File:Quiet Please!- Sound as an Essential Feature in Critical Habitat Designation for the Main Hawaiian Islands Insular False Killer Whale (IA quietpleasesound1094563171).pdf

On July 24, 2018, the National Marine Fisheries Service (NMFS) published a final rule concerning the Main Hawaiian Island Insular False Killer Whale critical habitat. The final rule listed four biological and physical features essential for their conservation, i.e. essential features. However, this paper concerns itself with the fourth: (anthropogenic) sound levels that would not significantly impair false killer whales' use or occupancy. The introduction of anthropogenic, or human-produced, sound as an essential feature in critical habitat designation pursuant to the Endangered Species Act (ESA) is novel. NMFS was decidedly forward leaning in publishing this rule, to the objection of many interested parties including the U.S. Navy. Designating anthropogenic sound as an essential feature in critical habitat designations has important legal and political implications for the U.S. Navy. The Navy conducts many military exercises in areas protected by the Endangered Species Act, which includes the Hawaiian Islands. There is an argument that the science NMFS relies on does not fully support this forward leaning rule using anthropogenic sound as an essential feature. However, the Navy has the resources to adapt, overcome and lead the way in compliance. Specifically, the Navy is at the forefront of quiet ship technologies and procedures. By serving as a role model, the Navy could be free to conduct more training operations if the net effect of anthropogenic sound decreases.