Caught in the Middle of the Marine Mammal Protection Act

Conservation biologist Peter Tyack and acoustics expert Peter Stein were preparing to test a new sonar system designed to detect whales and help ships avoid collisions with them. Their work was halted by a federal court order.

Oceanographers working on a research vessel in the Gulf of California were conducting seismic research when several beaked whales beached themselves and died nearby. The tests were stopped by another court order.

In both cases, research was stymied by conflicting interpretations of the Marine Mammal Protection Act. The central tenet of the MMPA states that no one may “take”—that is, harass, hunt, capture, or kill—a marine mammal without prior permission from the National Marine Fisheries Service (NMFS). Animal rights groups have sued regulators to take a particularly strict interpretation of this “harassment” provision, forcing extensive permit reviews that have delayed research for years.

“Marine scientists share as a goal the need to understand, and through that understanding, protect the marine mammals,” said Richard West, president of the Consortium for Oceanographic Research and Education, in testimony to the U.S. Senate. “They are becoming increasingly concerned that the MMPA has become an impediment to such research and could actually be contributing to the decline of these animals.”

In past five years, seven different amendments or bills have been submitted to Congress to change the MMPA. Several have offered new language about “harassment” that makes it less difficult for scientists to get permits for research. Meanwhile, the U.S. Marine Mammal Commission convened a series of meetings from February 2004 to September 2005, seeking compromise on acoustic “threats” to marine mammals.

On one side, energy, shipping, and naval interests claim the MMPA hampers their ability to work in the sea and want the law revised so they can operate with fewer restrictions. On the other side, environmentalists and animal rights advocates point to recent mass strandings of whales and dolphins that coincided with sonar noise. They are loathe to see changes that could weaken a law they already view as riddled with loopholes.

In between are the scientists. They would like to help conservationists find tools and strategies to protect marine creatures. They would like to help the military and industry work more efficiently and less harmfully in the ocean. Mostly, they’d just like to better understand the ocean environment and the animals in it.

Who’s harassing whom?

In January 2003, Stein eagerly awaited the first field test of his company’s new whale-tracking device, which uses low-power, high-frequency sonar comparable to commercial fish finders. Stein, a graduate of the MIT/WHOI Joint Program in Oceanography and president of Scientific Solutions, Inc., was collaborating with Tyack, a senior scientist at Woods Hole Oceanographic Institution (WHOI), to see how gray whales would react to the noise.

But one day before Stein and Tyack were scheduled to start, a group of animal rights activists, fearing the experiment would harm the whales, sued in federal court to stop them. The judge ruled that Stein and Tyack must abandon their test, citing the permitting agency for insufficient environmental assessments.

Earlier that same year, animal rights groups used the courts to temporarily block the use of air guns, which generate sound by releasing bursts of air, on the research vessel Maurice Ewing. Members of the science community held their breath for months, fearing that geologic research projects that depend on using sound would be canceled or severely restricted.

In both cases, court injunctions were eventually lifted and permits approved, but only after tens of thousands of dollars were spent on legal fees and paperwork. The labyrinthine process and the constant threat of lawsuits have had a chilling effect on research because scientists are afraid to propose projects that may be delayed or never approved.

Unintended consequences

The 2005 meetings of the Marine Mammal Commission’s Advisory Committee on Acoustic Impacts seemed like a step in the right direction until you consider that the U.S. National Research Council has weighed in on the subject four times in the past 12 years.

“The goal of this advisory committee was to get consensus,” said Tyack, who served on the committee with other scientists and representatives of advocacy groups, the military, and commercial interests. “But it was crazy to think all of the parties were going to agree, because they have no incentive to agree.”

Tyack and nine other science advisors—including WHOI biologist Darlene Ketten and retired WHOI vice president of marine operations Richard Pittenger—crafted their own document outlining their views (see “related files” on this page). “Short of abandoning all use of the seas, it is simply impractical, and in many cases inadvisable, to say that no human-generated sound may be produced in the oceans,” the researchers wrote. “If we are to continue to explore and use our marine resources, we must determine the critical parameters for safe, sustainable use.”

Their statement pointed to fundamental gaps in understanding how and when noise affects marine mammals and calls for more research. It also asks for the federal permit process to be revised so that regulators could assess the likely risks of activities. Under the MMPA, research that has the potential to disturb a marine mammal’s behavior can be labeled harassment. That means any scientist who might capture or interact with even an individual animal may have to run a gauntlet of permitting steps. Researchers would prefer to see this changed to apply only to activities that are likely to change the behavior.

Dirty secrets

Political efforts to revise the MMPA are not making much progress because Congress does not have a pressing need to consider the law, and environmentalists prefer it that way.

“The MMPA may seem overprotective in some specific cases, but we fear that changes could undermine it,” said Sharon Young, field director for marine issues for The Humane Society of the United States. “It could be argued that the concept of harassment has some ambiguity, but if so, it allows us to err on the conservative side.”

“I understand the scientists’ frustration, but most of their concerns can be dealt with through changes to federal regulations without going to Congress,” Young added. “There is no such thing as a surgical reauthorization of this act. Once you reopen part of the law and lower one standard, everything will be open for debate again. New loopholes in the law could appear or be taken advantage of by other special interests.”

To Tyack and fellow scientists, the law is already tattered with unfair loopholes. While an environmental assessment or impact statement must be filed for every experiment that ocean scientists conduct near marine mammals, oil companies are allowed to work for years with one-time assessments covering hundreds to thousands of miles. Commercial fishermen can ignore the prohibition on harassment and are allowed “inadvertent lethal takes” so long as they report the number of marine mammals they kill. The U.S. Navy has its own rule, such that permits are only required when there is a significant potential for harassment. And shipping companies, which generate 90 percent of the noise in the ocean and strike an unknown number of animals, are scarcely regulated.

“Scientists are not the problem, but we are easy to regulate,” said Tyack. “The dirty secret of the MMPA is that the prohibition on unintentional takes is ignored more often than it is regulated and enforced. There is no regulation of this risk, nor, to my knowledge, has any ship captain been prosecuted for striking a whale and killing it.”

WHOI biologist Michael Moore notes that the call for change does not have to mean lowering standards for the scientists, but perhaps raising the standards for everyone. “Scientists are easy targets; fishermen and ships routinely kill whales and dolphins we can’t even look at,” he said. “But we should not put scientific research on a pedestal of virtue. The MMPA process does and should attempt to control the level of exposure to all kinds of impacts that these animals are facing, including research.”