The FY 2004 Defense Authorization Act (H.R. 1588) contains language
giving the federal government greater leeway to use submarine-tracking
sonar, conduct scientific research, or perform other actions that might
affect marine mammals. The Pentagon has argued that restrictions protecting
the mammals endanger security by limiting its ability to track enemy
submarines and conduct military readiness activities, and some scientists
are concerned that the restrictions limit important underwater research.
H.R. 1588, which was signed into law by President Bush on November 24,
changes the definition of "harassment" of sea mammals. The
1972 Marine Mammal Protection Act included as harassment any activity
that has the potential to disturb the animals, while the new law only
restricts activity that "is likely to disturb" them to the
extent that their natural behavior patterns "are abandoned or significantly
altered." The provision was broadened to include scientific research
activities in addition to military readiness activities, and it allows
the Secretary of Defense, after conferring with either the Commerce
or Interior Secretary, to "exempt any action or category of actions
undertaken by the Department of Defense...from compliance with any requirement
of this Act, if the Secretary determines that it is necessary for national
defense."
Many environmentalists and scientists have long suspected that the
Navy's use of sonar to track submarines could harm marine mammals. A
recent study indicates that it may cause whales to suffer decompression
sickness, but the issue is still under investigation. Currently, the
Navy is operating under an agreement that limits deployment of a new
low-frequency active sonar system, in part because of concern over its
potential impact on marine mammals. During the House debate on the conference
report to accompany H.R. 1588, House Armed Services Committee chairman
Duncan Hunter (R-CA) defended the new language: "With respect to
allowing our submariners to utilize the best of their sonar devices
that will keep them alive...in shallow water areas around the world,
where they will be faced with very quiet diesel submarines which are
now being proliferated in certain adversaries' navies. We say that,
whereas before the standard was that if a mammal, maybe a sea lion,
was potentially disturbed that military training could not take place
in his neighborhood. Now we say he has to actually be significantly
disturbed...or that disturbance has to be significant enough to alter
the way he migrates or feeds or the way he goes about his daily life."
Hunter continued, "So we are trying to give as much value to the
sailors' survival as we have given to the sea lions' survival.... In
this case we put the sailor ahead of the sea lion."
The use of the Defense Authorization Act to redefine the meaning of
harassment raised objections among Members of both parties during consideration
of the conference report. Senator Olympia Snowe (R-ME), chair of the
Senate Commerce Subcommittee on Oceans, Fisheries, and Coast Guard,
warned that her subcommittee plans to address the issue during reauthorization
of the Marine Mammal Protection Act (MMPA) next year. "By including
Section 319 in this bill, the conferees have disregarded our jurisdiction
and work on the reauthorization of the Marine Mammal Protection Act,
and they have seriously altered marine mammal policy in the United States,"
she said. Senator Carl Levin (D-MI), a member of the defense authorization
conference committee, reported that he had offered, unsuccessfully,
"to work with the Navy to try to reach agreement on more balanced
language that would still address the Navy's concerns.... I am concerned
that this approach [in H.R. 1588] could result in real and unnecessary
harm to marine mammals and a serious backlash against the Navy - which
could undermine critical readiness activities in the long run."
Senator Orrin Hatch (R-UT), noting that he was "one of the original
authors of the MMPA back in 1972," commented that "it has
worked extremely well in balancing the need to protect marine mammals
while allowing other important activities, including the defense of
our Nation, to move forward." He said several Senate committees
"have had testimony from respected scientists this year...that
the standard for ‘harassment' of marine mammals, now included in
this bill, is scientifically indefensible. Moreover, some of the provisions
included in the bill go far beyond DOD activities, including all research
done by or on behalf of the Federal Government." Hatch added that,
as part of the MMPA reauthorization, "I intend to work with my
colleagues on the committee to carefully monitor how these changes are
interpreted, to ensure that activities that could have real impacts
on marine mammals do not fall off the radar screen, as it were. MMPA
was written the way it was because we are still learning about how various
activities may impact marine mammals. We must ensure that under these
new standards, the lack of perfect science is not used as a basis to
avoid the mitigation of potential impacts."
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