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Chukchi Sea seismic a go Temporary injunction granted on need for 120-dB monitoring zone in Conoco lawsuit Alan Bailey Petroleum News
When ConocoPhillips, Shell and GX Technologies embarked on their summer 2006 seismic programs in the Chukchi and Beaufort seas it seemed that the various stakeholders in the Arctic offshore environment had reached acceptable agreements on the issues relating to the potential impact of seismic on marine wildlife. The companies had signed a conflict avoidance agreement with the Eskimo Whaling Commission, the Minerals Management Service had issued geophysical permits and the National Marine Fisheries Service had issued incidental harassment authorizations (referred to as IHAs) for the seismic work.
But a lawsuit filed in the U.S. District Court for Alaska on Aug. 24 by ConocoPhillips against NMFS seeking the overturn of one of the IHA stipulations has placed a new question mark over seismic operations in the region.
And on Sept. 18 Judge Ralph Beistline issued a court order supporting ConocoPhillips’ objections to the IHA stipulation, thus enabling the company to continue its Chukchi seismic operations while the court decides on a final ruling in the case.
Shell, however, ended its Chukchi seismic program on Sept. 19, to avoid infringing the IHA stipulations (See related sidebar to this story).
The IHA stipulations were derived from findings in a programmatic environmental assessment that MMS, with NMFS as a cooperating government agency, completed in July. MMS prepared the programmatic environmental assessment to address concerns about the cumulative impacts of multiple seismic surveys in the arctic seas in a single summer season.
Air gun noise A marine seismic survey involves a survey vessel firing an array of air guns in the water at frequent intervals while the vessel traverses a seismic line. The sound emitted from the air guns is reflected from underground rock formations and an array of geophones that the survey vessel tows behind the air guns records the resulting echoes.
Because the sounds from the air guns can disturb, agitate or, in extreme cases, injure marine wildlife, MMS and NMFS permits for offshore seismic work include mandatory procedures for protecting wildlife from the sounds. These procedures typically involve an exclusion zone around a seismic vessel — the noise level within an exclusion zone exceeds some level that may result in harm to wildlife. While a seismic survey is in progress the seismic vessel must not approach close enough to an animal to cause that animal to come within the exclusion zone. Typically marine mammal observers on the vessels conducting a survey will watch for animals, to ensure the effective exclusion zone operation.
The acceptable sound levels for exclusion zones derive from scientific research that has determined that sound levels above 180 or 190 decibels could cause hearing damage to various marine mammals. Consequently the IHAs for the Chukchi seismic work mandate 180-decibel exclusion zones for whales and 190-decible exclusion zones for seals.
Bowhead whales The MMS programmatic environmental assessment reviewed available evidence of the impact of seismic survey activities on bowhead whales, including scientific studies, observations of the effects on whales of actual seismic surveys and the traditional knowledge of the Native peoples of northern Alaska. The bowhead whale is classified as an endangered species and is also of prime importance as a subsistence food resource for Native communities.
The programmatic environmental assessment concluded that, although there is considerable uncertainty about the impact of seismic sound on bowheads, there is evidence that relatively low sound levels disturb bowhead cow/calf pairs.
All three companies involved in this summer’s seismic program planned to shoot some seismic in September when bowhead whales with calves migrate south through the Chukchi. And, concerned about the possible impact of the seismic work on the calves, the environmental assessment included the imposition of a 120-decibel monitoring zone in areas where cow/calf pairs are sighted.
A 120-decible monitoring zone is very much larger than a 180/190-decibel exclusion zone and requires techniques such as aerial surveys to search for animals.
Following the lead of the programmatic environmental assessment, the NMFS IHAs require daily aerial surveys to monitor for bowhead cow/calf pairs in the Chukchi. The surveys need to cover an area ahead of the seismic vessel track, upstream of bowhead whale migration and east of the seismic vessel. If four or more cow/calf pairs are found within a 120-decibel zone from the seismic acoustic source, the seismic air guns must be shut down until the cow/calf pairs are clear of the zone. The IHAs also require a 160-decibel monitoring zone for aggregations of non-migratory bowhead or grey whales.
And, recognizing potential safety issues associated with conducting aerial surveys, the IHAs also permit the use of passive acoustic monitoring programs to detect bowhead cow/calf pairs. A passive acoustic monitoring program would involve placing arrays of sound detectors in the ocean.
ConocoPhillips objections The ConocoPhillips lawsuit objects to the 120/160-decibel monitoring zone requirements, on the grounds that the mitigation measures are not required and are impractical to implement.
In court paperwork the company said that carrying out seismic surveys in the past with a 180-decibel exclusion zone has not adversely impacted the bowhead whales.
“Undisputed data shows that the Bering-Chukchi-Beaufort Seas population (of bowhead whales) is healthy and has been increasing for many decades under the standard 180-dB mitigation,” the company said in its Aug. 24 court filing.
“This action challenges NMFS’s imposition of a 120 dB isopleth exclusion zone and concomitant requirement for aerial or other monitoring of the 120 dB zone. This condition is not supported by the best available scientific evidence and is contrary to NMFS’s past practice and current guidance. NMFS acted unlawfully in imposing this requirement without evaluating whether it could be implemented in a feasible manner and in failing to evaluate the significant risks to human health and safety that monitoring a zone of this size in arctic waters creates.”
The company went on to say that implementation would “entail unwarranted risks to human life, involve substantial expense, and substantially impair CPAI’s long-term business strategy in Alaska … The 120 dB and 160 Db monitoring requirements will impair CPAI’s ability to carry out its planned 2006-07 Chukchi Sea seismic exploration programs and ability to effectively participate in the Outer Continental Shelf lease sale planned for MMS for late 2007/early 2008.”
In another court filing, the company said that it decided not to implement the aerial surveillance monitoring program “due to the risk of catastrophic accidents and fatalities,” and that it had ordered equipment for passive acoustic monitoring but was uncertain whether the equipment would arrive in time for use or whether it would function properly.
And apparently the company has investigated the use of unmanned aerial vehicles for the monitoring. The company is not certain whether this equipment would operate effectively or would obtain FAA approval, according to a statement by ConocoPhillips Exploration Manager Michael Faust.
ConocoPhillips requests a stay On Aug. 25 ConocoPhillips filed a motion for a stay on the 120-decibel monitoring zone stipulations of the IHA, so that the company can continue with its seismic program pending a ruling by the court on the lawsuit.
And on Sept. 11 NMFS filed its opposition to ConocoPhillips Aug. 25 motion, saying that the agency had “considered the relevant factors regarding the need for and practicability of the 120-dB requirements and determined that these additional mitigation measures were necessary to reduce the potential for adverse impacts to cow/calf pairs migrating through the Chukchi Sea.”
NMFS said that the issuance of the IHAs was dependent on a finding of no significant environmental impact under the terms of the National Environmental Policy Act. That finding of no significant impact was predicated on the implementation of mitigation measures, including the 120-decibel monitoring zone. In the absence of a finding of no significant impact NMFS would have had to prepare an environmental impact statement prior to issuing the IHAs (editor’s note: preparing an environmental impact statement is a complex process that can take several years to complete).
“It was NMFS’ expert view that it was necessary to mitigate the effects of the multiple seismic projects in order to protect the well-being of cow/calf pairs in the fall migration through the Chukchi Sea,” NMFS said. The agency also said that a finding of no significant impact required a determination that the seismic activities “will not have an unmitigable adverse impact on the availability of … marine mammals for subsistence uses.”
NMFS said that the 120-decibel requirements could not be severed from the remainder of the IHA, that an injunction against these requirements would enable ConocoPhillips to benefit from filing its lawsuit at a late stage in the exploration season and that ConocoPhillips had failed to “show any likelihood of success on the merits,” citing evidence for the significance of the 120-dB sound level and saying that the monitoring of a 120-dB zone is practicable.
Native groups intervene The Alaska Eskimo Whaling Commission, the North Slope Borough and the Native Village of Point Hope have filed to intervene in the case. Native hunters have expressed strong concerns about potential impacts of the seismic programs on bowhead whale hunts, citing past occasions when seismic activities have deflected whales away from hunting areas.
Point Hope, in filing its opposition to ConocoPhillips’ motion, said that whale hunts “play a vital role in Point Hope’s culture and traditions,” and that “research clearly shows that bowhead whales will avoid seismic vessels up to distances where the sound level was estimated at about 120 decibels. … The potential harm from such avoidance could be severe.”
The Alaska Eskimo Whaling Commission and the North Slope Borough have said that “the challenged restriction (the 120-decible monitoring) in ConocoPhillips’ IHA is necessary to protect the bowhead whale population.”
Court supports ConocoPhillips But the Sept. 18 court order upheld ConocoPhillips’ motion for a stay on the 120-decibel monitoring.
“The ‘best science’ currently available seems to support CPAI’s argument with regard to impact on the bowhead whale,” the court order said. “Moreover, a ‘balancing of hardships,’ including the danger associated with additional monitoring requirements, tips clearly in CPAI’s favor.”
And ConocoPhillips has re-iterated its view that the 120-decible monitoring is unnecessary.
“ConocoPhillips is pleased with the ruling on the Chukchi seismic permit,” the company said. “We appealed the permit conditions because we do not believe there is scientific support for the requirement to monitor for whales in an area 2,000 times the size of monitoring zones imposed in the past. We will continue to work with the North Slope Borough Wildlife department and other agencies to gather research data that will help to improve our understanding of the arctic environment.”
And company spokeswoman Dawn Patience told Petroleum News that the Chukchi seismic program continues to operate within the terms of the conflict avoidance agreement with the North Slope whalers.
“We’ve signed a conflict avoidance agreement and we’ve been adhering to that,” Patience said.
Meanwhile NMFS is still considering its response to the Sept. 18 court order.
“We are looking at the decision to grant a stay and figuring out what our next steps might be,” Connie Barclay, spokesperson for NOAA fisheries, told Petroleum News on Sept. 21.
ConocoPhillips and Shell were doing the Chukchi Sea seismic surveys in preparation for a Chukchi Sea oil and gas lease sale that MMS is planning for 2007.
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