Citations
- 62 F. Supp. 3d 969
Full opinion text
AMENDED ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
ELIZABETH D. LAPORTE, United States Chief Magistrate Judge
Plaintiffs, various environmental organizations and concerned individuals, seek in-junctive relief against federal officials to limit the United States Navy’s peacetime use of a low frequency sonar system for training, testing and routine operations. This technology, Surveillance Towed Array Sensor System (“SURTASS”) Low Frequency Active Sonar (“LFA”), sends out intense sonar pulses at low frequencies that travel hundreds of miles in order to timely detect increasingly quiet enemy submarines. The proposed action in the Final Supplemental Environmental Impact Statement (“SEIS”) is the Navy’s employment of up to four SURTASS LFA sonar systems in the ocean. Based on current operational requirements, routine training, testing and military operations using these sonat systems could occur in the Pacific, Atlantic, and Indian Oceans, as well as the Mediterranean Sea. See SEIS ES-6.
Plaintiffs charge that the National Marine Fisheries Service (“NMFS”) improperly approved use of SURTASS LFA in many of the world’s oceans in violation of the Marine Mammal Protection Act (“MMPA”), 16 U.S.C. §§ 1361-1421, the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544, and the National Environmental Policy' Act (“NEPA”), 42 U.S.C. §§ 4321-4370. Plaintiffs claim that these violations will cause irreparable injury by harassing, injuring and killing marine mammals with sensitive hearing and other sea creatures, many of them rare and endangered, including whales, dolphins, seals, sea turtles and salmon. Defendants counter that they have fully complied with the applicable laws. Defendants argue further that enjoining the peacetime use of LFA sonar would harm national security because training and testing are necessary for military readiness, even though they would still be free to use it during wartime or periods of heightened threat.
This lawsuit, the third regarding the impact of SURTASS LFA on marine mammals and other sea life, challenges NMFS’s Final Rule issued in August 2012 authorizing the Navy’s use of LFA sonar in the world’s oceans for five years. See Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to U.S. Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar, 77 Fed.Reg. 50,290 (Aug. 20, 2012). Plaintiffs allege that the 2012 Final Rule fails to ensure adequate protections for marine life and that Defendants have violated their obligations under the MMPA, the NEPA and the ESA to “engage in an informed, reasoned analysis of the LFA’s effects on marine life and the best means of mitigating those harmful effects.” Mot. at 2.
Before the Court are the parties’ cross-motions for summary judgment. For the reasons stated in this Order, Plaintiffs’ Motion for Summary Judgment is granted in part and denied in part and Defendants’ Motion for Summary Judgment is granted in part and denied in part.
Factual Background
The Navy developed SURTASS LFA to improve its ability to detect quiet foreign submarines. See SEIS (NAV10686-11785) 1-2, ES-5 to ES-10, 2-1 to 2-5. The effectiveness of conventional submarine tracking technology in littoral areas, where future naval conflicts are most likely to occur, is degraded by high underwater background noise and difficult underwater acoustic propagation conditions. See SEIS 1-11. In these areas, naval forces may only have minutes to respond to hostile submarines. See NAV19928. To provide the reaction time needed to respond to the increased submarine threat and meet its long-range detection needs, the Navy investigated the use of a broad spectrum of acoustic and non-acoustic technologies, and LFA was the only system capable of providing reliable long range detection. See SEIS 1-5, ES-4 to ES-5 (“To meet this long-range submarine detection need, the U.S. Navy has investigated the use of a broad spectrum of acoustic and non-acoustic technologies. These are discussed in Subchapter 1.1.4. Of the technologies evaluated, LFA sonar is the only system capable of meeting the U.S. Navy’s long-range ASW detection needs in a variety of weather conditions during the day and night. SURTASS LFA sonar is providing a quantifiable improvement in the Navy’s undersea detection capabilities and therefore markedly improving the survivability of U.S. Naval forces in hostile ASW scenarios.”). A Navy ship that employs LFA tows an .underwater array of up to eighteen loudspeakers to generate low frequency sound waves that travel hundreds of miles in all directions underwater. See SEIS ES7 to ES-8.
To prepare for all potential threats, the Navy must maintain anti-submarine warfare capabilities through continual training and operations in open-ocean and littoral environments. See SEIS 1-4. Without the SURTASS LFA capability, “the reaction times to enemy submarine threats would be greatly reduced and the effectiveness of close-in, tactical systems to neutralize threats would be seriously, if not fatally, compromised.” SEIS 4-107, ES-23.
Marine mammals rely on sound for communicating, navigating, locating and capturing prey, and avoiding predators. See NAV24490. There are many sources of underwater sound, including shipping noise, sonar and other oceanographic communication and research, and natural phenomena such as earthquakes. See NAV17915. Man-made sound can sometimes disturb marine mammals. See id. Potential effects on marine mammals from SURTASS LFA sonar include permanent or temporary hearing loss, behavioral disruption, impaired communication, and no-nauditory injuries. See SEIS ES-15. Low-frequency sources at low exposure levels and long distances can silence marine mammals, such as blue whales, significantly alter their calls, or drive them from their habitat. See NAV19305-09 (study of seismic survey that altered blue whale communication).
In 1997-1998, the Navy conducted a Low Frequency Sound Scientific Research Program (“LFS SRP” or “SRP”) regarding the immediately observable impacts of LFA technology on large whales. According to Plaintiffs, the SRP was limited in duration, scope and exposure level, and there have been new tagging technologies that have recorded the impacts on baleen whale foraging that the SRP did not detect. See Calambokidis Decl. ¶¶ 4-10. Further, although Plaintiffs point as an example to a recent study from January 2012 that found that humpback whale singing was silenced in the Stellwagen Bank National Marine Sanctuary by an intermittent, low-frequency sensor located 200 km away, this study was published after the Final Rule was published. See AR D27-32. A study from 2000 demonstrated the LFA system’s ability to interfere with whale communication and breeding behavior, even at moderate intensities. See NAV28273-76. In addition, harbor porpoises and beaked whales are sensitive to man-made noise. See Weilgart Decl. ¶¶ 13, 16; AR F14510; AR F15537-40. Observed effects of low-frequency sound sources include temporary deafness, widespread habitat displacement, and startle responses in harbor porpoises. See SEIS 4-33; NAV27221-31. Sea turtles have exhibited avoidance, increased swimming and erratic' behavior in response. to acoustic disturbances. See SEIS 3-29, 4-25 to 4-26. Fish have also proven sensitive to high-intensity sound, with demonstrated effects ranging from widespread displacement to temporary hearing loss. See NAY22556-59; SEIS ES-13, 4-5 to 4-8, 4-14. However, although SURTASS LFA has the potential to disturb, or if not mitigated, injure, marine mammals (see AR 347), the Navy has completed over 150 SURTASS LFA missions over nearly eleven years and has not detected any resulting death or injury of any marine mammals. See SEIS 2-10, 4-42, 4-99, 4-100. Further, non-injurious, short-term behavioral disturbances observed by the system have consistently been below authorized levels. See AR C51, E68, 69, 71, G848; SEIS ES-20, ES-25-ES26, 1-20, 2-15, 4-110, 7-24 to 7-25, 7-49, 7-54.
The 2012 Final Rule
This lawsuit challenges the five-year Final Rule published on August 20, 2012 governing the Navy’s taking of marine mammals from LFA exercises for the following five years. See Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to U.S. Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar, 77 Fed.Reg. 50290 (Aug. 20, 2012). The 2012 Final Rule allows for the issuance of annual Letters of Authorization (“LOAs”) for up to four surveillance vessels. Id. at 50292.
The Navy must conduct operations so that ho more than 12% of any marine mammal species or stock will be taken annually by Level B harassment, regardless of the number of vessels operating. AR E48, 54; 16 U.S.C. § 1362(18)(D) (“The term ‘Level B harassment’ means ... in the case of a military readiness activity ... described in subparagraph (B), harassment described in subparagraph (B)(ii).”); 16 U.S.C. § 1362(18)(B)(ii)(“(B) In the case of a military readiness activity (as defined in section 315(f) of Public Law 107-314; 16 U.S.C. 703 note) ... the term “harassment” means — ... (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered.”). NMFS found that the total estimated take would have no more than a negligible impact on marine mammal species or stocks, see AR C50-58, E48-49, 69-71, and that the required mitigation complied with the “least practicable adverse impact” standard, see AR E52, 72. The 2012 Final Rule permits LFA use in about 70-75% of the world’s oceans. See 77 Fed.Reg. at 50303. Defendants point to the following as mitigation measures contained in the 2012 Final Rule: (1) designation of Offshore Biologically Important Areas (“OBIAs”); (2) use of a mitigation zone around the LFA source; (3) maintenance- of a 12 nautical mile (“nm”) coastal exclusion zone; and (4) issuance of Letters of Authorization.
1. Designation of Offshore Biologically Important Areas
Defendants argue that in the 2012 Final Rule, NMFS and the Navy developed a new designation process that addressed the Court’s concerns as stated in the Court’s orders in prior litigation in 2008. In the 2007 Final Rule, “an area could be designated as an OBIA only if it met a conjunctive test of being an area where: (a) marine mammals congregate in high densities, and (b) for a biologically important purpose.” See SEIS 4-71. Under the new designation process, which was disclosed to the public in the August 2011 draft SEIS and was incorporated into the proposed MMPA rule published in January 2012, a specific area falling outside of the 12 nm coastal standoff zone and other non-operational areas is eligible for OBIA designation if the best scientific evidence indicates that the area contains: (1) high densities of marine mammals; (2) known or defined breeding/ealving grounds, foraging grounds or migration routes; or (3) small distinct populations of marine mammals with limited distributions. See AR E56; SEIS at 4-71 to 4-73, D-3 to D-4.
NMFS used the new screening criteria to review 403 marine protected areas (“MPAs”) in potential LFA operating areas worldwide. See AR E56; SEIS at 4^-73. Of the 403 MPAs, NMFS found that approximately 340 were ineligible because they either fell entirely within the 12 nm coastal standoff zone or they partially extended beyond the 12 nm zone, but there were no data indicating that the area outside of the 12 nm zone was biologically important. See AR E56; NAV5878-5940. NMFS reviewed the remaining areas under its screening criteria and identified a preliminary list of twenty-seven OBIA candidates for further review. See AR E56; SEIS 4-73.
NMFS convened a panel of eight subject matter experts (“SMEs”) with marine mammal expertise in the Atlantic and Pacific Oceans, the Mediterranean Sea, the Indian Oeean/Southeast Asia, and Offshore Africa/South America. See SEIS 4-71. Five of the eight SMEs were senior NMFS scientists. See SEIS D-100. The SMEs provided analysis that resulted in a total of seventy-three OBIA candidates for further review. See AR E56; SEIS 4-71, 4-73 to 4-79, D-2 to D-6, D-100. NMFS assigned each candidate a score of zero (lowest) to four (highest) based on the quality of the supporting data. See AR E56 to E57;. SEIS 4-72, 4-74, D-104. Areas ranked two or higher were eligible for further consideration, resulting in a revised list of forty-five OBIA candidates. See AR E56-57; SEIS at 4-74, D-101 to D-109. Potential OBIAs ranking below two lacked sufficient information for evaluation. See AR E56-57.
NMFS and the Navy performed an additional screening of the forty-five nominees to eliminate those that qualified solely for species in the mid-to-high frequency hearing groups, as those species have lower sensitivity to the LFA sonar signal, and to conduct a practicability assessment. See AR E57, C49; SEIS 4-74. This additional screening reduced the number of OBIA nominees to twenty-two, one of which was then eliminated due to practicability considerations. See AR C49-50; SEIS 4-80.
Plaintiffs argue that the screening for hearing sensitivity resulted in elimination of OBIAs that were proposed for marine mammals other than baleen whales, and in particular, eliminated twenty OBIAs that had been recommended for more than twenty species, as well as the Gully, an OBIA designated in the 2007 rule to protect its small population of bottlenose whales. See SEIS 4-84 to 4-93. NMFS eventually concluded that OBIAs were appropriate for endangered sperm whales even though they are not a baleen species, but stated that no candidate OBIA had been identified. See 77 Fed.Reg. at 50309.
After evaluating the public comments and new information, NMFS found that one other area qualified for OBIA designation, resulting in twenty-two OBIAs included in the 2012 Final Rule, ■ fifteen of which are located outside of U.S. waters. See AR E57, 59, 74-77. NMFS identified several other areas that did not qualify as OBIAs, but that warranted further consideration under the adaptive management provisions of the 2012 Final Rule. See AR E51, 57, 59, 61.
Plaintiffs point out that, beginning in 2009, four SMEs, all senior NMFS scientists, raised concerns to the Office of Protected Resources (“OPR”) about the treatment of ocean regions that were data-poor, that is, for which “data on cetacean distribution or population density are limited or lacking entirely.” AR F2189. The OPR is the agency in charge of issuing the Final Rule. In April 2010, the . four NMFS scientists submitted a White Paper to OPR in which they presented three specific recommendations for designating OBIAs in data-poor regions of the oceans. See AR F2189-93. As the White Paper explained: “When relevant cetacean data are lacking for the appropriate region or spatial scale, it is not acceptable to proceed in the decision making process as if the ‘no data’ scenario were equivalent to ‘zero population density’ or ‘no biological importance.’ ” AR F2189. The SMEs also submitted data and information regarding seventy-three proposed OBIAs to NMFS. See SEIS 4-74 & Table 4-25. Many of these were excluded by the criteria for designation of OBIAs used in the process described above.
Plaintiffs also note that the Navy had identified several areas of biological importance to sea turtles and fish, including waters near olive ridley sea turtle nesting sites, designated critical habitat for green sturgeon, and restricted habitat for the totoaba, an endangered fish. See AR NAV1715-17, 1723-24. The Navy did not establish OBIAs in those areas. See SEIS 4-71. The Navy also declined requests from NOAA’s Office of National Marine Sanctuaries to extend its seasonal avoidance of several sanctuaries into year-round OBIA coverage for the protection of marine and non-marine mammals, and to enlarge its minimal buffer zone around sanctuary boundaries. See AR F9867-72; F18191-93; F19818-23, F24171-75.
2. Mitigation zone
The 2012 Final Rule requires the Navy to establish a mitigation zone around the LFA source that extends to the point at which the sound level attenuates to 180 decibels (“dB”) (roughly one km from the LFA source), and an additional one km buffer around the mitigation zone, which extends to the point at which the sound level from the LFA sonar source attenuates to approximately 175 dB. See AR E58, 74. If a marine mammal is detected within or about to enter the two km mitigation zone, the Navy must delay or suspend LFA sonar operations. See id. The 180 dB threshold is a conservative estimate of the sound level above which an exposed marine mammal could experience physical injury. See AR C51, 58; SEIS ES-12, 1-19, 1-21, 4-43, C3 to C4. Only exposure to sound at levels greater than 180 dB is expected to cause actual injury. See id. Effects from exposures below 180 dB are limited to, at most, short-term, non-injurious behavioral disturbances potentially constituting MMPA Level B behavioral harassment. See AR C51, 57-58.
To ensure that marine mammals are detected before they enter the mitigation zone, the 2012 Final Rule prescribes visual monitoring, , passive acoustic monitoring and active acoustic monitoring using the High Frequency Marine Mammal Monitoring (HF/M3) sonar system, which provides 24-hour, all-weather monitoring for marine mammals within the mitigation zone. With multiple pings, the HF/M3 system has high rates of effectiveness in detecting marine mammals of any size. See NAV19975-76 (2001 FEIS stating that “Analysis and testing of the HF/M3 sonar operating capabilities indicates that this system substantially increases the probability of detecting marine mammals within the LFA mitigation zone, and provides an excellent monitoring capability (particularly for medium-large marine mammals) beyond the LFA mitigation zone, out to 2 to 2.5 km.”), 19979-80 (2001 FEIS stating that with multiple pings, the probability of detection for dolphins can approach 100 percent, and the probability of detecting a stationary whale can reach 95 percent); AR C57 (“Past results of the HF/M3 sonar system tests provide confirmation that the system has a demonstrated probability of single-ping detection of 95 percent or greater for single marine mammals, 10m in length or larger, and a probability approaching 100 percent for multiple pings for any sized marine mammal.”), E64 (“The HF/M3 active sonar system’s effective detection probability for marine mammals within the SURTASS LFA sonar mitigation zone approaches 100 percent, based on multiple pings.”), 71 (“Past results of the HF/M3 sonar system tests provide confirmation that the system has a demonstrated probability of single-ping detection of 95 percent or greater for single marine mammals, 10m (32.8 ft) in length or larger, and a probability approaching 100 percent for multiple pings for any sized marine mammal.”). The HF/M3 system operates continuously, transmitting multiple pings, while the LFA sonar system is deployed. See NAV19975-76, 19979-80.
3. 12 nautical mile coastal exclusion zone
The 2012 Final Rule prohibits the Navy from allowing the .sound field created by the SURTASS LFA system to exceed 180 dB within 12 nautical miles (“nm”) of any coastline, including offshore islands, and within a 1 km buffer around any OBLA during the- period specified in the rule. See AR E74-77.
4. Letters of authorization process
The 2012 Final Rule requires that the Navy obtain an annual LOA from NMFS for each vessel that plans to conduct routine training, testing, and military operations involving the use of SURTASS LFA. AR E47. Each LOA must specify, among other things, “authorized geographic areas for incidental takings.” AR E60 (“Based on its annual projected operational needs, the Navy will identify the particular geographic areas in which it intends to operate its four SURTASS LFA sonar vessels.”), 69 (“Because it is infeasible to model .enough representative sites to cover all potential SURTASS LFA operating areas, the Navy’s application presented 19 modeled sites as examples to provide take estimates for potential operating areas based on the current political climate.”), 78(“(b) Each Letter of Authorization will set forth: ... (2) Authorized geographic areas for incidental takings; ... ”). The 2012 Final Rule includes adaptive management provisions that allow NMFS and the. Navy to specify additional OBIAs or other forms of mitigation in annual LOAs, if appropriate, based on new information. See AR E79. The Navy’s LOA applications are posted on NMFS’s website, and NMFS must publish notice of issuance of any LOA in the Federal Register. See 50 C.F.R. § 216.106(d). There are four LOAs that expired in August 2013 covering eleven mission areas in the central and western North Pacific Ocean. AR 1385-86, 411-12. Additional LOAs were issued in August 2013.
Standard of review
The Court reviews challenges under the MMPA, ESA, NEPA, and APA to ensure that the agency has not acted in a manner that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 471 (9th Cir.2000); 5 U.S.C. § 706. “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency, expertise.” Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). ' The Court’s role is to:
consider whether the [agency’s] decision •was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. The final inquiry is whether the Secretary’s action followed the necessary procedural requirements.
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). “Although our inquiry must be thorough, the standard of review is highly deferential; the agency’s decision is ‘entitled to a presumption of regularity,’ ” and a court may not “substitute [its] judgment for that of the agency.” San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581, 601 (9th Cir.2014) (quoting Citizens to Preserve Overton, 401 U.S. at 415-16, 91 S.Ct. 814).' Moreover, “[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).
Where agency action is challenged on the record as arbitrary, capricious, and in violation of the procedures required by law, summary disposition is appropriate. Summary judgment is also appropriate in cases involving the issue of whether an EIS adequately explains environmental consequences of a proposed agency action.
Resources Ltd., Inc. v. Robertson, 789 F.Supp. 1529, 1534 (D.Mont.1991) (citing Northern Spotted Owl v. Hodel, 716 F.Supp. 479 (W.D.Wash.1988) and Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 815 (9th Cir.1987)).
Discussion
I. Marine Mammal Protection Act
The Marine Mammal Protection Act (“MMPA”) was enacted in 1972 to prevent the extinction or depletion of marine mammal stocks as a result of man’s activities. See 16 U.S.C. § 1361(1). “[S]uch species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population.” 16 U.S.C. § 1362(2). The MMPA generally prohibits the taking of marine mammals, with certain statutory exceptions. See 16 U.S.C. § 1371(a)(3).
“Take” is defined as “to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect or kill, any marine mammal.” 50 C.F.R. § 216.3; 16 U.S.C. § 1362(13). The definition of “take” includes any negligent or intentional act which results in disturbing or molesting a marine mammal. 50 C.F.R. § 216.3.
The MMPA generally defines “harassment” as “any act of pursuit, torment or annoyance” that:
(i) has the potential to injure a marine mammal or marine mammal stock in the wild; or
(ii) has the potential'to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.
16 U.S.C. § 1362(18)(A). In 2003, the MMPA was amended to change the definition of “harassment” for purposes of military readiness activities such as those at issue here:
(B) In the case of a military readiness activity ... the term “harassment” means
(i) any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild; or
(ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered.
16 U.S.C. § 1362(18)(B) (emphasis added).
In general, the MMPA permits citizens of the United States who engage in a specified activity other than commercial fishing within a specified geographical region to petition the Secretary to authorize the incidental, but not intentional, taking of small numbers of marine mammals within that region. See 16 U.S.C. § 1371(a)(5)(A); 16 U.S.C. § 1362(12)(A). Such authorization is limited to a period of not more than five consecutive years. See 16 U.S.C. § 1371(a)(5)(A). With respect to military readiness activities, the Secretary shall authorize, for a period of not more than five years, the incidental, but not intentional, taking by any means, including harassment, of marine mammals if the Secretary:
(I) finds that the total of such taking during each five-year (or less) period concerned will have a negligible impact on such species or stock and will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses pursuant to subsection (b) of this section or section 1379(f) of this title ... and
(II) prescribes regulations setting forth' — ■
(aa) permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses; and (bb) requirements pertaining to the monitoring and reporting of such taking.
(ii) For a military readiness activity (as defined in section 315(f) of Public Law 107-314; 16 U.S.C. 703 note), a determination of “least practicable adverse impact on such species or stock” under clause (i)(II)(aa) shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. Before making the required determination, the Secretary shall consult with the Department of Defense regarding personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
16 U.S.C. § 1371(a)(5)(A)®. Thus, the determination of means for achieving the “least practicable adverse impact” from military readiness activities includes consideration of “personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity” in consultation with the Department of Defense. See 16 U.S.C. § 1371(a)(5)(A)(ii), (a)(5)(D)(vi).
At the hearing, Defendants argued that because the phrase “on such species or stock” is identical in both the negligible impact and the least practicable adverse impact subsections, 16 U.S.C. § 1371(a)(5)(A)(i)(Í) and (II)(aa), these subsections should be similarly interpreted. There is no dispute that the subsection on negligible impact, 16 U.S.C. § 1371(a)(5)(A)(I), concerns the impact on the population as a whole. Defendants argue that the same language in the subsection on least practicable impact, 16 U.S.C. § 1371(a)(5)(A)(II)(aa), also addresses population level impacts.
Plaintiffs counter that Defendants’ interpretation would effectively eliminate the mitigation requirement: if the agency finds a negligible impact, the agency is obligated to identify mitigation measures under the least practicable adverse impact prong, but if the least practicable impact standard is the same as the negligible impact standard, then there is no need for mitigation. However, the two standards do not have to be identical just because they both address population level impacts. Even if the impact on the population is negligible under 16 U.S.C. § 1371(a)(5)(A)(i)(I), the agency could still impose mitigation that would further reduce the impact on the population to the least practicable under 16 U.S.C. § .1371(a)(5)(A)(i)(II)(aa). Further, the legislative history indicates that Congress envisioned a situation in which the mitigation measures would render the impact negligible when it otherwise would not be. See 132 Cong. Rec. S16292-01, 1986 WL 788463 (“It is intended that if the Secretary finds that mitigating measures would render the impact of a proposed activity negligible when it would not otherwise satisfy that requirement, the Secretary shall require such measures by regulation under subparagraph (5)(A)(ii) as a condition of the authorization for any such incidental taking.”).
Plaintiffs point out that the legislative history of the MMPA shows that Congress sought to provide the maximum protection for marine mammals. See also Anderson v. Evans, 371 F.3d 475, 497 (9th Cir.2004) (noting conservation purpose of MMPA); 16 U.S.C. § 1361(2) (the major objective of the MMPA is to ensure that marine mammals continue to be “significant functioning element[s] in the ecosystem,”... and “[marine mammals] should not be permitted to diminish below their optimum sustainable population.”). The Anderson court stated: “One need only review Congress’s carefully selected language to realize that Congress’s concern was not merely with survival of marine mammals, though that is of inestimable importance, but moré broadly with ensuring that these mammals maintain an ‘optimum sustainable population’ and remain ‘significant functioning elements in the ecosystem.’ ” 16 U.S.C. § 1361. This congressional intent, however, is consistent with a focus on population level impacts. Moreover, the findings and policies of the MMPA do not direct agencies to address impacts on individual mammals in isolation, as opposed to on species or stock. See 16 U.S.C. § 1361 (“The Congress finds that — (1) certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man’s activities; (2) such species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population ...; (3) there is inadequate knowledge of the ecology and population dynamics of such marine mammals and of the factors which bear upon their ability to reproduce themselves successfully; (4) negotiations should be undertaken immediately to encourage the development of international arrangements for research on, and conservation of, all marine mammals; ... ”). Therefore, the Court will consider whether there is a negligible impact at the population level and whether the regulations include measures to achieve the least practicable adverse impact on the species and stocks as a whole. Of course, in small populations, harm to a few or even one member can harm the population as a whole.
Plaintiffs argue that NMFS.’s issuance of the Final Rule violated the MMPA in two ways: (1) by arbitrarily and capriciously adopting mitigation and monitoring measures that fail to ensure that SURPASS LFA has the “least practicable adverse impact” on affected marine mammals; and (2) by failing to ensure that LFA’s impacts on marine mammal species and stocks will be negligible.
1. Least Practicable Adverse Impact
As set forth above, the MMPA requires that when an incidental take permit is issued, NMFS must prescribe “permissible methods of taking ... and other means of effecting the least practicable adverse impact” on marine mamipals, and must set “requirements pertaining to the monitoring and reporting of such taking.” 16 U.S.C. § 1371(a)(5)(A)(i)(II)(aa), (bb). Regulations must be based on the “best scientific evidence available.” 50 C.F.R. §§ 216.102(a); 216.105(c) (“The taking of small numbers of marine mammals under section 101(a)(5)(A) through (D) of the Marine Mammal Protection Act may be allowed only if the National Marine Fisheries Service: (a) Finds, based on the best scientific evidence available, that the total taking by the specified activity during the specified time period will have a negligible impact on species or stock of marine mammal(s) and will not have an immitigable adverse impact on the availability of those species or stocks of marine mammals intended for subsistence uses;.... ”).
Defendants argue that the requirement that the evidence be “available” means that NMFS has “no obligation to conduct independent studies,” but may not “disregard[] available scientific evidence that is in some way better than the evidence [NMFS] relies on.” Southwest Center for Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C.Cir.2000). The requirement to adopt measures to ensure the “least practicable adverse impact” on marine mammals is “a stringent standard.” NRDC v. Evans, 279 F.Supp.2d 1129, 1159 (N.D.Cal.2003). “Although the agency has some discretion to choose among possible mitigation measures, it cannot exercise that discretion to vitiate this stringent standard.” Id. Plaintiffs argue that Defendants arbitrarily and capriciously failed to ensure that- LFA had the least practicable adverse impact on marine mammals because the identification of OBIAs was flawed and because the 12 nm coastal exclusion zone is too narrow.
A. Identification of OBIA areas
i. Data-poor regions
There is'no dispute that there are some regions of the ocean for which there is little or no data on the distribution and behavior of marine mammals. See 77 Fed. Reg. at 50301 (“We recognize that baseline data on the distribution and behavior of marine animals are limited for certain areas of the world’s oceans.”); see also SEIS D-14 (NMFS stated that some OBIAs recommended by the SMEs will have less information available than those preliminarily identified by NMFS, and therefore, the experts should rely on their professional opinions as well as other sources of information to support their recommendations). Plaintiffs argue that data-poor areas implicate the vast majority of the Navy’s operating area, and that ensuring the least practicable adverse impact in those areas is undoubtedly “an important aspect of the problem” that Defendants arbitrarily and capriciously failed to adequately consider. Motor Vehicle Mfg. Ass’n of Am. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (“Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”). Plaintiffs argue that Defendants’ criteria for identifying OBIAs ignores the problem of data-poor regions and runs afoul of its own experts’ opinions by demanding site-specific data that does not exist for most of the world’s oceans.
Plaintiffs’ main argument is that Defendants arbitrarily disregarded the recommendations of their own NMFS experts in the 2010 White Paper: Identifying Areas of Biological Importance to Cetaceans in Data-Poor Regions. The White Paper stated that “management de-' cisions affecting such data-poor regions should not proceed as if cetacean population density were zero or as if those areas were biologically unimportant.” AR F2191, 2189. The White Paper concluded that “proven ecological principles” suggest a precautionary approach that will protect three types of areas with OBIA designation' or other protections:
(1) continental shelf waters and waters 100km seaward of the continental slope;
(2) 100 km around all islands and seam-ounts that rise within 500 m of the surface; and
(3) regions of high primary productivity, which are known to correspond to sperm whale distribution.
AR F2192. These recommendations stemmed from “a precautionary approach” designed to “minimiz[e] the chances of overlooking biologically important areas.” AR F2190-91.
Defendants counter that the Final Rule did not arbitrarily or capriciously fail to address the issue of data-poor regions raised in the White Paper. Defendants argue that rather than simply making speculative assumptions about data-poor areas, they employed a multiple-step OBIA designation process to identify key areas of biological importance to marine mammal low-frequency hearing specialists and certain other species because of the presence of one or more of the following: high densities of animals, known breeding/calving grounds, foraging grounds, migration routes, or small distinct populations with limited distributions. See SEIS 7-34 (“Again, the primary reason for establishing OBIAs for SURTASS LFA sonar is to minimize impacts and adverse effects to marine mammals and marine turtles in key areas outside of the 22 km (12 nmi) coastal restriction.... Thus, in selecting areas where the Navy will and will not operate SURTASS LFA sonar, both agencies must rely on what is known about marine mammal concentrations and attempt to avoid them, continue to fill knowledge gaps through additional research, and recognize that, by necessity, NMFS is regulating in a dynamic area of science.”); AR E54 (“We designated OBI-As based on certain criteria and the best available information we had for marine mammals to determine if any areas met the criteria. In some cases, we designated an OBIA because a species listed under the Endangered Species Act has designated critical habitat, breeds, calves, migrates, or forages in a particular area.”), 56 (“We designate OBIAs (based upon qualifying criteria) to protect marine mammals in areas that are biologically important for them. For this process we used the best available data to assess, ocean areas greater than 22 km (14 mi; 12 nm) from any shoreline with: (1) High densities of marine mammals; (2) known/defined breeding/calving grounds, foraging grounds, migration routes; or (3) small, distinct populations of marine mammals with limited distributions.”), 58 (“For scenarios in which cetacean distribution ór density data are scarce or completely lacking, such as in open ocean areas outside of the United States, our ability to quantitatively or qualitatively validate cetacean-habitat model predictions may be limited or biased. In these situations, model validation must rely on multiple sources of scientific knowledge (including, but not limited to: Personal observations of distribution and density; known migration routes; ecosystem dynamics, such as inter-specific competition; seasonality and environmental regime shifts; live strandings; range expansions or contractions due to changes in population size; and historic whaling data) or indigenous/local knowledge.”), 62 (“Until such time that more robust information becomes available that supports the biological criteria (i.e., marine mammals present in high densities or an area on the slope with known/defined breeding'calving grounds, foraging grounds, migration routes, or an area with small, distinct populations of marine mammals with limited distributions) on the continental slope of the northern Gulf of Mexico, we do not designate this area as an OBIA for SURTASS LFA sonar operations.”).
NMFS found that areas containing high densities of animals, known breeding/calving grounds, foraging grounds, migration routes, or small distinct populations with limited distributions warranted special protection beyond that afforded by the monitoring and shutdown requirements and other mitigation measures which applied in all areas, including in data-poor regions. See C51 (“NMFS believes that the shutdown in the LFA sonar mitigation and buffer zones, visual monitoring, passive acoustic monitoring, active acoustic monitoring using HF/M3 sonar with ramp-up procedures, and geographic restriction measures proposed will enable the Navy to: (1) Avoid Level A harassment of marine mammals; (2) Minimize the numbers of marine mammals exposed to SURTASS LFA sonar sound associated with TTS; and (3) Minimize the numbers taken specifically during times of important behaviors, such as feeding, migrating, calving or breeding.”); AR E60-61 (“Recognizing that many areas throughout the world’s oceans currently have few data to support an OBIA designation at this time, we and the Navy will continue to conduct literature reviews under the adaptive management provision of this regulation.”).
Defendants argue that NMFS considered the White Paper recommendations for data-poor regions, but properly chose a different approach. See League of Wilderness Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1131 (9th Cir.2010) (“Our highest deference is owed to the Forest Service’s technical analyses and judgments within its area of expertise, Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir.2008); nonetheless, our dissenting colleague would have us halt the Forest Service’s Project because he does not like the Forest Service’s approach to solving the problems addressed. We went en banc to foreclose precisely this type of second-guessing of the Forest Service.”); cf. San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581, 610 (9th Cir.2014) (A court’s “deference to agency determinations is at its greatest when that agency is choosing between various scientific models.... ”). NMFS found that the White Paper recommendations did not meet the criteria established for designating OBIAs, explaining that there had to be “enough information for us to verify that [a specific area] met our defining criteria, because in our view it is not appropriate to designate OBIAs without sufficient scientific justification.” AR E62.
Plaintiffs contend that Defendants’ rationale for ignoring its experts’ recommendations for data-poor regions is arbitrary and capricious. Plaintiffs argue that under NMFS’s rules, areas may be designated as OBIAs on the basis of expert opinion, such as the White Paper, and that NMFS erred in not designating OBIAs recommended by the White Paper scientists. AR F2188, 2194 (“NMFS’s criteria include the use of expert opinion. Based on expert opinion, we expect there to be relatively high densities of cetaceans in all of the areas we have specifically identified or have implicitly identified using general ecological principles.”) (emphasis in original); SEIS D-3 (“NMFS anticipates that the Experts will use peer reviewed literature, technical reports, or his/her own specific expertise and professional experience, along with other data sources to justify their additions, modifications, or deletions to the list of preliminary OBIA Nominees.”).
In particular, Plaintiffs argue that Defendants arbitrarily failed to provide a reasonable justification for choosing not to follow the advice in the White Paper, citing Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 492-93 (9th Cir.2011) (“Here, the BLM failed to address concerns raised by its own experts, FWS, the EPA, and state agencies. For example, the BLM offered no reasoned analysis whatsoever in support of its conclusion— which is in direct conflict with the conclusion of its own experts and sister agency, FWS — that there will be no environmental effect caused by both the across-the-board reduction in public involvement in management of grazing on public lands and the elimination of public input into particular management decisions.”) (emphasis added). The White Paper did not recommend specific OBIAs, however, but instead provided guidelines for inferring the presence of areas of biological importance for cetaceans in general. See AR F2191-92 (“For the data-poor scenario, we recommend that general guidelines based on proven ecological principles be used to identify likely areas of biological importance for cetaceans.... Management decisions affecting such data-poor regions should not proceed as if cetacean population density were zero or as if those areas were biologically unimportant. To infer cetacean distribution and biological importance in these cases, it is better to rely upon basic ecological principles than to use an analytical model that possibly provides predictions on a finer spatial scale or taxonomic level, but whose predictions cannot be adequately evaluated.”). At the same time, the White Paper acknowledged that the “precautionary” approach that it advanced risked designating OBIAs in areas of “marginal biological importance” that did not meet NMFS’s criteria. AR F2190. Further, while the thrust of the paper favored the precautionary approach, it specifically disclaimed choosing that approach over the alternative “pure” approach that relied solely on more specific local data, resulting in fewer OBIAs:
In other words, it must be decided whether the list of OBIAs should be comprehensive (based on the precautionary approach) or pure (based on the minimalistic approach). We do not provide an answer to this question here, but we do suggest guidelines for decision making based upon the precautionary approach.
AR F2190.
NMFS chose the pure approach and explained its decision in the record, including reference to the White Paper and reasons for choosing a different approach. The agency stated that it was not proceeding as if data-poor regions were biologically unimportant, but instead relied on other mitigation measures to protect cetaceans outside of designated OBIAs. See F18059 (commenting on the White Paper: “OBIAs are but one component of required mitigation measures designed to effect the least practicable adverse impact on marine mammals. For areas with little or no survey data that do not meet our OBIA screening criteria, the final rule provides mitigation and monitoring measures that incorporate precautionary principles for marine mammals. This includes: requiring the Navy to conduct visual, passive acoustic, and active acoustic monitoring for marine mammals; and requiring the Navy to delay/shutdown active SURTASS LFA sonar transmissions when they have detected a marine mammal within 2 km of the vessel by visual, passive acoustic, and active acoustic monitoring protocols.”); AR F2066-67 (further commenting on the White Paper, “If NMFS were to proceed without designating these areas as OBIAs, there is no assumption that the population density was zero or that the area was biologically unimportant — rather there is insufficient evidence to show that it is specifically of increased importance based on the selection criteria for OBIA for SUR-TASS LFA at this time.”); E60-61 (Final Rule: “Our process for selecting, assessing, and designating OBIAs for SURTASS LFA sonar relies on three specific screening criteria for biological importance for marine mammals.... That said, we recognize that the ecological processes recommended by the commenters support cetacean habitats and have considered their guidance in reviewing and designating OBIAs. Information regarding data poor areas is likely to evolve over the five year course of the final rule and beyond, and NMFS will consider new information to continue identifying OBIAs for SURTASS LFA sonar operations.”); AR F18059-60; AR E60-61 (noting that: “The NRDC and several other commenters recommended that we consider the approach of using proxies such as: persistent oceanographic features (e.g., high primary productivity and nutrient enrichment processes); relative densities of non-marine mammal species (i.e., apex predators and fish); all continental shelf waters and waters 100 km (62 mi) seaward of the continental slope; waters within 100 km (62 mi) of all islands and seamounts that rise within 500 meters (1,640 feet) to identify marine mammal hotspots or supplement our OBIA analysis in data-poor regions. Response: OBIAs are but one component of a suite of required mitigation and related monitoring measures designed to effect the least practicable adverse impact on marine mammals.”).
Defendant also argues that the best available data standard (50 C.F.R.- § 216.102(a)) is met by requiring sufficient evidence that a specific area meets the criteria for the particular species of concern. See Latino Issues Forum v. EPA, 558 F.3d 936, 941 (9th Cir.2009) (“In particular, where, as here, a court reviews an agency action ‘involvfing] primarily issues of fact,’ and where ‘analysis of the relevant documents requires a high level of technical expertise,’ we must ‘defer to the informed discretion of the responsible federal agencies.”) (internal citations omitted); Consolidated Salmonid Cases, 791 F.Supp.2d 802, 821 (E.D.Cal.2011) (“What constitutes the ‘best’ available science implicates core agency judgment and expertise to which Congress requires the courts to defer; a court should be especially wary of overturning such a determination on review.”). Even though the precautionary approach appears more protective of marine mammals, the Court cannot substitute its judgment for the one chosen by NFMS, especially when the White Paper experts on which Plaintiffs rely declined to answer the question whether the list of OBIAs should be based on the precautionary or the pure approach. See Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 858 (9th Cir.2005) (“This review is ‘searching and careful,’ but the arbitrary and capricious standard is narrow, and we cannot substitute our own judgment for that of the [agency].”). •
Turning to specific potential OBI-As, Plaintiffs challenge NMFS’ rejection of an OBIA for established baleen whale habitat around seamounts in the Northwest Pacific Ocean. See, e.g., 77 Fed.Reg. at 50306 (citing lack of specific evidence regarding densities and biological uses of area around Emperor Seamount Chain and Shatsky Rise area). The agency also rejected an OBIA for Challenger Bank (located in continental shelf waters off of Bermuda) as not having sufficient scientific justification despite humpback whale observations and three scientific studies noting the area as a possible foraging and migratory site. See 77 Fed.Reg. at 50304. Plaintiffs also state that Defendants ignored OBIA recommendations made by Dr. Guiseppe Notarbartolo di Sciara, the leading expert on Mediterranean marine mammals and former head of the ACCO-BAMS even though he submitted considerable documentation to support his recommendations and several of the areas recommended as OBIAs overlap with areas proposed as cetacean protected areas by the ACCOBAMS Scientific Committee in 2006. See AR F2155-57; Hoyt Decl. ¶ 19 (noting ACCOBAMS-recommended areas in Mediterranean excluded from OBIA protection). In addition, Plaintiffs point to an area in Australia that was identified by expert Rob McCauley as habitat for 22,000 humpback whales from late May until October, which NMFS failed to designate as an OBIA. See AR F2230. While these areas could well have been suitable for OBIAs under different criteria, Defendants addressed them in the administrative record and the SEIS. See Defs.’ MSJ at n.4 (citing administrative record references for each of these recommendations); see, e.g., E56 (Final Rule noting that two OBIAs were proposed in Australia, but were found not to meet the criteria).
In addition, Plaintiffs argue that NMFS ignored the Fairweather Grounds in Alaska that was recommended as an OBIA by SME Ferguson. See AR F 1522. Ferguson noted the longstanding recognition of Fairweather Grounds as a whaling ground, its concentration of food sources for humpback whales, a 2004 NOAA survey of the area, and local fishermen’s anecdotal reports. See AR F1522. The record and the SEIS reflect that Defendants also considered this area for a potential OBIA. See SEIS 4-82 (SEIS section on Fair-weather Grounds, stating that there was inadequate scientific support for it as an OBIA), D-181 (same), AR F3248 (“After reviewing available data, it was concluded that there are no published, peer-reviewed, or gray literature discussing this area as a specific, important feeding area for humpbacks. Only sighting data was from a single observation of high density of humpbacks during three days in summer of 2004 as part of the SPLASH project. No follow-up surveys done in area. Final SPLASH report did not mention Fair-weather Grounds as a foraging area nor recommended it for further study (Calambokidis, et al., 2008).”), 3280 (“No published, peer-reviewed, or gray literature discussing this area [Fairweather Grounds] as a specific, important feeding area for humpback whales.”). The agency concluded that the available data “are not adequate scientific support to warrant setting aside Fairweather Grounds as an LFA OBIA for marine mammals.” SEIS 4-82. In particular, as stated at the hearing, Defendants noted that the evidence supporting the Fairweather Grounds as an OBIA was not sufficient because the NOAA report from 2004 only covered a three day period during which whales were observed, whereas no whales were observed on a return visit. Another report cited as support for the Fairweather Grounds as an OBIA was from 1869, and the anecdotal reports were not persuasive. See Trout Unlimited v. Lohn, 559 F.3d 946, 959 (9th Cir.2009) (“It is not our role to ask whether we would have given more or less weight to different evidence, were we the agency.”).
Above all, Defendants emphasize that “in areas not designated as an OBIA (either because they did not meet the criteria or because there weren’t sufficient data to support the designation), the regulation provides measures that protect marine mammals nevertheless.” AR E58 (“The subject matter experts’ inputs were a crucial component of our selection processes; however, they were only one component. We as the action agency are responsible .for the final selection of the SURTASS LFA sonar OBIAs. Because we independently evaluated the subject matter expert’s input as well as available data/ information for each recommended OBIA, we do not believe that effort bias on the part of the subject matter experts was a factor in our determinations.”). NMFS argues further that as new data becomes available, new OBIAs can be designated in annual LOAs under the Final Rule’s adaptive management approach. See AR E61 (“Information regarding data poor areas is likely to evolve over the five year course of the final rule and beyond, and NMFS will consider new information to continue identifying OBIAs for SURTASS LFA sonar operations. Under our adaptive management framework, we will consider these factors along with our selection criteria to consider future modifications to the OBIA list. This provides a mechanism for NMFS and the Navy to modify (or add or delete) mitigation or monitoring measures, as appropriate, based on new information.”); SEIS 7-34 (“The Navy has included within its adaptive management component of the MMPA rulemaking, means to consider, on a case-by-case basis, new/revised peer-reviewed and published scientific data and information from qualified and recognized sources within academia, industry, government, and non-government organizations to determine modifications to the OBIA list, if new scientific data indicate that such modifications would be appropriate. This would include, as appropriate, additional OBIAs.”). As stated in the Court’s 2008 Order, however, the duty to adopt in advance measures to ensure the least practicable adverse impact cannot be met simply by deferring to potential unknown future measures. See Feb. 6, 2008 Order at 15. Therefore, this rationale is not persuasive.
Defendants also point out that some Level B take does not necessarily mean that the mitigation measures adopted are inadequate. 50 C.F.R. § 216.102(b); AR C56 (“A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination.”), G706-07 (Level B harassment “occurs at the level of the individual(s) and does not assume any resulting population-level consequences.”). NMFS found that with all of the mitigation measures combined, Level B take would be unlikely to have any population effects. See AR E71 (“In summary, based on these analyses, the past nine years of SURTASS LFA sonar operations, and results from the LFS Scientific Research Program, we do not anticipate that SURTASS LFA sonar operations will likely have adverse effects on annual rates of recruitment or survival (i.e., population-level effects).”), C55 (“ Level B (behavioral) harassment occurs at the level of the individual(s) and does not assume any resulting population-level consequences.”), 56-58 (“An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination.”). The MMPA does not require that each mitigation measure standing alone be sufficient to achieve the least practicable adverse impact, but rather that they do so collectively. See, e.g., AR E50 (“OBIAs are but one component of a suite of required mitigation and related monitoring measures designed to effect the least practicable adverse impact on marine mammals. The regulation prescribes mitigation and monitoring measures for SURTASS LFA sonar operations in areas that have persistent oceanographic features and seamounts and island chains that did not meet our OBIA criteria or fall within the 22 km (14 mi; 12 nm) coastal exclusion zone. The Navy is to delay/shutdown active SURTASS LFA sonar transmissions when they detect a marine mammal within the 2-km (1.2-mi; 1.1-nm) LFA sonar mitigation and buffer zones around the vessel by visual, passive acoustic, and active acoustic monitoring protocols, effectively ensuring that marine mammals are not exposed to sound levels that exceed 175 dB re: 1 mPa.”).
Defendants concluded that their monitoring/shutdown procedure makes it very unlikely that marine mammals, including animals in data-poor regions, would be injured by Level B harassment. See AR