[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
DEFICIENCIES IN THE PERMITTING PROCESS FOR OFFSHORE SEISMIC RESEARCH
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON ENERGY AND
MINERAL RESOURCES
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
Friday, January 19, 2018
__________
Serial No. 115-35
__________
Printed for the use of the Committee on Natural Resources
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or
Committee address: http://naturalresources.house.gov
______
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Chairman Emeritus Madeleine Z. Bordallo, GU
Louie Gohmert, TX Jim Costa, CA
Vice Chairman Gregorio Kilili Camacho Sablan,
Doug Lamborn, CO CNMI
Robert J. Wittman, VA Niki Tsongas, MA
Tom McClintock, CA Jared Huffman, CA
Stevan Pearce, NM Vice Ranking Member
Glenn Thompson, PA Alan S. Lowenthal, CA
Paul A. Gosar, AZ Donald S. Beyer, Jr., VA
Raul R. Labrador, ID Norma J. Torres, CA
Scott R. Tipton, CO Ruben Gallego, AZ
Doug LaMalfa, CA Colleen Hanabusa, HI
Jeff Denham, CA Nanette Diaz Barragan, CA
Paul Cook, CA Darren Soto, FL
Bruce Westerman, AR A. Donald McEachin, VA
Garret Graves, LA Anthony G. Brown, MD
Jody B. Hice, GA Wm. Lacy Clay, MO
Aumua Amata Coleman Radewagen, AS Jimmy Gomez, CA
Daniel Webster, FL
Jack Bergman, MI
Liz Cheney, WY
Mike Johnson, LA
Jenniffer Gonzalez-Colon, PR
Greg Gianforte, MT
Vacancy
Cody Stewart, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
------
SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES
PAUL A. GOSAR, AZ, Chairman
ALAN S. LOWENTHAL, CA, Ranking Democratic Member
Louie Gohmert, TX Anthony G. Brown, MD
Doug Lamborn, CO Jim Costa, CA
Robert J. Wittman, VA Niki Tsongas, MA
Stevan Pearce, NM Jared Huffman, CA
Glenn Thompson, PA Donald S. Beyer, Jr., VA
Scott R. Tipton, CO Darren Soto, FL
Paul Cook, CA Nanette Diaz Barragan, CA
Vice Chairman Vacancy
Garret Graves, LA Vacancy
Jody B. Hice, GA Raul M. Grijalva, AZ, ex officio
Jack Bergman, MI
Liz Cheney, WY
Vacancy
Rob Bishop, UT, ex officio
------
CONTENTS
----------
Page
Hearing held on Friday, January 19, 2018......................... 1
Statement of Members:
Gosar, Hon. Paul A., a Representative in Congress from the
State of Arizona........................................... 1
Prepared statement of.................................... 3
Lowenthal, Hon. Alan S., a Representative in Congress from
the State of California.................................... 4
Prepared statement of.................................... 5
Statement of Witnesses:
Cruickshank, Walter, Ph.D., Acting Director, Bureau of Ocean
Energy Management, U.S. Department of the Interior......... 6
Prepared statement of.................................... 8
Questions submitted for the record....................... 11
Davis, Tom, State Senator, District 46, South Carolina
Legislature................................................ 19
Prepared statement of.................................... 20
Ludwigson, Jon, Acting Director, Government Accountability
Office..................................................... 13
Prepared statement of.................................... 14
Steen, Ryan, Partner, Stoel Rives, LLP....................... 25
Prepared statement of.................................... 27
Additional Materials Submitted for the Record:
List of documents submitted for the record retained in the
Committee's official files................................. 68
.
OVERSIGHT HEARING ON DEFICIENCIES IN THE PERMITTING PROCESS FOR
OFFSHORE SEISMIC RESEARCH
----------
Friday, January 19, 2018
U.S. House of Representatives
Subcommittee on Energy and Mineral Resources
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to call, at 9:01 a.m., in
room 1324, Longworth House Office Building, Hon. Paul A. Gosar
[Chairman of the Subcommittee] presiding.
Present: Representatives Gosar, Gohmert, Lamborn, Wittman,
Tipton, Graves, Lowenthal, Costa, Huffman, Beyer, and Soto.
Also Present: Representatives Johnson and McEachin.
Dr. Gosar. The Subcommittee on Energy and Mineral Resources
will come to order.
The Subcommittee is meeting today to hear testimony on the
deficiencies in the permitting process for offshore seismic
research.
I ask unanimous consent that the gentleman from Louisiana,
Mr. Johnson, and the gentleman from Virginia, Mr. McEachin, be
allowed to sit with the Subcommittee and participate in the
hearing. Without objection, so ordered.
Under Committee Rule 4(f), any oral opening statements at
the hearings are limited to the Chairman, the Ranking Minority
Member, and the Vice Chair. This will allow us to hear from our
witnesses sooner and help Members keep to their schedules.
Therefore, I ask unanimous consent that all Members' opening
statements be made part of the hearing record if they are
submitted to the Subcommittee Clerk by 5:00 p.m. today. Without
objection, so ordered.
STATEMENT OF THE HON. PAUL A. GOSAR, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Dr. Gosar. Today, we meet to discuss the findings of the
December 2017 GAO report that examined the convoluted and
politicized process for reviewing and issuing permits to
conduct seismic surveying. From failures in the simplest of
management tasks, such as recording start dates, to blatant,
politically driven maneuvers, the GAO report identified poor
practices that led to the delayed issuance of permits by over
1,000 days.
This hearing seeks to shed light on these findings, to
highlight exactly what seismic surveying is, and to address
potential solutions to ensuring these permits are issued in a
responsible and timely manner.
Seismic surveying itself is the safest and least intrusive
way of imaging both underground and subsea geology. The process
sends acoustic waves down into the earth, which then rebound
and are subsequently received and recorded by seismophones or
receiving phones. Essentially, this is ultrasound technology,
as acoustic waves are used to produce an image.
Seismic surveying data is used to identify offshore
reservoirs with production potential. To be clear, the seismic
surveying process is completely distinct from the National OCS
Oil and Gas Leasing process. It is seismic data that informs
the leasing process, specifically the decision to lease and the
value of the assets.
In addition to offshore oil and gas planning, the data
collected serves a variety of purposes. For instance, seismic
tests allow researchers to examine the movement of tectonic
plates and to identify sand and gravel resources used to shore
up hurricane-ravaged coastlines. Furthermore, the military
makes extensive use of this data when planning offshore
infrastructure or exercises. Despite these multiple uses, we
have not conducted offshore seismic surveys in over 30 years in
the Atlantic and Pacific, and much of the Alaskan OCS.
To perform seismic surveys, a seismic operator must apply
to BOEM for a geological and geophysical, or G&G, permit.
Operators seeking studies on the Atlantic, Pacific, and Alaskan
coasts also apply for an Incidental Harassment Authorization
permit, or an IHA, from the National Marine Fisheries Service,
NMFS, or the Fish and Wildlife Service. BOEM typically issues
the G&G permits rather quickly, usually within 100 days.
The IHAs are the real problem. They are required under the
Marine Mammal Protection Act (MMPA) to ensure that no marine
mammals are harassed or disturbed by any human activity. It
should be noted that, to date, there has been no instance of
harm or disturbance to a marine mammal from acoustic seismic
testing. The MMPA stipulates that NMFS and the Fish and
Wildlife Service have 120 days to review and issue an IHA.
However, GAO found that NMFS never recorded the accurate and
completeness date of the IHA applications.
Without something as basic as a start date, NMFS and Fish
and Wildlife were not able to track permitting timelines, and
were unable to determine whether they were meeting their
statutory obligations. The basic failure to record a start date
threw IHA permits into uncertainty, with the agencies failing
to meet statutory time limitations on review and issuance of
permits. This is a completely unacceptable instance of
regulatory failure.
On top of all of this is the politicization of these
permits. Under the Obama administration, there were six G&G
permits that were essentially yanked from the applicants for
purely political reasons. These permit applications were
rejected because, under the former administration's extremely
limited 5-year leasing plan, no leases or production could take
place in the Atlantic.
Thankfully, President Trump identified the unlawful
misinterpretation of the seismic and leasing processes and
reinstated review of these permits. Yet, these permits are
still undergoing review, as they have for over 1,000 days at
this point in time.
Failure to properly process these permits, and failure to
develop a proper path forward for future permits, keeps our
country in the dark about our offshore resources, hindering our
Nation's ability to make informed, long-term leasing decisions.
Today, we examine the regulatory failures that took place as we
seek to improve access to this invaluable seismic data.
[The prepared statement of Dr. Gosar follows:]
Prepared Statement of the Hon. Paul A. Gosar, Chairman, Subcommittee on
Energy and Mineral Resources
Today, we meet to discuss the findings of the December 2017 GAO
Report that examined the convoluted and politicized process for
reviewing and issuing permits to conduct seismic surveying. From
failures in the simplest of management tasks, such as recording start
dates, to blatant, politically driven maneuvers, the GAO report
identified poor practices that led to the delayed issuance of permits
by over a thousand days. This hearing seeks to shed light on these
findings, to highlight exactly what seismic surveying is, and to
address potential solutions to ensuring these permits are issued in a
responsible, and timely manner.
Seismic surveying itself is the safest and least intrusive way of
imaging both underground and subsea geology. The process sends acoustic
waves down into the earth, which then rebound and are subsequently
received and recorded by seismophones or receiving phones. Essentially,
this is ultrasound technology, as acoustic waves are used to produce an
image.
Seismic surveying data is used to identify offshore reservoirs with
production potential. To be clear, the seismic surveying process is
completely distinct from the National OCS Oil and Gas Leasing process.
It is seismic data that informs the leasing process, specifically the
decision to lease and the value of the assets. In addition to offshore
oil and gas planning, the data collected serves a variety of purposes.
For instance, seismic tests allow researchers to examine the movement
of tectonic plates and to identify sand and gravel resources used to
shore up hurricane ravaged coastlines. Furthermore, the military makes
extensive use of this data when planning offshore infrastructure or
exercises. Despite these multiple uses, we haven't conducted offshore
seismic surveys in over 30 years in the Atlantic and Pacific, and much
of the Alaskan OCS.
To perform seismic surveys, a seismic operator must apply to BOEM
for a Geological and Geophysical, or G&G, permit. Operators seeking
studies on the Atlantic, Pacific, and Alaskan coasts also apply for an
Incidental Harassment Authorization Permit, or ``IHA,'' from the
National Marine Fisheries Service (``NMFS'') or the Fish & Wildlife
Service. BOEM typically issues the G&G permits rather quickly, usually
within 100 days.
The IHAs are the real problem. They're required under the MMPA
(Marine Mammals Protection Act) to ensure that no marine mammals are
``harassed'' or disturbed by any human activity. It should be noted
that, to date, there has been no instance of harm or disturbance to a
marine mammal from acoustic seismic testing. The MMPA stipulates that
NMFS and Fish & Wildlife have 120 days to review and issue an IHA.
However, GAO found that NMFS never recorded the ``accurate and
completeness'' date of the IHA applications. Without something as basic
as a start date, NMFS and Fish & Wildlife were not able to track
permitting timelines, and were unable to determine whether they were
meeting their statutory obligation. The basic failure to record a start
date threw IHA permits into uncertainty, with the agencies failing to
meet statutory time limitations on review and issuance of the permits.
This is a completely unacceptable instance of regulatory failure.
On top of all of this is the politicization of these permits. Under
the Obama administration, there were six G&G permits that were
essentially yanked from the applicants for purely political reasons.
These permit applications were rejected because, under the former
administration's extremely limited 5-year leasing plan, no leases or
production could take place in the Atlantic. Thankfully, President
Trump identified the unlawful misinterpretation of the seismic and
leasing processes, and reinstated review of these permits. And yet,
these permits are still undergoing review, as they have for over 1,000
days at this point. Failure to properly process these permits, and
failure to develop a proper path forward for future permits, keeps our
country in the dark about our offshore resources, hindering our
Nation's ability to make informed, long-term leasing decisions. Today,
we examine the regulatory failures that took place as we seek to
improve access to this invaluable seismic data.
______
Dr. Gosar. I now recognize the Ranking Member for his
testimony.
STATEMENT OF THE HON. ALAN S. LOWENTHAL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Lowenthal. Thank you, Mr. Chairman. And thank you to
the witnesses for being here today.
The Interior Department's just-released plan to open every
region of the Outer Continental Shelf to oil and gas
development is the latest example of the Republicans governing
for the benefit of corporations, not citizens.
Under the plan, the risks from offshore drilling would
extend from coast to coast, from the shores of Maine down to
the Florida Everglades, and from the California beaches to
fishing and native communities in Washington State and in
Alaska.
In total, Secretary Zinke wants to satisfy Big Oil's
insatiable appetite with over 1.6 billion acres of America's
oceans, all while rolling back the safety protections developed
in response to the 2010 Deepwater Horizon disaster. But I have
news for Secretary Zinke, Americans have zero interest in
handing more of our oceans over to oil and gas corporations.
Our coastlines are home to 123 million citizens, and along
with the oceans, these resources serve as a massive economic
engine. For example, in my home state of California, coastal
counties account for 68 percent of the state's population and
over 80 percent of our GDP. But now for the first time since
1984, the Interior Department has proposed new Federal oil and
gas leases off California's coast.
Had the Secretary consulted California residents and
elected officials before his decision, he would have learned
why Federal offshore leases have not been offered in over 30
years and why our legislature prohibited leasing in state
waters in 1994. But since he didn't, I will enlighten him.
In 1969, a well blowout 6 miles off the coast of Santa
Barbara resulted in over 3 million gallons of oil gushing into
the ocean. The spill created a 35-mile long oil slick along
California's coast and killed thousands of fish, birds, and
marine mammals. To date, it is the largest oil spill in the
state's history and the third largest in our Nation's.
A silver lining of the Santa Barbara spill is that it woke
the environmental consciousness of many Americans, and it was
integral to the development of today's regulatory framework
that governs our natural resources. In 1970, the National
Environmental Policy Act was signed into law, the Environmental
Protection Agency was created, and Earth Day was established.
A bipartisan California legislature banned offshore
drilling in state waters in 1994, and between 1981 and 2008,
the U.S. Congress prevented Federal leasing off the Pacific and
Atlantic coasts.
Today, Americans who live along our shores understand their
critical importance and want the government to protect these
resources, not risk them for another drop or two of fossil
fuels.
But Secretary Zinke could not care less about California's
history or about the local voices vehemently opposed to his
drill-everywhere plan. A few days after releasing his proposal,
Secretary Zinke tweeted out that he met with Florida Governor
Rick Scott, and then after just a few minutes, decided that the
offshore leasing plan would no longer include Florida. Sadly, I
have had trouble deciding what is more flagrantly
inappropriate, that Governor Scott is running for Senate
against an incumbent Democrat, that President Trump owns a
coastal resort in Palm Beach, Florida and profits from its
success, or that Secretary Zinke's announcement circumvents the
process and disregards the local voices opposed to offshore
drilling in every other coastal state.
Secretary Zinke's reasoning that, ``Florida is unique and
its coasts are heavily reliant on tourism as an economic
driver,'' reveals his tweet is nothing more than a political
ploy. I am confident my coastal colleagues and I could easily
point to the uniqueness of our coasts, and the local businesses
that are economically reliant upon a healthy and oil-free
environment.
Mr. Chairman, I would like to enter two letters into the
record. The first is a letter from the 36 Members of our
California Congressional Delegation to Secretary Zinke opposing
our state's inclusion in the leasing plan. A second is from 151
Members of the House opposing the inclusion of the Atlantic,
Arctic, Pacific, and the East Coast regions in the leasing
plan.
Californians have experienced catastrophic oil spills
before and we will do everything in our power to prevent them
from happening again.
I thank the witnesses for being here, and I yield back.
[The prepared statement of Mr. Lowenthal follows:]
Prepared Statement of the Hon. Alan S. Lowenthal, Ranking Member,
Subcommittee on Energy and Mineral Resources
Thank you, Mr. Chairman, and thank you to the witnesses for being
here.
The Interior Department's just-released plan to open every region
of the Outer Continental Shelf to oil and gas development is the latest
example of Republicans governing for the benefit of corporations, not
citizens.
Under the plan, the risks from offshore drilling would extend from
coast to coast--from the shores of Maine down to the Florida
Everglades, and from California's beaches to fishing and native
communities in Washington State and Alaska.
In total, Secretary Zinke wants to satisfy Big Oil's insatiable
appetite with over 1.6 billion acres of America's oceans, all while
rolling back the safety protections developed in response to the 2010
Deepwater Horizon disaster. But I have news for the Secretary:
Americans have zero interest in handing more of our oceans over to oil
and gas corporations.
Our coastlines are home to over 123 million citizens, and along
with the oceans, these resources serve as a massive economic engine. In
my home state of California, coastal counties account for 68 percent of
the state's population and over 80 percent of our GDP. But now, for the
first time since 1984, the Interior Department has proposed new Federal
oil and gas lease sales off California's coast.
Had the Secretary consulted California residents and elected
officials before his decision, he would have learned why Federal
offshore leases haven't been offered in over 30 years, and why our
Legislature prohibited leasing in state waters in 1994. But since he
didn't, I'll enlighten him.
In 1969, a well blowout 6 miles off the coast of Santa Barbara
resulted in over 3 million gallons of oil gushing into the ocean. The
spill created a 35-mile long oil slick along California's coast and
killed thousands of fish, birds, and marine mammals. To date, it's the
largest oil spill in the state's history and third largest in our
Nation's.
A silver lining of the Santa Barbara spill is that it woke the
environmental consciousness of many Americans and was integral to the
development of today's regulatory framework that governs our natural
resources.
In 1970, the National Environmental Policy Act was signed into law,
the Environmental Protection Agency was created, and ``Earth Day'' was
established. A bipartisan California legislature banned offshore
drilling in state waters in 1994, and between 1981 and 2008, the U.S.
Congress prevented Federal leasing off the Pacific and Atlantic coasts.
Today, Americans who live along our shores understand their
critical importance and want the government to protect these
resources--not risk them for another drop or two of fossil fuels.
But Secretary Zinke couldn't care less about California's history,
or the about the local voices vehemently opposed to his drill-
everywhere plan. A few days after releasing his proposal, Secretary
Zinke tweeted out that he met with Florida Governor Rick Scott, and
after just a few minutes decided that the offshore leasing plan would
no longer include Florida.
Sadly, I've had trouble deciding what's more flagrantly
inappropriate: that Governor Scott is likely running for Senate against
an incumbent Democrat; that President Trump owns a coastal resort in
Palm Beach, Florida, and profits from its success; or that the
Secretary's Twitter announcement circumvents the process, and
disregards the local voices opposed to offshore drilling in every other
coastal state.
Secretary Zinke's reasoning that, ``Florida is unique and its
coasts are heavily reliant on tourism as an economic driver,'' reveals
his tweet is nothing more than a political ploy. I'm confident my
coastal colleagues and I could easily point to the uniqueness of our
coasts and the local businesses economically reliant upon a healthy and
oil-free environment.
Mr. Chairman, I'd like to enter two letters into the record. The
first is a letter from the 36 Members of the California congressional
delegation to Secretary Zinke opposing our state's inclusion in the
leasing plan. The second is from 151 Members of the House opposing the
inclusion of the Atlantic, Arctic, Pacific and Eastern Gulf regions in
the leasing plan.
Californians have experienced catastrophic oil spills before, and
we'll do everything in our power to prevent them from happening again.
I thank the witnesses again for being here, and I yield back.
______
Dr. Gosar. Without objection, so ordered, to be included in
the record.
Mr. Lowenthal. Thank you, Mr. Chairman.
Dr. Gosar. Now I will introduce our witnesses. First, we
have Dr. Walter Cruickshank, Acting Director of the Bureau of
Ocean Energy Management. Did I say that right?
Dr. Cruickshank. Yes, you did. Thank you.
Dr. Gosar. OK. Dr. Jon Ludwigson, Acting Director of the
Government Accountability Office; State Senator Tom Davis,
District 46, South Carolina Legislature; and Mr. Ryan Steen,
Partner, Stoel Rives, LLP.
Let me remind the witnesses that under Committee Rules,
they must limit their oral statements to 5 minutes, but their
entire statement will be entered into the record. Our
microphones are not automatic, so you are going to have to push
the button. You are going to see some lights there. For the
first 4 minutes, it will be green, then it will turn yellow.
When you see it red, we need to summarize, get caught up,
because we will have votes here early this morning.
And with that, now I will recognize Dr. Cruickshank for his
testimony.
STATEMENT OF WALTER CRUICKSHANK, Ph.D., ACTING DIRECTOR, BUREAU
OF OCEAN ENERGY MANAGEMENT
Dr. Cruickshank. Thank you, and good morning.
Chairman Gosar, Ranking Member Lowenthal, and members of
the Subcommittee, I am pleased to be here today to discuss the
Bureau of Ocean Energy Management's oversight of geological and
geophysical surveys on the Outer Continental Shelf. Such
surveys support BOEM's mission to ensure the responsible
development of conventional and renewable energy offshore, as
well as marine mineral resources, while protecting the
environment.
Geological and geophysical data are critically important to
understanding the bathymetry of the ocean floor as well as the
vast area beneath the seabed. There are numerous technologies
that can be employed to gather this data which are used for a
variety of purposes, including hydrocarbon exploration and
production, aiding in the siting of renewable energy structure
such as offshore wind turbines, locating potential sand and
gravel resources for coastal restoration projects, identifying
possible seafloor or shallow geologic hazards, and locating
potential archeological resources and hard bottom habitats that
should be avoided. G&G surveys also help to advance fundamental
scientific knowledge and are currently conducted in countries
throughout the world.
One common method of procuring this data is with seismic
surveys. Those surveys use sound waves sent through the ocean
floor to map the subsurface. Modern seismic acquisition and
processing techniques can provide data sets that significantly
enhance subsurface imaging, leading to improved oil and gas
resource assessments and more informed administration of
regulatory responsibilities.
One of the principal environmental issues with seismic
surveys is the potential impact of associated noise on various
marine species. Our environmental studies program is one of the
earliest Federal programs to sponsor research on ocean sounds
beginning in the early 1980s. Since 1998, BOEM has partnered
with academia and other experts to invest more than $50 million
on protected species and noise-related research. This work has
helped inform development of mitigation measures to protect
marine species from potential adverse impacts of survey-related
activity.
On April 28 of last year, the President issued Executive
Order 13795, entitled ``Implementing an America-First Offshore
Energy Strategy.'' The Executive Order calls for the Secretary
of the Interior to develop and implement, in coordination with
the Secretary of Commerce, and to the maximum extent permitted
by law, a streamlined permitting approach for privately-funded
seismic data research and collection and in expeditiously
determining the offshore energy resource potential for the
United States.
The Executive Order further states that the Secretary of
the Interior and the Secretary of Commerce shall, to the
maximum extent permitted by law, expedite all stages of
consideration of incidental take authorization requests and
seismic survey permit applications under the Outer Continental
Shelf Land's Act and the Marine Mammal Protection Act.
The directive in the Executive Order for a streamlined
permitting approach is predicated on industry and other
stakeholder complaints of the ramifications from exceedingly
long, unpredictable, and inconsistent processes for agencies to
reach permitting decisions, mainly under the Marine Mammal
Protection Act, but also to a lesser degree, under the
Endangered Species Act.
Over the past 6 months, BOEM and the National Marine
Fisheries Service, both leadership and staff, have met to
discuss possible procedural approaches and statutory or
regulatory changes for streamlining the permitting process.
Collectively, we are committed to creating a streamlining
framework if it could lead to the implementation of process-
oriented solutions and guidance for administering and
implementing the ESA and the MMPA for oil and gas activities
generally, and G&G permitting, specifically.
BOEM is committed to continuing the streamlining efforts
with National Marine Fisheries Service and the U.S. Fish and
Wildlife Service and continuing to communicate and coordinate
with other stakeholders on this issue as the process moves
forward.
I would also like to note that we have a very strong, long-
standing working relationship with the Department of Defense on
all aspects of the OCS program, including G&G permitting, and
we look forward to continuing to work with that department as
well.
Finally, I would also like to acknowledge the Government
Accountability Office's recent report titled, ``Offshore
Seismic Surveys, Additional Guidance Needed to Help Ensure
Timely Reviews.'' BOEM worked closely with the GAO to provide
accurate and up-to-date information for this report, which does
not include any recommendations for BOEM action.
Mr. Chairman, thank you again for the opportunity to be
here today to discuss the Bureau's efforts to execute its
missions, to safely and responsibly reduce our dependence on
foreign oil, and create jobs through the development of
important energy resources. I would be happy to answer any
questions that you or members of the Subcommittee may have.
[The prepared statement of Mr. Cruickshank follows:]
Prepared Statement of Walter Cruickshank, Acting Director, Bureau of
Ocean Energy Management, U.S. Department of the Interior
Chairman Gosar, Ranking Member Lowenthal, and members of the
Subcommittee, I am pleased to appear before you today to discuss the
Bureau of Ocean Energy Management's (BOEM) oversight of geological and
geophysical (G&G) surveys on the Outer Continental Shelf (OCS). Such
surveys support BOEM's mission to ensure the responsible development of
conventional and renewable offshore energy and marine mineral resources
while protecting the environment.
background
Geological and geophysical data is critically important to
understanding the bathymetry of the ocean floor, as well as the vast
area underneath. There are numerous technologies that can be employed
to gather this data, which is used for a variety of purposes, including
hydrocarbon exploration and production, aiding in siting renewable
energy structures by characterizing the ocean floor, locating potential
sand and gravel resources for coastal restoration projects, identifying
possible seafloor or shallow depth geologic hazards, and locating
potential archaeological resources and potential hard bottom habitats
that should be avoided. One common method of procuring this data is
with seismic surveys; those surveys use sound waves, sent through the
ocean floor, to map the subsurface.
BOEM scientists are experts in the use of the newer survey data to
make more informed decisions concerning potential oil and gas lease
sales, ensure appropriate development of OCS energy resources, and
assure the receipt of fair market value for any leasing of public
lands. Modern two-dimensional (2D) and three-dimensional (3D)
acquisition and processing techniques can provide data sets that
significantly enhance subsurface imaging, leading to improved oil and
gas resource assessments and more informed administration of regulatory
responsibilities.
G&G surveys are not used exclusively for oil and gas exploration.
Seismic surveys and geologic coring are also helpful in identifying
sand used for restoration of our Nation's beaches and barrier islands
following severe weather events and for protecting coasts and wetlands
from erosion. Recent examples of BOEM's sand restoration projects
include New Jersey, where Long Beach Island has been restored in
response to erosion caused by Hurricane Sandy; Louisiana, where 1,100
acres of marsh, dune, and beach habitat at Whiskey Island have been
reconstructed; and Florida, where a final environmental assessment on a
shoreline restoration project in Brevard County totaling over 1.7
million cubic yards of sand was recently completed in response to
erosion caused by Hurricane Matthew. Seismic and geologic coring
surveys also provide information that is vital to the siting and
development of offshore renewable energy facilities.
G&G surveys also help to advance fundamental scientific knowledge
and are currently conducted in the Gulf of Mexico and in countries
around the world.
One of the principle environmental issues with seismic surveys is
the potential impact of associated noise on various marine species. Our
environmental studies program was one of the earliest Federal pioneers
in sponsoring research on ocean sounds beginning in the early 1980s
such as funding a 1985 study on the effects of drilling noise on whales
in the Beaufort Sea. Since 1998, BOEM has partnered with academia and
other experts to invest more than $50 million on protected species and
noise-related research. BOEM has funded, developed, and overseen
critical studies on marine mammals, such as evaluation of seismic
survey impacts on endangered sperm whales, and has conducted numerous
expert stakeholder workshops to discuss what is known and to identify
further information needs on acoustic impacts in the ocean.
endangered species act (esa) and marine mammal protection act (mmpa)
streamlining effort
On March 28, 2017, Executive Order 13783 entitled ``Promoting
Energy Independence and Economic Growth'' was issued by the President.
The Executive Order called for executive agencies to immediately review
existing regulations that potentially burden the development or use of
domestically produced energy resources and appropriately suspend or
rescind those that are found unduly onerous. Additionally, on April 28,
2017, the President issued Executive Order 13795 entitled,
``Implementing an America-First Offshore Energy Strategy'' (April 28,
2017). The Executive Order calls for the Secretary of the Interior to
``develop and implement, in coordination with the Secretary of Commerce
and to the maximum extent permitted by law, a streamlined permitting
approach for privately funded seismic data research and collection
aimed at expeditiously determining the offshore energy resource
potential of the United States.'' E.O. 13795 further states that ``The
Secretary of the Interior and the Secretary of Commerce shall, to the
maximum extent permitted by law, expedite all stages of consideration
of Incidental Take Authorization requests, including Incidental
Harassment Authorizations and Letters of Authorization, and Seismic
Survey permit applications under the Outer Continental Shelf Lands Act,
43 U.S.C. 1331 et seq., and the Marine Mammal Protection Act, 16 U.S.C.
1361 et seq.'' To further implement this guidance, on May 1, 2017,
Secretary of the Interior Zinke issued Secretarial Order 3350 entitled,
``America-First Offshore Energy Strategy.''
The directive in the Executive Order for a streamlined permitting
approach is predicated on industry and other stakeholder complaints of
ramifications from exceedingly long, unpredictable and inconsistent
processes for agencies to reach permitting decisions, mainly under the
Marine Mammal Protection Act (MMPA) but also to a lesser degree under
the Endangered Species Act (ESA).
In an effort to implement this direction, a streamlining team led
by BOEM and consisting of Department of the Interior solicitors and
BOEM and Bureau of Safety and Environmental Enforcement (BSEE) staff,
was created to address and establish ways in which to build greater
efficiencies, predictability and consistency in implementation of the
ESA and MMPA for BOEM and BSEE activities through a combination of
process oriented solutions, enhanced research, and possible statutory/
regulatory approaches. Specifically, the streamlining team developed a
set of recommendations aimed at reducing undue burdens and increasing
decision timeline predictability, while still ensuring needed
environmental protections are set in place. While these recommendations
are focused on permitting for oil and gas activities, most of them also
benefit other ocean activities, such as construction, offshore wind
facilities, sand mining, and naval operations.
Over the past 6 months, BOEM and the National Marine Fisheries
Service (NMFS) leadership and staff have met to discuss possible
procedural and statutory/regulatory approaches for streamlining. BOEM
has shared specific options with NMFS for their review and input. BOEM,
BSEE, and NMFS are committed to creating a streamlining framework that
could lead to the implementation of process-oriented solutions and
guidance for administering and implementing the ESA and MMPA for oil
and gas activities and G&G permitting specifically. BOEM is committed
to continue the streamlining efforts with NMFS and the U.S. Fish and
Wildlife Service and to continue to communicate and coordinate with
other stakeholders, such as the Navy and industry, on this issue as the
process moves forward.
g&g permitting in the atlantic
S.O. 3350 included a directive for the expedited consideration of
appealed, new, or resubmitted seismic permitting applications for the
Atlantic; BOEM has resumed the evaluation of the Atlantic G&G permit
applications. Five NMFS Draft Proposed Incidental Harassment
Authorizations (IHAs) were published in the Federal Register on June 6,
2017, starting a 30-day public comment period that was further extended
and closed on July 21, 2017. NMFS is currently processing the Atlantic
IHAs. In addition, BOEM is also working with NMFS to finalize the
associated ESA Section 7 consultation covering both BOEM seismic
permits and NMFS MMPA IHAs. This ESA Section 7 consultation is being
treated by NMFS as a subset of the existing programmatic G&G
Consultation initially completed in July 2013 and re-initiated by BOEM
in October 2015. Once this smaller consultation is complete, it is
BOEM's understanding that NMFS will complete the re-initiated
Programmatic consultation.
g&g permitting in the gulf of mexico
In the Gulf Of Mexico Region (GOMR), from 2011-2016, BOEM issued
251 G&G permits (approximately 42 annually); the majority related to
oil and gas. BOEM's overall permitting approval process takes
approximately 60 days to complete once an application is deemed
``complete.'' This includes conducting a NEPA analysis, associated
environmental reviews, and consultations for ESA, Coastal Zone
Management Act (CZMA), Essential Fish Habitat (EFH) and National Marine
Sanctuaries Act (NMSA). A seismic survey permit covers a 1-year period.
In addition to the above required permits and associated
environmental reviews for seismic surveys, MMPA authorization of
industry activity may be needed as well. Under the MMPA, ``take'' from
harassment of marine mammals is permitted only if either an Incidental
Harassment Authorization (IHA) or Incidental Take Regulations (ITRs)
are in place. IHAs are usually applied for individual, one-time
activities. IHAs are valid for 1 year. NMFS has 120 days (by statute)
to issue an IHA, which includes a 30-day public comment period. ITRs
can be issued to accommodate similar or multiple activities taking
place over time, which is the case in the GOMR where multiple surveys
occur year-in and year-out. In the GOMR, an ITR, if issued, would cover
multiple oil and gas related G&G activities for a 5-year period. (ITRs
are valid for 5 years only and then must be re-issued). Under an ITR,
applicants (industry) seek annual Letters of Authorization (LOAs)
pursuant to the rule. The ITR timelines are not prescribed by statute,
but NMFS estimates a 12-18 month time frame. The ITR process includes
two comment periods for the public, which are usually 30 and 60 days.
There is no comment period associated with LOA issuance.
In the GOMR, even though G&G permits have been issued, the process
to issue ITRs for oil and gas related G&G activities has gone through
multiple starts and stops to address evolving issues since the first
petition was submitted in 2002. Following a BOEM/NMFS restart in 2013,
in October 2016, BOEM petitioned on behalf of industry, and at the
request of NMFS, to create a more efficient process for addressing
exposures and takes to marine mammals from cumulative oil and gas
related seismic activity in the GOM. Having a rule in place would allow
NMFS to address impacts to marine mammals from seismic surveys
programmatically versus survey-by-survey, which in theory, would reduce
the workload for NMFS, allowing industry operators to receive their
MMPA authorizations in a timely manner.
Based on the October 2016 petition, NMFS submitted a draft proposed
ITR to OMB for review on October 2, 2017. OMB is still reviewing the
proposed ITR.
In a June 2010 lawsuit, NRDC v. Jewell, filed against DOI and oil
and gas industry representatives, several environmental conservation
groups claimed DOI failed to prepare an environmental impact statement.
The settlement of NRDC v. Jewell, filed in the U.S. District Court
for the Eastern District of Louisiana, allows permits to be issued in
the GOM pursuant to the NRDC settlement. Under the settlement, Industry
Intervenors agreed to abide by the mitigation measures described in the
settlement agreement, which include measures such as passive acoustic
monitoring, time area closures, and minimum separation distances
between surveys, among others. During the stay, Plaintiffs agreed not
to challenge the permitted surveys that abide by the above mitigation
measures. Under the settlement agreement and stay, permits in the GOM
are not conditioned on the applicant processing/obtaining an IHA.
Outside of the NRDC Settlement Agreement, BOEM includes (and has
included in the past) a suite of mitigation measures for G&G permits as
they relate to marine mammals. These measures provide protection to
marine mammals by requiring G&G operations to avoid and minimize
impacts to and take of marine mammals.
gao seismic survey report
Last, the Government Accountability Office recently published a
Report titled: OFFSHORE SEISMIC SURVEYS: Additional Guidance Needed to
Help Ensure Timely Reviews (GAO-18-60: Published: Dec 11, 2017.
Publicly Released: Jan 4, 2018). BOEM worked closely with the GAO
investigators and authors to provide accurate and up-to-date
information for this report. The report did not implicate BOEM nor did
it make any recommendations for BOEM action.
conclusion
Mr. Chairman, thank you again for the opportunity to be here today
to discuss the Bureau's effort to execute its missions to safely and
responsibly reduce our dependence on foreign oil and create jobs
through the development of important energy resources. I am happy to
answer any questions that you or members of the Subcommittee may have.
______
Questions Submitted for the Record to Dr. Walter Cruickshank, Acting
Director, Bureau of Ocean Energy Management
Dr. Cruickshank did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.
Questions Submitted by Rep. Barragan
Question 1. Early last week, Associate Deputy Secretary James Cason
briefed our staff about Secretary Zinke's reorganization plan for DOI
and mentioned recombining BOEM and BSEE. He stated that the staff of
the two agencies were currently analyzing the pros and cons of
recombination.
1a. Is that correct, and if so, what is the status of that
analysis?
1b. When do you expect to have that analysis completed, or when
have you been instructed to have that analysis completed by?
1c. Has the Department estimated the amount of time and money
required to recombine them?
Question 2. Late last month, William K. Reilly, co-chairman of the
national Oil Spill Commission formed after the Deepwater Horizon
disaster and EPA administrator during the term of President George H.W.
Bush, weighed in with his thoughts on the proposed recombination. He
said, ``If you have one part of your operation bringing in $18 billion
dollars a year and another part that does inspections, what part would
you pay attention to? It is very unwise to mix those two under one
head.'' \1\
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\1\ http://www.nola.com/environment/index.ssf/2017/12/
feds_say_offshore_oil_rule_cha.html.
2a. Considering that even the spokeswoman for the National Ocean
Industries Association admitted that, ``we did not ask for it"--
referencing the recombination--and that industry lobbyists are
concerned that it will ultimately distract agency staff, who was
responsible for calling for this review in the first place? \2\
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\2\ https://www.politico.com/story/2017/08/25/oil-and-gas-allies-
want-trump-to-slow-down-242008.
Question 3. You have been a career Interior Department employee for
many years, and you worked at the agency both before and after the
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Deepwater Horizon disaster.
3a. Do you believe that recombining BOEM and BSEE is the most
efficient use of taxpayer dollars and--more importantly--will doing so
increase the human and environmental safety of offshore oil and gas
operations?
Question 4. Can you briefly mention why the Minerals Management
Service was reorganized in 2010 and 2011, how the split was made, and
the amount of time and money that was required to fully separate the
Bureau of Ocean Energy Management and the Bureau of Safety and
Environmental Enforcement? Was it a simple process that occurred
quickly?
Questions Submitted by Rep. Lowenthal
Question 1. Dr. Cruickshank, during the Subcommittee hearing, you
agreed to provide a variety of documents relating to the development of
the Draft Proposed Program CDPP) and the subsequent decision of the
Secretary to announce that he was removing Florida from the DPP. As
such, please provide:
1a. Copies of any correspondence that exists between employees of
the Department of the Interior and anyone in the Florida Governor's
Office regarding the potential inclusion of waters around Florida in
the Draft Proposed Plan.
1b. Copies of any correspondence that exists between the Bureau of
Ocean Energy Management and the Florida Governor's Office after
publication of the Draft Proposed Program and before the Secretary's
meeting with the Governor on January 9.
1c. Copies of any correspondence that exists between the
Secretary's Office, Deputy Secretary's Office, or Office of the
Assistant Secretary for Land and Minerals Management and the Florida
Governor's Office after publication of the Draft Proposed Program and
before the Secretary's meeting with the Governor on January 9.
1d. Copies of any correspondence that exists related to discussions
between the Bureau of Ocean Energy Management and the Secretary, the
Deputy Secretary, the Assistant Secretary for Land and Minerals
Management, or anyone in their offices, regarding the Secretary's
decision to tweet on January 9 that Florida would be removed from
consideration for offshore oil and gas leasing.
1e. Copies of any instructions sent to the Bureau of Ocean Energy
Management from any other officials in the Department of the Interior
regarding how they should treat the waters around Florida in developing
the next step of the offshore leasing program.
Question 2. Mr. Cruickshank, the Marine Mammal Protection Act
creates a mechanism for the incidental take of ``small numbers'' of
marine mammals. Can you explain why the ``small numbers'' requirement
is a constraint on the ability to issue seismic permits?
Question 3. As noted by Mr. Steen in his testimony, the seismic
permits for the Atlantic Ocean were initially submitted in 2014.
Following removal of the Atlantic from the 2017-2022 Five-Year Program
and due to the significant concern for negative impacts on marine life,
the seismic permits were denied in January 2017. In fact, the prior
Director of BOEM stated: ``In the present circumstances and guided by
an abundance of caution, we believe that the value of obtaining the
geophysical and geological information from new airgun seismic surveys
in the Atlantic does not outweigh the potential risks of those surveys'
acoustic pulse impacts on marine life.''
3a. Is it not unusual to simply pick up review of these seismic
permits where things left off in the review process?
3b. Shouldn't both BOEM and the Fisheries Services have required
applicants to resubmit new applications incorporating the best
scientific information available when this issue was reopened 5 months
later in May 2017 (i.e., 3 years after the applications were originally
submitted)?
Question 4. Mr. Cruickshank, scientific studies in the last few
years have found that seismic airgun surveys can cause undue harm to
marine life. Research shows that seismic airguns negatively impact many
marine species, including whales, fish, lobsters, scallops, oysters and
even zooplankton--the very foundation of the marine food-chain.
4a. Are you aware of these scientific studies?
4b. Are you willing to allow undue harm to these marine species for
the sake of oil and gas exploration and drilling in the Atlantic--an
area where the coastal states and their constituents are clearly
opposed to it?
Question 5. The state of North Carolina recently requested a
supplemental consistency certification under the Federal Coastal Zone
Management Act for all companies proposing to conduct seismic blasting
off the state's coast. Their request was based on significant new
information regarding the detrimental impact of seismic blasting on
fish, zooplankton, and other marine life. The commercial and
recreational fishing industries support 22,500 jobs, $787 million in
income, and contribute almost $2 billion in business sales annually to
the state's economy.
5a. Can you assure me that BOEM will consider this objection and
adequately respond to it before granting permits for seismic blasting?
5b. Can you assure me that BOEM will support the state's request,
and to await the conclusion of any consistency review, including
resolution of any state objections to consistency, before granting
permits for seismic blasting?
______
Dr. Gosar. Thank you, Dr. Cruickshank.
I now acknowledge Mr. Ludwigson for his testimony.
STATEMENT OF JON LUDWIGSON, ACTING DIRECTOR, GOVERNMENT
ACCOUNTABILITY OFFICE
Mr. Ludwigson. Thank you.
Thank you, Chairman Gosar, Ranking Member Lowenthal, and
members of the Subcommittee. I am pleased to be here today to
discuss Federal oversight of offshore seismic surveys.
Earlier this month, as was mentioned, we released a report
on offshore seismic surveys based on work requested by the Full
Committee. I will summarize that report, but I ask that the
report be entered into the record.
My statement today will provide information on three
topics. First, the review process and time frames for seismic
survey applications in the Gulf of Mexico, Alaska, and the
Atlantic regions from 2011 through 2016. Second, the review
process and time frames for incidental take applications over
the same period. And finally, basic information about six
applications in the Atlantic region.
By way of background, offshore oil and natural gas are
important sources of energy and revenue in the United States,
comprising about 18 percent of national oil production and
about 4 percent of natural gas production. They also provided
$2.8 billion in revenue to the Federal Government in Fiscal
Year 2016.
Development of these offshore oil and gas resources is
complex, relying on private companies to understand the geology
through use of tools, such as seismic surveys, under
authorizations obtained from Federal agencies. Entities seeking
to conduct seismic surveys in the Outer Continental Shelf must
generally obtain a permit from Interior's Bureau of Ocean
Energy Management, which I will refer to in my statement as
BOEM.
Because seismic surveys may disturb or injure marine
mammals, referred to as a taking, entities seeking to conduct
them may also need to obtain an incidental take authorization
under the Marine Mammal Protection Act from Commerce's National
Marine Fisheries Service or Interior's Fish and Wildlife
Service.
Regarding BOEM's process and time frames for reviewing
seismic survey applications, we found key differences. In terms
of process, BOEM is not required to issue permits within a
specific time frame, and the agency reviews, once it determines
the application is complete. We found that BOEM reviewed 297
applications and issued 264 permits between 2011 and 2016, and
the time frames varied.
For example, BOEM issued 250 permits for the Gulf of
Mexico, about 95 percent of its total, in a time frame ranging
from the same day the application was deemed complete to 287
days after that date. Of the 250 permits in the Gulf, 218 were
issued within 100 days.
Regarding review of incidental take applications, we found
the agencies did not have accurate information, and as a
result, we could not document how long these reviews took.
Marine Fisheries and Fish and Wildlife follow a similar process
requiring complete applications before beginning formal
processing. In the Gulf of Mexico region, BOEM has generally
issued seismic survey permits without requiring incidental take
authorizations.
In total, Marine Fisheries and Fish and Wildlife reviewed
35 applications and approved 28 between 2011 and 2016. We found
that Fish and Wildlife did not record the date the application
was complete, and Marine Fisheries could not provide accurate
dates because it lacked guidance on documenting the date. By
law, the agencies are to review one type of incidental take
authorization application, referred to as an Incidental
Harassment Authorization, within 120 days.
Without knowing when these applications were complete,
Marine Fisheries and Fish and Wildlife cannot determine how
long the reviews take and whether they are completed within the
statutory time frame. In addition, it is not clear how much
time private companies should build into their exploration
plans.
During the course of our work, we also identified six
pending applications to conduct seismic surveys in the Atlantic
region. We have detailed the specific circumstances of these
applications in our report, but in summary, these applications
were filed in 2014, denied in January 2016, and are now being
reconsidered.
In conclusion, offshore seismic surveys provide Federal
agencies and private companies with a wide range of useful
information. We found that BOEM has information on applications
it reviews, but Marine Fisheries and Fish and Wildlife lack key
information. Without this information, the agencies cannot
accurately evaluate the timeliness of their reviews. In our
report, we made four recommendations to those agencies for
improving this process and examining whether they are meeting
their statutory review time frames.
Chairman Gosar, Ranking Member Lowenthal, this concludes my
statement. I would be happy to answer any questions you may
have.
[The prepared statement of Mr. Ludwigson follows:]
Prepared Statement of Jon Ludwigson, Acting Director, Natural Resources
and Environment, U.S. Government Accountability Office
Chairman Gosar, Ranking Member Lowenthal, and members of the
Subcommittee: I am pleased to be here today to discuss our recent
report on the Federal offshore seismic permitting process.\1\ As you
know, offshore oil and natural gas are important sources of energy and
revenue for the United States--constituting about 18 percent of our
Nation's total oil production and about 4 percent of our total gas
production, and providing the Federal Government with about $2.8
billion in revenue in Fiscal Year 2016.
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\1\ GAO, Offshore Seismic Surveys: Additional Guidance Needed to
Help Ensure Timely Reviews, GAO-18-60 (Washington, D.C.: Dec. 11,
2017).
Federal agencies and private companies use information about
potential oil, gas, and other resources in the Outer Continental Shelf
(OCS) to make regulatory, funding, and development decisions,
respectively.\2\ Oil and gas companies conduct offshore seismic surveys
in the OCS to collect data on the geology that may indicate the
presence of hydrocarbons--such as oil and gas. Seismic surveys--which
can be conducted onshore and offshore--use mechanically generated sound
waves from an acoustic source to transmit energy into the subsurface of
the ocean floor. Various other entities, including the National Science
Foundation, use offshore seismic surveys for other purposes, such as to
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identify possible earthquake fault zones.
\2\ The Outer Continental Shelf (OCS) is outside the territorial
jurisdiction of all 50 states but within the jurisdiction and control
of the U.S. Federal Government, and consists of submerged Federal
lands, generally extending seaward between 3 geographical miles and 200
nautical miles off the U.S. coastline. The Department of the Interior
has oversight over 1.7 billion acres of submerged lands in the OCS.
There are four OCS regions in the United States: the Alaska, Atlantic,
Gulf of Mexico, and Pacific regions. Companies that develop and produce
oil and gas from Federal waters do so over a specified period of time
under leases obtained from and administered by the Bureau of Ocean
Energy Management.
Entities seeking to conduct geological and geophysical surveys,
including seismic surveys, to identify oil, gas, and other mineral
resources in the OCS must obtain a permit from the Department of the
Interior's Bureau of Ocean Energy Management (BOEM)--the Federal agency
responsible for the oversight of most offshore oil and gas leasing and
exploration activities. Given the possibility that seismic surveys may
disturb or injure marine mammals, referred to as ``taking'' marine
mammals, entities may obtain an incidental take authorization to avoid
potential liability for takes of a marine mammal. Incidental take
authorizations are issued under the Marine Mammal Protection Act by the
Department of Commerce's National Marine Fisheries Service (NMFS) or
Interior's Fish and Wildlife Service (FWS), depending on the species
that might be affected.\3\ To authorize the taking of small numbers of
marine mammals, NMFS and FWS must make certain findings as to the
impacts of the activities, based on the best scientific evidence
available. Several industry stakeholders and a research organization
that applied for incidental take authorizations have raised questions
about the timeliness of the Federal seismic survey permitting process
and incidental take authorization application reviews.
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\3\ Pub. L. No. 92-522, Sec. 101, 86 Stat. 1027, 1029 (1972)
(codified as amended at 16 U.S.C. Sec. 1371).
My testimony today discusses the key findings from our December
2017 report on the Federal offshore seismic permitting process.
Accordingly, this testimony examines (1) BOEM's review process, the
number of permit applications reviewed from 2011 through 2016, and its
review time frames; (2) NMFS's and FWS's review process, the number of
incidental take authorization applications reviewed from 2011 through
2016, and their review time frames; and (3) the status of pending
seismic survey permit applications and related incidental take
authorization applications in the Atlantic OCS region. In addition, I
will highlight several key actions that we recommended in our report
that NMFS and FWS can take to address challenges associated with their
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review processes.
To conduct the work for our December 2017 report, among other
things, we analyzed relevant laws and regulations that govern the
review processes, reviewed and analyzed agency guidance, and
interviewed BOEM, NMFS, and FWS agency officials. In addition, we
identified and interviewed knowledgeable stakeholders selected to
reflect a range of industry groups, a research institution, and
environmental organizations to obtain their views on the seismic survey
permitting and incidental take authorization application processes.\4\
In our preliminary work on all four OCS regions, we determined there
had been no new oil and gas related seismic activity in the Pacific OCS
region in the last two decades; as a result, we excluded the Pacific
OCS from our review. We also obtained data from BOEM, NMFS, and FWS on
the number of permit and incidental take authorization applications
each agency reviewed and the number of permits and authorizations the
agencies issued in each of the three selected OCS regions.\5\ We
focused our review of pending applications on the Atlantic region
because it was the only region that had applications pending at the
time of our review. Our December 2017 report includes a detailed
explanation of the methods used in our work. We conducted the work on
which this testimony is based in accordance with generally accepted
government auditing standards.
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\4\ Because this was a nonprobability sample of stakeholders, their
views are not generalizable beyond those groups but provide
illustrative examples of the views of such stakeholders.
\5\ To assess the reliability of the data, we used publicly
available information on the number of permit and authorization
applications to check the data provided by BOEM, NMFS, and FWS. We
found the data on the number of permits and authorizations to be
sufficiently reliable for our purposes.
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BOEM's Review Process Differs by OCS Region
As we stated in our December 2017 report,\6\ BOEM has a documented
process for reviewing seismic survey applications in each of the three
selected OCS regions that differs in one part depending on the region.
In the Atlantic region, prior to issuing a permit, BOEM intends to
require incidental take authorizations related to the seismic survey
activities proposed in the permit application to be in place before
issuing permits, but in the Alaska region, BOEM issues conditional
permits while waiting for incidental take authorizations. In the Gulf
of Mexico region, BOEM has generally issued permits without requiring
incidental take authorizations to be in place, although it is working
to address some aspects of its process in response to a recent
settlement agreement.\7\
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\6\ GAO-18-60.
\7\ Specifically, in response to the settlement agreement, BOEM
agreed to consider prescribing additional mitigation measures as
conditions of approval for seismic survey permits during the stay and
issued a final programmatic environmental impact statement in August
2017. BOEM also submitted a revised request to NMFS for incidental take
regulations governing geophysical surveys in the Gulf of Mexico, which
is pending as of January 2018.
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Based on our review of agency data, from 2011 through 2016, BOEM
reviewed 297 applications for seismic survey permits. Of the 297
seismic survey permit applications reviewed, BOEM issued 264 permits
during this period, and the number of applications reviewed and permits
issued varied by OCS region (see Table 1).
TABLE 1: BUREAU OF OCEAN ENERGY MANAGEMENT'S SEISMIC SURVEY PERMIT
APPLICATIONS REVIEWED AND ISSUED BY THREE OUTER
CONTINENTAL SHELF REGIONS, 2011-2016
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: GAO analysis of Bureau of Ocean Energy Management data.
GAO-18-342T
Note: This table includes seismic survey permits for high-
resolution seismic surveys, deep-penetration seismic surveys, and
vertical seismic profile surveys. The six permits issued in the
Atlantic region were for high-resolution seismic surveys for non-oil
and gas mineral resources and, according to Bureau of Ocean Energy
Management officials, did not include the use of airguns. This table
does not include the Pacific Outer Continental Shelf region because,
from 2011 through 2016, the Bureau of Ocean Energy Management did not
receive applications for or issue any seismic survey permits in that
region. BOEM issued a permit for the pending application in the Gulf of
Mexico region in April 2017. This table does not include Notices of
Scientific Research, of which there were 2 in the Atlantic region, 13
in the Gulf of Mexico, and none in Alaska during this period. The
Notices of Scientific Research do not result in a permit.
BOEM does not have statutory review time frame requirements for
issuing geological and geophysical seismic survey permits. The range of
BOEM's review time frames--from the date the agency determined that an
application was complete to when BOEM issued a seismic survey permit--
varied by OCS region (see Fig. 1).
FIGURE 1: NUMBER OF SEISMIC SURVEY PERMITS ISSUED BY BUREAU OF OCEAN
ENERGY MANAGEMENT REGIONS AND ASSOCIATED TIME
FRAMES, 2011-2016
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: GAO analysis of Bureau of Ocean Energy Management data.
GAO-18-342T
Note: The Bureau of Ocean Energy Management records the date it
determines an application is complete, or ``accepted,'' following the
resolution of any missing information from the applicant in the initial
application, and the date it issues or denies the permit. This figure
does not include the Pacific Outer Continental Shelf region because the
Bureau of Ocean Energy Management did not issue any seismic survey
permits there from 2011 through 2016. The six permits issued in the
Atlantic region were for high-resolution seismic surveys for non-oil
and gas mineral resources.
Neither NMFS nor FWS Guidance Sufficiently Describes How to Record
Certain Review Dates
As we stated in our report,\8\ NMFS and FWS follow a similar
process for reviewing incidental take authorization applications
related to seismic survey activities. From 2011 through 2016, NMFS and
FWS reviewed 35 and approved 28 such applications across the three OCS
regions we reviewed, including some authorizations related to BOEM
permits as well as research seismic surveys not associated with BOEM
permits.
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\8\ GAO-18-60.
However, neither NMFS nor FWS guidance sufficiently describes how
to record certain review dates. As a result, NMFS was unable to provide
accurate dates for when the agency determined an application was
adequate and complete--and FWS does not record this date.\9\ For
example, based on our review of NMFS data, in at least two cases, the
date NMFS recorded the application had been determined adequate and
complete was after the date the proposed authorization was published in
the Federal Register.
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\9\ NMFS and FWS begin formal processing of an incidental
harassment authorization application--one type of incidental take
authorization application--once it is deemed adequate and complete. See
50 CFR Sec. Sec. 18.27(d), 216.104. See also U.S. Fish and Wildlife
Service, ``Marine Mammal Protection Act Incidental Harassment
Authorizations,'' chap. 036 FW 2 in U.S. Fish and Wildlife Service
Manual (June 6, 2016), accessed January 11, 2018, https://www.fws.gov/
policy/036fw2.html; National Marine Fisheries Service, ``Incidental
Take Authorizations Under the MMPA,'' accessed January 11, 2018, http:/
/www.nmfs.noaa.gov/pr/permits/incidental/.
Because the agencies either do not record the date the application
is deemed adequate and complete or do not record the date consistently,
the agencies are not able to determine how long their formal processing
takes. As a result, in our December 2017 report, we recommended that
the agencies should develop guidance that clarifies how and when staff
should record the date on which the agency determines the ``adequacy
and completeness'' of an incidental take authorization application.\10\
NMFS agreed with our recommendation. FWS partially concurred with the
recommendation, noting that it plans to develop guidance for recording
the ``adequate and complete'' date of incidental harassment
authorization applications; however, it did not indicate that it would
develop such guidance for the other type of incidental take
authorization--the incidental take regulations. As we stated in the
report, we believe that FWS should develop guidance for both. Such
guidance is necessary to maintain consistency with Federal internal
control standards, which call for management to use quality information
to achieve agency objectives and design control activities, such as
accurate and timely recording of transactions, to achieve objectives
and respond to risk.
---------------------------------------------------------------------------
\10\ GAO-18-60.
Further, under the Marine Mammal Protection Act, the agencies are
to issue one type of incidental take authorization--incidental
harassment authorizations--within 120 days of receiving an application.
NMFS and FWS have not conducted an analysis of their review time
frames. As a result, in our December 2017 report, we recommended that
both agencies should analyze their time frames for reviewing incidental
harassment authorization applications--from the date the agency
determines that an application is adequate and complete until the date
an application is approved or denied--and compare the agency's review
time frames to the statutory review time frame.\11\ Both NMFS and FWS
agreed with our recommendation.
---------------------------------------------------------------------------
\11\ GAO-18-60.
---------------------------------------------------------------------------
BOEM and NMFS Have Been Reviewing Certain Seismic Survey Permit and
Incidental Take Authorization Applications in the Atlantic OCS for
Several Years
As we stated in our December 2017 report,\12\ as of October 2017,
in addition to the six permits BOEM issued in the Atlantic OCS from
2011 through 2016, another seven permits were pending a decision. Of
these seven, BOEM received six applications for deep penetration
seismic survey permits in the Atlantic region from March to May 2014
(see Fig. 2).
---------------------------------------------------------------------------
\12\ GAO-18-60.
FIGURE 2: BUREAU OF OCEAN ENERGY MANAGEMENT (BOEM) REVIEW TIMELINE OF
SIX PENDING SEISMIC SURVEY PERMIT APPLICATIONS IN
THE ATLANTIC OUTER CONTINENTAL SHELF REGION, 2014-
2017
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: GAO analysis of BOEM data and interviews with BOEM
officials. GAO-18-342T
Note: Five of the six applicants submitted their related
incidental-harassment applications to the Department of Commerce's
National Marine Fisheries Service (NMFS) from August 2014 through
January 2016. According to BOEM officials, the agency was awaiting
NMFS's issuance of incidental harassment authorizations before issuing
seismic survey permits. Before such authorizations were issued, in
January 2017, BOEM denied these applications, citing, among other
things, the 5-year leasing plan, which removed the area from all
leasing during the period from 2017 through 2022.
Of the six applicants that applied to BOEM during that time, five
also applied to NMFS for incidental harassment authorizations related
to their seismic survey permit applications, from August 2014 to
January 2016 (see Fig. 3). The sixth applicant that applied to BOEM for
a seismic survey permit in the Atlantic OCS region did not apply for an
incidental harassment authorization with NMFS, according to NMFS
officials. These five incidental harassment authorizations were pending
a decision by NMFS, as of October 2017, and NMFS did not have an
estimate as to when it would issue a decision.
FIGURE 3: NATIONAL MARINE FISHERIES SERVICE (NMFS) REVIEW TIMELINE OF
FIVE PENDING INCIDENTAL HARASSMENT AUTHORIZATION
APPLICATIONS RELATED TO SEISMIC SURVEY PERMIT
APPLICATIONS IN THE ATLANTIC OUTER CONTINENTAL
SHELF REGION, 2014-2017
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Source: GAO analysis of NMFS data and interviews with NMFS
officials. GAO-18-342T
Chairman Gosar, Ranking Member Lowenthal, and members of the
Subcommittee, this concludes my prepared statement. I would be pleased
to answer any questions that you may have at this time.
______
Dr. Gosar. Thank you, Mr. Ludwigson.
I now recognize Senator Davis for his testimony.
STATEMENT OF STATE SENATOR TOM DAVIS, DISTRICT 46, SOUTH
CAROLINA LEGISLATURE
Mr. Davis. Good morning, Chairman Gosar, Ranking Member
Lowenthal, and honorable Committee members. I greatly
appreciate the opportunity to testify before you today about
the importance of protecting the Atlantic Coast from offshore
drilling and seismic airgun blasting.
My testimony today will cover the impacts of seismic
testing and offshore drilling, the lack of jurisdiction for
changing the permitting process, the legal and transparency
problems associated with seismic airgun blasting, the
significant economic impacts offshore drilling and seismic
testing would bring to our coast, and the large bipartisan
opposition to offshore drilling and seismic airgun blasting.
Seismic testing involves firing loud sonic guns into the
ocean floor every 16 seconds to read echoes from the bottom
geology, with a test taking place over miles of ocean for
months at a time. Scientists agree that seismic airgun blasts
could alter the marine animals' behavior, affecting their
migration patterns, mating habits, and how they communicate
with each other. Most animals in the ocean use sound the way
animals on land use eyesight. Saturating their environment with
noise will have an impact.
NOAA estimates that 138,000 marine animals could be injured
and 13.6 million could have their migration, feeding, or other
behavioral patterns disrupted. I have cited numerous scientific
studies, which are footnoted in my testimony, as substance for
those particular effects on marine animals.
Accidents occur in a world where human error or mechanical
imperfections and coastal hurricanes all play unexpected roles.
When you drill, you spill. It is inevitable. The oil industry
touts a 99 percent safety record, but that 1 percent is pretty
horrific for people living in the vicinity of a spill when it
occurs.
The Federal Government predicts at least one spill a year
for every 1,000 barrels in the Gulf of Mexico over the next 40
years, a spill of 10,000 barrels or more every 3 or 4 years. We
saw what happened in the Gulf of Mexico in 2010 when the BP
Deepwater Horizon rig spilled millions of barrels of oil into
the Gulf. It was a disaster. But thankfully, the Gulf's bowl-
like shape contained the spill in that region.
A similar spill off the Atlantic Coast would be a disaster
of epic proportions. If oil entered into the Gulf stream, it
would be forced into the Chesapeake Bay, the Hudson River
Valley, the Gulf of Maine, and the Grand Banks, some of the
richest fishing grounds in the world.
The Gulf of Mexico BP Deepwater Horizon blowout also showed
that oil cannot be removed from salt marshes and other wetland
systems. Coastal salt marshes in South Carolina are among the
most productive ecosystems in the world and nursery grounds for
many estuarine and marine species. Toxic substances from oil
spills, both chronic and acute, will put all these organisms at
risk.
Even if a spill never occurs, and both the oil industry and
the Federal Government admit that spills are inevitable, there
is still an adverse impact to South Carolina's coast in that
the land-based infrastructure necessary to support offshore
drilling is dirty and highly industrial. Moreover, even the
most lucrative oil and gas scenario generates less than 1
percent of the economic impact of what tourism has in South
Carolina, $2.7 billion accrue in South Carolina over a two-
decade period. We realized $20 billion in tourism in the year
2015 alone.
I also want to point this out: along the Gulf Coast,
beachgoers are provided with wipes to clean the oil and tar
balls from their feet after walking on the beach. To the
residents of South Carolina, that scenario is unacceptable, as
our beaches are major revenue generators and part of our way of
life.
Also, the DoD has admitted, or has stated, that there are
mission compatibility inconsistencies with offshore leasing. We
have considerable military installations in South Carolina, and
the Department of Defense concerns in this regard must be
noted.
It was pointed out earlier that Secretary Zinke has already
exempted Florida from the exploration and drilling. That raises
serious due process, equal protection concerns, and arbitrary
and capricious standards, which I will be happy to talk about
in follow-up questions.
In closing, I would say the opposition is bipartisan and
wide-ranging. More than 160 municipalities along the East Coast
have passed resolutions opposing offshore oil and gas drilling
and exploration. In addition, the New England, Mid-Atlantic,
and South Atlantic Fishery Management Councils for the
Department of Defense, Air Force, and NASA have all weighed in
to express concerns. More than 42,000 businesses and 500,000
fishing families have also joined this overwhelming chorus of
voices that have said no to testing or drilling.
Seismic testing and oil drilling pose unknown threats to
our coast and could include devastating damage to our beach
communities and the water quality we enjoy. Oil and water
should not mix, and now is the time of choosing. We must pick
one or the other. Coastal communities and local voices have
already voiced their choice. We want to protect our water, our
coast, and our way of life from the unacceptable and
devastating impacts of seismic testing and offshore drilling.
Washington, please, needs to listen.
I thank you for the opportunity to testify today, and I
look forward to answering your questions.
[The prepared statement of Mr. Davis follows:]
Prepared Statement of the Hon. Tom Davis, State Senator of South
Carolina
Good morning, Chairman Gosar, Ranking Member Lowenthal, and
honorable Committee members. My name is Tom Davis, and I am a
Republican State Senator from Beaufort, South Carolina. I greatly
appreciate the opportunity to testify before you today about the
importance of protecting the Atlantic Coast from offshore drilling and
seismic airgun blasting. My testimony today will cover the impacts of
seismic testing and offshore drilling, the lack of justification for
changing the permitting process, the legal and transparency problems
associated with seismic airgun blasting, the significant economic
impacts offshore drilling and seismic testing would bring to our coast,
and the large, bipartisan opposition to offshore drilling and seismic
airgun blasting.
impact of seismic testing
Seismic testing involves firing loud sonic guns into the ocean
floor every 16 seconds to read echoes from the bottom geology, with the
tests taking place over miles of ocean for months at a time. The
National Oceanic and Atmospheric Administration (NOAA) confirms that
the sound from the seismic airguns can be recorded from sites more than
1,860 miles away, equivalent to the distance from Washington, DC to Las
Vegas.
Scientists agree that seismic airgun blasts could alter marine
mammals' behavior, affecting their migration patterns, mating habits
and how they communicate with each other. Most animals in the ocean use
sound the way animals on land use eyesight; saturating their
environment with noise will have an impact. NOAA estimates that 138,000
marine animals could be injured, and 13.6 million could have their
migration, feeding, or other behavioral patterns disrupted.
Proponents of seismic airgun blasting often mischaracterize an old
quote from Dr. Bill Brown of BOEM, claiming that seismic airgun
blasting has no impact on marine mammal populations--populations being
the key qualifier. However, there is a substantial body of peer-
reviewed science showing that seismic airgun blasting negatively
affects marine mammals, potentially even at the population level. For
example, whales exposed to seismic airgun noise stop producing
vocalizations that are essential to feeding, avoiding predators,
breeding, and raising their young. In the baleen whales, these impacts
can occur across vast distances, as much as 100,000 square kilometers
or more around a single seismic array. Recent science shows that there
are population level impacts.\1\
---------------------------------------------------------------------------
\1\ E.g., Castellote, M., Clark, C.W., and Lammers, M.O., Acoustic
and behavioural changes by fin whales (Balaenoptera physalus) in
response to shipping and airgun noise, Biological Conservation 147:115-
122 (2012); Cerchio, S., Strindberg, S., et al., Seismic surveys
negatively affect humpback whale singing activity off Northern Angola,
PLoS ONE 9(3):e86464 (2014); Blackwell, S.B., Nations, C.S., et al.,
Effects of airgun sounds on bowhead whale calling rates: Evidence for
two behavioral thresholds, PLoS ONE 10(6):e0125720 (2015).
---------------------------------------------------------------------------
Furthermore, scientific studies show behavioral and physiological
impacts to marine life. These include a 2017 study documenting seismic
airgun blasting killing zooplankton up to three-quarters of a mile
away; \2\ a 2017 study documenting seismic airgun blasting causing mass
mortality in scallops and severely impacting the remaining scallops'
immune systems; \3\ a 2017 study documenting that seismic airgun
blasting increases stress levels, which according to the study, causes
the oysters to stop feeding and breathing; \4\ a 2017 study documenting
seismic airgun blasting decreasing the white blood cell counts in spiny
lobsters, leading to higher rates of immune infections; \5\ a study
documenting seismic airgun blasting depressing longline cod and haddock
catch by 70-80 percent; \6\ and a 2017 study documenting a 78 percent
decline in reef-fish abundance after seismic airgun blasting was
conducted in the area.\7\
---------------------------------------------------------------------------
\2\ McCauley R, et al. (2017) Widely used marine seismic survey air
gun operations negatively impact zooplankton. Nature Ecology &
Evolution. Article number: 0195. doi:10.1038/s41559-017-0195.
\3\ Day R, et al. (2017) Exposure to seismic air gun signals causes
physiological harm and alters behavior in the scallop Pecten fumatus.
Proceedings of the National Academy of Sciences of the United States
114(40): E8537-E8546, doi: 10.1073/pnas.1700564114.
\4\ Charifi M, et al. (2017) The sense of hearing in the Pacific
oyster, Magallana gigas. PLoS ONE 12(10): e0185353. https://doi.org/
10.1371/journal.pone.0185353.
\5\ Fitzgibbon Q, et al. (2017) The impact of seismic air gun
exposure on the haemolymph physiology and nutritional condition of
spiny lobster, Jacus edwardsii. Marine Pollution Bulletin. 125:146-156.
\6\ Engas A, et al. (1996) Effects of seismic shooting on local
abundance and catch rates of cod (Gadus morhua) and haddock
(Melanogrammus aeglefinus). Canadian Journal of Fisheries and Aquatic
Sciences, 53:2238-2249. doi: 10.1139/cjfas-53-10-2238.
\7\ Paxton A, et al. (2017) Seismic survey noise disrupted fish use
of a temperate reef. Marine Policy. 78:68-73. doi: 10.1016/
j.marpol.2016.12.017.
---------------------------------------------------------------------------
gao study of seismic permitting
The new study by the Government Accountability Office (GAO) that is
the topic of this hearing does not, in fact, identify any significant
deficiencies in the permitting process for offshore seismic surveys.
The GAO conducted an extensive review, and its expert reviewers do not
propose any of the drastic changes that were included in H.R. 3133,
legislation that recently passed this Committee. H.R. 3133 would
eviscerate the balanced process for issuing Incidental Harassment
Authorizations (IHAs) in order to fast-track seismic airgun surveys and
other industrial actions in the ocean that can harm whales, dolphins,
and other marine mammals.
The GAO reviewers' recommendations are minor. They recommend that
the two agencies that issue Incidental Harassment Authorizations, the
National Marine Fisheries Service and the Fish and Wildlife Service,
develop guidance on when and how staff should record the date on which
the agency determines the ``adequacy and completeness'' of the
application. Then the agencies should analyze their time frames for
reviewing IHAs and compare them to the statutory time frames. These are
trivial process recommendations and do not provide justification for
wholesale changes that undermine important and necessary protections
for marine mammals.
Furthermore, since 2006, the Fisheries Service issued 25 out of 26
IHAs for offshore oil and gas activities involving seismic surveys
within its own 6- to 9-month target time frame.\8\ While four IHAs
exceeded the time frame from the original submission date, only one
exceeded the time frame from the date of final revisions to the
application. In these four cases, the additional time was minimal--1 to
3 months.\9\ For the four Letters of Authorizations, two were issued in
the 12- to 18-month time frame, one took 24 months, and the time frame
for one is unclear.\10\ The applicants are often the source of delay.
If the applicants do not provide enough information, the Fisheries
Service must return the application for revisions and addendums.\11\
The MMPA statutory standards are neither ambiguous nor the source of
the alleged delay.
---------------------------------------------------------------------------
\8\ NOAA Fisheries, Oil & Gas: Incidental Take Authorizations,
http://www.nmfs.noaa.gov/pr/permits/incidental/oilgas.htm (last visited
Jan. 8, 2018); see also Attachment 2--Timeframe for Incidental Take
Authorizations for Oil and Gas Activities Involving Seismic Surveys
(1998-Present). The time frames are not mandatory, but estimates of how
long it will take for the Fisheries Service to process the
applications.
\9\ See Attachment 2--Timeframe for Incidental Take Authorizations
for Oil and Gas Activities Involving Seismic Surveys (1998-Present).
\10\ See id.
\11\ As the Fisheries Service notes: ``If your application is
incomplete, it will be returned to you with an explanation. The formal
processing of the request does not begin until the application is
deemed adequate and complete (with enough information for us to analyze
the potential impacts on marine mammals, their habitats, and on the
availability of marine mammals for subsistence uses).'' NOAA Fisheries,
Apply for an Incidental Take Authorization, http://www.nmfs.noaa.gov/
pr/permits/incidental/instructions.htm (last visited Jan. 8, 2018).
---------------------------------------------------------------------------
results of seismic tests would be proprietary to private companies
Proponents for testing and drilling often argue that seismic tests
are necessary in order to provide coastal communities with data about
oil and gas deposits off their shores to assess whether it makes
economic sense to move forward with drilling for those resources. But
that information is considered proprietary by the private companies
conducting them. Local decision makers won't have access to it, nor
will the public. Not even Members of Congress can get their hands on
it.
Currently, there are five companies awaiting final permits from the
Bureau of Ocean Energy Management (BOEM) to conduct seismic testing
along the Atlantic Coast. Most of these companies are European and will
not be investing in our communities. In fact, Reuters reported that a
French-based company, CGG, is dependent on the Atlantic contract to
avoid bankruptcy.\12\ Therefore, BOEM is literally putting French
business interests ahead of hard-working American workers who are
dependent on healthy ocean ecosystems for survival.
---------------------------------------------------------------------------
\12\ French oil services firm CGI files for bankruptcy. Reuters
(2017). Available: https://www.reuters.com/article/france-cgg/french-
oil-services-firm-cgg-files-for-bankruptcy-idUSL8N1JB6H8. Accessed
January 17, 2018.
---------------------------------------------------------------------------
damages associated with drilling
Accidents happen in a world where human error, mechanical
imperfections and coastal hurricanes all play unexpected roles. When
you drill, you spill. It is inevitable. The oil industry touts a 99
percent safety record, but that 1 percent is pretty horrific for people
living in the vicinity of a spill when it occurs. The Federal
Government predicts at least one oil spill a year for every 1,000
barrels in the Gulf of Mexico over the next 40 years--a spill of 10,000
barrels or more every 3 to 4 years.
We saw what happened in the Gulf of Mexico in 2010 when the BP
Deepwater Horizon rig spilled millions of barrels of oil into the Gulf.
It was a disaster, but thankfully the Gulf's bowl-like shape contained
the spill in that region. A similar spill off the Atlantic Coast would
be a disaster of epic proportions. If oil entered the Gulf Stream it
could be forced up into the Chesapeake Bay, the Hudson River Valley,
the Gulf of Maine, and the Grand Banks, which are some of the richest
fishing grounds in the world.
The Gulf of Mexico BP Deepwater Horizon blowout showed that oil
cannot be removed from salt marshes and other wetland systems. It can
remain in the sediments for decades, as was seen in marshes in
Massachusetts. Coastal salt marshes in South Carolina are among the
most productive ecosystems in the world and are nursery grounds for
many estuarine and marine species. Toxic substances from oil spills,
both chronic and acute, will put all of these organisms at risk.
Even if a spill never occurs--and both the oil industry and the
Federal Government admit that spills are inevitable--there's still an
adverse impact to South Carolina's coast in that the land-based
infrastructure necessary to support offshore drilling is dirty and
highly industrial. Also, the infrastructure required to transport
offshore oil is devastating. For example, a series of canals built
across Louisiana wetlands to transport oil has led to vast destruction
of marshlands. Healthy marshlands are a critical component of our
ecosystem.
Sometimes we hear elected officials claim that they want to explore
and drill for natural gas only, while leaving the oil in the ground.
One doesn't explore for just gas. By law, they must first produce the
oil before they produce the gas in order to ``maximize ultimate
recovery . . .'' \13\ This is because when oil and gas occur together
in a reservoir, as the oil is produced, the gas cap expands helping to
remove the oil, essentially pushing it out of the pore spaces in the
rocks. When exploration wells are drilled, one finds oil and/or gas
and/or water and/or nothing. Then the oil company determines if it's
economical to produce the reserves they found, and if so, submits a
plan to BOEM about how they will produce the well.
---------------------------------------------------------------------------
\13\ 30 CFR Sec. 250.1150. Available: https://www.gpo.gov/fdsys/
pkg/CFR-2013-title30-vol2/pdf/CFR-2013-title30-vol2-sec250-1150.pdf.
---------------------------------------------------------------------------
economics
Hydraulic fracking has increased domestic petroleum production by
64 percent. The Federal Energy Information Administration now predicts
the Nation will be a net energy exporter within a decade--for the first
time since the 1970s. There's no need for offshore oil production off
South Carolina's coast, especially in light of the costs noted above.
The American Petroleum Institute says oil and gas drilling could
result in $2.7 billion to South Carolina over a two-decade period. That
sounds like a fairly big number, but according to the South Carolina
Department of Parks, Recreation, and Tourism, tourists in South
Carolina spent nearly 10 times that amount--more than $20 billion--in
2015 alone, with about 60 percent of that resulting from tourism to
coastal areas. Even the most lucrative oil and gas scenario would
generate less than 1 percent of the economic impact tourism has on the
state. Further, these industries do not live harmoniously. Along the
Gulf Coast, beachgoers are provided with wipes to clean the oil and tar
balls from their feet after walking the beach. To the residents of
South Carolina, that scenario is unacceptable, as our beaches are major
revenue generators, and part of our way of life. Moreover, tourism
revenue increases every year with no signs of that trend slowing; the
same cannot be said of the demand for oil.
This new National OCS Program proposes to offer leases in areas
that have extensive military operations, thus risking our national
security training and readiness. The draft plan deviates from the long-
standing tradition of deference to the Department of Defense (DoD) when
offering offshore drilling leases in Federal waters. The Atlantic and
Eastern Gulf of Mexico are home to critical coastal military
facilities, including Norfolk Naval Station--the largest naval station
in the world. In the Atlantic Ocean, DoD conducts extensive readiness
operations including live fire tests, air-to-surface bombing exercises,
homing torpedo testing, supersonic test flights, laser targeting
operations, and both Naval Air and Sea Systems Command. DoD's 2015
report on mission compatibility with offshore leasing indicated that
significant restrictions on oil and gas activity in the Mid-Atlantic
and South Atlantic planning regions would be necessary to ensure that
DoD activities would not be impaired.
Furthermore, DoD has made it clear that the continuation of the
moratorium on oil and gas leasing in the Eastern Gulf of Mexico is
essential to vital military readiness activities. An April 2017 letter
from the Office of the Under Secretary of Defense states, ``The
Department of Defense (DoD) cannot overstate the vital importance of
maintaining this moratorium.'' The letter continues, ``The moratorium
on oil and gas `leasing, pre-leasing, and other related activities'
ensures that these vital military readiness activities may be conducted
without interference and is critical to their continuation. Emerging
technologies . . . will require enlarged testing and training
footprints, and increased DoD reliance of the Gulf of Mexico Energy
Security Act's moratorium beyond 2022.'' A separate June 2017 letter
from the Air Force states, ``The moratorium is essential for developing
and sustaining the Air Force's future combat capabilities.''
That total amount of energy resources, according to Department of
the Interior estimates, would keep the United States in oil for 61
days. And there's no guarantee that the drilling will pan out at all.
Five wells have been drilled in this section of the Atlantic in the
past, the last being in 1962. All were abandoned. Cuba has put down
four wells as recently as 2012, and all were found to be uneconomical,
and have been capped. These numbers are peanuts compared to what South
Carolina produced annually in GDP and jobs generated by healthy ocean
ecosystems including fishing, recreation and tourism. In 2014 alone,
these industries generated over $4.4 billion in GDP and nearly 79,000
jobs.\14\ Industrializing our coast and risking our ocean and way of
life is not worth the economic trade-off.
---------------------------------------------------------------------------
\14\ Offshore Energy by the Numbers: An Economic Analysis of
Offshore Drilling and Wind Energy in the Atlantic, by Andrew Menaquale,
Oceana, January 2015.
---------------------------------------------------------------------------
alternative energy
We must wean ourselves from dirty, nonrenewable fossil fuels and
invest more in renewable sources such as wind, solar, and geothermal.
External costs, or externalities, are never fully allocated to
companies that drill for oil--and that gives such companies an unfair
advantage over companies developing alternative sources of energy--
sources that tend to be, by design, cleaner and more sustainable.
forms of opposition to offshore seismic testing and drilling
Legal: When the prior administration removed the Atlantic coast
from the Five-Year Plan for 2017-2022, they also rejected six permits
pending to begin seismic testing for oil and gas. Instead of requiring
new seismic survey applications, the Secretary of Interior remanded the
applications. These now outdated applications are currently in the
process of being reviewed by the Bureau of Ocean Energy Management
(BOEM) and associated Federal agencies, including the National Marine
Fisheries Service (NMFS). In order for the seismic permits to move
forward, NMFS must first issue ``Incidental Harassment Authorizations''
to allow the ``taking'' of marine mammals. There is no new significant
science that counters the logic used by the previous administration's
reasoning for denying these permits. If anything, the science has
increasingly shown harm to marine life from seismic airgun blasting.
Worse, if the seismic permits are issued, paving the way for oil and
gas exploration and drilling the Administration should expect immediate
litigation from state and local governments, constituents and NGOs
across the Atlantic coast.
Political: Recently, Secretary Zinke met with Florida Governor Rick
Scott on the tarmac of the Tallahassee Airport, where in front of
several TV cameras, the Secretary announced that due to the Governor's
opposition to Florida being included in the 5-year plan, and Florida's
unique coastal environment and tourism, the state will now be removed
from the 5-year plan. While that is great that the Governor and
Secretary are listening to local leaders, businesses and constituents,
nearly every other state along the Atlantic Coast has requested the
same meeting and treatment Governor Scott received. In fact, on the
East Coast, governors from Florida, South Carolina, North Carolina,
Virginia, Maryland, Delaware, New Jersey, New York, Rhode Island, New
Hampshire, Connecticut, and Massachusetts all oppose the newly released
draft 5-year plan. It should be noted that the governors of Georgia and
Maine have recently shifted their position from supporting more
offshore drilling off their coast to expressing concerns with this new
National OCS program. Additionally, it's not entirely clear that
Florida is removed, formally, until the Proposed Program is released.
bottom line: who do we want to be?
The opposition is bipartisan and wide-ranging. More than 160
municipalities along the East Coast have passed resolutions opposing
offshore oil and gas drilling and exploration. In addition, the New
England, Mid-Atlantic, and South Atlantic Fishery Management Councils;
the Department of Defense; Air Force; Florida Defense Support Task
Force and NASA have all weighed in to express serious concerns or
opposition to these activities. More than 42,000 businesses and 500,000
fishing families have also joined this overwhelming chorus of voices
and officially said ``no'' to testing and/or drilling.
Some politicians try to straddle the fence, saying they want the
jobs the oil industry would bring, but they don't want to do anything
to harm our beaches and tourism. But you can't have both. You cannot
wholeheartedly protect the environment South Carolina is fortunate to
enjoy, yet be willing to risk it for the unknown.
Seismic testing and oil drilling pose unknown threats to our coast
that could include devastating damage to our beach communities and the
water quality we enjoy. Oil and water should not mix, and now is a time
of choosing. We must pick one or the other. Coastal communities and
local voices have already voiced their choice. We want to protect our
water, our coast, and way of life from unacceptable and devastating
impacts of seismic testing and offshore drilling. Washington needs to
listen.
I thank you for the opportunity to testify here today and I look
forward to answering your questions.
______
Dr. Gosar. Thank you, Senator Davis.
Mr. Steen, you are recognized for 5 minutes.
STATEMENT OF RYAN STEEN, PARTNER, STOEL RIVES, LLP
Mr. Steen. Thank you, Chairman Gosar, Ranking Member
Lowenthal, and members of the Subcommittee. My name is Ryan
Steen, and I am a partner in the law firm of Stoel Rives. I
present this testimony on behalf of my client, the
International Association of Geophysical Contractors. I
appreciate the Subcommittee's invitation to testify regarding
the significant need for and support for modernizing the Marine
Mammal Protection Act, known as the MMPA. My testimony is based
upon my experience representing a variety of clients in Federal
regulatory and litigation matters involving many aspects of the
MMPA and related environmental statutes.
Although well intended at the time it was enacted, the MMPA
has proven unworkable in many contexts, particularly its
provisions for the authorization of incidental take. In a
nutshell, those provisions are hopelessly ambiguous and give no
clear direction to agencies or to the regulated community.
Additionally, Incidental Harassment Authorizations involving
offshore oil and gas activities are rarely, if ever, issued
within the required time frames.
Unfortunately, the MMPA provides no consequence or remedy
for such delay. In the past decade, these problems have
manifested in the form of routinely delayed permitting
processes, inaccurate analyses of potential impacts, and
opportunistic advocacy litigation intended to impede offshore
development.
None of this is faithful to Congress' mandate that the
Federal Government pursue the ``expeditious and orderly''
development of the Outer Continental Shelf. These serious
problems have most recently been on display in the Federal
Government's processing of applications to conduct seismic
surveys in the Atlantic. The permitting process for these
applications is a bureaucratic maze, as depicted by the figure
on the screen.
After extensive environmental review at the programmatic
level, the Bureau of Ocean Energy Management published a record
of decision in July 2014 authorizing the consideration of
permits for seismic surveys in the Atlantic. Since then, the
pending permit applications have been subjected to a regulatory
process plagued with delays and uncertainty, capped by the
Obama administration's abrupt political decision on the eve of
a new Presidency to summarily deny all permit applications.
BOEM has since correctly reinstated the permit applications
which remain under agency review. While there have been many
unprecedented and extra statutory comment periods added to this
process, the Atlantic delays are due in large part to the
National Marine Fisheries Service's extreme delay in its
processing of applications for marine mammal incidental take
authorization.
To date, NMFS is delinquent in meeting the statutory
timeline by well over 2 years. NMFS has largely blamed this
delay on the supposed need to continue to evaluate various
forms of purported new information; however, as the courts have
routinely held, an agency cannot ``revise its action every time
new data or a new model is announced because doing so would
lead to significant costs and potentially endless delays in the
approval processes.''
As another example, over the past decade, almost every MMPA
incidental take regulation issued for offshore oil and gas
activities in the Arctic has been challenged in court by
advocacy organizations attempting to exploit many of the MMPA's
ambiguous provisions and related duplicative processes. In
every instance and on all counts, the regulations have been
upheld by the Federal, district, and appellate courts. However,
as intended by advocacy groups, these lawsuits have cost the
courts, agencies, and applicants substantial time and money.
As environmental advocacy groups increasingly view offshore
issues, specifically opposition to seismic surveys as a
lucrative source of fundraising, MMPA incidental take
authorizations for those activities will become increasingly
contentious. Without changes to the MMPA to create
accountability and clear standards, NMFS will continue to be
frozen by controversy and ambiguous statutory direction, which
in turn will breed more litigation.
The Secure American Energy Act would establish firm
deadlines for each stage of the MMPA authorization process,
including consequences for the failure to meet those deadlines.
The bill would also eliminate duplicative and unnecessary
standards and processes. The bill would retain all existing
opportunities for public involvement. The bill would not, as
has been suggested, eliminate mitigation requirements or reduce
substantive protections for marine mammals. Rather, the bill
helps to accomplish what any reasonable person would expect of
a Federal regulatory program: transparent standards, firm
timelines, efficient process, and elimination of redundancy.
Indeed, the only basis for opposing this bill would be an
antagonism to efficient Federal processes and a desire for the
ambiguities and inefficiencies that create opportunities for
delay and litigation.
On behalf of IAGC, I urge the Committee on Natural
Resources to support House passage of legislation to modernize
the MMPA. This would, in my view and experience, significantly
and objectively improve the administration of the MMPA.
Thank you for the opportunity to testify today.
[The prepared statement of Mr. Steen follows:]
Prepared Statement of Ryan P. Steen, on Behalf of the International
Association of Geophysical Contractors
Chairman Bishop, Ranking Member Grijalva, and members of the
Subcommittee, for the record, my name is Ryan Steen and I am a partner
in the law firm of Stoel Rives, LLP. I have extensive experience in
environmental regulation and litigation, particularly in matters
involving the Marine Mammal Protection Act (MMPA), the Endangered
Species Act (ESA), and the National Environmental Policy Act (NEPA).
Over the past decade, I have assisted clients with obtaining regulatory
authorizations for offshore activities in the Beaufort Sea, the Chukchi
Sea, the Cook Inlet, the Gulf of Mexico, and the Atlantic Ocean. I have
also represented clients in litigation involving challenges to some of
those authorizations, including in multiple proceedings before the
Alaska Federal District Court and the Ninth Circuit Court of Appeals.
In addition to my law degree, I have a Bachelor of Science degree in
fisheries. Prior to beginning my law career, I worked as a fisheries
biologist for the University of Washington. My professional career has
therefore had a strong focus on the management of ocean resources, both
from the perspective of a scientist and from the perspective of a
lawyer.
I present this testimony on behalf of my client, the International
Association of Geophysical Contractors (IAGC). The IAGC is the
international trade association representing all segments of the
geophysical industry, essential to discovering and delivering the
world's energy resources. The IAGC member companies play an integral
role in the successful exploration and development of hydrocarbon
resources, onshore and offshore, through the acquisition and processing
of geophysical data. For more than 45 years, IAGC has been the global
voice of the geophysical industry and is the only trade organization
solely dedicated to the industry. The IAGC represents more than 110-
member companies from all segments of the geophysical industry. These
members help to shape industry priorities and positions through IAGC
chapters, committees, and workgroups.
I appreciate the opportunity to testify before the Subcommittee on
Energy and Mineral Resources regarding the significant need and support
for modernizing the MMPA. This need was recently accentuated by the
December 2017 Report to the Chairman, Committee on Natural Resources,
House of Representatives from the U.S. Government Accountability Office
entitled ``Offshore Seismic Surveys--Additional Guidance Needed to Help
Ensure Timely Reviews,'' GAO-18-60 (GAO Report). Below, I first provide
important background information regarding the key MMPA provisions, and
related legal processes, at issue here. I then discuss the application
of those provisions and processes in the context of two case studies.
Following that discussion, I address the negligible impact of seismic
survey activities, recommendations for improvements to the MMPA, and
the related positive aspects of the Strengthening the Economy with
Critical Untapped Resources to Expand American Energy Act (the ``SECURE
American Energy Act'').
legal framework
In the Outer Continental Shelf Lands Act (OCSLA), Congress
expressly mandated the ``expeditious and orderly development'' of the
Outer Continental Shelf (OCS) ``subject to environmental safeguards.''
43 U.S.C. Sec. 1332(3). Courts have since confirmed that ``the
expeditious development of OCS resources'' is OCSLA's primary purpose.
California v. Watt, 668 F.2d 1290, 1316 (D.C. Cir. 1981). Congress
enacted OCSLA to ``achieve national economic and energy policy goals,
assure national security, reduce dependence on foreign sources, and
maintain a favorable balance of payments in world trade.'' 43 U.S.C.
Sec. 1802(1). Congress expressly intended to ``make [OCS] resources
available to meet the Nation's energy needs as rapidly as possible.''
Id. Sec. 1802(2)(A). Seismic surveying has been and continues to be
essential to achieving OCSLA's requirements because it is the only
feasible technology available to accurately image the subsurface of the
OCS before a single well is drilled.
Offshore seismic surveys require authorizations from the Bureau of
Ocean Energy Management (BOEM), pursuant to OCSLA. See id. Sec. 1340.
There is no requirement for an applicant for an offshore survey permit
under OCSLA to obtain an incidental take authorization under the MMPA.
However, unlawful ``takes'' of marine mammals incidental to lawful
activities (such as a permitted offshore seismic survey) may
nevertheless be subject to MMPA-based penalties. See 16 U.S.C.
Sec. 1375. Accordingly, many applicants for offshore survey permits
from BOEM also request incidental (i.e., unintentional) take
authorization under the MMPA from the National Marine Fisheries Service
(NMFS) and/or the U.S. Fish and Wildlife Service (FWS).\1\
---------------------------------------------------------------------------
\1\ FWS has jurisdiction over polar bears, walrus, sea otters,
dugongs, and manatees. NMFS has jurisdiction over all other marine
mammals.
---------------------------------------------------------------------------
In this context, it is important to recognize that the permit
issued by BOEM authorizes the seismic survey and the MMPA authorization
narrowly addresses the incidental take associated with the seismic
survey. NMFS and FWS do not have jurisdiction over the survey; their
authority under the MMPA extends only to the authorization of
incidental take. Notwithstanding the limited role of FWS and NMFS, MMPA
authorizations are often the primary cause of administrative delay in
the offshore seismic survey permitting process.
The MMPA establishes a prohibition on the ``taking'' of marine
mammals in U.S. waters, unless the taking is authorized by NMFS or FWS.
The MMPA provides mechanisms for authorizing the taking of marine
mammals, including the taking of marine mammals incidental to lawful
activities under Section 101(a)(5). See id. Sec. 1371(a)(5). ``Take''
means ``to harass, hunt, capture or kill'' a marine mammal, or attempt
to do so. Id. Sec. 1362(13). ``Harassment'' is, in turn, defined as
``any act of pursuit, torment, or annoyance'' that either:
-- (i) ``has the potential to injure a marine mammal or marine mammal
stock in the wild'' (referred to as Level A harassment)
(id. Sec. 1362(18)(A)(i)); 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'' (referred to as Level B harassment) (id.
Sec. 1362(18)(A)(ii)).
NMFS has established acoustic guidelines that it applies to
determine whether sound at certain decibel levels may cause Level A or
Level B harassment.
For many years, NMFS and FWS have authorized the incidental taking
of marine mammals for activities related to offshore oil and gas
exploration, including seismic surveys. The vast majority of MMPA
incidental take authorizations associated with offshore oil and gas
activities has involved short-term, temporary behavioral harassment
(Level B). These authorizations have been made through either (i) the
issuance of ``incidental take regulations'' (ITRs) under Section
101(a)(5)(A), which are effective for a period of up to 5 years, or
(ii) the issuance of ``incidental harassment authorizations'' (IHAs)
under Section 101(a)(5)(D), which are effective for a period of no more
than 1 year.
Because the issuance of an incidental take authorization under the
MMPA is a ``Federal action,'' it triggers an informal or formal
consultation under Section 7 of the ESA and review under the NEPA.
Although current law requires ESA compliance for MMPA authorizations,
that compliance provides no additional substantive protection to marine
mammals because, as courts have confirmed, the ``negligible impact''
standard for issuing an incidental take authorization under the MMPA is
more stringent than the standard applicable to a finding of ``no
jeopardy'' under Section 7 of the ESA. See In re Polar Bear Endangered
Species Act Listing & 4(d) Rule Litig., 818 F. Supp. 2d 214, 233 n.18
(D.D.C. 2011).
The MMPA establishes deadlines for the processing of IHA
applications. Specifically, Section 101(a)(5)(D) states that the
``Secretary shall publish a proposed authorization not later than 45
days after receiving an [IHA] application'' and request public comment.
16 U.S.C. Sec. 1371(a)(5)(D)(iii). After holding a 30-day comment
period, the Secretary ``shall issue'' the IHA within 45 days of the
close of the comment period, so long as the required MMPA findings are
made. Id. These deadlines are particularly important because IHAs are
issued for a period of only 1 year and planning for offshore surveys is
complicated and very time-sensitive. Indeed, Congress specifically
intended the issuance of IHAs to be an ``expedited process'' that was
``needed to address the procedural problems that have arisen in seeking
authorizations for harassment takes under existing section 101(a)(5) of
the MMPA.'' H.R. Rep. No. 103-439, at 29 (1994). The MMPA does not
contain timing requirements applicable to the issuance of ITRs under
Section 101(a)(5)(A).
Some observations regarding the regulatory processes described
above warrant particular emphasis here:
IHAs involving offshore oil and gas-related activities are
rarely, if ever, issued within the timing requirements of
the MMPA. NMFS even states on its website that the IHA
permitting process takes at least 6 to 9 months to
complete. The process often takes much longer. The MMPA
provides no consequences for such delay, nor does it
provide any incentives to NMFS and FWS to avoid delay.
Because the MMPA contains no timing requirements
applicable to ITRs, the regulatory process for the issuance
of ITRs often takes years and, in my view, is de-
prioritized by the agencies because other agency
obligations are subject to timing requirements and
consequences.
The ESA Section 7 consultation process is cumbersome and
time-consuming. The Section 7 process is also subject to
statutorily mandated deadlines, but those deadlines are
routinely ignored by NMFS and FWS without consequence. The
Section 7 consultation process is often a significant cause
of the delay in the issuance of an authorization under
Section 101(a)(5) of the MMPA, even though the substantive
standard governing the Section 7 process is less stringent
than the MMPA's ``negligible impact'' standard.
Another significant source of delay in the issuance of
MMPA incidental take authorizations involves the estimation
of the number of ``takes'' that are expected to occur.
Because the MMPA's definition of ``take'' is
extraordinarily broad and ambiguous (more so than the ESA's
definition of ``take''), FWS and NMFS struggle to determine
what activities actually cause take and, as a result, they
apply extremely conservative assumptions to ensure that
their take estimation modeling encapsulates all conceivable
take (and more). This process results in take estimates
that are inaccurate and vastly exaggerate the number of
takes that will actually occur.
The take estimation modeling exercises are considerably
more complicated and play an unduly important role in the
permitting process because the agencies are required to
demonstrate that the incidental take authorization will not
only have a ``negligible impact'' on the potentially
affected marine mammal stocks but also affect ``small
numbers'' of marine mammals. The term ``small numbers'' has
no biological significance whatsoever to the marine mammal
population and is a legal term of art that has notoriously
confused courts and regulators alike.
All of these regulatory problems and inefficiencies create
fertile ground for legal challenges by advocacy groups that
will readily file any and all available lawsuits for the
sole purpose of impeding and preventing the development of
the OCS.
regulation of offshore activities--two case studies
Atlantic
Approximately 30 years have passed since the potential hydrocarbon
resource base of the U.S. Atlantic OCS has been assessed with seismic
surveys. In the meantime, seismic surveys for ``scientific research''
have been conducted fairly regularly in the Atlantic OCS, in addition
to other geophysical surveys used to characterize the seabed and
subsurface for suitability of offshore wind energy facilities. Six IAGC
member companies have applied to BOEM for permits to conduct seismic
surveying in the Atlantic OCS--a process that started 7 years ago when
the first permit application was filed. These proposed surveys are
essential to the ``expeditious and orderly development'' of the OCS, as
mandated by Congress.
After extensive environmental review at the programmatic level,
BOEM published a Record of Decision in July 2014, authorizing the
consideration of permits for seismic surveys in the Atlantic OCS. Since
then, the pending permit applications have been subjected to a
regulatory process plagued with delays and uncertainty. This
inexplicable process was capped by the Obama administration's abrupt
political decision, on the eve of a new presidency, to summarily deny
all permit applications. BOEM has since correctly reinstated the permit
applications, which remain under agency review.
Needless to say, obtaining a permit to conduct a seismic survey in
the Atlantic OCS has been a seemingly unending process that has
included many environmental impact analyses, multiple opportunities for
public comment and review, including additional and unprecedented
public comment periods that are not required by statute or regulation,
and reviews by bordering states. See Attachment A. However, the most
concerning and problematic delays primarily relate to the difficulties
faced by the applicants in acquiring IHAs from NMFS for the incidental
take of marine mammals pursuant to the MMPA. BOEM has indicated that it
will not issue decisions on the pending seismic survey permits until
NMFS has also authorized IHAs for the proposed activities.
As part of the permitting process to move forward with data
acquisition on the Atlantic OCS, IAGC members have applied to NMFS for
the issuance of IHAs. The IHA applications were submitted in 2014 (with
some of them updated in the summer of 2015). The proposed IHAs were not
issued until June 6, 2017. Again, under the MMPA, the proposed IHAs
were required to have been issued within 45 days of NMFS' receipt of
the applications. This substantial delay was exacerbated by NMFS'
decision to issue the IHA applications for public comment--an
unprecedented procedure that is not required or contemplated by the
MMPA. Under the MMPA, the final IHAs were required to have been issued
within 45 days of the close of the 30-day comment period for the
proposed IHAs. However, as of the date of this testimony, the final
IHAs have still not been issued by NMFS. In sum, NMFS has exceeded the
MMPA's timing mandates for the processing of the Atlantic IHAs by more
than 2 years (and the applicants still await their authorizations).
This has not been the ``expedited process'' Congress envisioned when it
enacted the MMPA's IHA provisions. Unfortunately, the MMPA provides no
remedy or consequence for this delay. This delay is specifically
documented with detail in the GAO Report. See GAO Report at 31-36.
Many reasons have been speculated for the delays in NMFS' issuance
of decisions on the pending IHA applications. According to NMFS, some
delay resulted from its receipt of an unpublished study from Duke
University that, at that time, was unavailable to the public. At the
request of environmental advocacy organizations, NMFS apparently
stalled its processing of the pending applications to consider the
unpublished study. Delay has also been attributed to uncertainty over
the application of a series of drafts and final guidance addressing
acoustic threshold levels for permanent and temporary auditory
threshold shifts in marine mammals. In other words, NMFS has attributed
significant portions of its delay to the agency's receipt and
processing of ``new'' information. However, the MMPA contains no
provisions allowing NMFS or FWS to toll the statutory timing
requirements based upon the receipt of new information. To the
contrary, NMFS is required to make its decisions within the statutorily
mandated time frames based on the best information available during
those time frames. Moreover, as the courts have held, ``an agency need
not revise its action every time new data or a new model is announced
because doing so would lead to significant costs and potentially
endless delays in the approval processes.'' Dow AgroSciences LLC v.
NMFS, 707 F.3d 462, 473 (4th Cir. 2013) (internal quotation marks
omitted).
In addition, much has been made by advocacy groups and the media of
the estimate for as many as 138,000 Level A (potentially injurious)
``takes'' in the BOEM's programmatic environmental impact statement
(PEIS) addressing the potential effects of seismic activities in the
Atlantic Ocean. However, this estimate--like the other estimates in the
PEIS--is, as BOEM has acknowledged, a substantial overestimate because
it is based on an unrealistic scenario in which seismic survey
activities are projected to result in thousands of incidental takes of
marine mammals. The modeling exercise relied upon by BOEM and NMFS uses
a multiplicative series of conservatively biased assumptions for all
uncertain parameter inputs. These assumptions lead to accumulating bias
as the cumulative conservative assumptions add up to increasingly
unlikely statistical probabilities that are not representative of real-
world conditions. Consequently, the results are improbable worst case
scenarios, not accurate representations of likely effects.\2\ Using
more realistic risk criteria and modeling assumptions, and taking into
account standard monitoring and mitigation practices employed by the
seismic industry, the more likely estimate of potential Level A takes
is zero or a comparably small number. See Attachment B. This more
likely estimate is corroborated by the best available information,
which includes no observations of any harm to marine mammal populations
(in any region) as a result of seismic exploration activities.
---------------------------------------------------------------------------
\2\ A technical critique of the agencies' flawed, overly
conservative approach, as reproduced in BOEM's ITR petition for Gulf of
Mexico activities, is provided in Attachment B.
---------------------------------------------------------------------------
The IHA provisions of the MMPA were added by Congress to create an
``expedited process.'' H.R. Rep. No. 103-439, at 29. With over 2 years
of delay, and a continuing lack of any final decisions by NMFS, the
Atlantic IHAs have been anything but expeditious. This excessive delay
undermines Congress' clear mandate in OCSLA to carry out the
``expeditious and orderly'' development of the OCS ``subject to
environmental safeguards.'' As environmental advocacy groups
increasingly view offshore issues--specifically opposition to seismic
surveys--as a lucrative source of fundraising, MMPA incidental take
authorizations for those activities will become increasingly
contentious. If the Atlantic IHA process is any indication, NMFS will
continue to be frozen by controversy and fail to meet its statutory
obligations for future authorization processes involving offshore
activities. Without amendments to the MMPA, there will be no
accountability for such failures and the regulated community will be
unable to reasonably carry out the work necessary to help the Federal
Government fulfill OCSLA's requirements.
Arctic
The oil and gas industry has routinely applied for and received
incidental take authorizations pursuant to the MMPA covering
geophysical and other exploration activities in the Arctic OCS, by NMFS
and FWS on a project-by-project basis (i.e., IHAs) or through the
issuance of ITRs and related letters of authorization. In the past
decade, almost every MMPA ITR issued for Arctic oil and gas activities
has been challenged by environmental advocacy organizations, and in
every instance and on all counts, the authorizations have been upheld
by the courts. The Arctic MMPA experience demonstrates the
susceptibility of the MMPA and related Federal approvals to litigation,
as a result of ambiguous statutory language and unnecessary regulatory
processes.
Specifically, various advocacy organizations challenged the FWS's
2006 Beaufort Sea ITRs, 2008 Chukchi Sea ITRs, and 2013 Chukchi Sea
ITRs. Each of these lawsuits was litigated in the Alaska Federal
District Court and appealed to the Ninth Circuit Court of Appeals. The
plaintiffs asserted claims under the Administrative Procedure Act
alleging violations of numerous provisions of the MMPA, including the
``specified geographic area,'' ``specified activity,'' ``negligible
impact,'' ``small numbers,'' and ``least practicable impact''
standards. The plaintiffs also challenged related Federal documents,
such as biological opinions prepared pursuant to the ESA and
environmental assessments prepared pursuant to NEPA. The most recent
lawsuit challenging the 2013 Chukchi ITR was an expressly admitted
attempt by advocacy organizations to block Shell's Chukchi Sea
exploration program.
In all three cases, neither the Alaska district court nor the Ninth
Circuit found merit in any of the claims raised by the advocacy groups.
This track record of repeated MMPA ITR litigation in the Arctic
strongly supports the notion that advocacy groups have leveraged their
ability to challenge MMPA ITRs, and related documents prepared under
the ESA and NEPA, as a means to attempt to block or impede lawful
offshore oil and gas operations. Although these lawsuits have cost the
courts, agencies, and applicants substantial time and money, they have
accomplished no substantive result (other than delay, as intended by
the advocacy groups).
When NMFS begins issuing MMPA authorizations for activities in the
Atlantic OCS and the Gulf of Mexico OCS, it is reasonable to assume
that a similar pattern of litigation will emerge. Certain environmental
advocacy organizations have a well-established history of using the
regulatory and litigation processes as means to attempt to impede and
prevent any activities from occurring because they are fundamentally
opposed to all offshore oil and gas activities (contrary to OCSLA's
mandate). Indeed, the testimony of South Carolina State Senator Tom
Davis states that ``[t]he South Carolina Environmental Law Project will
file a lawsuit to stop implementation and a restraining order to
postpone [seismic] testing [in the Atlantic OCS] until the case can be
heard.'' Clear statutory terms and the elimination of unnecessary
processes would reduce the opportunity for the inappropriate use of
litigation as a means to impede or prevent the ``expeditious and
orderly'' development of the OCS.
In addition, the misguided intentions of environmental advocacy
organizations in the Arctic have not only consistently failed in court,
but the allegations upon which they are based have not borne out in the
scientific record. For example, oil and gas seismic exploration
activities have been conducted in the Beaufort and Chukchi Seas of the
Arctic Ocean for decades, with regular monitoring and reporting to NMFS
pursuant to MMPA authorizations. During this lengthy period of acoustic
exposures, and despite annual lethal takes by Alaska Natives engaged in
subsistence activities, bowhead whales have consistently increased in
abundance to the point that they are believed to have reached carrying
capacity. Similarly, no effects of offshore exploration activities of
which I am aware have been observed in Arctic ice seal, walrus, or
polar bear populations. After decades of oil and gas exploration
activities in the Arctic, there is no information demonstrating that
any of the activities have had anything more than a negligible impact
on marine mammal species. This finding has been repeatedly made by
Federal agency scientists in numerous public documents.
Finally, notwithstanding the successful legal defense of ITRs
issued for Arctic offshore activities, the underlying regulatory
processes for the issuance of Arctic ITRs have been riddled with
bureaucratic delay. Arctic ITRs are typically issued 1.5 to 3 years
after an ITR petition has been submitted. That time period does not
include the often substantial pre-application communications and
processes involving the agency and the petitioner. Because there are no
MMPA timing requirements applicable to ITRs, there are no consequences
for the delay.
the negligible impact of seismic activities
For over 40 years, the Federal Government and academic scientists
have studied the potential impacts of seismic survey activities on
marine animal populations and commercial fishing, and have concluded
that any such potential impacts are insignificant. This conclusion has
been publicly reaffirmed on multiple occasions by BOEM:
To date, there has been no documented scientific evidence of
noise from air guns used in geological and geophysical (G&G)
seismic activities adversely affecting marine animal
populations or coastal communities. This technology has been
used for more than 30 years around the world. It is still used
in U.S. waters off of the Gulf of Mexico with no known
detrimental impact to marine animal populations or to
commercial fishing.
BOEM, Science Notes (Aug. 22, 2014), http: // www.boem.gov/BOEM-
Science-Note-August-2014/; see also BOEM, Science Notes (Mar. 9, 2015),
https://www.boem.gov/BOEM-Science-Note-March-2015/ (there has been ``no
documented scientific evidence of noise from air guns used in
geological and geophysical (G&G) seismic activities adversely affecting
animal populations''). These statements accurately summarize the best
available scientific information regarding the potential effects of
offshore seismic activities on marine life, and there are no other data
to the contrary.
Indeed, the history of formal assessments of offshore seismic
activities demonstrates that levels of actual incidental take are far
smaller than even the most balanced pre-operation estimates of
incidental take. More than five decades of worldwide seismic surveying
and scientific research indicate that the risk of physical injury to
marine life from seismic survey activities is extremely low. For
example, as BOEM has concluded in a draft PEIS for Gulf of Mexico
activities (DPEIS), ``within the GOM, there is a long-standing and
well-developed OCS [oil and gas] Program (more than 50 years) and there
are no data to suggest that activities from the previous OCS Program
are significantly impacting marine mammal populations.'' DPEIS at 4-77.
Finally, a 2016 report from the National Academy of Sciences, Ocean
Studies Board (the ``NAS Report''),\3\ makes the following findings
regarding marine sound from seismic acoustic sources:
---------------------------------------------------------------------------
\3\ National Academies of Sciences, Engineering, and Medicine.
2016. Approaches to Understanding the Cumulative Effects of Stressors
on Marine Mammals. Washington, DC: The National Academies Press. doi:
10.17226/23479. https://www.nap.edu/download/23479#.
``The National Research Council report Marine Mammal
Populations and Ocean Noise (NRC, 2005) noted that: `No
scientific studies have conclusively demonstrated a link
between exposure to sound and adverse effects on a marine
mammal population.' That statement is still true'' (NAS
---------------------------------------------------------------------------
Report at 16);
``Evidence of the effects of noise on marine mammal
populations is largely circumstantial or conjectural'' (NAS
Report at 28); and
``The probability of marine mammals experiencing PTS
[injury] from anthropogenic activities will likely be
sufficiently low as to preclude any population-level
effects'' (NAS Report at 35).
In sum, the claims, frequently made in the media by environmental
advocacy organizations, that offshore seismic surveying has detrimental
impacts on marine mammal populations, other marine species, and
commercial fisheries are not supported by the best available
information. Decisions regarding the implementation of the MMPA, and
related Federal processes, must be made based upon the best available
information, not speculation or unsupported, politically motivated
allegations.
recommendations for modernizing the mmpa
When it was enacted in the early 1970s (and subsequently amended),
the congressional intent behind the MMPA was cutting edge and forward-
thinking. However, as described above, decades of regulation and
litigation have exposed some significant flaws in the MMPA. The primary
flaws in the MMPA stem from (i) poorly written statutory language that
creates ambiguity and uncertainty in the application of the MMPA's
legal standards, and (ii) procedural duplication and inefficiency.
These flaws result in agency delay, overly conservative and inaccurate
impact analyses, confusion by agencies and courts, and exploitation by
environmental advocacy groups. Fixing some of the obvious flaws in the
MMPA could result in tangible regulatory improvements that increase
efficiency, decrease uncertainty and risk, and ultimately benefit all
stakeholders and the implementing agencies. The following addresses
some of the key problematic areas, as well as potential solutions.
Substantive Recommendations
To issue an incidental take authorization under Section 101(a)(5)
of the MMPA, the agency must show that the authorization will have no
more than a ``negligible impact'' on marine mammal populations and
result in ``small numbers'' of incidentally taken animals.
Problems: (1) ``Negligible impact'' is not clearly
defined; (2) ``small numbers'' is not defined at all; (3)
there is significant overlap between these two ambiguous
standards; and (4) the ``small numbers'' standard has no
biological or otherwise scientific basis. These problems
have led to regulatory uncertainty, inconsistent
application by agencies, delay, and litigation.
Solution: Create a redefined unambiguous ``negligible
impact'' standard, and eliminate the ``small numbers''
requirement. A single, clear standard for authorizations
would result in regulatory efficiency and predictability.
To issue an incidental take authorization under Section 101(a)(5)
of the MMPA, the agency must require ``other means of effecting the
least practicable impact.'' These ``other means'' typically take the
form of mitigation measures included as conditions of the
authorization.
Problem: ``Least practicable impact'' is not defined in
the statute or in the implementing regulations. As a
result, it is not consistently applied by agencies, there
is very little guidance for the regulated community, and,
most recently, the phrase has been unreasonably and
ambiguously interpreted by the Ninth Circuit Court of
Appeals.
Solution: Create a new, clear definition for ``least
practicable impact.'' The definition should state that
operational concerns and economic feasibility are primary
factors in determining what mitigation is ``practicable.''
The MMPA permits the authorization of incidental take by
``harassment.''
Problem: The definition of ``harassment'' is overly broad
and ambiguous, and confusingly refers to ``potential''
harassment rather than actual harassment. This results in
serious problems in the estimation of incidental take and
unrealistic assumptions made by the implementing agencies.
Solution: Redefine ``harassment'' to remove the word
``potential'' and to establish a more specific standard
that provides better clarity for the agencies and the
regulated community.
Procedural Recommendations
The process for issuing incidental take authorizations is routinely
delayed by the implementing agencies. The current procedural
requirements create little accountability for agencies because they are
either ambiguous or establish no consequences or solutions for
unreasonably delayed agency action.
Solution #1: Revise the procedural requirements to set
clear and firm deadlines for each stage of the permitting
process, and establish consequences for when agency
deadlines are not met (e.g., default approvals).
Solution #2: Create a streamlined authorization process
for certain low-effect, but common, activities (similar to
the nationwide permit process under the Clean Water Act).
The MMPA creates a 5-year limit on ITRs that requires applicants to
petition for a new set of regulations every 5 years. This results in
unnecessary and burdensome administrative processes that create
frequent opportunities for litigation.
Solution: Remove the 5-year limit or, alternatively,
create a simple and straightforward 5-year renewal process.
Issues involving the overlap of the MMPA, the ESA, and NEPA have
proven difficult for the agencies, the courts, and the regulated
community. Because the MMPA sets the most rigorous conservation-
oriented standards of all these statutes, additional reviews and
administrative processes under the ESA and NEPA are often unnecessary
and redundant.
Solution: Make statutory revisions to minimize or
eliminate duplicative ESA and NEPA review processes for
certain MMPA authorizations. This would substantially
increase regulatory efficiency.
secure american energy act
In an effort to begin to bring certainty and clarity to the MMPA
and address some of the problems outlined in my testimony above,
Representative Scalise (LA) has introduced the SECURE American Energy
Act. By making smart changes to improve the efficiency and workability
of the MMPA incidental take authorization process, the SECURE American
Energy Act will help to facilitate the ``expeditious and orderly''
development of the U.S. OCS. The SECURE American Energy Act addresses
many of the recommendations described above.
The bill would set clear and firm deadlines for each stage
of the MMPA authorization process. Failure to meet those
deadlines would result in the approval of the requested
authorization based upon the detailed information and
proposed mitigation measures included in the IHA
application. This would significantly reduce delays in the
processing of IHA applications. The bill retains all
existing opportunities for public involvement.
Because IHAs expire after 1 year, project proponents must
re-apply over multiple years, even if there is little or no
change in the best available science. The bill would allow
IHAs to be renewed without lengthy and needless agency
review so long as there have been no significant changes to
the underlying activity or the status of the relevant
marine mammal stocks.
The bill would remove duplicative Federal agency processes
involving the ESA. Again, this would result in no
substantive change in the level of protection afforded to
marine mammals because the MMPA's standards are more
stringent and protective than the ESA's standards. This
would greatly improve the efficiency of the regulatory
process for issuing MMPA authorizations.
The bill would eliminate the redundant, non-scientific
``small numbers'' requirement while retaining the
``negligible impact'' standard. This would provide clarity
to NMFS and ensure that the applicable standard for MMPA
authorizations is scientifically based upon potential
impacts to marine mammal species or stocks.
The bill would ensure that NMFS appropriately considers
the feasibility of mitigation measures required for IHA
applicants and that such measures meet the same standard
applicable to ``reasonable and prudent measures'' imposed
under the ESA.
conclusion
Although well-intended at the time it was enacted many years ago,
the MMPA's ambiguous, outdated, and unclear language has proven
unworkable for the issuance of incidental take authorizations for
offshore activities. Changes to the statute, such as those described
above, will significantly improve the regulatory process for both
Federal regulators and the regulated community. Contrary to statements
made in the media, these changes will not substantively reduce the
protections afforded to marine mammals and will retain all existing
opportunities for public involvement in the regulatory process. Indeed,
the only basis for opposing this bill would be an antagonism to
efficient Federal processes because inefficient processes and unclear
standards create the opportunity to delay and block the development of
the OCS. The basis for such opposition is, of course, directly contrary
to OCSLA's clear mandates.
IAGC believes it is unacceptable for seismic permit applicants to
have to wait over 2 years for issuance of a simple IHA, when all the
requisite environmental analyses, based on the best available science,
have long since been completed. IAGC urges the Committee on Natural
Resources to support and pass legislation to modernize the MMPA,
including passage of the SECURE American Energy Act without delay.
Thank you for the opportunity to testify today.
*****
ATTACHMENT A
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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ATTACHMENT B
SYNOPSIS OF PRECAUTIONARY ASSUMPTIONS
GULF OF MEXICO DPEIS
Bob Gisiner, IAGC
background
The BOEM Gulf of Mexico DPEIS is structurally very similar to most
recent NEPA analyses for environmental risk from manmade sound in the
marine environment. The interaction of the source, the propagation of
the sound from source to animals, and the resulting sound exposures
interact to produce a calculated estimate of effect, usually stated as
MMPA Level A and Level B ``takes'', since the MMPA requires that the
impact of an activity be quantified in those terms (NEPA and ESA do not
have such strictly numerical requirements for estimating impact).
Historically and in this EIS, each element of the model is assessed
relative to the available information and a value is selected that is
considered sufficiently conservative or precautionary, given
uncertainties about the scientific data or about natural variability in
factors such as animal distribution, location and movement of the sound
source or the sound propagating properties of the water column.
Selection of conservative values in multiple steps of the model leads
to an outcome that is not an average of the precautionary assumptions,
or even an addition of uncertainty, but multiplication of each
uncertainty by the uncertainty in the other steps. Simply put, doubling
the expected value for four different parts of the model does not
double the outcome, nor does it result in a 2+2+2+2 = 8-fold increase
in the predicted outcome. Instead the effect of multiple precautions is
multiplicative, and the outcome is 2x2x2x2 = 16-fold more than if the
model was run with `most likely' values like averages. Doubling all
values out of precaution therefore does not predict an outcome of 200
takes when 100 was the most likely expected outcome, but instead
produces an outcome of 1,600 takes.
As we will see from the following quick-look at the GOM DPEIS,
there are many more variables in the model than the simple four
variable example described above. And the levels of precaution are not
simple doubling of expected values, but multiples that may range from
addition of some percentage (less than doubling) to increases that are
orders of magnitude greater than the ``most reasonable'' value (orders
of magnitude are multiples of ten, such as 10, 100, 1000, etc.). The
downstream consequences are also more complicated than the simple two
times two example above, with some variables interacting in other than
simple multiplicative ways.
For example, use of an 8000 cubic inch sound source rather than the
mean or median of sizes actually used (5,600-5,100 cubic inches) would
appear to only create a difference of about 30-37%, but that difference
in size produces a difference in source sound level of 3-6 decibels,
depending also on the number of elements in the source array. The
difference in source level needs to get translated into a difference in
the area covered by the sound from the two different sources, because
that will change how many animals are within the two respective areas,
all other factors being equal. The 33-37% difference in the size of the
two arrays translates into an increase of some 45-50% (roughly) in the
area exposed and therefore the number of animals taken. That is, if one
uses an 8000 cubic inch array as the precautionary standard and that
results in a take estimate of 150 individuals, then use of the more
likely mean value of 5,600 cubic inches will result in a take of 100
individuals. Needless to say, this is a pretty large downstream
consequence from alteration of a single value by what might
superficially look like a pretty small amount. As we will see,
factoring in the other parts of the model where similar conservative
assumptions are exercised results in a prediction of takes that is
millions, possibly billions, of times greater than the outcome
predicted by using most likely outcomes only.
summary of precautionary assumptions in the boem dpeis
This list includes only the most obvious and clearly unsupported
precautionary assumptions of the model:
Source
o Extreme array size and number of elements increases
exposures by 1.5 to 2 times.
o Six additional precautionary assumptions were not
analyzed.
Propagation
o Conservative or simplifying assumptions about the
propagating environment add 10-16 dB minimum to the propagated
sound.
o Combined with the precautionary source assumptions, this
results in a 90-120 time increase in estimated takes, all other
variables being equal.
o Six additional precautionary assumptions were not
analyzed.
Animal Abundance, Density and Movements
o NMFS's Stock Assessment Reports (``SARs'') and Duke Model
differ on average by a factor of 2. A minimum compromise for
uncertainty would be to reduce abundance and density estimates
by 25% to 1.5 times SAR.
o Three specific groups showed even more extreme
differences, but were not separated in this simple analysis:
expansion of Bryde's whale habitat leading to more takes; large
increases in numbers of deep divers (beaked whales, sperm
whales, Kogia); extremely large increases in pelagic dolphin
numbers (over 80 times for two species)
o Five additional precautionary assumptions were not
analyzed.
Threshold Criteria
o Level A calculations from SPLrms and SEL used
precautionary assumptions that overestimated take by 10-1,000
times. SPLpeak takes were overestimated at least twofold by
using 6 dB instead of 15 dB to derive PTS from TTS.
o Level B calculations make generous assumptions about the
likelihood of response and assume all exposures that exceed
threshold are biologically significant, over-estimated
biological consequence by at least 1,000 to more than 100,000
times.
o No allowance for reduced Level A due to behavioral
avoidance of the source (reductions of Level A up to 85%).
o No allowance for hearing recovery between pulses (likely
reduction of cumulative SEL from a continuous pulse train of
50% or more); no allowance for hearing recovery between passes
separated by hours or days (fewer than 1% of successive passes,
those within 8 hours or less, will accumulate and trigger Level
A criteria).
o Four additional contributors to precautionary over-
estimation were not analyzed, including application of
weighting functions to impulse SPL metrics.
Mitigation
o No reduction in take was allocated for mitigation. While
setting a specific value for mitigation may be difficult, it
clearly is not zero and therefore some reduction of takes due
to mitigation should be factored into the model.
o Reductions from multiple proposed mitigations were not
estimated.
-- Vessel separation and dolphin shutdowns modeled,
with questionable effectiveness
-- Increased time/area closures and 10-25% effort
reductions were not estimated.
Total Multiplicative Precautions (short list)
o [Source+Propagation (90-120x)] x [abundance (2x)] x
[conservative threshold criteria (100-10,000x)]x [no recovery
factor (10-100x)] x [no allowance for aversion (6.7 x Level A)]
x [no mitigation (1.1 - 2x)] =
o 1.3 million to 3.2 billion more takes than the number that
would be produced by using average or most likely values for
all variables.
recommendation
Re-calculate takes using average or most-likely values, quantify
and report the overall level of uncertainty in the modeling results,
and add an agreeable level of precaution to the final results, not the
individual elements.
Maybe double is reasonable?
A statistical measure of extreme confidence like 3 sigma
still covers 99.7% of all possible outcomes (370 times the
central value) and is not nearly so unreasonable as the
present model
It seems unlikely that 1 million to 3 billion times the
most likely outcome, which covers 99.9999% or more of all
possible outcomes, is a reasonable level of `precaution'.
precautionary assumptions
The Sound Source
As discussed above, BOEM treats all geophysical surveys as if they
were all conducted with the largest arrays in use. The nominal value of
8000 cubic inches is an approximation of the maximum array size
currently used in the Gulf, typically 7900 to 8500 cubic inches. Based
on a quick survey of IAGC members over the past decade, a little less
than one third of all surveys use arrays of that size. The other two-
thirds of surveys in the GOM use arrays that range in size from 6000-
2000 cubic inches, for a mean array size of 5600 cubic inches. Since
the different sizes are not distributed normally around that mean value
(i.e. not a smooth bell shaped distribution), some other value of
central tendency, like the median (5100 cubic inches) might be deemed a
more appropriate central value. But in any case, using 8000 cubic inch
sources for all modeled surveys greatly overestimates actual use.
The source level of a compressed air array increases as the cube
root of its volume, all else being equal, so a difference of 8000 and
5600 cubic inches might seem trivial. But we have seen that it is not
trivial in terms of the outcome of concern; the number of animals
exposed, because of the resulting expansion of the acoustic `footprint'
of the array and the number of animals likely to be found within that
footprint.
Furthermore, the modeled array is not only extreme in the total
volume modeled, but also in the number of elements within the array. A
typical large array of 8000 cubic inches might include 48 elements and
sometimes as many as 60, but the BOEM DPEIS used 72 elements. Why is
this important? Because array source level may only increase trivially
with total volume, but it is directly proportional to the number of
elements. An array with 72 elements has double the amplitude of an
array of 36 elements; volume and air pressure being equal.
Therefore the combination of using an array at the extreme upper
end of normally used array sizes, coupled with a number of elements in
that array which also greatly exceeds the average, can by itself
produce estimates of takes that are 1.5 to over 2 times as large as
would be predicted by using the normal range of array sizes and numbers
of elements actually in use. Based on this variable alone one would be
justified in taking the final model predictions and halving them. But
there are many more conservative assumptions in the model.
Also potentially capable of altering the model outcome, but not
addressed in this quick analysis, are:
The number of source vessels. When multiple source vessels
are used they are used at intervals that are similar to a
single source. The total acoustic energy is therefore not
increased over using a single source operated at the same
inter-pulse intervals, but the total area ensonified is
slightly increased, depending on the spatial separation of
the vessels. This may be compensated by the fact that each
vessel is only producing sound every 60 seconds instead of
every 15 seconds for a single source vessel). In the BOEM
DPEIS, the maximum number of source vessels, four, is used
for all surveys that might use multiple sources, even
though many of those surveys, such as NAZ, WAZ and coil
surveys, might more often use only one or two sources, and
rarely use as many as four source vessels.
Longitudinal tracks were only used during modeling on the
slope region of the Gulf, which has the potential to alter
sound fields and estimated takes relative to using both
lateral and longitudinal tracks typical of most surveys.
The choice of depth at which the array was towed was set
at 8 meters, but other tow depths are common (6 meters is
considered the default `standard') and the choice of tow
depth affects the frequency structure and propagation of
the resulting sound field.
The choice of pulse intervals typically varies from 10 to
20 seconds, with the DPEIS selection of 15 seconds being
fairly typical. A four source survey would result in each
source operating at 60 second intervals.
Durations of surveys were not clear. On page 3-23 a
nominal survey duration of 10.5 months was applied to all
surveys, but elsewhere in the document, e.g. D-177, the
survey durations varied.
Survey areas, line separations, and other parameters on
page D-177 appear to be in the same conservative direction
as the array size and element count; suggesting that line
spacing and area covered by a modeled 2D, 3D, WAZ or other
survey may be greater than average and thus produce
elevated sound exposures and take estimates.
Sound Propagation
BOEM is to be commended for having run some preliminary models
(Phase I modeling in Appendix D) to quantify some of the consequences
of using simplifying or conservative assumptions (e.g. see pages D-100;
D-106; D-113; D-122). Therefore we can assign some quantities to what
is otherwise a very complicated variable, the day-to-day fluctuations
in wind, temperature, currents, and other factors that affect sound
propagation through the water between the sound source and the animals
of concern.
The modeling of sources of variance yielded a 10 decibel difference
in sound transmission between an average sound speed profile in the
water and the extreme case used in the model (10 decibels is an order
of magnitude or ten times the average). Use of hard or median
properties for the seafloor added another 4 dB over the most likely
outcome, with most of the Gulf being covered with soft sediment that is
a poor reflector of sound). Use of a flat sea surface instead of a
rough sea surface adds another 2 dB minimum, resulting in a
conservative value of over-estimated propagation of 16 decibels or 60
times (!) the amount of energy propagated than would be expected on
average. Add this to the conservatism we saw for the source itself, and
we already have an ensonified area and number of animals ensonified
that would be 90 to 120 times the reasonably expected exposures. A
``best reasonable estimate'' of 100 would become an estimate of 9,000
to 12,000 from these two precautionary measures alone.
Also potentially capable of altering the model outcome, but not
addressed in this quick analysis, are:
A single uniform propagation regime is used for the entire
deepwater zone (Zone 7). Assumptions of flat bottom and
maximum depth are not met in all cases and propagation is
therefore subject to additional over-estimation factors in
the deep water region.
Survey days and survey effort appear to have been evenly
distributed across the area and seasons, although this is
likely not the case for actual survey effort. Theoretically
this might average out, but it is also possible that fewer
actual survey days in winter, when propagation conditions
are best, will lead to actual surveys producing fewer takes
than the model estimated by using equal division across
winter and summer.
SPLrms for longer range propagation is derived from the
SEL values produced by the model. As JASCO acknowledges (D-
49), modeled SEL at range tends to over-predict SPLrms as
the signal is spread over time. Time resolution of the
model also hinders accurate modeling of SPLrms based on
proper analytic units such as rms.90 (average sound
pressure over the time than encompasses 90% of the total
pulse energy).
Single frequency long range propagation modeling leads to
increased errors in pulse properties with range. For
modeling purposes a single frequency at the center of each
1/3 octave band is treated as `representative' of all the
sound energy within that frequency band. In practice,
selection of a non-representative frequency (e.g. located
at a ghost notch or filtered by propagating environment)
can lead to errors in weighted SEL values needed for
determining effects thresholds.
Use of ``maximum over depth'' in some model estimates of
take creates a worst-case scenario where all individuals
are assumed to be at the depth of highest sound exposure
all the time. It is not clear in what context JASCO used
maximum over depth as a simplifying step in modeling, but
it will always greatly over-estimate takes when used. (D-
296)
Ranges to effect for mitigation monitoring and shutdown
(but not for take estimation?) were calculated from
unweighted values, whereas hearing frequency weighting
needs to be applied to SEL threshold values (JASCO also
seems to have applied weighting to SPLrms data, which may
also be inappropriate--see section on Threshold Criteria,
below).
Animal Abundance, Density and Movements
This is a complex set of variables, with precautionary assumptions
literally varying for each of the species modeled. But overall, the use
of the Duke model creates an increase in predicted abundance that is
about double the official NMFS abundance numbers in the SARs. Some
additional modifications in the use of those data by JASCO add to the
conservatism (over-prediction) by a fractional amount, in most cases.
The Duke model is a novel approach to forecasting animal
distribution and density from historical correlations with readily
available environmental data, typically not the true environmental
predictors like prey patches or features like fronts, currents and
eddies that are less easy to predict or track. As such, there are some
things that the Duke model likely does better than the SARs, such as
predicting average abundance of pelagic dolphins that move in and out
of the U.S. EEZ from one survey to the next, leading to large sampling
variability. However, other similar models for the U.S. west coast, for
the UK, and for global oceans, have shown some extreme misses in their
predictions, an expected outcome for models in the early stages of
development for species that are infrequently counted and whose habits
are still poorly understood relative to land animals for example. Too
great dependence on a single very new model like the Duke model can
therefore be expected to result in some improvements on the SAR or U.S.
Navy NODES data resources, but is also likely to produce some extreme
``misses''. Species with wide disparities between historical data and
Duke model predictions include Atlantic spotted dolphins (from no
historic estimates in SAR, to over 45,000 animals predicted by the Duke
model, making them the third most abundant species in the Gulf,
virtually overnight. Duke predictions of Clymene dolphin abundance are
about 85 times higher than the SAR figures, Kogia numbers are increased
by a factor of 12, rough-toothed dolphins by a factor of 8 and killer
whales by a factor of more than 7. These are radical changes to our
understanding of marine mammal abundance in the Gulf that require more
than blind acceptance of a new model simply because it is generally
``better'' than the SARs (D-65).
Some of the animal abundance and distribution modeling may be
unfamiliar and counter-intuitive to the average reader. The model in
the BOEM DPEIS uses electronic representations of individual animals,
or `animats', to construct time series of exposure for a realistic
number of animals, `behaving' in realistic ways, so that the animats
move about and dive at realistic speeds and distances relative to the
sound source, which is also moving. As might be expected, capturing the
complexities of animal behavior and all of the other variability of the
sound source and the propagating ocean is impossible, so certain
statistical techniques are used to smooth out some of the variability
in outcome that can occur just from sampling errors alone. These
techniques, such as over-populating the sound field with hundreds or
thousands of times more animats than animals (and then reducing the
result proportionally to the actual population) do not affect the
outcome but do reduce the likelihood of random extreme variation in
outcomes. Monte Carlo methods, or running the same simulation over and
over hundreds or thousands of times also helps smooth out the
distribution of outcomes. Because the animats are seeded randomly for
each model run and because they run independently according to user-
specified rules, no single model run will produce the same result (as
in real life) and so the model must be run many, many times in order to
arrive at a statistical average. This process, which is widely accepted
as statistically legitimate and even necessary to producing realistic
model outcomes, should not be confused with the selection of variables
to put into the animat models and Monte Carlo simulations: those
variables, like the source and propagating environment variables, can
and do produce biases in the outcome, as will be discussed in detail
below.
Animal survey data for the Gulf of Mexico is sparse overall, and
therefore statistically weak. Various techniques have been applied to
the data to generate estimates of population abundance, density and
distribution. The official NMFS Stock Assessment Reports (SAR) are an
official estimate by NMFS of the best estimate of population abundance
in a region, but they do not offer information about animal
distribution, forcing the user to either evenly distribute the animals
even across the habitat, even though it is known the animals do not use
all of the habitat equally. Alternatively, the modeler can generate
`expert' assumptions about how the animals use the habitat, but those
assumptions can create unrealistic estimates of take if the assumptions
are not good. For example, JASCO placed all sperm whale animats in
water depths greater than 1000 meters because sperm whales are deep
divers that tend to occupy deep water. However, a look at the data show
that many, if not most, sightings of sperm whales occur in water depths
of 400-800 meters, and this is largely confirmed by tagged whale data
from the BOEM SWSS research project.
Alternative to applying a population estimate for the entire Gulf
evenly or selectively across the Gulf is to use habitat features
correlated with animal sightings to predict where animals are most
likely to be seen based on `suitability' of habitat. The statistical
aspect of this process is quite well worked out as in the Duke
University model applied in the BOEM DPEIS, but there are still `human-
in-the-loop' decisions that can affect model outcome. Something like
the Duke model is therefore a ``work in progress'' in which model
predictions may be more or less accurate, depending on the habitat
variables available to the modeler and whether they are in fact
strongly predictive of where animals will in fact be. A few ``warning
flags'' about the novel predictions by the Duke model are:
The distribution of Bryde's whales across the entire GOM
shelf edge by the inclusion of ``unidentified baleen
whale'' data as Bryde's whale data. Actual observations
suggest that the Bryde's whales are confined to a
relatively small area of habitat around DeSoto Canyon in
the Eastern Planning Area (EPA), and in fact this site has
been selected as a special mitigation zone. But the Duke
model ``places'' Bryde's whales across large swaths of area
where they have never been seen, greatly elevating the
predicted takes in the WPA and CPA by what are probably
orders of magnitude (hundreds or even thousands of modeled
takes not supported by the real data).
Several species for which there are low sighting data
produced low likelihoods of occurrence across vast areas of
the Gulf in the Duke model, which were further simplified
to even probabilities across entire modeling zones: false
killer whales, killer whales and several other species are
therefore equally likely of being taken wherever surveys
occur, when in reality there are probably higher and lower
areas of likelihood. It is hard to predict how the
``fuzzy'' predictions of the Duke model, and the
modifications of the JASCO model affect take outcomes but
generally speaking, these species tend to have predicted
abundances derived from Duke density models that are among
the highest deviations of the Duke model from SARs (e.g. 6
times SAR for killer whale, 14 times SAR for pygmy killer
whale).
Deep divers that are seldom seen during visual surveys
were subjected to some assumptions about sightability that
greatly elevated predicted abundance and greatly expanded
habitat occurrence over the SARs; 12 times the SAR for
Kogia and about 8 times the abundance for beaked whales
(based on Cuvier's beaked whale modeling). This radical
departure from historical estimates of abundance is
somewhat consistent with comparisons elsewhere (Atlantic,
California, Bahamas, eastern north Atlantic sites), but on
the high side. It is also higher than predictions by
passive acoustic surveys and modeling by Hildebrand,
Moretti, and others. Just how ``precautionary'' the Duke
model is for these species is hard to estimate at this
time, but it is fairly clear that the Duke model is over-
predicting deep diver abundance and distribution leading to
excessive estimates of takes.
Additional aspects of animal distribution and movements information
that may lead to over-prediction of takes include:
Assumptions used to deal with the large number of modeling
cells that yield zero abundance and zero takes can lead to
over-prediction of takes. JASCO notes that the outcomes
that yielded a probability of Level A take greater than one
(1) was less than 0.2% (i.e., only 2 out of a thousand
model results yielded a take of 1 or more animals) (D-123,
D-129). The average number of Level A takes was 0.0195 or
about 2 per 100, the result of a very small number of model
outcomes that yielded more than one Level A take.
The 3MB model used to set swimming and dive parameters for
the animals rely on limited data, quite often from related
species studied at different locations than the Gulf. It is
therefore hard to predict whether the overall effect of the
values entered into the 3MB model resulted in over-
prediction of takes or under-prediction, but the most
likely outcome is that the values used were conservative,
precautionary values that added to the over-prediction of
takes.
The modelers assumed that the animals did not undergo
long-term, large-scale movements. Certainly it is widely
assumed that animals do not migrate in and out of the Gulf
in great numbers, although sperm whales, a variety of
baleen whales, and probably many other species do move
between the Gulf and Atlantic or Caribbean. But the
currently available data do not offer enough information,
especially for winter months, to determine whether other
species exhibit moderate north-south or east-west movements
with the seasons similar to the inshore-offshore movements
of estuarine bottlenose dolphins in the late winter and
spring, or during other seasons. It is well known that
large numbers of animals may travel from east to west,
tracking the warm core rings spun off by the Loop Current,
but this phenomenon is not sufficiently documented to
inform the model.
JASCO modeled the effect of group size on outcome. They
did not see a significant difference in average outcome
from using single, ungrouped animats, although they did
note that obtaining the same outcome regardless of group
size means that there will be more zero-take model runs as
group size increases (D-135; D-174).
As animats move over time, and if animats are removed once
they exceed a take threshold, then the probability of take
will decline over time as there are fewer and fewer animats
in the field. JASCO used a common technique for keeping the
number of animats constant and thus keeping probability of
take constant over time by introducing new animats on the
opposite side from which an animat had just left (D-49; D-
82; D201). It is also not clear if and how animals were
removed or replaced once taken. This is especially
important where animats were left in the field to
accumulate SEL for days or weeks. There are other nuance to
re-seeding the sound fields that can result in skewed
results, but a full treatment is beyond the scope of this
short review.
Take (Acoustic Risk) Thresholds
Both Level A and Level B thresholds range from more than 100 times
higher than best scientific evidence to over 100,000 times higher.
There are multiple conservative assumptions that produce this
extraordinary outcome: the assumption that exposure equals take, the
conservative linkage of permanent hearing decrements to temporary
hearing decrements, assumptions about the accumulation of hearing
effects over time without recovery between exposures, and assumptions
about how many of these exposures actually have any meaningful
biological consequences.
The MMPA defines ``harassment'' with reference to two categories:
Level A harassment (potential to ``injure'') and Level B harassment
(potential to ``disturb''). NMFS applies acoustic thresholds to
estimate the amount of harassment for each category that may result
from an activity. The acoustic thresholds are often mistakenly assumed
to mean that an injury or mortality will occur, with 100 percent of the
exposed animals being injured or killed, or that 100 percent of
exposures at behavioral thresholds will cause behavioral change and
that the consequences of the change are a significant and meaningful
loss of food, energy, or some other key biological function. In fact,
both thresholds imply a probability of there being an effect upon
exposure. BOEM was quite emphatic in stating that exposure does not
equal take, but the model still treats any exposure that exceeds
threshold as a take. This is the first of many features within the
Acoustic Risk Threshold part of the model that lead to large over-
estimates of take.
Additionally, the DPEIS is not always clear when and how animals
are removed from the model to prevent multiple takes of the same
individual (e.g., being counted as a Level B take and then exceeding
Level A criteria and also being counted as a Level A take). Removals
need to be handled carefully to prevent gradual reductions of model
`animats' in the sound field as ``taken'' animats are removed.
The most recent threshold criteria for Level A takes are based on
empirical data for the threshold at which a temporary decrease in
hearing sensitivity (TTS) occurs across a narrow frequency range of
hearing (NMFS, 2016; Finneran, 2015). BOEM also variously cites NMFS
1995; Southall et al 2007; Finneran and Jenkins, 2012: it is not yet
clear which criteria they plan to use in the Final EIS, making analysis
of the DPEIS difficult. JASCO in Appendix D modeled the 1995 threshold.
The simplest Level A threshold, long since superseded by scientific
data but still in use by NMFS, is 180 dB SPLrms (root mean squared--an
average over some specified time period, and since it is an average of
a logarithmic scale, dB, a square root of the mean of summed square
values is required rather than a simple average). Despite being
outdated by more than 20 years, BOEM still modeled takes using this
hyper-precautionary threshold. This provides a threshold that is some
10 to 1,000 times more precautionary than the current best data derived
from TTS thresholds for both impulse and tonal sources; the peak SPL or
the summed sound energy over time (SEL), although we shall see later in
this section that the SEL has also been subjected to additional
conservative assumptions that render it some 10-1,000 times more
conservative than SPLpeak. The values of 10 to 1000 times are based on
SPLpeak thresholds of 230-200 dB SPLpeak, and an estimate of 180 dB SPL
rms being comparable to 190 dB SPL peak (200 dB is ten times 190 dB and
2230 dB is one thousand times 190 dB on the same scale, in this case
SPLpeak).
Permanent Threshold Shift (PTS) is not tested directly, and is
assumed to occur at a level above TTS consistent with marine mammal TTS
data and human/lab animal data. PTS, as for TTS, is not a threshold for
deafness or major loss of hearing, but for a small decrement of hearing
sensitivity within a narrow frequency range, a `hearing notch'. This is
a liberal interpretation of ``injury'', since the original sense of the
term in MMPA was intended for animals that lost eyes, limbs, or
suffered broken bones and spinal injuries during interactions with
fisheries or due to being struck by ships, shot at, or otherwise
seriously injured.
The criterion is rendered even more conservative by the use of a 15
decibel difference between TTS and PTS when the data from other
species, including humans, indicates PTS onset at 20-40 dB above TTS
threshold. Since even this conservative addition of only 15 dB to TTS
produces thresholds of PTS above the source level of the sound source,
Southall et al (2007) and subsequent criteria (NMFS 2016) have
arbitrarily set the SPL peak metric for PTS at a mere 6 dB above TTS
threshold, or almost ten times lower (and therefore productive of ten
times as many exposures and takes).
The best predictor of TTS and therefore PTS, at least for tonal
sounds, is SEL, a product of both signal intensity (not amplitude) and
duration. It is not clear how well this relationship holds up for an
impulse signal like compressed air (CA) sources, so relationships for
tonal signals are applied to impulse thresholds. SEL is referenced to a
time duration, typically one second, but for sounds less than 1 second
long, like impulse sounds, SEL does not always hold up.
Furthermore, models like the BOEM DPEIS treat multiple exposures
separated by many seconds or even hours or days, as if the sound
exposure had been continuous. Near the source a geophysical survey
produced 0.1 s of sound every 10-20 seconds, expressed as a ``duty
cycle'' of approximately 1-2%. Further from the source the energy in
the impulse may spread in time, increasing the duty cycle, but at
ranges meaningful for Level A determination, the duty cycle remains
below 10%, meaning that 90% of the time the ear is capable of
recovering from some of the induced fatigue or threshold shift. Early
TTS studies noted that the animals recovered from low levels of TTS
within seconds or minutes, and subsequent ongoing studies are
consistent, suggesting that it make take considerably more intermittent
exposures to produce TTS or PTS than would be predicted by simply
adding up multiple pulses as if they all occurred in succession without
any time for recovery (In other words 12 pulses of 0.1 second duration
each are treated as a continuous 1.2 second pulse and not what they
are, which 1.2 seconds of sound within ten 15 second intervals or 150
seconds of ambient sound only).
The case for some sort of recovery function is even stronger for
intermittent passes of an array that may be separated by 4, 8, 16 or
more hours, in which case hearing is likely fully recovered and no
accumulation of SEL should be carried forward. NMFS has traditionally
carried SEL forward for 24 hours, a scientifically unwarranted
precaution that leads to over-estimations of take by another 10-100
times, if not more. The current modeling exercise suggests in places
that SEL accumulation was carried forward even further for weeks or
even months. Appendix K offers annual summations of SEL and a similar
cumulative sound metric, Leq, for an entire year. This is not
scientifically justified and leads to overestimates of takes by tens or
even hundreds of thousands of takes, both Level A and Level B.
Because we do not have a specific recovery function to offer yet,
BOEM has not included ANY recovery in their model, whereas a model
consistent with best available science should include at the very least
a recovery function consistent with human and other mammalian hearing.
Absence of a recovery function is likely adding another 10 to 100 fold
over-estimation to Level A take.
Thresholds for Level B take have been difficult to derive, although
more and more publications have offered data and a proposed threshold
function: most of these papers are not cited or reviewed in the EIS, or
in the reference used by the Phase II model (Appendix D), which is an
unpublished contract report to a California utility company (Wood et al
2012). Wood et al (2012) also presents a potential conflict of
interest, since the author of Appendix H (Brandon Southall) is also a
co-author of the Wood et al (2012) report. The industry is sponsoring a
review of the behavioral effects literature, but that review will not
be published in time to inform the current PEIS.
In any case, the Wood et al recommendation was a step function of
increasing behavioral response at increasing exposure levels, and in
this respect Wood et al (2012) is similar to other Level B risk
assessments like the U.S. Navy Programmatic EISs (2009; 2014, draft
2017). All recognize that out of a given group of animals, a few will
respond at low levels, with increasing recruitment up to an exposure
level that approaches thresholds for TTS and PTS. BOEM also applied the
outdated NMFS 1995 Level B threshold of 160 dB SPLrms.
The outcome of applying any of these thresholds is the generation
of tens of thousands to millions of Level B takes in which the vast
majority of ``takes'' are transitory disturbances that last hours or a
day or two and have no impact at all on foraging success, breeding
success, growth, health or any other biologically meaningful metric.
The hypothetical possibility that cessation of feeding for a day or
movement a few miles from the source, or a change in vocal behavior
``might'' lead to biologically meaningful consequences means that the
model calculations are treated as ``takes'' under MMPA even though all
acknowledge that exposures don't equal takes and takes do not equal
meaningful effects. The development of the PCOD model, and population
of that model with data, confirm that behavioral disturbance from sound
needs to be reduced to a ``biologically significant'' number that is a
fraction of the counted exposures; anywhere from a conservative 1% to a
more realistic 0.001% or less. In other words, estimates of thousand to
millions of takes in the model are like to result in fewer than 1 to
1000 takes with actual biological consequences. These numbers, spread
across large areas like the Gulf and multiple species are
mathematically too low to result in a population level consequence from
Level B takes (e.g. elevation of baseline mortality, decrease in
baseline fecundity). This is consistent with history, where more than
five decades of regular geophysical survey effort all over the globe
has not generated any evidence that observed behavioral responses to
the sound has any biological consequence.
Calculation of grossly inflated Level B take numbers in the GOM
DPEIS is not consistent with current best information, and greatly
over-estimates the consequences for the stocks of marine mammals being
managed.
Finally, behavioral aversion was not applied to this model, even
though a preliminary Phase I model showed that even small amounts of
aversive greatly affected both Level A and Level B takes. If behavioral
aversion is a trigger for Level B take then it cannot subsequently be
omitted from modeling of Level A takes, since the low level exposures
that trigger aversion will reduce the likelihood of higher levels of
exposure.
Additional aspects of threshold assessment that may lead to over-
prediction of takes include:
Conservative thresholds for low frequency whales. Current
conservative thresholds for whales increase the estimated
Level A and Level B takes for these species by some 4 to 10
times over best available science predictions. Arguments
for unreasonable precaution in the face of uncertainty are
not consistent with mammalian auditory biology in general.
JASCO applied novel uses of weighting functions, using
outdated M1 weighting functions from Southall et al (2007)
on SPL thresholds, where weighting functions should not be
applied.
Kogia are considered to have the same hearing thresholds
as porpoises, even though they are unrelated and the
evidence for high sensitive is based largely on data about
Kogia vocal behavior and some inconsistent evoked potential
audiometry.
Modifications to beaked whale Level B thresholds unique to
this EIS are applied without justification other than
precaution.
Mitigation
BOEM allowed no reduction in the estimated take for mitigation.
This is a highly over-conservative assumption, justified by the
relatively little data available on mitigation effectiveness, together
with the likely variability in mitigation effectiveness between
mitigation service providers, types of marine species present,
monitoring conditions and other variables. Some analysis on page D-151
suggests ranges of observer mitigation effectiveness from near zero to
over 70%. One cannot require mitigation and at the same time treat it
as if it provides no reduction in takes. BOEM needs to come up with
some metric for the benefits from required mitigation. A variety of
other possible mitigations have been proposed in the GOM DPEIS, ranging
from alternative source technologies and active acoustic mitigation to
time/area closures, vessel separation schemes, and reduced quantities
of geophysical survey effort of 10-25%. At least two of the suggested
mitigation measures, vessel separation (Table ES-1; page 1-10; page 2-
10; B-32; page 2-38; and D-162-163) and shutdowns for dolphins
approaching vessels or bowriding (p. 2-24) offer the possibility of
actually increasing takes through expansion of ensonified areas (vessel
separation), or extremely high increases in shutdowns with associated
prolongation of survey effort (and sound exposure) to achieve survey
completion (an estimated 35-40% increase).
______
Dr. Gosar. Thank you, Mr. Steen.
I thank the panel for their testimony. I will remind the
members of the Committee that Committee Rule 3(d) imposes a 5-
minute limit on questions. The Chairman will now recognize
Members for questions, and I will start with myself.
Director Cruickshank, the OCS oil and gas leasing decisions
made today directly impact our Nation's energy, security, and
Federal and state revenue streams for decades to come. It all
starts with seismic surveying data. How does BOEM use
geophysical data when making offshore leasing decisions?
Dr. Cruickshank. Mr. Chairman, we use the G&G data we
receive for a number of our responsibilities under the OCS
Lands Act. For oil and gas, we use it to make our assessment of
what resources are there. One of the factors that the Secretary
is required to consider in putting together a recent program is
what is the resource potential to the various areas.
We also use that data to help design the lease sales to try
to focus them on the areas with most potential, and then when
we have a lease sale and receive bids, we are using that data
to help us determine whether the bids that are made are
adequate to meet the fair market value standard of the OCS
Lands Act. That is also used for regulatory purposes after
areas go into production to help monitor what is going on
subsea, to make sure that operations are behaving as they
should.
Dr. Gosar. In my comments, I highlighted that it has been
30 years since we have actually used seismic in some of these
areas. How does that really impact us? The technology has
become much more sophisticated, and these are outdated
references, are they not?
Dr. Cruickshank. That is correct, Mr. Chairman. Some of the
old data has been reprocessed so, to the extent that that data
is there, we can get a slightly better image. And we also look
at the other activity going on offshore in Canada, offshore in
the Bahamas, and on the geographic margins of Africa, where
they have the same geologic processes after the continent
split. So, we have been able to improve our estimates a bit,
but as you note, the data is old and those old technologies do
not give as clear a picture or as deep a picture of what may
lie beneath the seabed. We would certainly benefit from having
better data to understand what resources may be there.
Dr. Gosar. I am going to stray just a little bit, some of
the technology that goes into forming the new technology, like
critical minerals and rare earths--when we were in Norway this
summer, we were told that in their seismic explorations in the
Arctic Sea, they found free-form nodules of rare earths. We are
way behind the curve in that, because if we are looking at new
technology and technology going forward, we need to have
dependable supplies of rare earths. And China now controls 100
percent of that marketplace.
Dr. Cruickshank, our coastal communities and ecosystems are
constantly eroded, whether it be from natural events such as
hurricanes or man-made causes like infrastructure development.
BOEM uses sand and gravel sources from OCS to replenish these
environments. How is seismic used to identify suitable offshore
sand and gravel resources?
Dr. Cruickshank. We do use seismic surveys to help
delineate where there are OCS sand resources and the nature of
those to try to meet the needs of states and local communities.
It is a different type of seismic than is typically used for
oil and gas exploration. Oil and gas exploration is very deep
penetration, trying to see what is thousands of feet below the
seabed, while for marine minerals and sand deposits, you are
really only looking a few hundred feet down. So, it is a
different type of seismic, but still seismic activity that is
very important to be able to characterize those resources.
Dr. Gosar. Once again, BOEM recently announced an
initiative to facilitate offshore wind project development on
OCS. How do offshore wind developers rely on seismic surveying
data for project planning and construction? And have you had
any problems associated with marine life when it comes to
seismic surveying for wind? Dr. Cruickshank?
Dr. Cruickshank. We require seismic surveys, again,
shallow, beneath the surface, to understand what the seafloor
is like, where there might be geologic hazards. It is important
to ensure when you are citing wind turbines that you don't
build them in a spot that may not be stable geologically or
that you are not putting them where there are critical
biological or archaeological resources. So, we require seismic
surveys, again, looking to shallow depths beneath the seabed to
understand what is there.
As part of the renewable energy process for those surveys,
we do consult with National Marine Fisheries Service to make
sure we have appropriate mitigation measures in place to
protect all the marine species from any sound that may occur
during those activities.
Dr. Gosar. Thank you, Doctor.
I recognize the Ranking Member for his questions.
Mr. Lowenthal. Thank you.
Dr. Cruickshank, on January 9, Secretary Zinke met with
Florida Governor Rick Scott at the Tallahassee airport, and
after that meeting, he tweeted, and I quote, ``After talking
with Florida Governor Scott, I am removing Florida from the
draft offshore plan.''
Less than 30 minutes later, he tweeted what he called a
full statement, which included him saying: ``I support the
Governor's position that Florida is unique and its coasts are
heavily reliant on tourism as an economic driver. As a result
of discussions with Governor Scott and his leadership, I am
removing Florida from consideration for any new oil and gas
platforms.'' He added in that tweet, ``local voices matter.''
Obviously, those of us in other coastal states that are
heavily reliant on tourism and clean beaches for our economies
would also say that our coasts are unique, and would like to
think that our local voices matter as well. So, I just want to
ask a few questions about the situation with Florida.
One, did the governor of the Florida submit official
comments to the Bureau of Ocean Energy Management in response
to the June 2017 request for information?
Dr. Cruickshank. We received correspondence from the State
Governor in Florida. It did not take a position on whether it
should be in or out of the DPP, but noted specific issues that
should be analyzed as we go forward.
Mr. Lowenthal. Thank you. Are you aware of any
conversations or correspondence between anyone in the Florida
Governor's Office and employees of the Department of the
Interior regarding the potential inclusion of waters around
Florida in the draft proposed plan?
Dr. Cruickshank. I have not been part of any direct
conversations, but I know the Secretary has spoken with people
in Florida.
Mr. Lowenthal. Would you provide records of those
correspondence to the Committee?
Dr. Cruickshank. Yes, any correspondence we have, we will
provide the Committee.
Mr. Lowenthal. Thank you. Are you aware of any
conversations or correspondence between the Florida Governor's
Office and the Bureau of Ocean Energy Management after the
publication of the draft proposed plan and before the
Secretary's meeting with the Governor on January 9?
Dr. Cruickshank. I am not aware of any particular
correspondence. But as we look for correspondence in response
to your previous request, we will check.
Mr. Lowenthal. Forward those to the Committee. Thank you.
How about between the Governor's Office and the Secretary's
Office in the same time frame?
Dr. Cruickshank. I would not necessarily see correspondence
that goes directly from the Governor to the Secretary's Office.
Again, we will search the records and if we find anything, we
will share them with the Committee.
Mr. Lowenthal. Are you aware of anyone at BOEM who had a
discussion with the Secretary about the possibility of him
sending those tweets or making that decision before he met with
Governor Scott?
Dr. Cruickshank. No, sir, I am not.
Mr. Lowenthal. Have there been discussions between BOEM and
the Secretary, the Deputy Secretary, or the Assistant Secretary
for Lands and Minerals Management, or any people in their
offices, regarding his decision and those tweets since he sent
them?
Dr. Cruickshank. Yes, we have had conversations, and we
will be proceeding with the process called for under the Outer
Continental Shelf Lands Act and the National Environmental
Policy Act.
All of the areas that are in the draft proposed program
will be subject to the full analyses of both of those statutes.
And it will be the first time in over 30 years that the entire
OCS has been so analyzed.
Mr. Lowenthal. So, that is how you would characterize those
discussions, and you will also send us copies of any
correspondence?
Dr. Cruickshank. Yes.
Mr. Lowenthal. Were any instructions sent to BOEM regarding
how to treat the waters around Florida in developing the next
step of the program?
Dr. Cruickshank. As I just noted, Mr. Lowenthal, we will be
conducting a complete analysis, as we will for all of the areas
in the draft proposed program, looking at resource potential
with environmental impacts. And all of that analysis and all
the public comment will be made available to the Secretary so
his decisions can be reflected in the next stage.
Mr. Lowenthal. Again, we would like to have that
correspondence.
Does BOEM consider Governor Scott's request for a meeting
and for all of the waters around Florida to be removed from the
plan to be a comment under Section 18(c)(2) of the Outer
Continental Shelf Lands Act?
Dr. Cruickshank. To the extent we have any written
correspondence in response to the DPP, that will be made part
of the record. The Secretary responded to the Governor's
request for a meeting. He has done so with other governors as
well. He has spoken with eight governors so far, and is willing
to meet with others. Those conversations are important to the
Secretary and will be useful to him as he makes decisions going
forward.
Mr. Lowenthal. OK. I yield back. Thank you.
Dr. Gosar. I thank the gentleman.
The gentleman from Colorado, Mr. Lamborn, is recognized.
Mr. Lamborn. Thank you, Mr. Chairman, and thank you for
having this important hearing.
Mr. Steen, I would like to ask you a few questions. Does
acoustic surveying occur all over the world and has this
occurred for many years now?
Mr. Steen. Yes, it has.
Mr. Lamborn. And has there ever been any documented case of
an injured or killed marine mammal from seismic surveying?
Mr. Steen. I am aware of no documented case.
Mr. Lamborn. And isn't it also true that BOEM came out on
March 9, 2015, in a science note, saying that any potential
links between seismic surveying activity and ``the
sustainability of species or stocks have not been
demonstrated''?
Mr. Steen. That is correct.
Mr. Lamborn. How long has it been or have we ever had
accurate and comprehensive seismic surveying off the Atlantic
Coast?
Mr. Steen. I am not sure precisely how long it has been,
but I believe it has been at least a few decades.
Mr. Lamborn. And is the technology much better now than it
was a few decades ago?
Mr. Steen. As far as I know, yes, it would be. I am a
lawyer, not a technician, but as I understand it from my
clients and their experts, it is much better today than it used
to be.
Mr. Lamborn. With all this in mind, is it possible that
after accurate seismic surveying, we would discover greater
amounts of oil and gas reserves than we know about now?
Mr. Steen. That would be possible.
Mr. Lamborn. With all that in mind, is it possible that
opponents of oil and gas are exploiting alleged harm to marine
mammals simply to prevent scientific survey results from
becoming public?
Mr. Steen. I believe that is the case, and I believe that
is evidenced by and bears out by what we have seen in the
Arctic as well.
Mr. Lamborn. Thank you.
Mr. Chairman, I have no further questions. I yield back.
Dr. Gosar. Would the gentleman yield?
Mr. Lamborn. Yes.
Dr. Gosar. Mr. Steen, can you update us a little bit about
how seismic has improved over the last several decades, because
I think that is really important to understand?
Mr. Steen. Again, I am speaking from the perspective of a
lawyer. Technology is not my expertise, but as I understand it
from my clients, it has improved to a degree where the
resolution of what can be identified through seismic surveying
is greatly improved. And seismic companies are much better able
to tell with precision where oil and gas reserves might be,
where other types of things under the seafloor would be, where
hazards may be and that it has improved significantly over the
past several decades. I am sure they would be happy to provide
the Committee with more detailed technical information to
support that.
Dr. Gosar. We definitely would.
Dr. Cruickshank, there is more to this because we started
down this line, and not just for mineral evaluation but also
geological stability, so that when we actually have
catastrophic events, like tsunamis and stuff like that, the
understanding of the tectonic and geological plates allow us to
have better interpretation of how those things can actually
affect the mainland continent, do they not?
Dr. Cruickshank. That is correct. And as a matter of fact,
the U.S. Geological Survey and the National Science Foundation
have used seismic to try to understand historically what has
happened to the coast over geologic history to use that to
better inform decision making for managing the coast now.
Dr. Gosar. It will also have a big implication on national
security, would it not?
Dr. Cruickshank. Yes. Energy is certainly a vital component
of our national security issues.
Dr. Gosar. I appreciate it.
I now acknowledge the gentleman from Florida, Mr. Soto, for
his 5 minutes.
Mr. Soto. Thank you, Mr. Chairman.
We have seen the rollout of the America First energy
policy. And I was thrilled initially to hear that Florida's
offshore drilling plan was off the table. Although, I think I
heard you say just now, Director Cruickshank, that it is still
under consideration. I have a few questions about how this
decision initially went down and also what does it mean.
First, what specifically is still under consideration as
far as offshore drilling related to Florida?
Dr. Cruickshank. We are following the process called for in
the Outer Continental Shelf Lands Act, the statute that governs
the development of the 5-year program. Under that statute, we
are conducting the full analyses under Section 18 of that Act
and under the National Environmental Policy Act of all areas
that were included in the draft proposed program.
Mr. Soto. So, then is Secretary Zinke's tweet getting ahead
of the game? Is that not an official decision? Is that just him
saying it, but the process actually hasn't happened yet?
Dr. Cruickshank. The Secretary's statement stands on its
own. We are following the process, and the Secretary's
decisions will be reflected in the proposed program decision.
Mr. Soto. By stand on its own, it just stands on its
season, but it is not an official action. Is that what you
mean?
Dr. Cruickshank. It is not a formal action, no.
Mr. Soto. So, there has been no formal action to remove
Florida from the offshore drilling plan as of right now?
Dr. Cruickshank. We will be including it in the analysis
for the decisions that will come out later this year.
Mr. Soto. So, that is a yes.
Have we looked at whether the 125-mile buffer zone is going
to be one of those areas that will be respected?
Dr. Cruickshank. That is one of the specific options that
the Secretary asked us to analyze, so it will be included in
that analysis.
Mr. Soto. And are you all leaning toward taking the
Atlantic part of Florida off the table too as far as offshore
drilling?
Dr. Cruickshank. It will also be subject to the same
analyses.
Mr. Soto. So, the tweet is not a test. As you know, with
rules, there could be arbitrary and capricious decisions. I
believe the tweet was: Florida is unique. Our coasts are
heavily reliant on tourism as an economic driver.
I believe both those things are true, so we are not dealing
with a two-part test of states being unique and having coasts
as an economic driver. Is that the test or is that not the test
to determine what----
Dr. Cruickshank. Those are factors that need to be
considered. The OCS Lands Act lays out eight categories of
information that the Secretary needs to consider in his
decision-making process, and that is what the analyses that we
are undertaking now will look at. That includes the laws,
goals, and policies of the affected states and the OCS Lands
Act, those call out specific rolls for the governors in
providing information to the Secretary. And the Secretary will
carefully consider all of that.
Mr. Soto. Just so we are clear, Mr. Director, you are going
to apply those standards as required under the law, and this
was more of an advanced tweet of an opinion and not an official
act then?
Dr. Cruickshank. We will do that complete analysis, and any
decision the Secretary makes will be reflected in the next
proposal.
Mr. Soto. Has this ever happened before where we have a
statement made by Secretary Zinke or anybody else under the
umbrella of the Department of the Interior, where they make a
statement but they have not undergone the analysis yet?
Dr. Cruickshank. I cannot speak to whether there have been
comments from other Secretaries over the history of the
program, since this process was established in the 1970s.
Certainly, with today's technology, any sorts of statements get
a broader audience than they might have 30 or 40 years ago.
Mr. Soto. As you can appreciate, many Floridians now
believe that we are off the table, that there is going to be no
offshore drilling because of that statement. And that is not
true. We still have to go through an analysis to determine
whether that is going to happen or not.
Can you give us any early indication how we are doing,
whether under those factors we officially will be removed both
under the 125 buffer zone and the Atlantic?
Mr. Cruickshank. The analysis we provide is basically
laying out the facts, and that includes an analysis of the
comments that we are receiving now through this public comment
period, and the Secretary will consider all of that in putting
his decision together. Until such time as all of those analyses
are complete and we have all of those comments to put in the
record to consider, we will not have any indication of where
the Secretary wants to go in this process.
Mr. Soto. So, right now, Florida's shores are still in
jeopardy if or until an official decision is made. Is that
correct?
Dr. Cruickshank. They are still part of the analysis until
the Secretary gives us an official decision otherwise.
Mr. Soto. Thank you. I yield back.
Dr. Gosar. I thank the gentleman from Florida.
The gentleman from Virginia, Mr. Wittman, is recognized for
5 minutes.
Mr. Wittman. Thank you, Mr. Chairman.
I wanted to go to Director Cruickshank first and ask you a
little bit about the permitting process, understanding how that
process unfolds.
The GAO reported that BOEM made a policy decision to wait
for the National Marine and Fisheries Service to issue
Incidental Harassment Authorizations before issuing or even
considering seismic permitting in the Atlantic. Why did BOEM
decide to wait for the National Marine Fisheries Service, that
is not directed through the administrative process, before they
decided to issue permits or even go through the consideration
process for these seismic permits in the Atlantic?
Dr. Cruickshank. We did so in the Atlantic recognizing that
the Service could not proceed without both our permit and the
Incidental Harassment Authorization. We will be able to
complete our work on the permits within a couple of weeks after
the IHA process is done. We wanted to make sure that any
conditions that came out of that IHA process would be reflected
in the final permits that are given to the companies.
Mr. Wittman. Is that directed, though, in the statute to
say that you will wait for that? Is there any reason why you
couldn't do that concurrently with what the National Marine
Fisheries Service may find in their evaluation efforts?
Mr. Cruickshank. Our analyses basically are concurrent.
There is nothing that requires that we wait on the IHA. Indeed,
in Alaska, we have often issued the permits conditional on them
receiving the IHAs.
Mr. Wittman. OK. But in this situation, there was not any
condition placed on NMFS findings, it was waiting for the NMFS
findings. There seems to be inconsistency, at least in how
information is coming back from NMFS to BOEM in this permitting
process. I am just trying to understand, is there a rhyme or
reason to that?
Dr. Cruickshank. Again, the rationale here was, it will not
take us more than a couple of weeks after the IHA process is
done to complete the permits. So, once we have all of that
information and IHA is indeed approved, then we will be able to
issue those permits very promptly.
Mr. Wittman. OK. I want to go to another part of the GAO
report where it speaks about the Marine Mammal Protection Act,
and agencies are directed to review the incidental harassment
authorization applications within 120 days of receiving the
application. Yet, it seems that neither NMFS nor the U.S. Fish
and Wildlife Service can determine whether or not they are
meeting that requirement that is in the statute. It also seems
that both agencies are pretty much unconcerned about that.
Can you give me a perspective about why you think the
agencies are unconcerned about whether they are in compliance
with this requirement in the statute, and are they going to do
anything to correct that situation? They seem to be somewhat
ambivalent about that, and that ambivalence ends up creating
inconsistencies. And at least looking at how the process is put
forward, and that, unfortunately, lends itself to be used as a
political tool if there is something that is being pursued with
an ideology, particularly maybe within an agency. I want to get
your perspective on the 120-day requirement.
Mr. Cruickshank. I cannot speak for the National Marine
Fisheries Service. The Fish and Wildlife Service, I understand,
generally concurs with the recommendation made by the GAO and
will be taking steps to implement that recommendation.
Mr. Wittman. OK. So, do you think that they are going to
stand by the 120-day time requirement in the statute as far as
providing their comments on the impact of the incidental
harassment authorizations?
Mr. Cruickshank. I think that is what the Fish and Wildlife
Service is trying to do in implementing the recommendations
from GAO.
Mr. Wittman. OK. Mr. Steen, I want to go to you to talk
about what I see as kind of a dysfunction in this
administrative bureaucratic regulatory process and get your
thoughts about how you see that affecting the six Atlantic
seismic surveying permits. These are not the first Atlantic G&G
and IHA permits to be issued, but I want to get your
perspective as to why you think the process at least appears
based on GAO information and things that we see and somewhat of
an ambivalence with agencies about being consistent with this.
Give me your perspective on what you think is unique with the
six instances of seismic permitting issues in the Atlantic.
Mr. Steen. Well, I think with the Atlantic, it is the fact
that six have been submitted at the same time, which is
perfectly allowable under the law, but it is also an area that
has not been surveyed for a while and has drawn the criticism
and controversy from NGOs that are opposed to drilling there. I
think that that type of controversy oftentimes, in my
experience with the National Marine Fisheries Service, causes
the agency to sort of freeze and not know what they want to do
and how they are going to process things.
Mr. Wittman. Thank you, Mr. Chairman.
Dr. Gosar. I thank the gentleman from Virginia.
The gentleman from Virginia, Mr. Beyer, is recognized for 5
minutes. A lot busier today than yesterday afternoon, huh?
Mr. Beyer. Thank you, Mr. Chairman.
I want to begin by quoting my friend, the former Republican
Governor of South Carolina, and a distinguished Member of the
U.S. House who said, ``I mean, you can't say I don't want to
see an oil rig from Mar-a-Lago as I look out from the waters of
Palm Beach, but it is OK to look at an oil rig from Hilton Head
or Charleston, South Carolina.''
I would like to introduce for the record a letter to
Secretary Zinke from every Democratic member of the U.S. Senate
and U.S. House requesting the same consideration for Virginia
that Secretary Zinke has done for Florida.
Dr. Gosar. Without objection, so ordered.
Mr. Beyer. Thank you, Mr. Chairman.
I wonder if you have had a chance to meet with Governor
Northam yet, BOEM, on the issue of offshore drilling in
Virginia.
Mr. Cruickshank. I don't know if the Governor has requested
a meeting with the Secretary yet or not, but the Secretary is
certainly willing to meet with the Governor. We also will be
having a public meeting in Virginia. Unfortunately, it was
postponed due to weather the other day, but we will get that
rescheduled so we can hear directly from the citizens of
Virginia.
Mr. Beyer. Thank you very much. In my 3 years on this
Committee, I have heard again and again that there is no
instance of seismic testing killing a single marine mammal, and
we come back again and again to the thing that the previous
BOEM director said about no effect on marine mammal
populations. It is cited three times in Mr. Steen's report on
page 9. No adverse effects from marine mammal population. No
effects on noise on marine mammal populations. No population
level effects.
I think Senator Davis pointed out quite accurately that the
population level effects are very different from addressing
individual animals. For example, Ebola didn't have a population
level effect. The human race is going on, but it killed lots
and lots of people.
So, let me just for the record--and forgive me for not
asking questions, but I think this is important to have in the
record. Let me cite nine peer-reviewed published studies that
cite the individual level effects of seismic testing on marine
animals: First, Acoustic and behavioural changes by fin whales,
in Biological Conservation; Second, Seismic Surveys Negatively
Affect Humpback Whale Singing Activity off Northern Angola, in
PLOS One; Third, Effects of Airgun Sounds on Bowhead Whale
Calling Rates: Evidence for Two Behavioral Thresholds, in PLOS
One; Fourth, Widely used marine seismic survey air gun
operations negatively impact zooplankton, in Nature Ecology and
Evolution; Fifth, Exposure to seismic air gun signals causes
physiological harm and alters behavior in the scallop, in
Proceedings of the National Academy of Sciences; Sixth, The
sense of hearing in the Pacific oyster, in PLOS One; Seventh,
The impact of seismic air gun exposure on the haemolymph
physiology and nutritional condition of spiny lobster, in
Marine Pollution Bulletin; Eighth, Effects of seismic shooting
on local abundance and catch rates of cod and haddock, in
Canadian Journal of Fisheries and Aquatic Sciences; and
finally, Ninth, Seismic survey noise disrupted fish use of a
temperate reef, in Marine Policy.
There is an abundance of scientific evidence that seismic
stuff has a real impact on our mammals. Senator Davis, do you
want to expand on this at all?
Mr. Davis. Thank you, Congressman. That was included in the
written testimony that I have submitted. You have just gone
ahead and listed the findings of those studies. There are seven
particular scientific studies that do document that there is a
significant impact on marine animals as a consequence to that
sort of sonic noise being introduced into the ocean. And it
makes common sense that when you are shooting those guns into
the ocean floor, and with the noise reverberating up to 1,500
miles in radius, common sense dictates that there is going to
be an impact on aquatic life and marine animals. And to say
that studies don't support any harm whatsoever defies common
sense or it also defies the scientific studies that you have
listed, sir.
Mr. Beyer. Thank you. And let me also point out just this
difference, I think it is the essential thing, because our
ongoing debate is, does seismic testing hurt marine mammals or
not, and if it doesn't, then why not go ahead and use it to
discover where oil and gas is, and if it does, there has to be
an important consideration for takes.
A recent marine compilation level impact was in the papers
this week about how on the Kazakhstan plateau 60 percent of the
saiga antelope were decimated in 3 weeks by climate change
affecting a specific bacteria. It killed 200,000 of them, which
is roughly 60 percent. That is a population level event, and we
are not arguing that seismic testing is going to have a
population level event, but as those nine studies just
suggested, it will affect everything from the zooplankton that
everything eats, to the North Atlantic right whale, which is in
danger of extinction specifically from seismic testing.
Mr. Chairman, I yield back.
Dr. Gosar. I thank the gentleman from Virginia.
The gentleman from Colorado is recognized for his 5
minutes.
Mr. Tipton. Thank you, Mr. Chairman. I just have a couple
of questions.
Mr. Ludwigson, the GAO report indicated that the National
Marine Fishery Service was unable to provide accurate data for
the dates the agency determines an application is adequate and
complete. What reasons did the agency give to the GAO on why
they have not consistently defined and tracked adequate and
complete dates?
Mr. Ludwigson. Thank you for the question. The officials at
both Fish and Wildlife and Marine Fisheries cited slightly
different answers, but essentially it fell into the category of
they began processing the information when they received it and
that they did not feel it was necessary to really record that
date in terms of when all the applications were complete. They
had a sort of check sheet that allowed them to identify which
items were required. They just didn't fill in their database in
terms of when the date was that they received all those items.
Mr. Tipton. Thanks. Based on the GAO's findings, what can
the National Marine Fishery Service and the Fish and Wildlife
Service do to be able to improve on the permitting process?
Mr. Ludwigson. As we identify in the report, we think it
would be very helpful for them to do two things, for each of
the agencies to do two things. The first is begin recording
that date accurately, and then second is to examine whether or
not they are meeting their statutory time frames. I think it
goes a long way to mention that the agencies both agreed with
our findings, conclusions, and recommendations, and both
agencies have committed to implementing those recommendations.
And we do follow up, so we will be looking, checking, seeing
how that is going.
Mr. Tipton. Just out of curiosity, did they give a timeline
when they would be able to achieve that?
Mr. Ludwigson. I believe that they were in the process of
developing the plan for implementing that. In the case of Fish
and Wildlife, they were not recording any date. In the case of
Marine Fisheries, they were recording a date that was not
always accurate. So, I think that in that case, they have to
develop guidance in terms of making sure that they consistently
record a date. I believe that they were in the process of
developing that now.
Mr. Tipton. OK. It is going to be pretty easy to identify,
I think.
Mr. Cruickshank, in your written testimony, you indicate
that BOEM is leading a streamlining team consisting of Interior
solicitors, BOEM, and the Bureau of Safety and Environmental
Enforcement staff to put together recommendations that reduce
undue burdens and create more predictability in the permitting
for oil and gas activities. However, these recommendations
could also benefit ocean activities. What procedural or
regulatory changes is BOEM considering? Could you enlighten us
on that?
Mr. Cruickshank. So, what our internal team was doing is
identifying things that we wanted to propose to the National
Marine Fishery Service as part of the discussions called for in
the Executive Order for our two agencies to get together and
try to streamline the permitting process around seismic
surveys.
The interagency team, between us and Marine Fisheries, is
hard at work and will give us some final recommendations in the
not too distant future. But some of the things that we are
looking at is, can we identify some best practices that can be
identified through conversations with stakeholders and thus be
made part of each application that would allow those to be sort
of accepted upfront and not subject to a new analysis every
time a new application comes in.
We are also looking to see if there are categories of
activities that can be identified as being appropriate for
informal consultation or for programmatic consultation as
opposed to an application-by-application look. So, we are
trying to find some ways that would allow the process overall
to be more efficient and more effective.
Mr. Tipton. Great. Thank you for that.
I have no further questions. I will yield to the Chairman.
Dr. Gosar. Yes. I want to make a point, so I am going to
quote a former Supreme Court Justice: ``In a government of
laws, the existence of government will be imperiled if it does
not observe the law scrupulously. If government becomes the
lawbreaker, it breeds contempt for the law and invites every
man to become a law unto himself and invites anarchy.''
And the reason I bring that up is, Dr. Cruickshank, it is
the law, right, to process this information?
Mr. Cruickshank. Yes, that is correct.
Dr. Gosar. So, when we start doing interpretative aspects
on what every individual would like to do, we invite that same
type of anarchy. If we don't like the law, let's change the
law, but what we have to stop is that the unintended
consequences of bureaucrats dictating the principles in which
Congress finds itself predicating through a statute only breeds
the contempt of the law. Would you agree with that?
Mr. Cruickshank. I would agree that it is our
responsibility as public servants to carry out the laws that
Congress has passed.
Dr. Gosar. Thank you.
I now recognize the gentleman from California, Mr. Huffman.
Mr. Huffman. Well, thank you, Mr. Chairman, and I hope that
that same passion for the rule of law carries over to our
considerations of obstruction of justice and the tax on the
courts and other institutions. That is a very welcome sentiment
that I just heard.
Dr. Gosar. I would interject, I don't think there is any
qualm from the gentleman----
Mr. Huffman. On your time?
Dr. Gosar. You will have your full time.
I don't think there is any qualm to challenge me on my
application of the rule of law. I have been there from day one.
Mr. Huffman. I am grateful for that.
Dr. Gosar. I appreciate it.
Mr. Huffman. And thanks to the witnesses.
Dr. Cruickshank, I think to many the decision to roll out
this plan to expose the coastlines of 23 states to new offshore
drilling, and then the very sudden almost impromptu exemption
of Florida from the Secretary after a phone call with Governor
Scott, seemed purely political, arbitrary, and capricious. If
anybody would know about the rigor of this decision, the
rationale of this decision, it would seem to be you, the
Secretary's Acting Director of the Bureau of Offshore Energy
Management. So, here's your chance. Tell us all of the reasons
why Florida is so unique that it justifies this exemption and
yet California, Virginia, South Carolina, and other coastal
states are not.
Mr. Cruickshank. As I noted previously, all of the areas
included in the draft proposed program will be subject to the
full analysis under the OCS Lands Act and national
environmental policy.
Mr. Huffman. No, I don't want to talk about the process. A
decision was made to give an exemption to Florida. I want to
know every reason why Florida is so unique that it got that
spot exemption from the Secretary. You have all my time, if you
want it, but I just want you to fully articulate the difference
between Florida and these other coastal states that would
justify this carve-out.
Mr. Cruickshank. Again, the Secretary's statement stands
for itself, and we have no formal decision yet on what is in or
out of the 5-year program.
Mr. Huffman. So, there has been no decision to exempt
Florida?
Mr. Cruickshank. The Secretary's statement stands for
itself, and we will continue to analyze those areas according
to law.
Mr. Huffman. It doesn't stand for itself because we have
not heard the reasons to justify it. Tell me why Florida and no
other coastal states got that exemption, all the reasons. You
have all my time, please.
Mr. Cruickshank. Again, the Secretary's statement is what
it is. I am in no position to interpret it any further. I will
note that----
Mr. Huffman. So, there are no reasons that you can
articulate?
Mr. Cruickshank. I will note that Congress has treated
Florida differently than other areas of the OCS, at least with
respect to the West Coast of Florida, in establishing a
congressional moratorium.
Mr. Huffman. Are you aware of a single reason why Florida
would be treated differently than other coastal states for the
granting of that exemption?
Mr. Cruickshank. We will be treating all the states the
same in terms of the analysis.
Mr. Huffman. That is not my question. I am asking are you
aware of a single reason why Florida is more unique than other
coastal states, why it would get this special tweeted out
exemption from the Secretary?
Mr. Cruickshank. I believe every state has its unique
attributes along its coast and the uses that are made of the
resources and we will be analyzing all of those.
Mr. Huffman. Let me be clear, I am giving you all the time
you want, and you are not giving me a single reason why Florida
is more unique than California, Virginia, South Carolina, or
other coastal states.
Mr. Cruickshank. I think all states have their unique
attributes, and that is what we are required to look at under
the law and what we will be looking at through this decision-
making process.
Mr. Huffman. Well, let's be clear. You had a great chance
here to defend this decision and to offer a rationale, and you
are not taking it.
What is the process that you are going to use to decide
which other states might be able to qualify for a similar
exemption?
Mr. Cruickshank. What we are doing under the Outer
Continental Shelf Lands Act, the program development process
outlined in Section 18 requires us to analyze eight factors
that are specified in that Act ranging from resources to
potential environmental impacts to other uses of the oceans to
the laws, goals, and policies of affected states.
Mr. Huffman. When will the decision be made?
Mr. Cruickshank. That is analysis we are working on. We are
also doing a programmatic EIS and going through a public
comment period right now. All of that information will be put
together and provided to the Secretary, and we expect that the
second of the three proposals required under the Act will be
published later this year.
Mr. Huffman. OK. Thank you. This week, I joined with Ted
Lieu and Alan Lowenthal and several of my other colleagues, 36
Members of the California Delegation, in writing a letter to
the Secretary urging that California be removed from the
Administration's offshore drilling plan. That is in addition to
clear opposition from our governor and from other officials
throughout the state.
Can you assure me that we will get a response from this
Administration to our letter?
Mr. Cruickshank. You will get a response, and that letter
will be part of the record for consideration going forward in
our program development process.
Mr. Huffman. Thank you.
Thanks, Mr. Chairman.
Dr. Gosar. You have a couple more seconds if you have
something else.
Mr. Huffman. I will yield.
Dr. Gosar. OK. The gentleman from Texas is recognized for
his 5 minutes.
Mr. Gohmert. Thank you, Mr. Chairman. And I thank the
witnesses for being here today.
Mr. Steen, given your experience with Arctic MMPA
authorizations and the related litigation, has there been any
indication that Arctic surveys have been harmful to marine life
there? Marine mammals, particularly?
Mr. Steen. Well, the short answer is that, no, there has
not. There has been seismic activity and surveys that have
occurred in the Arctic, the Beaufort, and the Chukchi Seas for
many decades. There have been authorizations that have been
issued by the Fish and Wildlife Service for polar bears and
walruses and by the National Marine Fisheries Service for a
variety of other marine mammals, and they have consistently
held, over periods of documented reporting and monitoring from
the surveys, a negligible impact in every finding that they
have made that has looked at these, and that bears out in the
scientific record.
For example, over this period of decades when seismic
surveying has been occurring in the Arctic, the bowhead whale
has gone from a point, due to past whaling practices, of being
almost extinct to now reaching almost its carrying capacity,
increasing by huge magnitudes, and that has occurred while
seismic surveying is happening. And there have been no
indications of any other harm to any other marine mammal
populations in the Arctic as a result of exploration
activities.
Mr. Gohmert. Your written testimony details the highly
litigated Arctic ITR applications, and you state that, ``Almost
every MMPA ITR issued for Arctic oil and gas activities has
been challenged by environmental advocacy organizations,'' but
that the authorizations were upheld in Alaskan District Court
and by the Ninth Circuit, shock. But why do these environmental
groups continue to sue given their failure rate?
Mr. Steen. In my opinion, they continue to sue because they
are able to raise funds to fund their lawsuits to do that by
characterizing it as opening the Arctic to oil and gas
development.
Mr. Gohmert. Even though they have not been successful even
in front of the Ninth Circuit?
Mr. Steen. That is correct. And the best example is the
last lawsuit that challenged the Chukchi Sea incidental take
regulation. It was expressly intended by the plaintiffs that
filed that suit as an attempt to try to block Shell's
exploration program that was planned that summer. So, it is a
matter of rolling the dice. Even though they have been
unsuccessful, the Marine Mammal Protection Act contains very
vague standards, and there are always areas where some argument
by a creative lawyer can be exploited. So, those arguments are
attempted and they have been rejected over and over again, but
if there is a shot and you have funding to bring the lawsuit,
in my view, they keep taking those shots.
Mr. Gohmert. Are you saying that Congress actually passed
something that was vague?
Mr. Steen. Incredibly vague.
Mr. Gohmert. What effect do these lawsuits that appear to
be frivolous have on the resources there? The court resources?
Mr. Steen. I cannot speak for the Federal Government, but I
would imagine they consume the resources of the Department of
Justice to defend those lawsuits, of the courts and the judges
and their clerks that have to process the lawsuits. But they
also cost the applicants for the permits money and time as well
because they intervene in the lawsuits rightly to help defend
the permits, and it adds another phase to the permitting
process, and it adds a lot of cost because lawyers cost money.
Mr. Gohmert. Do you think there is any chance they are
attempting to wear down the efforts to seek the resources, the
mineral resources?
Mr. Steen. I think that is unclear from the record, but I
think, with Shell's experience in the Arctic and its decision
to pull out, that was due to numerous things. One might argue
it was due to the incredible controversy they encounter trying
to explore in the Chukchi Sea.
Mr. Gohmert. Yes. Let me ask, Mr. Cruickshank, you had
mentioned that with regard to the streamlining team led by BOEM
that, if I understood right, I was listening in the next room,
that you expected that in--I believe you used a vague term. Do
you have anything more specific about when we could expect the
streamlining?
Mr. Cruickshank. I don't have a hard date on when we will
get the recommendation.
Mr. Gohmert. How about a soft date?
Mr. Cruickshank. I would expect them sometime this spring.
Mr. Gohmert. All right. Thank you.
Dr. Gosar. I thank the gentleman.
The gentleman from California, Mr. Costa, is recognized for
his 5 minutes.
Mr. Costa. Thank you very much, Mr. Chairman, members of
the Subcommittee.
The hearing today on permitting process for offshore
seismic research, I guess, has merit, although it is not, in my
view, any new ground that we are treading. And I must say, Mr.
Chairman, in listening to the conversation this morning, I am
reminded of one of America's great philosophers, Yogi Bear, who
once said, ``It seems like deja vu all over again.''
I chaired this Committee 10 years ago, this Subcommittee,
and I am not going to get into the details of two career
Federal employees, Mr. Cruickshank and Mr. Ludwigson, who I
think are trying to do their jobs as best as they can and
follow the law, but I do want to take a step back as we talk
about the point of this hearing as it relates to the larger
issue.
The flaws that I have found as a person, a Member of
Congress, who in the 14 years that I have been here and when I
served in the California State Legislature, has always
supported, in terms of an energy policy, the use of all our
energy tools and our energy toolbox, which includes the
utilization of fossil fuels. And as I pointed out last week in
California, half of the energy in California is fossil fuel,
and we have been producing it for 100 years. And people ignore
the fact that California is the third largest energy producer
of fossil fuels and that we have over 20 platforms in the Santa
Barbara Channel, and we do slant drilling to a very significant
degree along our coast.
Yet, Californians feel just as strongly about their
coastline as people in Florida do and anywhere else. You need
to understand that 70 percent of California's population lives
within 60 miles of the coastline, and it is one of the most
significant drivers of our tourism industry.
I want to get back to where this is all going, because this
Administration, and you talked about ideology, and I have heard
ideologies until I am sick and tired of hearing ideologies,
because what we are talking about, at least from my
perspective, is how we come together in a bipartisan fashion
with a comprehensive energy policy that uses all the energy
tools in our energy toolbox. And I listened to both sides
trying to be objective. And ``drill baby drill'' nor ``use it
or lose it'' constitutes an energy policy. They make nice
bumper stickers, but it is not a comprehensive energy policy.
It does not take into account how you balance the incredible
changes that are occurring in the 21st century with renewable
energy and the challenges we have with climate change, or with
the impacts we have when we make mistakes and we have to deal
with the environmental impacts of those mistakes.
So, I guess I am just trying to figure out, and I will talk
to the two individuals who are testifying on behalf of the
Natural Resources and Environmental Accountability Office and
the Director of Ocean and Energy Management, have there been
any conversations as you have been directed to pursue this
policy and any coordination that you are aware of between the
Energy Department, the Interior Department, or the Department
of Defense? Is there any, or is this just kind of a silo
approach?
Mr. Cruickshank, could you opine?
Mr. Cruickshank. Yes, I would be happy to, Congressman. We
reached out to several of the cabinet agencies as we start
development of our planning process and continue to do so.
Mr. Costa. Are we looking at the totality of all the energy
that we are using in this country and are we looking at the
amount of new technologies and how they are changing?
Mr. Cruickshank. That is not directly part of what we look
at in the program process for offshore oil and gas. We
certainly consider those things in how we model what may happen
in the future, but the 5-year program for offshore oil and gas
is not one that creates a national strategy for energy policy.
Mr. Costa. That is the problem. And my time has run out,
Mr. Chairman, but it has been, I think, a fault in this effort
by this Committee and Subcommittee to try to deal with what is
one of the real important issues in America, and that is how we
pursue a 21st century process of a common-sense energy policy
that takes into all of the above, takes into account our
environment and the impacts of climate change and the fact that
a lot of other countries are doing some things that I think
look to be on a much more balanced approach than simply
pursuing an ideology.
Dr. Gosar. I thank the gentleman.
The point I want to make is that before you can actually
have a dedicated, predicated, concerted conversation in regards
to an all the above, which I believe in as well, you need to
know the assets that you actually hold. As Dr. Cruickshank has
said and the record supports, when you have 30 years of lack of
proper investigative tools to know what is exactly there, not
just in oil, gas, and carbon fuels but anything else, you
cannot have an organized, predicated, great conversation. So, I
think there is a very valuable aspect about knowing what your
value and what your assets are.
Mr. Costa. Would the gentleman yield?
Dr. Gosar. You betcha.
Mr. Costa. We can, and maybe we should, have a separate
conversation about this, but there has been a lot of research
in California. We have significant reserves in California that
we know are there, and we have known that for decades that they
are there, and if you believe in federalism, and I do, and I
like to try to be consistent, I mean, California, Florida, and
other coastal states have made determinations on how they want
to balance. But we have lots of oil in California, and that is
not a secret, and it is to what degree we want to utilize those
resources versus other resources.
I guess we could put a fine point on this with new research
and new technologies. We could find out how much more we have,
but we know it is significant. We also know in California that
Californians want to have a more balanced use and not rely on
totally one source of energy, and that is a political will of
people who live in a particular state.
Dr. Gosar. I agree and I understand the gentleman has been
very consistent with his federalism views, as I am as well. I
am a border state with you, so I will tell you, when we start
looking at the totality of alternative energy processes, a
sizable amount of solar is instituted in our state on your
behalf. I do understand that, but I think there is a mutual
respect to ascertaining what our assets are all the way across
the board.
Mr. Costa. I don't mind knowing what our assets are. I
think we should all know what----
Dr. Gosar. I am the son of a geologist, so I understand
this very, very well. Thank you for the dialogue and the
colloquy.
Mr. Costa. Thank you.
Dr. Gosar. The gentleman, the muscle man from Louisiana, is
recognized for his 5 minutes.
Mr. Graves. Thank you. Gosh, so many thoughts.
First, Mr. Costa, I want to thank you for your very
thoughtful comments, and I largely agree with what you had to
say with regard to looking at the full spectrum of all the
assets in potential energy sources that we have. I think we can
do a better job and certainly appreciate, again, your thoughts
on that topic. In fact, I just made a down payment on an
electric vehicle yesterday that I didn't tell my wife about
yet, so if you all could keep that between us, I would
appreciate it. Hi, honey.
Mr. Costa. She knows now.
Mr. Graves. I very much doubt that she is watching C-SPAN.
If she is, then----
In any case, a few things here. Mr. Lowenthal, you talked
about this letter from California. A few of you discussed the
concern that was related to Secretary Zinke's decision. I
actually sent a letter to him as well. I agree with you. I
agree with you. But here's where I struggle, and I think this
is where we differ. You all are so sick of me talking about the
coast of Louisiana, but I am getting ready to do it again.
We have sat in this Committee and we have argued over
offshore energy revenue sharing policy. President Obama and
President Trump have issued these budget documents and they
said that this is a Federal resource that belongs to all
Americans and they all should benefit from it.
You are arguing that the decision to give Florida special
treatment, arguably special treatment, is inappropriate, yet
you are saying that the state of California wants the same
thing, that the state of California should unilaterally be able
to determine what happens with the Federal resources off the
coast of their state. You are saying that the state of
California alone should be able to dictate to the Federal
Government what happens with the billions of dollars in public
resources that are there.
Now, if that is what you subscribe to, if that is what you
all think, I want the same deal for Louisiana. And the $200
billion that we have given to the United States Treasury from
our offshore energy production, we want it back. So, you can't
keep going through and saying, well, I think it should be like
this here and this here. No. We have paid for land and water
conservation funds. We have bought all these natural resources
and protected these grounds all over the United States, which I
support, if bought from willing sellers. But you can't just go
through and cherry-pick all this stuff. Our coast is eroding.
We have lost almost 2,000 square miles. That is under our
Constitution, that is where the money is dedicated to. So, if
states get to pick and choose what happens off their coast, we
want it too.
So, I want to ask you all for policy consistency, to be
with us, to stop picking and choosing, to be with us. We are
trying to protect our environment, so I would appreciate all of
your consideration as we move forward on that.
Dr. Cruickshank, thank you for being here. I had the
opportunity to work with you on various energy issues dating
back to the Clinton administration. I know you have incredible
expertise. I want to ask you something. You have worked for
Democrat administrations and Republican administrations. Have
you not issued seismic permits under President Clinton and
President Obama?
Mr. Cruickshank. There have been some individual permits
that may not have----
Mr. Graves. But have you issued permits?
Mr. Cruickshank. Generally, the permits have been approved.
Mr. Graves. And as I recall, I think there were 400 permits
issued under the Obama administration.
Mr. Cruickshank. I think that is about right, yes.
Mr. Graves. Four hundred seismic permits issued,
harassment, take, everything under the Obama administration.
So, all these people sitting here saying, oh well, this is
suddenly an awful situation, where were you when President
Obama was there? You had the opportunity to shut these things
down. Why didn't President Obama, perceived as an
environmentalist, shut this down? It is because you have to
look across the full spectrum of considerations for the
American public. The Administration did it, and they issued
permits.
Do you mind--OK, throw the slide up. I heard a lot of
comments here. This is a great CRS slide that I stole. I just
ran next door and made a quick PowerPoint, so it is not very
good, but this shows you the total volume of oil spill--that is
the blue bars, the vertical bars--the total volume of oil
spilled in various years from 1973 to 2003. So, you see a clear
trend of it going down, the total volume of oil spilled. The
red line shows, or whatever it is, red, orange, whatever it is,
shows the number of individual incidences. Look, this is a good
document. This is a good trend. We are moving in the right
direction of fewer spills and lower volumes of oil, OK, so good
news.
Next one. This is a different way of showing it similarly,
yet it breaks it down by different types of spills, and once
again, you can clearly see that trend. You see the anomaly in
2005. I want to make note that was Hurricanes Katrina and Rita,
which caused the majority of that blue bar right there. But
also I want to be clear that the majority of this oil was not
extraction related. This was largely onshore storage of oil in
big tanks that were destroyed. We had extraordinary winds,
incredible hurricane, so that is what that was largely
attributed to. But once again, clearly you see the trend that
is going downward.
Now, here's the next one that is interesting, and Senator
Davis, I want to talk to you about. Can you give me the next
slide? All right. I know there are a lot of numbers and
everything else, but here is what this is, and I am going to
read--the next one kind of distills a bit. This is a National
Research Council report that shows the sources of oil in terms
of the oil that was spilled.
So, Senator, I have been to South Carolina. You have a
fantastic state. I love your coastal area, Charleston in
particular. You have a port there that you all are trying to
grow. I have heard you express concern that you don't want to
have spills on your beaches, and I don't either. I spent many
years of my life restoring our coast, protecting our
environment, but when you actually look at this, you will find
that there is a greater chance of oil being spilled by vessels
than by production and extraction. So, I am having trouble
understanding how South Carolina is putting a lot of eggs in
the basket at that port, great port, in trying to expand it,
trying to lure more vessels there whenever there is a greater
threat--if you go to the next slide--there is a greater threat
of oil spilling from discharge of ships and land-based related
activities than there is from extraction. And this is a summary
of the last number-intense chart that you just saw. So,
extraction spills are about 3 percent, whereas the ships 12
percent or some of the land-based associated activities 37
percent. Can you help me understand that?
Mr. Davis. Thank you, Congressman. In terms of looking at
whether or not it is a good idea to do seismic testing and then
subsequently drilling--looking at a cost-benefit analysis, our
domestic petroleum production has increased 64 percent by
fracking. And when you weigh that against the relatively small
amount of oil, relatively speaking, that you are going to get,
if you weigh that against the potential for damage, and I
understand that the potential for damage has decreased over
time as your charts have shown, but when that damage occurs,
and even oil industry advocates admit that there are going to
be some spills at some point in time, the unique nature of our
coastline, the estuarine system, the nurseries, the things that
will be impacted forever, in law, we like to speak in terms of
irreparable harm where monetary damages cannot make you whole,
and you can see that in the coast as well.
In terms of the BP oil spill where you had damages that
were awarded and monetary amounts given, it is never going to
make those areas whole. It is not going to restore that
ecosystem. Those marshes are going to be destroyed forever.
Mr. Graves. Hang on. Let me reclaim. First of all, I was
the lead trustee for the Deepwater Horizon oil spill. Under the
law, you are required to demonstrate how your remediation plan
is going to fully restore the environment, and if that does not
happen, you can get citizen suits challenging you. Largest
settlement from a single company in U.S. history. And I will
tell you, and BP's CEO will tell you, I was the one that kept
rejecting their offers because it was not sufficient to restore
our coast. I have spent 20 years of my life busting my butt to
restore our coast and protect our coastal environment. I don't
agree that people say that we don't care about our environment,
we don't care about our coasts.
Can you go two slides down? You walked into the trap I set
for you. So, here we go. What this shows right here is the
landings, or the fisheries production. You talked about
ecological production. The first table, and I understand it is
small, what it shows is the state of California, the total
fisheries landings. This is an indication of ecological
productivity. Fisheries landings in the state of California,
and I chose 2011 through 2016 intentionally, the aftermath of
the Deepwater Horizon oil spill, it shows that you have 840,000
metric tons of seafood in California totaling about $1.3
billion. In South Carolina, you have about 40,000 metric tons
valued at about $136 million. In Louisiana, in the aftermath of
the oil spill, we had nearly 3 million tons, dwarfing what
California--again 40,000 in California, 3 million in Louisiana,
valued not at $136 million in South Carolina, but $2.3 billion.
So, you can manage, these things can co-exist. My point is
this--I know I am way over, and I am sorry, but----
Dr. Gosar. That is fine. To the gentleman, we are going to
offer the same time to the other side.
Mr. Graves. OK. Thank you. That was the Muscle Milk.
You can have ecological productivity. You can have energy
production. We have produced up to 90 percent of all the
offshore energy production in the United States in Federal
waters. My point is that, look, I understand the sensitivity. I
think that there is some conflict in your statements about the
state's statements about wanting to deport and expanding new
vessels whenever you have a higher risk of spilling there than
you do from actual extraction activities. I think we have to
have better discussion, more discussion about is this a Federal
resource or is it not, and an understanding where we exercise
discretion and control over that resource on the offshore to
either benefit all Americans or let states decide how that
should be managed.
But thank you very much. I will shut up.
Dr. Gosar. I thank the gentleman.
The gentleman from California is now awarded 6 minutes.
Mr. Lowenthal. First of all, I thank you for that
discussion. I think it is a very important discussion about
what is the relationship between what is a Federal resource and
how do the states that are the most impacted benefit.
Just as you have raised some of these issues about
Louisiana, we have some of the same concepts and same problems.
As you know, I recently had a meeting with you about the harbor
maintenance fee, another Federal resource, which we are paying
for, the primary donor ports, 40 percent of that revenue comes
from the ports in my district. We get a tiny percentage of it,
so that discussion is a very important discussion.
But let's remember the reason why we are here today and the
reason why California is raising this issue. It is not
regarding what is a Federal resource and what is a state. It is
the fact that we want the same consideration that Florida has.
How come one state--and we know you agree with us on this. I am
not pointing this out to you to say that you don't agree with
us. I am saying that is the reason for the discussion today
that we have raised, that decisions were made, an analysis will
be done, Mr. Cruickshank says, but we all know that after that
analysis, the decision will be made by the Secretary, the same
Secretary that circumvented the process by already pulling
Florida out and then saying later on, I will make that decision
based upon the analysis, but Florida is still out. We know what
is going on. We just ask for the same consideration, just as
you have done on these other same issues. And I think that is a
worthy discussion.
But today, we are talking about why are we not receiving,
all of us, the same consideration and the same decision making.
That is all.
Mr. Graves. Do you mind commenting just on what I said? Do
you think it is fair that Florida gets to decide what happens
in Federal waters with Federal resources off its coast with
multi-billion dollar Federal Treasury implications? You are
asking California----
Mr. Lowenthal. Florida did not make that decision. We are
not concerned, we are not arguing about Florida. We are saying
how did Secretary Zinke make those decisions, that is what we
are asking. These are Federal decisions that are made by the
Secretary. Under what conditions does he choose one over the
other before there is an analysis of it? That is what we are
asking.
Mr. Graves. But do you think if they grant it for
California, they grant it for Florida, do you see disparity in
the case of Louisiana when we are asking for additional revenue
sharing for our coast?
Mr. Lowenthal. I think that is a legitimate discussion that
we should be having, what is that relationship, as I have also
pointed out that we want to do about things such as the harbor
maintenance fee. We agree with you those are discussions. All I
am saying is that is not----
Mr. Graves. I tell you what, I will give you harbor
maintenance if you give us all the offshore revenue. Do we have
a deal?
Mr. Lowenthal. Maybe we can do that. All right. Let's talk
about that, because they are the same issues that we are
raising.
Dr. Gosar. You still have 3 minutes.
Mr. Lowenthal. Senator Davis, your opposition to offshore--
let me just see this.
Dr. Gosar. While you are gathering that together, for the
witnesses, I allowed this to go forward because we don't get
the opportunity for debate, and, Senator, you know that, and so
this is exactly why we should be having more of these.
So, the gentleman from California.
Mr. Lowenthal. I just wanted to follow up our discussion in
asking Senator Davis about what are your feelings about how
this Florida situation has unfolded. That is the issue.
Mr. Davis. Thank you, Congressman. I think several things,
and I can tell you what South Carolinians are thinking right
now. They listened to what Secretary Zinke had to say. They
listened to him saying that local voices matter. They listened
to what he had to say about Florida having unique coastal
environment and tourism. All of those things apply to South
Carolina. Our local voices matter. We have had municipalities
up and down the coast opposing this. We have had our governor,
Governor McMaster, just as Governor Rick Scott in Florida has
done, opposing this.
We have unique environmental resources. We are heavily
dependent upon tourism. So, as a lawyer, when I hear statements
like that being made by Secretary Zinke, I think about due
process. I think about equal protection. I think about
arbitrary and capricious. And it may well be that Secretary
Zinke spoke, I don't know, out of turn is the right word to
say, and whether or not the bureaucracy is still going to be
processing Florida along with the rest of the states, but I can
tell you what South Carolinians are thinking. They are
thinking, if those criteria are sufficient to exempt Florida,
if the governor of Florida is speaking out, if the uniqueness
of Florida's coast and environment are the reasons for
exempting Florida, all those apply to South Carolina. And we
are not going to understand in South Carolina about how an
exemption can be granted to Florida where the various same
reasons voiced by Secretary Zinke can apply to South Carolina.
And there are going to be challenges based on that.
I mean, you cannot take a law and apply it unequally when
you have the applicants or the states citing the same criteria.
You have governors up and down the East Coast that have cited
the same concerns and the same reasons that Governor Scott
cited and that persuaded Secretary Zinke.
So, we want to be fed out of the same spoon. We want to be
treated fairly and equally. And like it or not, the rules of
the game have been established here that people of South
Carolina and the people up and down the East Coast believe that
if local voices matter, which is what Secretary Zinke said, and
if environmental conditions and tourism are factors, those
equally apply to my state. So, that is going to be a concern
for us going forward.
Mr. Lowenthal. Thank you. I now yield back.
Dr. Gosar. One comment just to bring this all into the
aspect. As a landlocked state that has lots of Federal land, I
do hope you understand that that conversation has to go
forward, and that is why we have had these conversations at
this level and at this Committee, is that the equal application
of the law, well, there are vast stretches of public lands in
Arizona, Wyoming, and Colorado that were contractually
obligated for conversation and compensation to us. And that is
why we cannot afford good infrastructure government and our
schools in our western states because of this very application.
And this also has an implication on landlocked states and
public lands, so there is more to this story. That is why we
have to have that conversation.
The gentleman who has been waiting patiently from
Louisiana, Mr. Johnson, is recognized for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman, and thank each of our
witnesses for being here today.
I want to echo everything that my good colleague from
Louisiana said and endorse all that, except for him buying an
electric car without telling Carissa. I disagree with him on
that.
Gentlemen, as I am sure all of you know, I have an
important bill that is headed to the House Floor now. It is
called the SEA Act, the Streamlining Environmental Approvals
Act of 2017, which will increase regulatory efficiency and
decrease all of these permitting delays that we lament and
remove unnecessary duplication. However, some opponents of
seismic surveying have expressed objections about that. The
science is really important as we go forward for a number of
measures that we will be considering in this Congress, I think,
this year.
Mr. Steen, you hold a degree in fisheries and you have
worked for the University of Washington as a fisheries
biologist before becoming a lawyer. Is that right?
Mr. Steen. That is correct.
Mr. Johnson. It is impressive background. I want to ask you
to clarify a few statements made by Senator Davis in his
written testimony. Earlier today, you were asked whether
seismic surveying harms or kills marine mammals or other marine
life. I think you were specifically asked if you knew of any
documented case, and you said no. Is that correct?
Mr. Steen. That is correct.
Mr. Johnson. So, just so I am clear, I consider you, I
think, a most qualified expert on this subject, so I want to
ask you, is it your belief that the concerns that are being
stated are greatly exaggerated? Is that a fair statement?
Mr. Steen. I do believe the concerns are greatly
exaggerated.
Mr. Johnson. The Senator states in his written testimony
that ``over 100 whales beach themselves'' due to seismic blast
off of Madagascar. We have some of the media reports of that.
Can you confirm the source of the Madagascar stranding and the
status of the subsequent report?
Mr. Steen. My understanding of that is that had nothing to
do with seismic sound. That was multibeam sonar sound, which is
completely different than seismic and it has much different
effects on marine mammals. So, that is really not a seismic
issue.
Mr. Johnson. Just for the layperson, can you elaborate just
briefly the differences between the two, sonar and seismic, and
what each is used for?
Mr. Steen. I can elaborate as best I can. When it comes to
the technology of sound, I consider myself a layperson, but my
understanding is they utilize completely different wavelengths
in the water. Sonar is used for things by the Navy. It is used
by NOAA ships. It is used by the Army Corps of Engineers.
Again, it has much different types of effects on marine mammals
than seismic sound does, which operates at different
wavelengths and has different types of effects, if any.
Mr. Johnson. Senator Davis' testimony also states that
``seismic blasting will affect fish that spawn in rivers and
estuaries all along the East Coast.'' To your knowledge, Mr.
Steen, is it possible for the acoustics generated by seismic
surveying to have this effect on fish in rivers and estuaries?
Mr. Steen. No, I don't think that would be possible.
Mr. Johnson. I know we are running short on time, so I will
yield back. I appreciate you all being here.
Dr. Gosar. They are calling votes.
I thank the witnesses for their valuable testimony and the
Members for their questions. The members of the Committee may
have some additional questions for the witnesses, and we ask
you to respond to those in writing. Under Committee Rule 3(o),
members of the Committee must submit their witness questions
within 3 business days following the hearing by 5:00 p.m., and
the hearing record will be held open for 10 business days for
their responses.
I want to compliment the panel for the dialogue, the
Members sitting on the dais for the dialogue. We need to see
more of this. As you know, Senator Davis, we need to see more
of this, not less of this, and so I want to compliment everyone
for a fabulous hearing.
Without further objection, the Subcommittee stands
adjourned.
[Whereupon, at 10:50 a.m., the Subcommittee was adjourned.]
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Rep. Beyer Submission
--Letter signed by multiple Representatives addressed to
Secretary Zinke regarding the removal of offshore
Virginia drilling zones dated January 12, 2018.
Rep. Gosar Submission
--NOAA, Statement for the Record regarding NMFS actions and
additional methods to streamline permitting
application processes.
Rep. Lowenthal Submissions
--Letter signed by multiple Members of Congress addressed
to Secretary Zinke regarding opposition to lease
sales in the Atlantic, Arctic, and Pacific Oceans
dated January 18, 2018.
--Letter signed by multiple Members of Congress addressed
to Secretary Zinke regarding the opposition to the
Department of the Interior's National Outer
Continental Shelf oil and gas Leasing Draft Program
dated January 18, 2018.
[all]