Comment from Jeffrey Flocken, International Fund for Animal Welfare

By Regular Mail and Electronic Submission Jan. 16, 2009 Michael Payne, Chief Permits, Conservation and Education Division Office of Protected Resources National Marine Fisheries Service 1315 East-West Highway Silver Spring, MD 20910-3225 Dear Mr. Payne, On behalf of the International Fund for Animal Welfare (“IFAW”), I am writing to submit comments on the National Marine Fisheries Service (“NFMFS”) proposal to authorize the take of six species of cetaceans incidental to the proposed training activities of the Jacksonville Range Complex (“JAX Range”) over the next five years. See 73 Fed. Reg. 76578 (Dec. 17, 2008). IFAW, with over 1 million supporters worldwide, is one of the world’s preeminent international animal welfare organizations. IFAW works throughout the world to improve the welfare of wild and domestic animals by protecting wildlife habitats, reducing commercial exploitation and helping animals in distress. IFAW has taken a lead on protecting the fewer than 350 remaining North Atlantic right whales. IFAW initiated the voluntary ship reporting program that evolved into the Mandatory Ship Reporting System, designed to protect right whales that migrate along the East coast of the United States from ship strikes. Working in partnership with the Commonwealth of Massachusetts and the lobster industry, IFAW designed and implemented an innovative lobster gear replacement project to prevent right whale entanglements. Through this program, over 2,100 miles of dangerous floating groundline was replaced with whale safer sinking line. IFAW, in partnership with other organizations, has also successfully pursued litigation against the Navy to prepare federally mandated environmental impact assessments of the proposed use of active sonar. IFAW is particularly concerned with the possibility of Navy ships striking right whales in the JAX Range. NMFS mistakenly concludes that take permits are unnecessary despite the fact that the proposed exercise area overlaps right whale critical habitat. Although the mitigation measures described in this proposed rule represents a strong effort by the U.S. Navy and NMFS to mitigate potential harm to critically endangered North Atlantic right whales, they do not accomplish that goal. Instead, NMFS should withdraw this proposed rule and propose the explosive training in an area far from right whale critical habitat. Strengthen Mitigation Measures to Prevent Ship Strikes of Right Whales The North Atlantic right whale is recognized as one of the world’s most endangered marine mammal species. Recent estimates put the North Atlantic population of right whales at less than 350, and perhaps closer to 315. Federally designated critical habitat has been established for right whales off the coast of Florida and Georgia near their preferred calving range, and in their feeding ground off the coast of Cape Cod, Massachusetts. The critical habitat off the coast of Florida overlaps with the JAX/CHASN OPAREA. Recently, NOAA has reported the possible existence of a second North Atlantic right whale calving ground off the coast of Maine. Still, an increase in annual right whale mortality rate suggests the population along the Atlantic coast is declining. Given the small size of the population and the threat to individual whales from anthropogenic sources, especially ship strike and entanglement in fishing gear, this endangered species has an incredibly high risk of extinction. While the proposed rule acknowledges the precarious status of the North Atlantic right whale species, NMFS’s conclusion that the proposed mitigation measures will protect right whales fails to cite or enumerate details that would provide independent reviewers the ability to adequately question those conclusions. For example, where the Navy is responsible for lethal whale strikes, including that of a female right whale and her near-term calf in the mid-Atlantic in 2004, the conclusion by NMFS that there will be no take of these critically endangered whales requires further consideration. Further, the proposed rule requires the Navy to “practice increased vigilance” when passing through seasonal right whale habitat. Requiring Navy to practice increased vigilance is an abdication of NMFS’ duties’ to independently analyze potential takes of North Atlantic right whale. Further, if NMFS is to allow Navy to mitigate harm through “increased vigilance,” that term should be defined in the proposed rule. NMFS also approves a number of other, more specific, mitigation measures applicable to the Navy during right whale calving season in the “Consultation Area” – a zone overlapping established right whale critical habitat. Unfortunately, all of the measures are qualified by the Navy and will only be followed if “consistent with essential mission, training, and operations.” These measures do not adequately address the potential harm to breeding right whales or mother/calf pairs. NOAA fisheries has previously concluded that the “loss of even a single individual right whale may contribute to the extinction of the species,” and that “preventing the mortality of one adult female alters the projected outcome.” A female must produce at least four calves to replace herself and mothers and calves are most vulnerable to impacts from collisions and noise from ships, helicopters, bombs and missiles. Nowacek et al. (2004) found that whales exposed to alert stimuli “abandoned their current foraging dive prematurely, … executed a shallow- angled, high power … ascent, remained at or near the surface” for an “abnormally long” period of time, and “spent significantly more time at subsurface depths (1- 10m) compared with normal surfacing periods when whales normally stay within 1 m of the surface.” This study concluded that alarm stimuli were a poor option in attempts to mitigate vessel collisions because of the whale’s reaction actually makes ship strikes more likely. Therefore, where female right whales and their calves are particularly susceptible to ship strikes at the JAX Range Complex, mitigation measures that only apply when consistent with operations are insufficient to protect the species from extinction. Instead, NMFS and Navy should pursue training exercises in an alternative location, away from right whale critical habitat. Other Impacts on Marine Mammals Where marine mammals often congregate in areas of dense prey species, the Navy and NMFS’s distribution assumptions may be flawed in that they are likely to overestimate the number of marine mammals in some areas while underestimating the number in others. Further, even taking for granted Navy and NMFS’s distribution information, NMFS ignores the Navy’s request for take permits for 2 Atlantic spotted dolphins, instead deciding that take will be less than estimated due to mitigation and monitoring measures. IFAW believes that NMFS’s conclusion is incorrect where Atlantic spotted dolphins are likely to suffer physical injury resulting from exposure to noise in excess of 205dB. These dolphins’ small size and ability to move quickly will make them difficult to detect by Navy’s lookouts or other detection systems. Therefore, NMFS decision not to grant take permits was arbitrary and capricious. Finally, the U.S. Navy and NMFS fail to address the impact of stress on marine mammals. Stress has been shown to cause physical harm, including weakening of the immune system, in marine mammals. It is safe to assume that marine mammals in the JAX Range Complex would be subjected to stress resulting from single or multiple explosive concussions. Yet, despite this potential, NMFS assumes that stress would have a negligible impact on marine mammals in the JAX Range. Conclusion Although IFAW is concerned about the utilization of explosives in the JAX Range complex, especially in or near right whale critical habitat, we are pleased that the U.S. Navy and NMFS are taking a proactive role in establishing mitigation measures to help protect this imperiled species. Still, it is IFAW’s belief that the mitigation measures discussed in the proposed rule are insufficient to protect critically endangered right whales and other species. Therefore, IFAW urges NMFS and the U.S. Navy to choose an alternative location for training exercises that employ explosives. Sincerely, /s/ Jeffrey Flocken Jeffrey Flocken, Office Director International Fund for Animal Welfare 1350 Connecticut Ave., NW Suite 1220 Washington D.C., 20036