrated data in a paper entitled “Strategies for Protecting Marine Mammal Habitats.”82 The authors first developed a map based on environmental data, and then plotted biological data on walrus biology and distribution. Next they added information on the location of socio-economic activities such as oil and gas development and hunting and fishing. Finally, they superimposed data on legal and jurisdictional matters to identify areas of “high vulnerability” (similar to hot spots). The areas with the highest vulnerability were considered to be of the highest priority for management. In most ocean areas, however, there is still considerable scientific uncertainty about the distribution and number of whales of various species and the distribution of ocean noise.83 Although this uncertainty has been considered a limiting factor in the past, some researchers claim that these limitations have been largely overcome in recent years, and that the only

80

These areas relate to the concept of “hotspots” as proposed by the NRDC and “particularly sensitive sea areas” as put forth by the IMO. Regarding hotspots, see Jasny, Sounding the Depths: Supertankers, Sonars, and the Rise of Undersea Noise, 16-17. See Blanco-Bazan, “The IMO Guidelines on Particularly Sensitive Sea Areas (PSSAs),” Marine Policy 20 (1996): 343-349. 81 The need for empirical measurements and data on sources of ambient noise, particularly to support whale vocalization studies was underscored in a recent report. See International Fund for Animal Welfare, Report of the Workshop on Right Whale Acoustics: Practical Applications in Conservation, ed. D. Gillespie and R. Leaper (Yarmouth Port, MA: International Fund for Animal Welfare, 2001), 15. 82 G.C. Ray et al. applied this strategy to the walrus. See “Strategies for Protecting Marine Mammal Habitats,” Oceanus 21(2) (1978): 55-67. 83 The IWC website, publishes “Whale Population Estimates” which are located at http://ourworld.compuserve.com/homepages/iwcoffice/estimate.htm last accessed on March 20, 2002.

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remaining obstacle to the effective establishment of MPAs is the lack of political will.84

5.5

Political Obstacles

Developing the legal framework to establish, monitor, and enforce a unilateral MPA can be a challenge. Achieving agreement on the establishment and management of an international MPA is especially daunting because only those states that are parties to the agreement are bound by it. Furthermore, some states may maintain that an international MPA is not an appropriate management tool because it undermines the concept of freedom of the high seas, which is implicit in traditional international law. The process of achieving the political consensus required for establishing an MPA is fraught with controversy. In the United States, the National Marine Sanctuaries Program has come under criticism for its lengthy and controversial designation process.85 The shifting of the humpback whale population out of the Stellwagen Bank sanctuary area prior to its designation is one example of a drawback resulting from such a lengthy designation process. It has been reported that “overall, the direct benefit derived by marine mammals from the existing array of protected areas in North America is considerably less than it could be.”86 Moreover, in the United States, the protection that does exist in protected areas often results from existing regulations and laws, such as the Endangered Species Act and the Marine Mammal Protection Act, and not from protected area status.87 A December 2000 report to the US Marine Mammal Commission discussed the “fallacy of tokenism” that often occurs with the establishment of marine mammal MPAs.88 This fallacy is said to take place when the public perceives that an important habitat is being protected, but neither the

84

K.D. Hyrenbach et al., “Marine Protected Areas and Ocean Basin Management,” Aquatic Conservation: Marine and Freshwater Ecosystems 10 (2000): 437-458. In this paper, the authors argue that “imperfect knowledge is no excuse for a lack of action.” 85 Ibid. 86 Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals, 27, supra note 2. 87 Ibid. 88 This phrase was first used in D.A. Duffus and P. Dearden. “Whales, Science, And Protected Area Management In British Columbia, Canada.” George Wright Forum 9 (1992): 79-87. See also Reeves The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals, 22, supra note 2.

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importance of the site to whales nor the degree of protection has been proven. The report emphasized that the mere existence of a “protected” area does not imply that meaningful protection is provided. This point was underscored by MPA advocates, Graeme Kelleher and Richard Kenchington, who argue that, “the world is littered with paper parks.”89 In short, the creation of a political “success” that masks an ecological failure should be avoided at all costs.90 Support for MPAs has been growing nationally and internationally. In the United States, this support is reflected in Executive Order 13158, which mandates the management, protection, and conservation of existing MPAs and seeks to establish new and expanded MPAs.91 Internationally, organizations such as UNESCO and the World Conservation Union (IUCN) strongly endorse the establishment of MPAs as a conservation measure.92 Although the establishment of MPAs is strongly supported by many states and NGOs, other political pressures such as stakeholder conflicts and difficulties in enforcement persist. These challenges are discussed below.

89

G. Kelleher and R. Kenchington, “Political and Social Dynamics for Establishing MPAs,” in Application for the Biosphere Research Concept to Coastal Marine Areas, ed. A.. Price and S. Humphrey (Gland, Switzerland: IUCN, 1993), 49. 90 D.A. Duffus and P. Dearden, “Whales, Science and Protected Area Management in British Columbia, Canada,” in The Science of Conservation in the Coastal Zone, ed. T. Agardy (Gland, Switzerland: IUCN, 1995), supra note 66. 91 Executive Order 13158, Federal Register Volume 65, No. 105. May 31, 2000. Presently, there are 317 US sites listed in NOAA’s MPA database. Internationally, the number is much higher. See the NOAA MPA Inventory website at Specifically, the purpose of the Executive Order is to “(a) strengthen the management, protection, and conservation of existing marine protected areas and establish new or expanded MPAs; (b) develop a scientifically based, comprehensive national system of MPAs representing diverse US marine ecosystems, and the Nation’s natural and cultural resources; and (c) avoid causing harm to MPAs through federally conducted, approved, or funded activities.” 92 S. Siebig, “The Benefits Of Marine Protected Areas: Bazaruto, Mozambique,” Connect: UNESCO International Science, Technology & Environmental Education Newsletter 22(3/4):11-12. See also A Global Representative System of Marine Protected Areas, Vol. 1., ed. G. Kelleher et al., (Washington, DC: The Great Barrier Reef Marine Park Authority, The World Bank, and The World Conservation Union, 1995); and C.E. Mills and J.T. Carlton, “Rationale For A System Of International Reserves For The Open Ocean.” Conservation Biology 12(1) (1998): 244-247. For information on the World Conservation Union, see <www.iucn.org.>

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5.6

Conflicts Of Use

Any type of zoning generally requires changes to existing laws. In the ocean, such changes are likely to be met with strong opposition from various industries including oil and gas, commercial fishing, and shipping. As conflicts between user groups continue to grow, the establishment of MPAs will become more controversial, and perhaps more difficult. For example, in both the Stellwagen Bank National Marine Sanctuary and the Hawaiian Island Sanctuary, major concessions were made to the fishing industry to gain support for the sanctuary designation. As a result, some have argues that the opportunity for meaningful resource protection was constrained by compromise.93

5.7

Enforcement

The constant monitoring and enforcement of ocean noise ordinances would prove costly and difficult to implement. Although the technology exists to acoustically monitor large areas of the ocean (e.g., the US Navy’s SOSUS system), it remains unclear whether there is a willingness to pay for it. Further, a central legal question in the establishment of MPAs relates to the institutional locus of the authority to monitor and enforce rules. It must also be determined how the monitoring will be carried out and who will conduct it, address violations, and pay for enforcement.

6.

THE UTILITY OF MPAS AND ZONING ORDINANCES

The previous sections identified some of the problems that plague MPAs today, both domestically and internationally. Although there are significant advantages to regulating ocean noise using MPAs, it should be emphasized that a cooperative intergovernmental approach to the management of large marine areas is still considered experimental.94 The regulation of highly 93

Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals, 21, supra note 2. See also D.H. Chadwick, “Blue Refuges: US National Marine Sanctuaries,” National Geographic 193(3) (1998): 2-31 who discusses the effects of the intensive squid fishery on marine mammals, in terms of their entanglement in fishing gear and the reduced availability of prey. 94 Donna R. Christie, Coastal and Ocean Management Law (St. Paul, MN: West Publishing, 1991), 148. See also T.Brailovskaya, “Obstacles to Protecting Marine Biodiversity thru Marine Wilderness Preservation: Examples from the New England Region,” Conservation

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visible activities such as tourism and fishing within MPAs has proven difficult enough—regulating across user groups and industries and national boundaries to control noise-making activities will prove even more challenging. To successfully regulate ocean noise using MPAs, several of the aforementioned shortcomings must be addressed. The problem of mixed jurisdiction could be resolved by appointing one governmental unit to take responsibility for the oversight of MPAs in a given region.95 In the United States, this responsibility has been delegated to the National Oceanographic and Atmospheric Administration.96 Internationally, such tasks may be best delegated to individual intergovernmental organizations or regional convention secretariats (e.g., ACCOBAMS in the Mediterranean; ASCOBANS in the North Sea.)97 The migratory and opportunistic nature of whales and the transboundary nature of ocean noise must be taken into account when developing and managing MPAs to protect whales. This can be addressed through the prudent designation of buffer zones (as with UNESCO’s Man and Biosphere program) and the use of “moving zones of protection” (as with the Right Whale Early Warning System established along the Eastern Seaboard in the U.S.). Furthermore, noise propagation models such as those developed by the US Navy can be used to predict the received levels of individual sound sources.98

Biology 12 (1998): 1236-1240; see also Reeves, The Value of Sanctuaries, Parks, and Reserves as Tools for Conserving Marine Mammals, 23, supra note 2. 95 These types of governmental arrangements were addressed by Sorenson who details governance arrangements for implementing Integrated Coastal Zone Management (ICZM). He advocates the choice of a lead agency that is strong and well established and warns against the establishment of a new agency that could take years before it became effective. See Jens Sorenson, “National and International Efforts at Integrated Coastal Management: Definitions, Achievements, and Lessons,” supra note 64. 96 Executive Order 13158 directs the National Oceanic and Atmospheric Administration (NOAA) to create a Marine Protected Areas Center (MPA Center), among other tasks. “Executive Order on Marine Protected Areas,” Federal Register Volume 65, No. 105. May 31, 2000. The designation of MPAs is a more involved process that requires input from many stakeholders and an MPA advisory committee. See NOAA’s MPA website at 97 Regarding the implementation of MPAs in the Med, see F. Badalamenti et al, “Cultural And Socio-Economic Impacts Of Mediterranean Marine Protected Areas,” Environmental Conservation 27(2) (2000): 110-125. 98 For an explanation of the various acoustic models to be used for predicting the propagation of sound in the ocean, see Paul C. Etter, Underwater Acoustic Modeling, ed. (E&FN Spon: New York, 1996).

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The conflicts of use that arise when multiple natural resources occur in the same geographical location can be addressed by including stakeholders in the process of MPA designation and zoning ordinance specification. Involving stakeholders early in the scoping process is considered a successful method of addressing user conflicts.99 The stakeholder process is currently employed in the Stellwagen Bank National Marine Sanctuary where “scoping meetings” are held to encourage the public to voice its concerns over the way the Sanctuary is managed.100 Recreational boaters, fishermen, whale-watching vessel operators, oil and gas industry representatives, and defense and academic researchers are all stakeholders in the process of designating MPAs and establishing ordinances that might regulate or otherwise limit the generation of noise in a protected area. Enforcement is a problem that could be addressed through the prudent use of monitoring. Once a lead agency is delegated to oversee an area, a monitoring protocol should be established to provide data on violators and to provide useful information on long-term ambient noise trends in the ocean. This monitoring could be carried out with an in-situ network of permanently and strategically located hydrophones. Alternatively, a sampling routine could be developed to periodically measure noise levels from ships and aircraft. Violators of noise ordinances could be identified by the unique characteristics of the noise generated and by the position of its source. The selection of MPAs that best protect marine life from the threats of underwater sound relies on determining acoustic hotspots where abundant

99

For a discussion of the stakeholder process, see Richard Burroughs, “When Stakeholders Choose: Process, Knowledge, And Motivation In Water Quality Decisions,” Society & Natural Resources, 12 (1999): 797-809. For a more specific study of the tourism industry as a stakeholder in the MPA process, see “MPAs and Tourism: Stakeholders Work to Build a Productive Relationship,” MPA News, Vol. 2, No. 9, April 2002. See also M.P. Crosby et al., “Interactions Among Scientists, Managers And The Public In Defining Research Priorities And Management Strategies For Marine And Coastal Resources: Is The Red Sea Marine Peace Park A New Paradigm?” Water, Air and Soil Pollution 123 (2000): 581-594. See also M.P. Crosby, “Moving Towards A New Paradigm For Interactions Among Scientists, Managers And The Public In Marine And Coastal Protected Areas,” in: Proceeding of the Second International Symposium and Workshop on Marine and Coastal Protected Areas, July, 1995, ed. M.P. Crosby et al. (Silver Spring, Maryland: Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, 1995), 10-24. 100 The Stellwagen Bank scoping process requires input from resource users, interest groups, government agencies, and other members of the public on resource management issues. This input defines the issues that the sanctuary management needs to address during the management plan review. For more on the scoping process, see

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resources (e.g., significant whale populations, high biodiversity, critical habitat) are combined with threats from acoustic pollution (e.g., shipping lanes, offshore oil fields). These areas warrant the most immediate protection. Although many of the goals of protecting marine mammals from noise pollution could be achieved in other ways (technological innovation for example), MPAs provide a long-term, consistent “anchor” for many whale conservation and protection efforts. 101 But simply establishing more MPAs is not the answer. MPAs without strongly and explicitly worded zoning restrictions will not protect marine mammals and other resources from underwater noise. Therefore, the inclusion of ordinances for noise-creating activities in existing MPA management plans is an appropriate and proactive approach to the problem of underwater noise pollution.

101

See Canadian North Atlantic Right Whale Recovery Plan (Alberta: World Wildlife Fund and the Canadian Dept. of Fisheries and Oceans, 2000), 80.

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Chapter 7 CONCLUSION

1.

THE POLITICS OF POLICY-MAKING

In addition to the establishment of appropriate pollution prevention instruments, the public’s attention must be focused on the issue of ocean noise for effective policy to be developed. Furthermore, politicians must be amenable to the idea of reducing noise pollution. Favorable political conditions are necessary for the establishment of successful public policy in this area. Policy innovation is often facilitated by a combination of (1) agendasetting forces that stimulate public interest in an issue and (2) favorable political conditions that allow for policy adoption.1 The role of special interest groups, such as NGOs, is important in achieving the first of these objectives; NGOs can bring an issue to the public’s attention while framing the issue to achieve the group’s goals. Interest groups can also lobby policymakers and generate support in the public sector. Already, NGOs have defined and publicized the issue of underwater noise pollution. Problem definition, the first requirement for policy innovation, has been satisfied.2 The second requirement, the establishment of favorable political conditions, is more elusive.3 1

S.P. Hays and H.R. Glick, “The Role Of Agenda Setting In Policy Innovation,” American Politics Quarterly 25 (1997): 497-516. 2 Jones policy process framework lists problem definition/perception as the first stage in the policy process. See Charles O. Jones, An Introduction to the Study of Public Policy ed. (New York: Harcourt Brace College Publishers, 1984), 27. Kingdon also lists problem

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John Kingdon characterizes political conditions as “swings of national mood, vagaries of public opinion, election results, changes of administration, shifts in partisan or ideological distributions ... and interest group pressure campaigns.”4 Within his “process stream” model, he claims that events in the political stream can occur independently of the problem and policy streams. This is the case with ocean noise pollution. The political stream in the United States and abroad has radically changed course since 2001, with increasing attention focused on security matters and decreasing attention paid to environmental problems. After the events of September 11, the focus of US policy has shifted from domestic issues to foreign affairs. Since the beginning of Operation Enduring Freedom, support for the US military and the fight against international terrorism has been strong.5 Furthermore, economic factors have changed drastically since the end of the economic boom of the 1990s. In times like these, the public becomes more worried about recession, unemployment and national security.6 As a result, environmental issues are moved to the “back burner.”7 While the political stream surges, the problem and policy streams have continued on slow, steady courses. Within the problem stream, several acoustic projects, including SURTASS and ATOC are expanding; the Navy has acknowledged that its use of sonar may have contributed to the stranding

definition as one of the three policy streams required to create a policy window, see John W. Kingdon, Agendas, Alternatives, and Public Policies, ed. (New York: Longman Press, 1995). 3 Chapter 7 in Kingdon, Agendas, Alternatives, and Public Policies describes the important role of the political stream in creating a policy window. 4 Kingdon, Agendas, Alternatives, and Public Policies, 87, supra note 2. 5 On November 29, 2001, a Gallup poll reported that 92 percent of Americans approve of current military action and 87 percent say they would support a long war. See Frank Newport, “Overwhelming Support for War Continues.” The Gallup Poll Organization Online. December 1, 2001, located on line at On February 1, 2003, 66 percent of those polled indicated that they favored US forces taking military action against Iraq. From an ABC News/ Washington Post published on-line at accessed on February 3, 2003. 6 See for example, D.W. Moore, “Public Sense of Urgency about Environmental Issues Wanes,” The Gallup Poll Monthly 3 (1995): 17-20. 7 This is evidenced by the recent SURTASS controversy. Although the NRDC has threatened to sue the federal government over NMFS recent approval of the system, the Bush administration has indicated that it will explore legislation to make sure that environmental and animal protection rules not be allowed to supercede military preparedness. See Marc Kaufman, “Navy Cleared to Use a Sonar System Despite Fears for Whales,” Washington Post, July 16, 2002.

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of beaked whales in the Bahamas; and environmental groups continue their fight against the use of high-powered sound sources in the ocean.8 Within the policy stream, the US National Academy of Sciences has released its third report on undersea noise; the Office of Naval Research is increasing the funds for further studies on the effects of noise on marine mammals; and most recently, the definition of “harassment” in the Marine Mammal Protection Act was revised allowing for more widespread use of lowfrequency active sonar.9

1.1

The Policy Process –Where Is The Issue Of Ocean Noise?

The case has been made that a “bad condition does not become a problem until people see it as amenable to human control.”10 Is the problem of ocean noise pollution amenable to human control? Is there a policy solution at hand? This section identifies some salient features of the ocean noise controversy, explains why the issue is unique and what trends it embodies, and ends with an assessment of how the issue of ocean noise fits within Kingdon’s policy stream framework. At what stage is the controversy over underwater noise pollution? Have Kingdon’s problem, policy, and politics streams merged and created an open policy window? Kingdon asserts that for this to occur, “a political change makes it the right time for policy change.”11 But he warns that once a policy

8

See US Department of Commerce and US Navy, Joint Interim Report, Bahamas Marine Mammal Stranding Event of 15-16 March 2000, ii. For an example of the NRDC’s continued fight against Navy sonar in the ocean, see Jean-Michel Cousteau and Joel Reynolds, “The White House Must Reject the Navy’s Assault on the Oceans,” Los Angeles Times, August 22, 2002. 9 See Ocean Sciences Board, Ocean Noise and Marine Mammals (Washington, DC: National Academy Press, 2003). On increased funding from ONR, see 67 Federal Register 136, July 16, 2002, 46755, and the 2001 ONR Report to the Marine Mammal Commission, available on the ONR website on marine mammal research at Regarding changes to the MMPA, see HR 1588, “National Defense Reauthorization Act for Fiscal Year 2004,” available at www.thomas.loc.gov. 10 Deborah A. Stone, “Causal Stories and the Formation of Policy Agendas,” Political Science Quarterly, 104(2) (1989): 299. Similarly, Aaron Wildavsky stated, “A difficulty is a problem only if something can be done about it.” See Aaron Wildavsky, Speaking Truth to Power (Boston: Little, Brown, 1979), 42. Kingdon claims that, “A condition is a problem when people want to change the condition, not necessarily when they actually have a solution.” See Kingdon, Agendas, Alternatives, and Public Policies, 109. 11 Kingdon, Agendas, Alternatives, and Public Policies, 165, supra note 2.

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window opens, it does not stay open for long. He cites a number of reasons why policy windows close quickly: 1) participants feel that they have addressed a problem through decision or enactment; 2) participants may fail to get action and simply become unwilling to invest more energy in an endeavor; 3) the crisis or focusing event passes without being addressed; 4) important proponents of the issue change; 5) no alternatives or policy remedies are available; and 6) other problems predominate. 12 Perhaps most significantly, as Anthony Downs explains, a problem loses its place on the public agenda because after its “short day in the sun,” the public realizes the high economic and social costs of alleviating the problem.13 Downs cites concerns over traffic congestion and smog from increasing automobile usage in the 1970s.14 He claims that the public realized that part of the problem resulted from a use that provided significant benefits to millions of people. Once the public recognized the high costs of reducing smog and traffic, the problem gradually faded from the agenda. Another issue that faded from the public agenda was the controversy over the Concorde transcontinental airplane when it began landing in Washington, DC and New York City in the early 1980s. Concerns over noise from this aircraft garnered attention on the front page of many newspapers and preoccupied the Department of Transportation for years.15 The issue lost public support, however, as other more compelling environmental issues displaced it.16 Downs claims that once the public comprehends the cost of significant progress, public interest gradually declines. He believes that as more people

12

Ibid., 103 -105 for a discussion of why problems fade from the public agenda. For a discussion on the “gradual decline of intense public interest,” see Anthony Downs, “Up and Down with Ecology –The Issue Attention Cycle,” The Public Interest 28 (1972): 3851. 13 Anthony Downs, “Up and Down with Ecology – The Issue Attention Cycle,” Ibid. 14 Ibid., 40. 15 On December 18, 1975, Congress banned the Concorde from US airports for six months. But on February 4, 1976, the US Transportation Secretary gave Air France and British Air permission to make three daily flights to New York and Washington D.C. for a trial period of twelve months. Local officials were irate and the New York Port Authority unilaterally banned the Concorde from its airports on March 11, 1976. Air France then sued the Port Authority for the landing rights. But because Washington’s Dulles Airport belongs to the Federal Aviation Administration, the first two Concordes were allowed to land there on May 24, 1976. New York eventually gave in and the first Concorde landed on October 19, 1977. See Peter Gillman, “The Story of the Concorde,” The Atlantic Monthly, 239 (1), January 1977, 72-81. 16 Kingdon cites the Concorde landings as a problem that faded from view even though it was not solved by the federal government. See Kingdon, Agendas, Alternatives, and Public Policies, 104, supra note 2.

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appreciate how difficult it would be to address a problem, three reactions set in. The first is discouragement; the second, suppression of the threat posed by the problem; and the third, boredom. Moreover, Downs points out that most people experience a combination of these three reactions and by the time this happens, a new issue has emerged to claim the public’s attention. Kingdon believes that focusing events alone rarely propel a topic to policy agenda prominence; they usually just reinforce some pre-existing perception of a problem.17 In the case of ocean noise, focusing events have served as an “early warning” to an issue that could be considered a problem. But the policy window may have closed on this issue in terms of the political climate. It is currently a difficult time to rally support for an issue as esoteric as ocean noise pollution. Further, the public often loses interest in environmental problems whose remedies are expensive and difficult to implement and evaluate. Pollution experts and marine mammal scientists are not likely to let this issue die, but whether politicians and the public become sufficiently engaged remains to be seen. Although the window of opportunity for the ocean noise issue may be limited, it may be offset by the emergence of ecosystem-based management as discussed earlier. This new, holistic approach to ocean management mandates that ocean noise be considered a threat to the ecosystem and a cause of habitat degradation.

1.2

Incrementalism and Public Policy

Kingdon’s model was developed within the realm of US domestic policy—it may not apply equally well to transboundary issues that necessitate multilateral measures. For such issues, the focus must not be solely on the state level but on the international level as well. Indeed, Paul Sabatier, professor of environmental studies at the University of California, points out that rather than focus on a single cycle at a particular level of government within a state (the national level in Kingdon’s model), a more appropriate model would focus on “multiple, interacting cycles involving multiple levels of government.”18 This is true for a transboundary issue, which demands participation on a local, national, and international level.19

17

Ibid., 98. Policy Change and Learning: An Advocacy Coalition Approach ed. Paul A. Sabatier and Hank C. Jenkins-Smith (Boulder, CO: Westview Press, 1993), 4. 19 Furthermore, Sabatier calls for a more important role for analysis, and proposes that it be more integrated with the political stream than does Kingdon. See Sabatier, Policy Change and Learning: An Advocacy Coalition Approach, 37. In fact, analysis is essential to 18

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Surely, the issue of ocean noise pollution can be analyzed using Kingdon’s three streams of problem, policy development, and politics. But the merging of the streams and the resulting policy window have been more difficult to observe. The policy window on ocean noise pollution has opened sporadically in the years since the ATOC experiment began in the early 1990s but only for brief periods. The development of ocean noise policy has taken place in a piecemeal fashion since then. The development of a solution to the ocean noise problem has not been a linear process: after each focusing event, a brief flurry of activity takes place resulting in reports, letters to politicians, and the development of limited guidelines for certain ocean activities. The issue of ocean noise pollution has been defined slowly since the Heard Island Feasibility Test in the early 1990s. It is not an issue that receives extensive attention from the media like more visible events, such as Ocean noise pollution is more like air oil spills and plane crashes.20 pollution in the sense that awareness and public response have evolved more slowly. The public will not likely demand the drastic policy changes that were demanded after the Exxon Valdez oil spill.21 The course of ocean noise policy will probably follow the development of CLRTAP: an incremental movement toward a well-defined, specific international treaty that gradually gains consensus as more scientific data becomes available and the public becomes more amenable to restrictions on polluting activities. The concept of “incrementalism” implies that the policymaking process involves bargaining, compromise, delay, and ultimately, change.22 It is a result of a checks-and-balances system in which policy makers often disagree about which policies will best achieve shared goals. The idea that change in public policy is incremental in nature was initially explored by Charles Lindblom and David Braybrooke in the 1960s and Aaron Wildavsky in the 1980s, among others.23 Incremental political

successfully address ocean noise because policy must continuously be re-evaluated in light of emerging science. 20 Kingdon discusses event visibility and the aggregation of damage, which increase an events focusing power. See Kingdon, Agendas, Alternatives, and Public Policies, 98-100, supra note 2. Birkland addresses this as well in Thomas A. Birkland, After Disaster: Agenda Setting, Public Policy, and Focusing Events (Washington, D.C.: Georgetown University Press, 1998), 43-45. 21 Birkland discusses policy outcomes of oil spills. Ibid., 100-104. 22 See Michael T. Hayes, The Limits of Policy Change: Incrementalism, Worldview, and the Rule of Law (Washington, D.C.: Georgetown University Press, 2001). 23 See David Braybrooke and Charles Lindblom, A Strategy of Decision (New York: Free Press of Glencoe, 1963) who claimed that policy change was incremental because policy making involves bargaining and compromise, and policy makers typically only consider a

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decision-making, explained Lindblom, involves small steps to deal with particular problems rather than the creation of a comprehensive reform program.24 He observed that the process is endless, and takes the form of an indefinite sequence of policy moves. The incremental policy process has been described as more of a movement away from known ills than a movement toward a known and fixed goal.25 In a democracy such as the United States, incremental change is not surprising, given the country’s complex institutional structure and political system. At the international level, with the great multiplicity of states, different value systems, and diversity in political structures, change is also likely to be incremental in nature. Author and political science professor Michael Hayes writes that “large changes are clearly problematic where agreement on values is combined with an inadequate knowledge base.”26 Certainly, this is the case for the international regulation of underwater sound. Change must be incremental in nature in the global arena because values vary (the economic nonmarket value of marine mammals may be greater in the U.S. than in Japan, for example). It has been maintained that change in ocean policy typically occurs slowly and in a “piecemeal” fashion, but when viewed from a distance, the mosaic of public policy appears substantially different than it appeared in earlier periods.27 In the controversy over ocean noise, these differences relate to the way ocean noise is viewed: what was once considered a discrete threat from individual, incidental sources of sound in the ocean such as ATOC, is now viewed as an omnipresent, transboundary pollutant with the

range of policy alternatives that are similar to past policies. Also see Aaron Wildavsky, The Politics of the Budgetary Process, 4th ed. (Boston: Little Brown, 1984). Others have written about incrementalism as a form of policy making: Hayes considers it a “superior from of policymaking.” See Hayes, The Limits of Policy Change, 5; and Graham Allison proposed that policy change was due to the interaction of policy forces rather than a logical choice among alternatives. See Graham T. Allison Essence of Decision (Boston: Little Brown, 1971). 24 Braybrooke and Lindblom, A Strategy of Decision, 71 25 See Michael Hayes, Incrementalism and Public Policy (New York: Longman, 1992), 4. This is also discussed by Lindblom who claims that incrementalism changes are directed toward specific ills rather than toward comprehensive reforms. See Braybrooke and Lindblom, 74. 26 Hayes, Incrementalism and Public Policy, 141, Ibid. 27 See Lawrence Juda, “Ocean Policy, Multi-Use Management, and the Cumulative Impact of Piecemeal Change: The Case of the United States Outer Continental Shelf,” Ocean Development and International Law, 24 (1993): 355-376.

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potential to affect not only marine mammals, but also entire marine ecosystems. This book has examined the problems that arisen from the discovery of a new environmental threat, ocean noise pollution, and the potential of existing institutions to address them. Sound is created in the ocean by human activities such as shipping, scientific research, underwater salvage, oil exploration, fishing, and aquaculture. Anthropogenic noise has the potential to harm marine mammals, alter ecosystems, and contribute to the destruction of natural habitat. Therefore, the development of a proactive position regarding restrictions on underwater sound is prudent. Furthermore, because ocean noise can travel great distances and cross from the high seas into territorial seas, it can be considered a transboundary pollutant, thus warranting international attention. Many international legal instruments suggest that states have an implied duty and a due diligence obligation to ensure that their activities do not cause harm to the natural environment. Therefore, the laws that apply to ocean noise pollution cannot be separated from general environmental protection law. But because the creation of most ocean noise is a product of modern technology and an understanding of its effects is just emerging, the establishment of specific rules and standards is still in a formative stage.28 Some states, such as the U.S., have addressed the problem unilaterally. But control of transboundary noise pollution necessitates a framework of regulations on an international scale. This is due to the transboundary nature of ocean noise and because unilateral attempts by coastal states to regulate it could infringe on the rights of other states (e.g. navigation). However, existing international ocean governance is considered by some to be inadequate to address the deterioration of the marine environment.29 For example, the absence of an agency with international jurisdictional authority makes enforcement and oversight of noise-creating activities problematic. Furthermore, a lack of international consensus on noise pollution policy and the absence of an overarching international agency to

28.

For a discussion of the formative stages of regulation of marine pollution, see generally, International Law and Pollution, ed. Daniel Barstow Magraw (Philadelphia: University of Pennsylvania Press, 1991); Birnie and Boyle, International Law and the Environment, ed. (Oxford: Oxford University Press, 2002); and Boyle, “Marine Pollution Under the Law of the Sea Convention,” American Journal of International Law 79 (1985): 347–359. 29 See “Ocean Governance Inadequate, Warns World Conservation Union,” December 11, 2001, Environmental News Network, available at <www.ens-news.com.> Also see Lee Kimball, International Ocean Governance: Using International Law and Organizations to Manage Marine Resources Sustainably (Gland, Switzerland: IUCN, 2001).

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enforce policy means that any one state can single-handedly undermine the efforts of the international environmental community as a whole. This book examined several preliminary attempts to address identified acoustic problems through soft law and the establishment of some formal, binding agreements that address ocean noise. It found that gradually, an incremental, piecemeal policy for international ocean noise regulation is beginning to emerge. This development is due specifically to the following factors: a) the conceptualization of noise as a pollutant. As discussed in Chapter Four, noise is, in fact, a pollutant under the 1982 UN Convention on the Law of the Sea. It is a source of energy that could result in deleterious effects to the environment in the form of physiological and behavioral effects on marine mammals and other marine life, b) the increasing attention of existing NGOs and environmental organizations to the issue of ocean noise. The public outreach efforts of NGOs such as the NRDC and other environmental groups were shown to be a major factor in elevating this issue to the political agenda, c) the formation of new environmental groups that focus specifically on ocean noise. These nascent groups include the Quiet Sea Coalition, the Silent Oceans Project, and Citizens Opposed to Active Sonar Technology and the Acoustic Ecology Institute. d) the increase in litigation and political pressure involving ocean noise issues. The focusing events that elevated ocean noise to the public agenda include the ATOC project and the US Navy’s SURTASS program, which both generated substantial litigation by environmental groups. Political pressure has been exerted primarily in the U.S. in the form of letters to the Secretary of the Navy and the head of the National Marine Fisheries Service written by state legislators in Hawaii and California, resolutions to Congress banning the use of sonar, and a briefing to the Vice President of the United States on developments of the ATOC program. In the European Parliament, a draft resolution calls for a moratorium an the deployment of low frequency active sonar, e) the emergence of ecosystem-based approaches to ocean management. This general trend in the management of ocean spaces focuses on the preservation of habitat rather than individual species and is embodied in Agenda 21, the United Nation’s blueprint for the environment for the century. Several other examples of this trend in ecosystem-based ocean management are discussed in Chapter Five and include the 1995 Barcelona Convention and Annex V of the OSPAR Convention, f) the soft law incorporation of noise as a threat to ocean habitat. Noise has been identified as a threat in many non-binding documents including

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scientific studies by ACCOBAMS and the Arctic Council, a resolution by ASCOBANS, a report by the OSPAR Convention, operational guidelines prepared by the North Atlantic Treaty Organization, management plans for national marine sanctuaries in the United States, and in documents by the Scientific Committee of the International Whaling Commission and its subcommittee on whale-watching. In fact, recognition by the United Nations Environmental Programme of ocean noise as a threat to marine mammals dates as far back as 1985. Cumulatively, these developments set the stage for the gradual emergence of international ocean noise policy and regulation. Such developments represent incremental changes in the way ocean noise is viewed. As a result, the issue of unregulated noise in the ocean may soon achieve limited international agenda status and the incorporation of ocean noise into the mandates of existing organizations may be on the horizon. However, even if international organizations are required to address ocean noise and it becomes a consideration in existing treaties (e.g. MARPOL), policy instruments are still needed to achieve specific objectives. This book identified several key policy instruments including marketbased tools such as taxes and subsidies, and command-and-control measures such as technological innovation, the establishment of MPAs, and the use of zoning ordinances. It found that the use of MPAs could help prevent externalities caused by anthropogenic noise in critical areas. The establishment of zoning within MPAs contributes to an ecosystem-based approach to ocean noise that takes into account all sources of sound and their effect on individual species and habitats. This ecosystem-based approach is indicative of a shift away from a concentration on the impacts of pollution on neighboring states to a focus on broader concerns for the entire global community.30 This shift from useoriented to resource-oriented approaches has been said to be the essence of the “new law of the sea.”31 It applies to all types of pollution and is a particularly appropriate approach to ocean noise pollution. Although the Trail Smelter case dealt with a single source of air pollution with transboundary effects in close proximity, the tribunal’s finding was relevant to pollution from underwater sound as well. Trail Smelter made it clear that states are required to protect the environment – and not just their

30

Alexandre Kiss, “Nouvelles Tendances en Droit International de L’environment,” German Yearbook of International Law 32 (1989): 241. 31 Ocean Yearbook 9, ed. S. Haas (Chicago: University of Chicago Press, 1999): 211. Also see Birnie and Boyle, International Law and the Environment, ed., 359.

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environment. Subsequently, the 1982 United Nations Convention on the Law of the Sea extended the principle of environmental protection laid forth in Trail Smelter by incorporating damage outside the territorial area of states (i.e. high seas). Trail Smelter and the 1982 United Nations Convention on the Law of the Sea together laid the foundation for treatment of ocean noise pollution. The international law concept of erga omnes—that a state has a responsibility to the international community—is particularly relevant to cases involving transboundary pollutants.32 Freedom of the seas prohibits a state from exercising its rights in a manner that neglects the legitimate rights of other states or general international interests: States, therefore, must carefully consider the effects of noise created by their citizens and others subject to their jurisdiction.33 In the sixty years since the Trail Smelter case, international law has evolved significantly to incorporate the 1982 UN Convention on the Law of the Sea as well as a growing awareness of precautionary, ecosystem-based approaches to ocean management. It is in this context of the Law of the Sea and ecosystem-based ocean management that ocean noise is considered a pollutant – and it is in this context that it should be addressed.

2.

SUMMARY OF FINDINGS

Recognition of Underwater Sound as a Policy Issue Scientists have long recognized the effects of noise on marine mammals. A significant body of literature exists concerning the effects of noise from planes, ships, sonars, and oil and gas exploration on marine mammals. Historically, most of this research focused on the immediate, direct effects of such sounds on animal physiology. Scientists also recognized the damage that very loud, low frequency sound in the ocean could inflict on human divers and swimmers. More recently, the indirect, long-term, cumulative effects of noise on marine mammals and the entire ecosystem are of concern to scientists,

32

The latin expression erga omnes means “toward all.” See P.G. Glare ed., Oxford Latin Dictionary (Oxford: Oxford University Press, 1982). It implies that states have obligations to the international community as a whole, which are binding irrespective of consent. See Maurizio Ragazzi, The Concept of International Obligations: Erga Omnes (Oxford: Oxford University Press, 2000); see also R. Bernhardt, Encyclopedia of Public International Law: Responsibility of States Vol. 2, (Heidelberg: North-Holland, 1988). 33 Oppenheim’s International Law, 9th ed. (Boston: Addison-Wesley, 1992) §§ 285, 727.

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environmentalists, and NGOs. Of particular concern are the potential indirect effects that incremental changes to the ocean soundscape could pose to animals, which rely on sound to communicate, navigate, and hunt. Furthermore, some research indicates that sound can affect other marine life, thus degrading habitat and posing a potential threat to the marine food chain. Since the advent of the ATOC experiment, NGOs have played an increasingly important role in recognizing and publicizing the effects of ocean noise pollution. Conservation and environmental groups such as the NRDC and the Center for Biological Diversity have pushed for stricter control over sources of acoustic energy in the ocean. Individual states are also increasingly aware of problems associated with anthropogenic noise in the ocean. In the United States, this was attested to by the Navy’s acknowledgement of its involvement in the deaths of several whales off the coast of the Bahamas. More recently, the US National Science Foundation, Columbia University and the Georgia Institute of Technology agreed to cease seismic surveying because of concerns about its effects on whales. The United Kingdom’s recognition of the problem is evidenced by its development of a series of guidelines for minimizing acoustic disturbance to marine mammals during seismic surveys. Most intergovernmental organizations are not yet this proactive with respect to anthropogenic noise in the ocean. This is evident by the lack of attention to underwater noise pollution by UNEP and the IMO, even though noise clearly falls within the definition of a pollutant in the 1982 UN Convention on Law of the Sea. However, within international organizations, there is an emerging trend of acknowledging the threats from noise. This is illustrated by the Arctic Environmental Protection Strategy, NATO’s Marine Mammal Environmental Policy, and in regional agreements such as ASCOBANS, ACCOBAMS, and OSPAR, all of which recognize threats from noise. Increase in Ambient Noise Anthropogenic noise in the ocean is a relatively recent occurrence that resulted from new inventions such as the internal combustion engine, sonar, and oil drilling technologies. It increased dramatically between the industrial revolution and World War II. This was due to the rapid expansion of the merchant fleet, the increased use of sonar by the military and scientists, and expanded offshore oil and gas activities. However, based on a review of existing evidence, it is unclear that ocean noise has continued to increase beyond 1970. In fact, the amount of noise may have actually decreased overall due to advances in technologies (quieter propellers, more efficient drilling, four-stroke outboards), even if the intensity of these activities has increased in the past three decades.

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Acoustic “Hotspots” Identifiable areas of intense acoustic activity do exist and the marine mammals in these areas face the greatest threat from noise pollution. Such areas have been referred to as “hot spots.” Hot spots exist where areas of intense human acoustic activity (e.g. shipping lanes, oil and gas exploration, low-frequency sonar sites) overlap areas of sensitive marine life (whale migration routes, breeding grounds). In the United States, the NRDC has identified a number of such hotspots. Stellwagen Bank off the Northeast in the U.S. and the Ligurian Sea off the coast of Italy and France are two such areas specifically discussed in this book. Given the vastness of the world’s oceans, protective measures are best focused in such areas; however, more monitoring is needed to provide data on marine mammal distribution and baseline measurements of ambient noise. The Role of NGOs The work of NGOs has been instrumental in bringing the issue of ocean noise pollution to the attention of the public and government authorities. The NRDC, in particular, has been active in notifying and educating the public, deftly utilizing the Internet and the media, and constantly threatening legal action. Environmental groups such as the Environmental Defense Fund, the Center for Marine Conservation, and the Animal Welfare Institute also challenged acoustic research, and commercial and military operations in the courts. The reliance of NGOs on NEPA and the US judicial system was most recently illustrated when a court issued an injunction to stop seismic surveying in the Gulf of California at the request of the Center for Biological Diversity. During the ATOC and SURTASS programs, efforts by NGOs forced the temporary cessation of sound transmission, the creation of environmental documentation, and the re-allocation of funds to carry out scientific research on marine mammals. In addition to their constant threat of litigation, the public education and outreach efforts of NGOs have raised public awareness of the ocean noise issue and contributed in large part to ocean noise pollution’s status as an emerging issue in environmental law. Anthropogenic Noise As A Transboundary Pollutant. The proof that anthropogenic noise is a type of transboundary pollutant is two-pronged. The physics of sound and its ability to travel over great distances and cross states boundaries make it transboundary in nature.

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Furthermore, its effects are international in scope as exemplified by the controversy over ATOC and the Greek whale strandings. The definition of “pollutant” found in the 1982 UN Convention on the Law of the Sea clearly states that a pollutant can be considered a substance or energy if such substance or energy can result in deleterious effects. The ability of loud sounds in the ocean to kill or injure marine mammals and affect their behavior satisfies this requirement. These two elements, then establish the basis for ocean noise to be considered a transboundary pollutant. Its transboundary nature implies that it has the potential to create negative externalities and affect living resources beyond the limits of national jurisdiction. As such, it is comparable to the pollution in Trail Smelter, the landmark legal case concerning transboundary air pollution. The principle that emerged from this case is fundamental to international law and sets the stage for regulation and international consideration of noise and its effects. The Need for an International Regulatory Approach As a transboundary pollutant, noise requires an international approach that addresses its sources and subsequent effects. Such effects can occur in other states or even on the high seas. The shortcomings of a purely national approach to ocean noise became apparent after the 1996 Greek whale strandings when liability and the need for harmonization of rules was a concern. In this incident, it was unclear where responsibility lay because the noise source belonged to one state, the emissions were controlled by another, and the effects occurred in a third. This incident, along with the international litigation resulting from externalities from other transboundary pollutants such as air pollution, illustrates the need for a multilateral approach to ocean noise. Furthermore, the 1982 UN Convention on the Law of the Sea provides the appropriate international legal framework within which to address ocean noise pollution. It codifies the fundamental norms of the law of the sea and defines a legal order for oceans that provides for the protection and preservation of the marine environment. Because the 1982 UNCLOS definition of “pollutant” was intentionally written to include energy pollutants, the Convention is clearly applicable to ocean noise pollution. Moreover, several UN organizations and treaty instruments already exist to address other types of pollutants. As such, the 1982 United Nations Convention on Law of the Sea sets the groundwork for control and regulation of ocean noise pollution.

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The Need for Specific Rules and Standards and the Involvement of International Organizations A review of relevant and existing treaties and regional agreements (including MARPOL, ASCOBANS, and OSPAR) indicates a lack of consideration of the problem of ocean noise pollution. Even when ocean noise is identified as a threat (for example, in the Arctic Council’s Environmental Protection Strategy), specific rules and standards are not provided. The absence of formal provisions for ocean noise pollution attests to the need for or the expansion of existing agreements or new international instruments that include rules and standards to govern anthropogenic sound in the ocean. Several international institutions exist with the jurisdictional capacity and expertise to address underwater noise. These include the IMO (to address noise from shipping), the IOC (to address noise generated by oceanographic research), and UNEP (specifically the Regional Seas Programme, to address noise on an ecosystem basis in regional sea areas). However, GESAMP may be the most appropriate international organization to initially carry out a scoping activity to assess the extent of ocean noise pollution and provide recommendations to other international organizations such as UNEP and the IMO. Specific Measures to Regulate Noise - MPAs Specific measures to address noise pollution should be habitat-focused to minimize cumulative risks from all ocean activities rather than focusing exclusively on individual activities. Noise can affect habitat by making particular areas less desirable to marine mammals and causing behavioral changes. Its presence contributes to habitat degradation. Because of this, ocean noise needs to be considered in a new light—that of the ecosystem or habitat. This holistic approach should take into account all sources of noise, both incidental and continuous. The noise pollution caused by continuous industrial activities such as shipping must therefore be addressed within the context of all other ocean noise—both man-made and naturally occurring. This ecosystem-based approach should bear in mind not only the direct effects of noise on marine mammal physiology, but also the cumulative, long-term effects on mammal behavior and the potential for habitat degradation. In addition, this approach should take into account effects on other marine life and on humans. Accordingly, policy instruments that incorporate an ecosystem-based approach, such as MPAs and zoning ordinances, may prove effective for mitigating externalities caused by undersea noise. Zoning that incorporates spatial and temporal restrictions may be one of the most effective measures for mitigating some of the harmful effects of anthropogenic sound on

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sensitive species. However, strongly worded laws, efficient monitoring, a recognized authority with adequate oversight, and sound science including knowledge of the protected species, their distribution and their response to acoustic stimuli are also required. The first step in controlling noise pollution is to draft ordinances into existing MPAs. If relevant MPA legislation is in place, specific guidelines can be enacted that provide restrictions on acoustic activities that are harmful or disturbing to marine mammals in protected areas. The second step is to create new MPAs with appropriate buffer zones in especially sensitive areas (e.g., areas of significant whale populations, high biodiversity, or critical habitat) that are also threatened by acoustic pollution (e.g., areas such as shipping lanes and offshore oil fields). In conclusion, international law can be used to moderate externalities caused by ocean noise pollution, but only to the extent that states are willing to modify their approach to activities that produce ocean noise, such as shipping and oil exploration. Effective regulation of noise at sea would entail limitations on state’s sovereignty and require a commitment of their resources. Therefore, initial efforts to address ocean noise pollution should rely on approaches with the fewest political obstacles that will be met with the greatest degree of consensus, to assure a balance between harmony among states and the further development of effective policy. Furthermore, such efforts should focus on geographic areas of biological importance that are under the greatest threat from ocean noise and in areas where existing environmental protection regimes may already be in place. The emergence of ecosystem-based approaches to ocean management provides a framework for the establishment of rules and standards to regulate ocean noise. The evolving commitment of the international community to proactive and precautionary measures of environmental protection guarantees support for such efforts. This book has focused on potential solutions and obstacles to effective policy development for ocean noise pollution. The development of an allencompassing, global instrument to control ocean noise was found to be highly unlikely. It is more probable that regional agreements will gradually emerge along with rules that apply to specific sectors or geographic areas. This would be in keeping with the present trend in ocean management that favors habitat-based approaches—a trend that bodes well for the future of ocean noise regulation.

Appendix A – Glossary

Acoustic thermometry – the use of low-frequency sound to measure water temperature over large ocean basins. Agenda – the list of subjects or problems to which government officials and other policymakers are paying serious attention at any given time. Airgun – a device used in offshore oil exploration that vents high pressure air into the water, producing an air-filled cavity that creates sound. Ambient noise – environmental background noise not of direct interest during a measurement or observation; may be from sources near and far, distributed or discrete. Anthropogenic – man-made Causal story – the core substance of the transformation of difficulties into political problems. Cavitation – the tearing apart of a fluid when the negative pressure becomes sufficiently large. This process causes the formation of bubbles and the radiation of sound. Cetacean – any member of the order Cetacea of aquatic, mostly marine mammals that include whales, dolphins, porpoises. Decibel – a logarithmic measure of sound strength. Echolocation – a physiological process for locating distant or invisible objects (such as prey) by means of sound waves reflected back to the emitter (such as a whale) by the objects. Ecosystem – the complex of a community of organisms and its environment functioning as an ecological unit. Environmental capacity – a pollution prevention method that requires the determination of the level of pollution that is within an area’s capacity to safely assimilate. Fathometer – an active sonar device used to locate and measure the ocean bottom. Focusing event – an event that propels an issue onto the public agenda. Frequency – rate at which a repetitive event occurs, measured in hertz (cycles per second) Harassment – the minimum legal standard for a species “take” under the Marine Mammal Protection Act. Haulout – the act of a seal leaving the ocean and crawling onto land or ice; the locations where this occurs. Hotspot – ocean areas where significant sources of anthropogenic noise overlap with sensitive marine life.

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Hydrophone – transducer for detecting underwater sound pressures; an underwater microphone. Masking – obscuring of sounds of interest by interfering sounds, generally at similar frequencies. Mysticete – member of the suborder Mysticeti, the toothless or baleen whales. Odontocete – member of the suborder Odontoceti, the toothed whales. One-Third Octave band – frequency band whose upper limit in hertz is 1.26 times the lower limit; the bandwidth is proportional to the center frequency. Propagation Loss – loss of sound power with increasing distance from a source.Precautionary principle – the concept that mandates a consideration of action to control or abate possible environmental damage, even if there may still be scientific uncertainty as to the effects of an activity. Sea State – index (from 0-10) of wave action, as related to wind speed. Source level – acoustic pressure that would be measured at a standard reference distance (usually 1 m) away from an ideal point source. Streamers – a string of hydrophones towed from an oil exploration vessel to measure the reflected signals (created by airguns) from beneath the sea floor. Transducer – device that changes energy from one form to another. Examples include microphones, hydrophones, and loudspeakers

Appendix B – List of Acronyms

ACCOBAMS AEPS AMAP ASCOBANS AHD ATOC BAT BPEO BPT CAC CLRTAP COAST DEIS EA EEZ EIA EIS ESA FAO FEIS FWS GESAMP GPS HIFT HITS IAEA IGO IHA

Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Area Arctic Environmental Protection Strategy Arctic Monitoring and Assessment Programme Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas Acoustic Harassment Device Acoustic Thermometry of Ocean Climate Best Available Technology Best Practicable Environmental Option Best Practicable Technology Command-and-Control Convention on Long-Range Transboundary Air Pollution Citizens Opposing Active Sonar Technology Draft Environmental Impact Statement Environmental Assessment Exclusive Economic Zone Environmental Impact Assessment Environmental Impact Statement Endangered Species Act (U.S., 1973) Food and Agricultural Organization Final Environmental Impact Statement Fish and Wildlife Service (U.S.) Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection Global Positioning System Heard Island Feasibility Test Historical Temporal Shipping International Atomic Energy Agency Intergovernmental Organization Incidental Harassment Authorization (under the MMPA)

266 IJC IMO IOC ISBA IUCN IWC LFA LOA

International Regulation of Underwater Sound International Joint Commission International Maritime Organization Intergovernmental Oceanographic Commission International Sea-bed Authority World Conservation Union (formerly the International Union for Conservation of Nature and Natural Resources) International Whaling Commission Low-Frequency Active (sonar) Letter of Authorization (under the MMPA)

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Index

ACCOBAMS. See Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area Acoustic Deterrent Device, 50, 51, 163 Acoustic Harassment Device, 50, 51, 52, 91, 163, 265 Acoustic Thermometry of Ocean Climate, ix, 5, 6, 7, 10, 33, 56, 57, 59, 65, 80, 85, 90, 91, 94, 97, 98, 99, 100, 101, 102, 104, 105, 118, 119, 129, 187, 189, 203, 207, 209, 214, 248, 252, 253, 255, 258, 259, 260, 265, 269, 274, 277, 279 ADD. See Acoustic Deterrent Device AEPS. See Arctic Environmental Protection Strategy Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contigous Atlantic Area, 71, 78, 81, 160, 161, 162, 163, 164, 243, 258, 265, 270 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area, 160, 161, 164, 256 Agreement on the Conservation of Small Cetaceans of the Baltic and North

Seas, 157, 158, 159, 160, 163, 167, 243, 256, 258, 261, 265 AHD. See Acoustic Harassment Device Alliance, vii AMAP. See Arctic Monitoring and Assessment Programme Arctic Environmental Protection Strategy, 155, 156, 258, 265, 267 Arctic Monitoring and Assessment Programme, 156, 157, 265, 267 ASCOBANS. See Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas ATOC. See Acoustic Thermometry of Ocean Climate Bahamas Strandings, ix, 21, 110, 112, 113, 114, 115, 249, 258, 279 BAT. See Best Available Technology Best Available Technology, 155, 205, 206, 265 Best Practicable Environmental Option, 208, 209, 265 Best Practicable Technology, 205, 206, 265 Birnie, Patricia, 7, 86, 123, 124, 130, 134, 138, 140, 166, 170, 171, 172, 177, 179, 183, 184, 185, 186, 190, 192, 193, 216, 254, 256, 268

284

International Regulation of Underwater Sound

Boyle, Alan, 7, 86, 123, 124, 130, 131, 138, 140, 160, 166, 170, 171, 172, 177, 179, 184, 186, 193, 195, 216, 254, 256, 268 BPEO. See Best Practicable Environmental Option BPT. See Best Practicable Technology Buffer Zones, 231, 232, 233, 234, 243, 262 Canary Islands Strandings, 112, 116 CLRTAP. See Convention on LongRange Transboundary Air Pollution Cobb, Roger, 83, 84, 85, 119, 269 Convention for the Protection of the Marine Environment of the NorthEast Atlantic, 124, 153, 154, 155, 167, 177, 212, 255, 256, 258, 261, 276 Annex X, 131, 155, 212, 255 Convention on Long-Range Transboundary Air Pollution, ix, 121, 124, 137, 138, 140, 141, 142, 166, 252, 265, 280 Convention on the High Seas, 133 Defense Authorization Act, 53, 112, 115, 198, 201 Downs, Anthony, 84, 250, 251, 270 EA. See Environmental Assessments Echolocation, 12, 14, 25, 26, 27, 59, 75, 147 Ecosystem Based Approach, 148, 212, 213, 216, 256, 257, 261, 262 EEZ. See Exclusive Economic Zone EIAs. See Environmental Impact Assessments EIS. See Environmental Impact Statement El Vizcaino Biosphere Reserve, 222, 238 Elder, Charles, 83, 84, 85, 119, 269 Endangered Species Act, 5, 69, 87, 110, 221, 240, 265 Energy Pollutants heat, viii, 24, 131, 132, 166, 270, 276 radiation, viii, 9, 121, 131, 132, 134, 135, 136, 166, 180, 263 Environmental Assessments, 90, 105, 190, 265 Environmental Assessments, 90 Environmental Impact Assessments, 109, 189, 190, 191, 192, 193, 265

Environmental Impact Statement, 17, 90, 91, 92, 97, 99, 100, 101, 106, 107, 109, 110, 111, 115, 116, 189, 191, 201, 265 Environmental Protection Agency, 87, 206 EU. See European Union European Union, 95, 124, 151, 189, 190 Exclusive Economic Zone, 115, 116, 127, 128, 222, 223, 265 Fishing sound. See Sound, fishing. See Sound, fishing trends, 52 Focusing Events, ix, 83, 84, 95, 116, 118, 251, 255 Gardner, Emily, 187, 188, 271 GESAMP. See Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection Greek Strandings, vii, viii, ix, 21, 72, 102, 103, 104, 114, 129, 130, 164, 166, 260, 275 “Harassment”, 15, 52, 112, 159, 197, 198, 200, 201, 225, 228, 232, 249 Hayes, Michael, 252, 253, 272 Hot Spots, 62, 64, 80, 81, 239, 259 IGOs. See Intergovernmental Organizations IHA. See Incidental Harassment Authorization IMO. See International Maritime Organization. See International Maritime Organization Incidental Harassment Authorization, 91, 117, 200, 201, 265 Intergovernmental Oceanographic Commission, 20, 173, 174, 266 Intergovernmental Organizations, ix, 171, 172, 243, 258 International Convention for the Prevention of Pollution from Ships, 145, 146, 167, 178, 256, 261, 272 International Maritime Organization, ix, 33, 67, 130, 134, 135, 136, 143, 145, 146, 147, 148, 167, 171, 173, 174, 175, 180, 182, 206, 210, 234, 239, 258, 261, 266, 268, 272

Index International Seabed Authority, x, 150, 151, 266 International Whaling Commission, ix, 6, 27, 64, 93, 148, 149, 150, 167, 178, 223, 224, 225, 239, 256, 266, 272 Interngovernmental Oceanographic Commission, 20, 33, 173, 174, 180, 261, 266, 280 IOC. See Intergovernmental Oceanographic Commission ISBA. See International Seabed Authority IUCN. See World Conservation Union IWC. See International Whaling Commission Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection, 33, 34, 131, 173, 174, 175, 176, 180, 181, 182, 213, 261, 265, 279, 280 Joint Group of Experts on the Scientific Aspects of Marine Pollution, 213 Juda, Lawrence, xi, 7, 153, 191, 211, 212, 253, 273 Kelleher, Graeme, 211, 235, 241, 273, 281 Kingdon, John, 84, 85, 247, 248, 249, 250, 251, 252, 274 Law of the Sea Convention, 131, 254 Letter of Authorization, 109, 199, 200, 201, 204, 266 LFA Sonar. See Low Frequency Active Sonar Ligurian Sea, 64, 71, 72, 73, 75, 77, 78, 81, 163, 225, 259 Littoral Warfare Advanced Development, 90, 91, 115, 116 LOA. See Letter of Authorization London Convention, 134, 135, 136 Low Frequency Active Sonar, 54, 55, 88, 89, 91, 92, 104, 105, 106, 108, 109, 111, 115, 152, 187, 233, 249, 255, 266 Low-frequency Sound. See Sound, lowfrequency LWAD. See Littoral Warfare Advanced Development Marine Mammal Commission, 15, 22, 28, 47, 69, 97, 157, 198, 219, 222, 228, 234, 240, 249, 270, 275, 277, 281

285 Marine Mammal Protection Act, 5, 10, 42, 44, 51, 52, 53, 61, 87, 89, 95, 96, 97, 105, 106, 110, 112, 115, 117, 188, 197, 198, 199, 200, 201, 202, 203, 204, 221, 228, 240, 249, 263, 265, 266, 272, 276, 279 Marine Protected Area, 76, 77, 172, 211, 217, 219, 223, 226, 227, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 256, 261, 262, 267, 270, 273, 275, 280, 281 MARPOL. See International Convention for the Prevention of Pollution from Ships Masking, 14, 21, 75 Military sound. See Sound, military trends, 54 Minerals Management Service, 21, 22, 46, 47, 50, 61, 165, 189, 269, 277, 279 MMPA. See Marine Mammal Protection Act MMS. See Minerals Management Service MPA. See Marine Protected Area National Environmental Policy Act, 90, 91, 106, 115, 116, 165, 189, 191, 192, 259, 268, 269, 270 National Marine Fisheries Service, 22, 23, 42, 44, 51, 52, 53, 56, 61, 66, 88, 89, 91, 92, 96, 97, 99, 100, 102, 105, 106, 110, 111, 113, 114, 115, 117, 167, 186, 187, 188, 197, 198, 199, 200, 201, 202, 203, 204, 229, 230, 231, 232, 233, 235, 238, 248, 255, 279 National Research Council, 6, 60, 63, 136, 141, 215, 276 National Resources Defense Council, 62, 86, 88, 89, 90, 91, 99, 100, 105, 106, 109, 110, 111, 112, 115, 116, 119, 239, 248, 249, 255, 258, 259 NATO. See North Atlantic Treaty Organization Natural Resources Defense Council, 29, 64, 86, 87, 88, 89, 96, 97, 110, 116, 129, 175, 196, 203, 234, 272 NEPA. See National Environmental Policy Act

286

International Regulation of Underwater Sound

NGOs. See Non-governmental Organizations NMFS. See National Marine Fisheries Service. See National Marine Fisheries Service Non-governmental Organizations, ix, 77, 81, 85, 86, 87, 88, 91, 92, 93, 94, 95, 100, 103, 107, 108, 118, 119, 134, 150, 241, 247, 255, 258, 259, 269 North Atlantic Right Whale, 66, 70 North Atlantic Treaty Organization, vii, viii, ix, x, 59, 73, 78, 95, 102, 103, 104, 119, 164, 165, 256, 258 North Pacific Acoustic Laboratory, 101, 102, 202, 203 NPAL. See North Pacific Laboratory NRC. See National Research Council NRDC. See National Resources Defense Council Nuclear Wastes, 133 OBIA. See Offshore Biologically Important Areas Offshore Biologically Important Areas, 231 Oslo Convention, 154 OSPAR. See Convention for the Protection of the Marine Environment of the North-East Atlantic Particularly Sensitive Sea Areas, 146, 147, 148, 234, 239, 268 Performance Bonds, 196 Permits, 58, 84, 96, 99, 110, 111, 117, 123, 126, 135, 189, 191, 194, 197, 198, 199, 200, 201, 202, 203, 204, 221, 232 incidental harassment authorization. See Incidental Harassment Authorization letter of authorization. See Letter of Authorization small take program, 200 Process Stream Model, 248 Protocol on the Reduction of Sulfur Emissions, 139 PSSAs. See Particularly Sensitive Sea Areas Pulliam, H.R., 237 Regional Seas Action Plans, 179

Regional Seas Programme, 143, 178, 179, 180, 261 Research sound. See Sound, research trends, 57 Rio Declaration on Environment and Development, 184 Route to Government, ix, 119, 121 SBNMS. See Stellwagen Bank National Marine Sanctuary SEA. See Strategic Environmental Assessment Shipping sound. See Sound, shipping trends, 33, 34, 35, 37 Small Take Program. See Permits, Small Take Program Sonar, vii, viii, 3, 6, 9, 10, 13, 14, 15, 16, 17, 22, 24, 25, 27, 28, 29, 31, 36, 50, 53, 54, 55, 56, 59, 60, 62, 65, 70, 73, 74, 75, 86, 88, 89, 91, 92, 94, 98, 99, 102, 103, 104, 105, 106, 107, 108, 110, 111, 112, 113, 114, 115, 116, 118, 127, 140, 148, 152, 167, 175, 189, 196, 203, 205, 209, 214, 230, 231, 233, 234, 248, 249, 255, 258, 259, 263, 265, 266, 267, 272, 275, 281 multibeam, 31, 55 sidescan, 55 SOSUS. See Sound Ocean Surveillance System Sound bathymetry, 62, 63, 66 behavioral effects, vii, 5, 14, 15, 21, 159, 188, 197, 201, 228, 255, 261 biological, 18, 19, 20, 24, 25, 26, 27, 31, 40, 50, 51, 52, 132, 204, 219 construction, 5, 9, 28, 33, 37, 38, 39, 40, 41, 63, 68, 73, 74, 75, 117, 127, 147, 163, 214 decibel summation, 11, 12 dredging, 5, 15, 28, 37, 38, 39, 40, 41, 63, 65, 68, 234 drilling, 5, 41, 43, 45, 46, 59, 60, 68, 93, 136, 188, 189, 207, 226, 258 fishing, 50 geophysical, 23 habitat degredation, 18, 21, 62, 94, 150, 178, 215, 251, 261

Index low-frequency, 4, 6, 9, 10, 15, 16, 17, 19, 23, 26, 28, 32, 33, 38, 41, 53, 54, 55, 56, 59, 62, 86, 88, 89, 91, 92, 93, 97, 98, 100, 102, 103, 104, 105, 106, 108, 115, 118, 152, 175, 187, 202, 209, 215, 249, 255, 257, 259, 263 military, 5, 38, 52, 53, 97 physical, 4, 9, 12, 13, 23, 58, 123, 237, 264 physiological effects, 14, 16, 19, 21 properties, 9, 10, 11, 12, 136 recreational boating, 47, 48, 91, 244 research, 55 seismic surveys, 3, 5, 21, 29, 30, 41, 42, 43, 44, 45, 46, 55, 65, 68, 77, 93, 117, 159, 165, 189, 190, 201, 207, 209, 214, 227, 230, 258, 259 shipping, 5, 9, 12, 29, 31, 32, 63, 165, 176, 206 Sound Ocean Surveillance System, 27, 29, 54, 242 SPAMI. See Specially Protected Area of Mediterranean Importance Specially Protected Area of Mediterranean Importance, 77, 225 Stellwagen Bank National Marine Sanctuary, 61, 64, 66, 67, 68, 69, 70, 71, 76, 81, 221, 228, 229, 236, 240, 242, 244, 259, 276, 278 Stone, Deborah, 83, 84, 85, 249, 279 Strandings. See Bahamas Strandings, Canary Island Strandings, Greek Strandings Strategic Environmental Assessment, 190 Submarines, ix, 3, 29, 53, 54, 89, 97 Subsidies, 196 SURTASS-LFA, ix, 54, 89, 90, 91, 92, 94, 104, 105, 106, 107, 108, 109, 110, 111, 112, 114, 115, 118, 119, 129, 167, 187, 189, 199, 201, 202, 204, 230, 231, 233, 248, 255, 259 Surveillance Towed Array Sensor System. See SURTASS-LFA Taxes, 194, 216

287 Trail Smelter Case, 121, 122, 123, 125, 128, 129, 137, 256, 257, 260 Transboundary Pollutant, ix, 129, 166, 169, 236, 253, 254, 259, 260 UN. See United Nations UNCLOS. See UN Convention on the Law of the Sea UNEP. See United Nations Environmental Programme UNESCO. See UN Educational Scientific and Cultural Organization United Nations, ix, 35, 73, 81, 122, 124, 125, 126, 127, 128, 131, 136, 137, 138, 142, 143, 144, 146, 170, 173, 175, 178, 184, 213, 221, 256, 257, 260, 268, 275, 276, 279, 280 United Nations Conference on Environment and Development, 21, 146, 167, 179, 184, 212, 213, 255 United Nations Convention on the Law of the Sea, ix, 121, 124, 125, 126, 127, 128, 129, 130, 131, 143, 150, 151, 166, 167, 168, 172, 174, 179, 181, 191, 235, 255, 257, 260, 276, 278, 280 United Nations Educational, Scientific and Cultural Organization, 20, 33, 153, 173, 174, 182, 211, 221, 222, 232, 233, 241, 243, 280 United Nations Environmental Programme, 33, 73, 81, 141, 143, 144, 145, 167, 170, 171, 173, 174, 175, 178, 179, 180, 182, 192, 213, 222, 256, 258, 261, 279, 280 Upper Gulf of California Biosphere Reserve, 222 Whale Watching, 67, 70, 77, 149, 210, 225, 226, 227, 232, 233 Worcester, Peter, 99, 101, 102, 202, 203 World Conservation Union, 90, 93, 172, 189, 211, 241, 254, 266, 267, 268, 270, 273, 274, 281 Young, Oran, 47, 140, 143, 169, 170, 171, 179, 222, 270, 281 Zoning, 209, 210, 226, 227, 234, 237, 242, 261