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Appendix B: Relevant Laws and Regulations
Pages 121-128

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From page 121...
... These by NEPA. The CEQ regulations promulgated under this act are the Ports and Waterways Safety Act, the National Marine require consideration of cumulative impacts5 and define Sanctuaries Act, the Outer Continental Shelf Lands Act, and cumulative impact as noted above.6 the Magnuson-Stevens Fishery Conservation and Manage At the heart of NEPA is a requirement that federal ment Act.
From page 122...
... Courts often find that the duty depends required under applicable CEQ regulations, it must issue a on severity of the potential impacts or the ready availability "finding of no significant impact," which briefly presents the of simulation studies or models.20 When scientific experts reasons why the proposed agency action will not have a sig- express conflicting views regarding the scope and signifinificant impact on the human environment.12 EISs and EAs cance of potential impacts, the courts have interpreted NEPA developed in accordance with NEPA and the corresponding as affording the agency with discretion to rely on the reasonCEQ regulations are required to consider direct, indirect, able opinions of its own qualified experts.21 and cumulative impacts.13 It is worth noting that, according Access to courts for judicial opinions such as these is to CEQ regulations, NEPA does not require an EA or EIS most available for species listed as either endangered or for those actions that are categorically excluded, meaning threatened because the ESA has a citizen suit provision. that the responsible agency has determined that the action For non-ESA-protected species, agency decisions based on falls within a category of actions that do "not individually insufficient or conflicting scientific evidence may be chalor cumulatively have a significant effect on the quality of lenged as a violation of the Administrative Procedures Act.
From page 123...
... Section 9 of the ESA states that no one, 2015, NMFS made a legal determination that newly available public or private, may "take" any endangered species.26 The scientific information warranted proceeding with a petition ESA broadly defines "take" to mean "harass, harm, pursue, to revise the critical habitat designation for the Southern hunt, shoot, wound, kill, trap, capture or collect."27 Section Resident killer whale (Orcinus orca) Distinct Population 7 of the ESA also directs federal agencies to carry out pro- Segment.
From page 124...
... The MMPA charted new territory in environmental including, but not limited to, migration, breathing, nursing, legislation by focusing on the ecosystem and requiring that breeding, feeding, or sheltering."42 Or for military readiness marine mammals be maintained at the optimal sustainable "any act that disturbs or is likely to disturb a marine mammal population at which they are significant functioning elements or marine mammal stock in the wild by causing disruption of their ecosystem. With few exceptions, the MMPA prohib- of natural behavioral patterns, including, but not limited to, ited the taking or importing any marine mammal or marine migration, surfacing, nursing, breeding, feeding, or sheltermammal product34 where a "take" was defined as "harass, ing, to a point where such behavioral patterns are abandoned hunt, capture, or kill, or attempt to harass, hunt, capture, or or significantly altered."43 kill.35 The rights of Alaskan Natives to take marine mammals In developing regulations to implement the MMPA for subsistence purposes, however, were preserved under the in so far as acoustic harassment is concerned, NMFS has MMPA.36 determined that injury equates to a permanent threshold The Act is enforced in the 200-mile Exclusive Economic shift (PTS)
From page 125...
... Guard conducts ship routing and port access studies under the Ports Act; the law proved to be an important authority in INTERNATIONAL SOUND REGULATIONS reducing deadly ship strikes of endangered North Atlantic right whales through real-time, whale location reporting and Several national and international regulatory bodies reduced speed limits. have adopted regulations or guidelines for the effects of The National Marine Sanctuaries Act can also be used underwater sound on marine life, including marine mamto designate as marine protected areas those marine mammal mals.
From page 126...
... Other mitigation measures This definition includes acoustic energy along with other required by some nations for pile driving, seismic survey, forms of energy if it harms marine life. and naval sonar include visual and/or acoustic monitoring The International Maritime Organization is tasked with to make sure that protected animals do not enter a shutdown regulating pollution by vessels under the International Con- zone, 30 minutes of monitoring before starting transmissions vention for the Prevention of Pollution by Ships (MARPOL to reduce the risk that animals are in the shutdown zone, and Convention)
From page 127...
... This broader scale may be more appropriate for duration of individual sound pulses is less than ten seconds addressing cumulative effects of noise over time, but this and whose repetition time exceeds four times this effec- approach is vulnerable to gaps in current scientific ability tive time duration." However, they abandoned the criteria to predict cumulative effects of different combinations of established in 2010 for impulsive sounds and simply noted stressors. There is currently little scientific basis for the that "At the moment it is difficult to provide a more specific indicators of GES for noise, but these kinds of large-scale description of GES beyond the text of the Directive, due to indicators may prove to be important methods for monitoring insufficient knowledge on the cumulative impacts of impul- stressors in a way that can be linked to effects.


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