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House panel joins fight over whales, sonar

Edward Epstein,

San Francisco Chronicle
Washington Bureau

Bill would make it harder to show harassment of marine mammals

6th November 2003

By adding just two words to a bill reauthorizing the 31-year-old Marine Mammal Protection Act, the House Resources Committee waded into a bitter battle Wednesday between the Navy and environmentalists and perhaps gave several industries the ability to operate more freely in the oceans.

The committee, chaired by Rep. Richard Pombo, R-Tracy, inserted "biologically significant'' into the definition of behaviour disruptions of such mammals as dolphins, whale and seals that are classified as illegal harassment. Supporters of the change, which passed on a voice vote, said it was necessary to help the Navy experiment with long-range, low frequency sonar used to detect new quiet diesel-powered submarines.

But detractors say the wording will make it harder for prosecutors to prove cases of harassment under the act because they'll find it difficult to show any specific action is "biologically significant'' to a single animal or a group of mammals.

Environmental groups sued the Navy in federal court in 2001 saying the sonar tests harmed or were responsible for the deaths of such mammals as whales and dolphins. U.S. Magistrate Judge Elizabeth LaPorte in San Francisco sharply curtailed last August the geographic areas where the Navy could conduct the underwater sound tests, but ordered the sides to negotiate a compromise.

Subsequently, the Navy and the environmental groups agreed that the tests would be limited to stretches of the far western Pacific.

But all the while, the Pentagon said it would pursue legislation in Congress to exempt it from the marine mammal act's rules. While legislation to allow the testing is now before House-Senate conferees considering a Defense Department authorization bill, the issue also is being taken up by Pombo's committee and its consideration of the marine mammal protections act.

The Pombo committee's version is broader than that being considered in the Defense Department authorization bill because it isn't limited to Navy operations.

"We fine-tuned the definition,'' Rep. Wayne Gilchrest, R-Md., told the committee. “ The definition of harassment is still a work in progress.''

An earlier version of the bill referred to a "significant alteration'' of mammal behaviour as constituting harassment.

As an example of how every word counts for Capitol Hill legislators and lobbyists, this is how the committee-passed bill defines so-called Level B harassment:

"The term harassment means any act that disturbs or has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of biologically significant behaviours, including, but not limited to, surfacing, migration, breeding, care of young, predator avoidance, defense or feeding to a point where such behavioural patterns are significantly altered. ''

That language fits the bill, according to Rep. Ken Calvert, R-Riverside, "One of the biggest threats to the United States is quiet submarines,'' he said. “ We need to train for proper techniques.''

But Michael Jasny, a consultant to the Natural Resources Defense Council, said the committee-adopted wording potentially opens a huge loophole in a law that has worked well.

"It's extremely hard for us to say what's significant or insignificant,'' Jasny said. “ We believe the current standard has worked sufficiently well.''

The current law concerns "disruption of behaviours'' without trying to define whether those disruptions are "biologically significant.''

Mark Palmer, assistant director of the Earth Island Institute's marine mammal project, said the new proposed definition poses a problem in protecting marine mammals.

"Biological significance is not a legal definition. Prosecutors will have to jump through another huge hoop,'' Palmer said.

Michael Stocker, a science adviser to Seaflow, a Sausalito-based group involved in ocean protection, said the House committee bill has more to do with commercial exploitation of the seas than military needs.

"This bill has been strung around national security and defense, but it will lower the bar to a degree that commercial and industrial interests won't be restricted,'' said Stocker.

Industries that operate at sea and have to protect mammal life include offshore oil, fishing and telecommunications interests.

Not surprisingly, Pombo sees things differently. The Tracy lawmaker, who has tangled regularly with environmental groups, said the current law has worked well in increasing the numbers of such species as gray whales and orcas, but needs to be updated. He said the committee's version will continue to protect marine life.

"The proof is in the numbers,'' Pombo said. “ This bill recognizes that marine life is thriving in our oceans and near our coastlines. However, the law needs work.''

He also pointed out that he has worked successfully to forge a bipartisan consensus on his often-fractious committee.

"Today, we sent good bipartisan policy to the floor,'' he said in a statement to the committee.

The Senate Commerce, Science and Transportation Committee has yet to come up with its version of a new marine mammal act. That means congressional action this year isn't likely.

Navy spokesman Lt. Cmdr. Joseph Surette said the Navy will obey the San Francisco court decision until the law is changed.

"The Navy appreciates the court seeing the national security need for even the limited use of the long-range, low-frequency sonar system,'' Surette said.

"This system is a vital piece of equipment for our anti-submarine warfare.

With it, we can contact enemy subs long before they can endanger us.''

E-mail Edward Epstein at