The FY 2004 Defense Authorization Act (H.R. 1588) contains language giving the federal government greater leeway to use submarine-tracking sonar, conduct scientific research, or perform other actions that might affect marine mammals. The Pentagon has argued that restrictions protecting the mammals endanger security by limiting its ability to track enemy submarines and conduct military readiness activities, and some scientists are concerned that the restrictions limit important underwater research. H.R. 1588, which was signed into law by President Bush on November 24, changes the definition of "harassment" of sea mammals. The 1972 Marine Mammal Protection Act included as harassment any activity that has the potential to disturb the animals, while the new law only restricts activity that "is likely to disturb" them to the extent that their natural behavior patterns "are abandoned or significantly altered." The provision was broadened to include scientific research activities in addition to military readiness activities, and it allows the Secretary of Defense, after conferring with either the Commerce or Interior Secretary, to "exempt any action or category of actions undertaken by the Department of Defense...from compliance with any requirement of this Act, if the Secretary determines that it is necessary for national defense."
Many environmentalists and scientists have long suspected that the Navy's use of sonar to track submarines could harm marine mammals. A recent study indicates that it may cause whales to suffer decompression sickness, but the issue is still under investigation. Currently, the Navy is operating under an agreement that limits deployment of a new low-frequency active sonar system, in part because of concern over its potential impact on marine mammals. During the House debate on the conference report to accompany H.R. 1588, House Armed Services Committee chairman Duncan Hunter (R-CA) defended the new language: "With respect to allowing our submariners to utilize the best of their sonar devices that will keep them alive...in shallow water areas around the world, where they will be faced with very quiet diesel submarines which are now being proliferated in certain adversaries' navies. We say that, whereas before the standard was that if a mammal, maybe a sea lion, was potentially disturbed that military training could not take place in his neighborhood. Now we say he has to actually be significantly disturbed...or that disturbance has to be significant enough to alter the way he migrates or feeds or the way he goes about his daily life." Hunter continued, "So we are trying to give as much value to the sailors' survival as we have given to the sea lions' survival.... In this case we put the sailor ahead of the sea lion."
The use of the Defense Authorization Act to redefine the meaning of harassment raised objections among Members of both parties during consideration of the conference report. Senator Olympia Snowe (R-ME), chair of the Senate Commerce Subcommittee on Oceans, Fisheries, and Coast Guard, warned that her subcommittee plans to address the issue during reauthorization of the Marine Mammal Protection Act (MMPA) next year. "By including Section 319 in this bill, the conferees have disregarded our jurisdiction and work on the reauthorization of the Marine Mammal Protection Act, and they have seriously altered marine mammal policy in the United States," she said. Senator Carl Levin (D-MI), a member of the defense authorization conference committee, reported that he had offered, unsuccessfully, "to work with the Navy to try to reach agreement on more balanced language that would still address the Navy's concerns.... I am concerned that this approach [in H.R. 1588] could result in real and unnecessary harm to marine mammals and a serious backlash against the Navy - which could undermine critical readiness activities in the long run."
Senator Orrin Hatch (R-UT), noting that he was "one of the original authors of the MMPA back in 1972," commented that "it has worked extremely well in balancing the need to protect marine mammals while allowing other important activities, including the defense of our Nation, to move forward." He said several Senate committees "have had testimony from respected scientists this year...that the standard for ‘harassment' of marine mammals, now included in this bill, is scientifically indefensible. Moreover, some of the provisions included in the bill go far beyond DOD activities, including all research done by or on behalf of the Federal Government." Hatch added that, as part of the MMPA reauthorization, "I intend to work with my colleagues on the committee to carefully monitor how these changes are interpreted, to ensure that activities that could have real impacts on marine mammals do not fall off the radar screen, as it were. MMPA was written the way it was because we are still learning about how various activities may impact marine mammals. We must ensure that under these new standards, the lack of perfect science is not used as a basis to avoid the mitigation of potential impacts."