policy letter

April 16, 2003 Chief, Marine Mammal Conservation Division Office of Protected Resources NOAA Fisheries 1315 East-West Highway Silver Spring, MD 20910-3226 ACS Comments on the request from the U.S. Minerals Management Service (MMS) of the Department of the Interior, for authorization to harass small numbers of marine mammals, principally the sperm whale, incidental to conducting seismic surveys in the Gulf of Mexico (GOM) re: Draft Programmatic Environmental Assessment (DPEA) on Geological & Geophysical Exploration for Mineral Resources On the Gulf of Mexico Outer Continental Shelf (Feb. 2002 version) and Addendum to Draft PEA (dated Dec. 2002) MMS Notices to Lessees 2002-G07 (August and October 2002)

On behalf of the American Cetacean Society, I want to thank you for the opportunity to comment on the proposed offshore seismic exploration program for the Gulf of Mexico (GOM) as described in the above referenced documents.

Recognizing the importance of our country's self-reliance on its own natural resources for its energy needs, we are equally concerned that other natural resources, especially those that are already classed as endangered, are not severely if not permanently impacted in the interests of relatively short-term commercial gain.

We also believe that at some future point, dependence upon fossil fuels will become obsolete with the development of alternative energy sources.

Until that occurs, however, we would strongly urge a precautionary approach to any Proposed Action such as the one referenced above that has such broad environmental implications for an entire region and the organisms it supports.

While we applaud the Minerals Management Service (MMS) for re-evaluating the last EA done for this region (1984), we categorically object to the presentation of this Draft PEA and the Addendum as a basis for any rulemaking.

The self-described continuing "evolution" of this DPEA and the fact that it "has undergone and continues to undergo extensive review by MMS, other Federal agencies, and interested parties" only serves to underscore the point that this Environmental Assessment is nowhere near ready to be considered by National Marine Fisheries Service (NOAA-F) or the public.

The Final PEA was expected to have been made available "in early 2003," yet it is already mid-April and no Final PEA is forthcoming; in fact, MMS speculates it will not be completed until "July or maybe August" of 2003.

The fact that this Final PEA is predicted to "be substantially revised from the February 2002 version" further exacerbates our concern that the substantial changes already depicted in the Addendum, and the self-admitted data gaps point to MMS's lack of competence to "accurately estimate the anticipated number of exposures for Level A or B takes of sperm whales as a result of seismic activity," among other areas severely lacking in scientific substantiation. That other marine mammal species are neither considered nor analyzed as to impacts is cause for continuing concern.

For the MMS to then claim that in the absence of such data, "a received sound pressure level of 180 dB re 1 µPa (rms) or greater will be used as a [sic] indication of potential concern about temporary and/or permanent hearing impairment" is frivolous and has no basis in science. Indeed, as NOAA-F is fully aware, this same scientifically baseless presumption of 180 dB as the new definition of Level A harassment has already been questioned by the 9th Circuit Court and was instrumental in the Court's levying a preliminary injunction against the US Navy in October 2002 affecting full deployment of its SURTASS-LFA sonar system pending trial later this year. That NOAA-F continues to accept this figure from permit applicants as a default definition for Level A harassment is inviting further costly and unnecessary legal action in addition to being scientifically irresponsible and unsupportable.

In describing the consulting and cooperating process regarding the creation of this DPEA, the Addendum refers to the "very successful completion" of the Sperm Whale Seismic Study (SWSS). Considering the Addendum is dated December 2002 and the three-year SWSS only commenced in 2002, we would like an explanation as to how a three-year study can be "completed" in under one year, much less "successfully."

Additionally, there is great credence given in this Addendum to as yet "unpublished findings" regarding the passive acoustic monitoring system tested during this study, yet no data are provided to document such optimism. This is particularly troubling since the Addendum does not specifically state that this passive system could detect sub-surface non-vocalizing cetaceans.

Further considering that the DPEA concerns itself with only one cetacean species -- the sperm whale -- the cover letter to the Addendum states that "The MMS will include the potential incidental take of non-listed marine mammal species such as dolphins, beaked whales, and Bryde's whales in this petition for rulemaking in the near future." We strongly recommend completion of the three-year study before preliminary and unqualified data from SWSS are used in support of this or any other Environmental Assessment.

The DPEA refers to 1800 as-yet unsurveyed lease blocks in the GOM, but the Addendum says "1300." The Addendum also does not provide an amended Table showing the numbers of seismic crews and blocks covered under the Proposed Action, if in fact the 1300 figure is accurate. Which is the correct figure, 1800 or 1300?

The Addendum quotes liberally from the ESA-Section 7 Consultation Biological Opinion for Gulf of Mexico Outer Continental Shelf Lease Multi-sale (185, 187, 190, 192, 194, 196, 198, 200, 201) dated November 29, 2002 (FBiO). However, this "biological opinion" addressed no marine mammals except the sperm whale because MMS was seeking a take of only sperm whales (despite there being 28 other marine mammal species that inhabit the GOM).

We are particularly concerned for beaked whales that share the deep water foraging behaviors of the sperm whale and who are also susceptible to seismic surveying operations.

In fact, NOAA-F is currently seeking comments on another unrelated small take permit pursuant to airgun testing operations in the GOM being sought by the Lamont Doherty Earth Observatory/Columbia University, the same researchers who were earlier ordered out of the Gulf of California by the government of Mexico when its seismic oceanographic studies were blamed for the deaths of at least two beaked whales that washed ashore a mid-Gulf island.

As all marine mammal species are protected under the Marine Mammal Protection Act, all marine mammal species that could be adversely impacted by the proposed seismic survey activity in the GOM must be considered.

The rationale used in the Addendum that sperm whales are "the most important Gulf cetacean in terms of collective biomass" is a puzzling basis on which to assign species importance. Are smaller marine mammal species, then, accorded less (if any) consideration because they're collectively less impressively represented than the sperm whale? Also, the statement that "at this time, the petition will deal only with sperm whales" begs the above question that this document should have been submitted at all at this point in its development.

Clearly there is much more data that needs to be gathered, presented, and all marine mammal species considered before NOAA-F can make a competent and informed decision on any rulemaking. The fact, also, that the GOM stock of sperm whales is comprised "mostly of females and juveniles" makes this region biologically important to at least this one species.

Indeed, the FBiO refers to research that states the "area should be considered as critical habitat for sperm whales as it is the only known calving area in the Gulf (Davis 2000), for what is believed to be a resident population. (Davis et al. 2000)"

Yet because it isn't formally designated as critical habitat, the FBiO concludes, and the DPEA has determined, that "no adverse modification of critical habitat is expected from the proposed action" and is therefore "not likely to result in jeopardy to any of the above named species" (sperm whale, five species of sea turtle and one species of fish).

This politically circuitous logic that a species isn't vulnerable simply because its habitat hasn't been legally defined is reckless. As any competent marine biologist will agree, females with young are far more susceptible to disturbances in biologically important areas than are other adults of the same species. Disruption of biologically important activities such as nursing, feeding, mother-calf proximity, predator and ship detection, etc., could have serious deleterious effects on this discrete stock of sperm whales, and thus population level implications for this endangered species.

Considering the projected increase in testing activity, the projected doubling of lease sales over the next three years, the density of the grids covered, the round-the-clock testing protocols and the noise levels generated, it would appear that the DPEA's estimated PBR of 1.8 sperm whales per year could be exceeded. The latest NOAA-F Stock Assessment Report (SAR) for the GOM available to the public (2000) puts PBR at .8 sperm whales/year. The current figures the DPEA uses are from a report that is "in prep." Interestingly, the 2000 SAR also states, "The variation in abundance estimates may represent inter-annual variation in distribution, rather than a change in abundance." We would, therefore, like to know on what data the DPEA's more-than-doubled PBR level of 1.8 is based, and whether distribution variations rather than changes in abundance were considered.

We are also concerned with the repeated references to the sound from airgun arrays being concentrated "mostly downward." As NOAA-F is well aware, sound propagation is dependent upon the configuration of the array, the depth and temperature of the water, bottom topography, and a host of other physical and acoustical properties that make predicting received levels at specified distances virtually impossible without detailed modeling, and "the MMS presently does not have access to such a model."

Then we would ask, how can MMS logically, ethically, or legally apply for a "small take permit" when it cannot predict anticipated takes of sperm whales (or any other marine mammal species) as a result of seismic operations?

There are no grounds that we can see for the MMS to state that its operations will not cause the harassment (lethal or non-lethal) of more than 1.8 sperm whales per year without far more data than are currently available, or in the absence of at least nominal analytical models. MMS' inability to do more than speculate on potential harm can in no way lead to a finding of "negligible impact," yet that is exactly what is stated in the Addendum.

Regarding the DPEA's statement that "seismic surveys represent a potentially significant yet transient component" of the overall noise level in the GOM, and that "cumulative noise impacts" on affected species are "adverse but not significant" is sheer speculation.

We cannot over-emphasize the importance of the following statement: There are no data regarding the cumulative, i.e., long-term, impacts of noise on marine mammals:

"The list of incomplete knowledge in the area of noise effects on marine mammals is staggering. We basically don't have any data on the importance of communication for survival and on long-term effects on an individual and an entire population." (Proceedings from the Workshop on the Effects of Anthropogenic Noise in the Marine Environment [WEANME], Marine Mammal Science Program, Office of Naval Research,10-12 February 1998, pgs. 38 & 41)

"Long term cumulative effects may be difficult to measure, or appear innocuous in the short term, but which may, over periods of years or decades result in biologically significant impact on individuals and populations." (WEANME, pg. 76) "This is a major data need, since it is the long-term effects on distribution and reproductive success that are most important.

It is unclear whether the presence or absence of strong short-term behavioral reactions is a good indicator of long-term consequences. Research that can provide insight into long-term effects of noise on any species of marine mammal is a high priority." (Richardson et al. 1995)

And more subtly: "One should not assume that the ability to detect a sound in noise is the only relevant variable. To understand how environmental noise might affect acoustic communication, laboratory tests must be conducted on how noises of different types affect not only the detection but also the discrimination, and identification of species-specific vocalizations.

Such laboratory data are critical for understanding the full effect of noise on acoustic communication and for developing reasonable guidelines for noise abatement. It is one thing to hear a voice, and it quite another to understand what is said. ...acoustic communication abilities can be divided into three broad categories.

The ability to detect a signal involves only being able to tell whether a sound occurred or not. The ability to discriminate or distinguish whether a sound is different from another sound requires yet a higher signal-to-noise ratio than simple detection. And identification, or the ability to recognize a specific, biologically relevant signal, may require even high signal-to-noise ratios." (Richardson et al. 1995)

However, marine mammal species' threshold of audibility is only one concern for their proximity to high-powered sound sources. As was discussed at length in Appendix F but apparently given little to no weight in the DPEA itself is the possibility of non-hearing physiological injury, such as tissue damage to lungs, brains, eyes, ears, as a result of "resonance." Marine mammals are not the only order of taxa affected by non-hearing acoustic injury:

Considering the high commercial value of the Gulf of Mexico vis-à-vis commercial fisheries, and the increase in impulsive noise anticipated over the life of the Proposed Action, there is equal disregard in the DPEA for the long-term health of affected fish species.

"No studies have looked at the long-term or repetition effects of sub-lethal blasts on these fish or the possibility of resonance for continuous signals interfering with sound production of the swimbladder for reproduction rituals or warning of predators."

Also, "Another organ that is dramatically affected by high intensity impulse sound is the fish eye. Blindness and hemorrhage commonly occur at sound pressure levels of 220 dB SPL_Peak." (WEANME, pg. 63)

"Laboratory studies report that low frequency sound can affect egg viability and that growth rates of fish and invertebrates are affected by high intensity impulse sounds (Banner and Hyat, 1973; Kostyuchenko, 1973; Lagardere, 1982; referenced in NRC, 1994)." (WEANME, pg. 64)

"Noise-related depletions of forage fish stocks could have a significant ripple effect on members of higher trophic levels (e.g., toothed whales, large sharks, tunas and billfishes). Conversely, noise that keeps predators out of an area may result in dramatic alterations in the abundance of certain prey species that would not otherwise dominate the ecosystem." (WEANME, pg. 88)

The "monitoring and mitigation" program to prevent marine mammals and sea turtles from entering the "impact zone" is ineffectual. There would be some mitigation possible if seismic operations were limited to daylight hours only. However, as the DPEA does not contemplate limiting seismic operations to daylight hours, or, to roughly half the operational day, and as all the below proposed mitigations are ineffectual for use at night, this will have an increased negative impact on affected species with the very real possibility of the PBR for sperm whales being exceeded.

1. Ramp-up. Per the Proceedings from WEANME (pg. 112): "Questions have been raised as to the efficacy of ramping up. There have been no specific studies to determine whether marine mammals really do move away during the ramp-up phase. It has been suggested that ramping up may do more harm than good if it allows mammals to gradually accommodate to sound levels that are in fact harmful. Some mammals might even be attracted by the initially weak sounds to move into the zone where exposure to the full-power sounds could be harmful. The frequent attraction of minke whales to slow-moving ships was mentioned as an indication that this type of effect is possible. On the other hand, there is anecdotal evidence that bowhead whales sometimes move away during the ramp-up phase of industrial noise playbacks or when exposed to a single airgun. Also, gray and bowhead whales often show some avoidance when exposed to industrial sounds from small projectors operating at full power. Ramping up or 'aversive stimulus' approaches - if effective - could operate without the need to detect the presence of marine mammals near the sound source. However, it should be recognized that the effectiveness of ramping up or aversive stimuli is likely to vary with species and situation. A more detailed review of experience during past and ongoing projects could be a useful starting point in designing tests of ramping up or aversive stimuli."

As there are, to date, no studies involving odontocetes (and specifically sperm and beaked whales), we challenge the MMS to provide data supporting their theory that ramping up will be an effective deterrent. This is particularly problematic if there are multiple sound sources operating simultaneously in various areas. The overlap or "noise bleed" may not interfere with another seismic operation, but it may cause a marine animal to be driven from one danger zone only to end up in another whose "ramp-up" was masked by the animal's closer proximity to the first sound source.

2. Impact zone. On what basis is any marine mammal outside the "500-meter" radius from the sound source considered safe? Considering that "strong sound pulses are projected horizontally into the water in certain directions, and these can be detected many kilometers away" (Richardson et al. 1995) despite the downward aim of the airgun array, and assuming that ramping-up has not in fact attracted rather than repulsed marine mammals, we see no scientific basis for the "500-meter" impact zone. Indeed, "In water ~25-50 m deep, airgun arrays are often audible to ranges of 50-75 km. Detection ranges can exceed 100 km during quiet times with efficient propagation, or in deeper water." And: "Seismic exploration creates some of the most intense anthropogenic sounds for which detailed information is available. For example, the received level from a seismic vessel can be 160 dB out to 5-10 km, and 180 dB out to perhaps 1 km." Further: "Animals would probably have to be within 1 km to the side of an airgun array to be exposed to 178 dB and well within 100 m to receive 200 dB or more. This speculation suggests that some marine mammals within 1 km horizontally from a seismic vessel might be subject to immediate hearing damage." (Richardson et al. 1995) It would appear that this 500-meter impact zone is arbitrary and was based more on what is physically visible to on-board observers than it was on sound science. We would strongly suggest that the impact zone be expanded from 500 meters to 2 km, particularly as MMS admits it has no modeling capabilities for predicting anticipated takes.



3. Visual observation. Although the Addendum states, "An expanded seismic observer program is currently in development that will require trained observers on all seismic vessels," there is still no observer training program in place, nor is one anticipated being in place for "several more months" (MMS NTL 2002-G07). Until those observers are trained and placed "as soon as they are available," seismic vessels "may continue to use crew members to function as visual observers until trained visual observers can replace them." (ibid) As difficult as it is for experienced observers to spot marine animals during the day under near-optimum conditions, particularly sea turtles, a physical visual detection program is ineffectual for operations that are going to be conducted in poor weather or Beaufort 2 and higher sea states or in periods of low light and darkness. As MMS is anticipating allowing seismic vessels to operate around the clock, the effectiveness of this type of monitoring is minimal in daylight hours and non-existent at night.

Additionally, visually observing the "impact zone" for only 30 minutes prior to ramp-up is worthless for detecting the long-diving sperm and beaked whales, who typically stay submerged for forty-five minutes to over an hour. Per the FBiO, pg. 24: "Sperm whales are noted for their ability to make prolonged, deep dives, and are likely the deepest and longest diving mammal. Typical foraging dives last 40 minutes and descend to about 400 m, followed by approximately 8 minutes of resting at the surface (Gordon 1987, Papastavrou et al. 1989). However, dives of over 2 hours and deeper than 3.3 km have been recorded (Clarke 1976, Watkins et al. 1985, Watkins et al. 1993) and individuals may spend extended periods of time at the surface to recover. Descent rates recorded from echo-sounders were approximately 1.7 m/sec and nearly vertical (Goold and Jones 1995). There are no data on diurnal differences in dive depths in sperm whales."

4. Passive monitoring is not an effective mitigation since it relies entirely on the animal vocalizing to be detected. Yet when whales are calling, even they aren't always recognized as whales by trained technicians. (WEANME, pg. 102) This type of monitoring is also ineffectual for detecting sea turtles and fish, or other non-vocalizing mammals such as pinnipeds.

We object to the use of the words "short-term" where the Addendum refers to spatial displacement of sperm whales (and other marine mammals, although the DPEA doesn't "yet" take them into account) due to the round-the-clock nature of seismic operations and the continuous presence of noise of multiple vessels operating simultaneously. As this DPEA is for a 5-year permit, with current number of lease sales in the GOM anticipated to double within the first three years of that permit, and in the absence of any qualitative modeling that can predict with any degree of certainty the impacts to marine mammals, it is our opinion that this DPEA is deeply flawed and inadequate to the task of providing NOAA-F the data it needs to make a competent rulemaking decision.

This is especially troublesome as the FBiO repeatedly refers to "the 35-year life of the proposed action." As the Notice from NOAA-F is for a 5-year incidental take permit, we would like an explanation for the presumption of a 35-year program in the Biological Opinion, and we would further charge MMS with providing impacts to the marine environment over the "35-year life of the proposed action."

Finally, we strongly disagree with MMS' choice of Alternative 3 as the preferred alternative for the proposed action. The data contained within the DPEA are incomplete, the "status quo" has changed per the Addendum since the DPEA was first issued, and even the Preferred Alternative has changed (from Alternative 1 to 3). The Addendum itself is 21 pages long and admits that based on events that have occurred since the release of the DPEA, "certain aspects" of the DPEA have been "rendered obsolete."

That being the case and in light of the scope of this Programmatic Environmental Assessment, we submit that this DPEA should be returned to MMS for more complete data and resubmitted when all affected species in the operations area are included and, in the absence of supporting data, competent analytical models are used for predicting short-term, negative impacts to affected species.

Respectfully,

Katy Penland
American Cetacean Society
National Conservation Committee