No Justice for the Ocean

The NJDEP withdrew their lawsuit against the National Science Foundation (NSF), Lamont-Doherty Earth Science Observatory, and National Oceanic and Atmospheric Administration (NOAA). The lawsuit sought to challenge the legality of the Rutgers University led seismic surveying expedition off the coast of Long Beach Island, which concluded in July. The stipulation of dismissal was filed at close of business today.

“It is very frustrating the ocean did not have her day in court with judge and jury. Strong-arm tactics by federal agencies trumped a state’s ability to protect whales, dolphins, and fish at the peak time of their biological activity; Rutgers University valued the schedule of a few above the livelihoods of hundreds of fisherman and ignored  thousands of citizens; and an extraordinary roster of federal, state, and local elected leaders. If this was the oil industry it would be a national scandal.   Clearly, we urgently need to establish a Clean Ocean Zone, strengthen our laws protecting the ocean, and warn other states about this threat.” Said Cindy Zipf, Executive Director of COA.

NJDEP and NSF, NOAA, and LDEO agreed to dismiss the suit without prejudice, preserves NJDEP’s ability to challenge any future seismic surveying.

“We are disappointed that the merits of NJDEP’s complaint focusing on the many deficiencies in the environmental permitting process, and the impacts of seismic surveying on New Jersey’s coastal interests, were never adjudicated. Even more disturbing, is that the several issues related to the Coastal Zone Management Act and a State’s ability to use these federal laws to prohibit environmental harmful activities outside of their state waters were never heard. These issues are acutely relevant right now, as the Obama Administration has opened up the Mid-Atlantic to widespread seismic surveying for oil and gas exploration. What could have been a clear path for Mid-Atlantic States to oppose these harmful activities has now become decidedly murky.” Said Zachary Lees, policy attorney for COA.

BACKGROUND:

Since 2014, Rutgers University had led the NSF funded study that was staunchly opposed by the State of NJ, state and federal elected officials, thousands of citizens, commercial and recreational fishing groups, and members of the public.  All were concerned that, based upon 20 years of study, the seismic blasting would have impacts on New Jersey’s marine resources.  The 2014 and 2015 Rutgers’ study was design to emit 250 decibel blasts every 5 seconds, 24 hours a day, for 30 days in a small are of ocean off Long Beach Island during the peak migration and biological activity for marine resources including endangered species.  Throughout the two years that this expedition was reviewed, permitted, and undertaken, there have been manipulations, deficiencies, and flaws in the process including:

-          No public hearings were scheduled to educate the public or allow a meaningful opportunity to review and comment on the project.

-          In 2014, Rutgers and company failed to notify the State of New Jersey as to its blasting plans, and then successfully argued to the federal permitting agencies that New Jersey was time-barred from being able to review the project.

-          In 2015, study proponents changed the way they characterized the study (from a state agency project to a federal project) to prevent New Jersey from having veto power over the authorization process.  The structure, means, and methods of the project had not changed.

-          NSF engaged in negotiations with the State, even while preparing to carry on with this project behind the DEP’s back. NSF had no intention to modify the project, leading the DEP on while it prepared its’ final permitting documents.

-          The summer months ahead of the critically important time of year for marine life, and the livelihoods of commercial fishermen.  In 2014, Rutgers and NSF argued that boat availability was a key factor in the timing the project for the summer months.  When the study was rescheduled for the Summer of 2015, it became more apparent that the timing of the study was being driven by the schedules of its expedition members—university faculty and graduate students—rather than the schedule of the boat.

-          In 2014 and 2015, final permits and authorizations were literally issued as the boat was leaving the dock.  This compressed time frame between final approvals and the commencement of blasting left little to prepare legal challenges, particularly with respect to the thousands of pages of legal and permitting documents.

-          The number of “take” estimates was increased dramatically between the proposed and the issued permits.   For example, the allowance to harm dolphins went from over 400 to 18,000.  Notwithstanding this exponential increase, and a plea from U.S. Senator Corey Booker to the head of NOAA, the public and elected leaders were denied the opportunity to submit comments on the number of dolphins authorized to be harmed.  

-          In 2015, the final permit issued by NOAA was significantly flawed, as it vastly underestimated the number of endangered Fin Whales that the survey would encounter. NSF had to go back to NOAA in order to get a revised permit – even while the survey was ongoing—because they exceeded the “take” limit within a week of blasting.

-          COA repeatedly asked NOAA to include the endangered Atlantic Sturgeon in the analysis of impacts, and was ignored, even while COA submitted numerous studies that placed this endangered species within the survey area.

-          NSF included an abstract for the 2014 expedition which included an admission that the data they obtained would be “of relevance for hydrocarbon exploration industry.” The 2015 abstract was edited to state that the data “may help improve strategies for hydrocarbon exploration in the Gulf [of Mexico]. 

The Clean Ocean Zone (http://www.cleanoceanzone.org/) is an initiative to permanently protect the waters from Montauk to Cape May, NJ; this legislation would lock out harmful activities and lock a future for a healthy and clean ocean

Ocean Blasting Updates

Seismic Update

On June 5^th, the Christie Administration filed a complaint in the U.S. District Court with the intent to stop the NSF-funded Rutgers seismic survey off of the New Jersey coast. The complaint cited concerns over the potential adverse impacts of the study on both commercial and recreational fisheries as well as its potential harm to marine mammals. NJDEP Commissioner Bob Martin said that “It is extremely disappointing that the federal government is moving ahead with this misguided project despite widespread objection from all quarters and without regard to the negative impacts on New Jersey."

In addition to the state’s complaint, the Recreational Fisherman’s Alliance and a number of commercial fishing groups have filed suit against the National Science Foundation in an effort to obtain injunctive relief and halt the project. These groups are largely concerned with the effects that the study will have on their fishing efforts. Some commercial groups have already seen declines in their catch rates since the project began in early June. 

Concerns over Marine Life Following Seismic Start

In the weeks since the Rutgers seismic blasting began, there have been reports of two—possibly three—dead whales in the New York/New Jersey bight. The first whale, a minke, washed up on the shore of Coney Island on June 8^th. Its cause of death was determined to be a boat strike, but due to time restrictions and the length of time that the whale had been dead, scientists were unable to extract its ears to check for potential damage from anthropogenic sound. On June 10^th, a pair of fisherman spotted a 40 foot whale floating approximately 10 miles off of Manasquan inlet. The whale was later identified as a fin, which is an endangered species. This whale’s cause of death was undetermined, and since that report, there has been one additional report of a dead whale off of the New Jersey coast. Details of this whale are still outstanding.

In addition to whale deaths, there have been a number of infant dolphin deaths—however, this isn’t necessarily unusual at this time of year. With bottlenose dolphin stocks in steep decline following the vast spread of Morbillivirus in the past few years, declines in dolphin populations are of particular concern. The marine mammal stranding center has been and continues to track dolphin deaths and strandings closely, and Clean Ocean Action has been following these stranding events as well. If you see any unusual behavior or activity related to marine mammals, please be sure to report it to the Marine Mammal Stranding Center at (609) 266-0538.

Sturgeon Information 

During the permitting process for this seismic survey, the National Science Foundation (NSF) initiated consultation with NMFS due to the presence of several Endangered Species Act-listed species in the survey area, including 5 species of sea turtles, 6 species of whale, and 2 species of fish. At the end of this process, a scientific document was produced which was required to contemplate the potential impacts of the survey on all the endangered species in the area. Unfortunately, the document did not live up to what was required of it. The Atlantic Sturgeon was mentioned, and then quickly dismissed, as NMFS “believed” that it would not occur in the survey area. This is erroneous. On June 1, 2015, Clean Ocean Action sent a letter to the Dr. Kathryn Sullivan, Administrator of the National Oceanic and Atmospheric Administration (NOAA), alerting her to the fact that the Atlantic Sturgeon was wrongly omitted from the full impact evaluation process, citing studies that provided ample evidence that there are likely to be sturgeon present in the proposed testing area. Having never received a response regarding this letter, Clean Ocean Action wrote once more to Division Chief Peterson of NOAA with the same concerns. Clean Ocean Action continues to wait for a response regarding these concerns. 

Infographic Blurb

Haley Jordan, a Clean Ocean Action volunteer, has worked tirelessly over the past few months to assist us in designing a seismic surveying infographic, which has been released on our website and social media outlets. Haley has extensive graphic design skills and helped COA create a visual of the seismic surveying process and its potential effects on the marine ecosystem. If you’d like permission to use the infographic, please contact us at (732) 872-0111. Waves of thanks to Haley!

LAMONT-DOHERTY: A HISTORY OF HARASSMENT

In response to recent criticism about their Summer 2015 Rutgers Seismic Study, Lamont-Doherty Earth Observatory (L-DEO) has often said that their past studies have not led to marine mammal strandings. Clean Ocean Action expressed concerns during the project’s comment period this Spring regarding the project and the potential for marine mammal beachings. In response, L-DEO stated in its study’s 2015 Issued Incidental Harassment Authorization (IHA) “that Lamont-Doherty has not ever experienced a stranding event associated with their activities during the past 10 years that the National Marine Fisheries Service (NMFS) has issued Authorizations to them. In the past decade of seismic surveys conducted carried out by the Langseth, protected species observers and other crew members have neither observed nor reported any seismic-related marine mammal injuries or mortalities.”

This statement fails to consider the repercussions of different studies conducted by the Observatory’s other boats over a lengthier period of time. In 2002 (13 years ago), L-DEO was taken to a U.S. District Court by the Center for Biological Diversity regarding the strandings of a pair of Cuvier beaked whales in the Gulf of California. These whales, which are widely known as the deepest diving marine mammals, often frequent depths of over 3,300 ft and typically avoid ships. However, their lengthy deep dives and ship avoidance were not enough to protect them from the impacts of seismic airgun blasting in the area. The off-duty NMFS scientists that found the beached whales found no physical indication of harm, but rather reddening of the cheeks, a symptom of physiological distress, hinting that the whales likely died due to burst blood vessels in their heads. As a result, a U.S. Magistrate Judge issued a temporary restraining order against the project, and all machinery was shut off immediately.

In this particular case, Lamont-Doherty was not using the Langseth, but rather the Maurice Ewing. However, despite the name difference, the project’s purpose closely resembles their proposed study off of the Atlantic coast. Beginning September 18, 2002, the research vessel started conducting seismic testing by traveling in a zigzag pattern off the shore of the Baja peninsula in an effort to map a rift that had been caused by continental plate shifts. Similar to the conducted 2014 study and the proposed 2015 study off of the coast of New Jersey, the National Science Foundation (NSF) was a sponsor to the 2002 Pacific Ocean study.

In the 2002 case, the Center for Biological Diversity claimed that the NSF’s seismic study violated the National Environmental Policy Act (NEPA) as well as the Marine Mammal Protection Act (MMPA), which require the government to analyze the ecological impacts of studies as well as minimize the potential disruption of marine mammals. The NSF argued that due to the study’s location in Mexican waters, the NEPA and MMPA would not apply. However, it became clear quickly that the effects of the study would have implications for marine life far beyond international borders.

In 2005, the Maurice Ewing was used in a seismic study off of the Yucatan Peninsula for a project under the NSF, Lamont-Doherty and the University of Texas. Concerned scientists and environmentalists pointed to the 2002 California whale beachings as a cause for concern regarding the project in the Gulf. In addition, Rosario Sosa, former president of the Association for the Rights of Animals and their Habitat, said that activists had come across dead dolphins and turtles in Campeche, where seismic pulses were used to explore for oil.

L-DEO’s response to Clean Ocean Action’s concern fails to consider a wealth of information that can drastically affect how the project is perceived by the public. By only analyzing data within the last decade, they fail to include the previous strandings that were on record. In addition, they fail to consider harm done by other NSF vessels, and mention only the Langseth. While at the surface, these might appear to be minor oversights, the lack of consideration and analysis pose a significant threat to marine mammal, turtle and fish stocks off of the coast of New Jersey.

Senator Booker Urges NOAA Administrator to Withdraw Seismic IHA

US Senator Booker wrote to Dr. Sullivan, administrator of the National Oceanic and Atmospheric Association, formally requesting that the National Marine Fisheries Service withdraw the Incidental Harassment Authorization needed for the Rutgers seismic study to legally harass marine mammals and reopen the comment period so that concerned organizations and the public are given a meaningful opportunity to review this survey. Senator Booker cited the exponential increase in the number of marine mammals estimated to be harassed and the methodology used to calculate the new numbers as justification for withdrawal of the authorization and a reopening of the comment period. In addition, Senator Booker reiterated his support for the NJDEP’s concerns with the proposed project’s impact on New Jersey’s coastal resources and desire for the ongoing mediation process between the NJDEP and the National Science Foundation (as lead agency for this survey) to conclude before any permits are issued by NOAA.

Clean Ocean Action applauds Senator Booker’s close analysis of the proposed project and its impact on New Jersey’s marine life and economy and is looking forward to Dr. Sullivan’s response.  

Seismic Triple Threat to Atlantic Ocean

Amid great public outcry about the Rutgers ocean blasting study off Barnegat Light, NJ, two larger-scale seismic projects have recently been announced that together span the entire Eastern Seaboard.  This triple-threat of ocean blasting includes a United States Geological Survey (USGS) seismic study of the continental shelf for sovereignty and tsunami hazard investigations and the Obama Administration’s approval of seismic testing in the mid- and south-Atlantic for the purposes of locating potential oil and gas deposits.

Photo by Ryan Morrill

Although Rutgers University was given the final approval on July 2 to conduct their 30-day seismic survey, it is unclear if the researchers have been able to conduct any ocean blasting since that time.  First, the State of New Jersey went to the District Court and then to the Third Circuit Court of Appeals to request a temporary halt to the study, which they were ultimately denied.  Also, the ship to be used in the testing has twice experienced equipment failures and returned to port; the vessel was still moored in Brooklyn as of July 29.  Rutgers’ time with the ship is running out, as their federal approvals expire on August 17 and the USGS has reserved the same vessel from mid-August to mid-September for the first leg of their two-part seismic survey of the Atlantic continental shelf.  The National Marine Fisheries Service (NMFS) issued conditional approval for the USGS to harass 19,497 marine mammals with their study.  COA submitted extensive comments to NMFS, which urged further environmental review of the project’s impacts to marine life and greater consideration of alternatives and stronger mitigation measures.  On July 18, the Obama Administration issued its final authorization for seismic surveys in the mid- and south-Atlantic Ocean associated with oil and gas exploration.  The Atlantic coast has been under a drilling moratorium for decades, and this decision brings oil and gas companies one step closer to offshore drilling by allowing them to start looking for fossil fuels off our shores.

Visit StopRutgersOceanBlasting.org to sign the petition against ocean blasting approved to take place now off Barnegat Light.