A marbled murrelet floats in the water near the Langley marina. (Govinda Rosling)

A marbled murrelet floats in the water near the Langley marina. (Govinda Rosling)

Attorney general chalks up win in lawsuit against Navy

The Navy will work to clarify the potential effects Growlers may have on marbled murrelets.

By Jessie Stensland

Whidbey News-Times

Washington State Attorney General Bob Ferguson has declared his first victory in a lawsuit against the Navy related to the environmental impacts of EA-18G Growler aircraft.

The Navy announced Sept. 6 that it is re-initiating formal consultation with the U.S. Fish and Wildlife Service on the potential effects Growlers based out of Naval Air Station Whidbey Island may have on marbled murrelets, a federally protected seabird.

“The Navy requested re-initiation of formal consultation to clarify the way impacts to the marbled murrelets are accounted for in the monitoring and annual reporting requirements,” a press release states, “and to allow for refinement of the analysis associated with the Navy’s selected alternative for Growler operations.”

Under the Endangered Species Act, federal agencies are required to ensure that their actions are not likely to jeopardize protected species. The agencies have to consult with the U.S. Fish and Wildlife Service in conducting the assessment.

U.S. Fish and Wildlife Service concluded in June 2018 that the Growler operations were not likely to jeopardize the marbled murrelets.

Ferguson, however, argued in a lawsuit filed in federal court July 9 that the environmental impact study completed by the Navy to gauge the impacts of an increase in Growlers on Whidbey was inadequate. In reference to marbled murrelets, it states that the biological assessment was flawed and failed to address the aircraft’s impact on the birds’ survival and ability to reproduce.

In a written statement, Ferguson said his office is pleased the Navy and U.S. Fish and Wildlife Service acknowledged that the assessment under the Endangered Species Act was insufficient and agreed to re-examine the Growlers’ impact on the protected bird.

“We hope the Navy will also agree that it needs to re-examine the program’s impact on human health,” he said. “We look forward to working with the Navy to address that claim in our lawsuit as well. The Navy has an important mission, but the federal government has an obligation to follow the law and avoid unnecessary harm to our health and natural resources.”

A study by the U.S. Fish and Wildlife Service concludes that a loss of the old-growth forests the birds require for nesting habitat and poor reproductive success — caused by a variety of problems, from over-predation to oil spills — are the primary reasons for the decline in marbled murrelet populations since the 1800s.

Capt. Matt Arny, commanding officer of NAS Whidbey, wrote in a letter to state Fish and Wildlife officials that “there is no critical habitat designated for the marbled murrelet within the lands or waters on or near NAS Whidbey or the Outlying Field at Coupeville.”

In a press release, the Oak Harbor Area Council of the Navy League states that the attorney general has a skilled team and that the Navy’s decision to re-initiate formal consultation and refinement of the assessment of impacts to marbled murrelets was “very prudent.”

“Like most wildlife near military bases, with their wide expanses and protected marine areas, the marbled murrelet is plentiful near Whidbey Island,” the press release states. “Local boaters can easily note numerous murrelets, completely unconcerned with Navy flight ops in the near vicinity.”

The Navy League states that the Navy has done much to protect marine life in the Pacific Northwest as well as on Whidbey Island.

“Activists may claim environmental empathy,” the Navy League said, “but it is the Navy which is taking meaningful action which benefits marine life. They are good neighbors.”

After completing the environmental impact statement, the Navy decided to increase the number of Growlers at Naval Air Station Whidbey Island by 36. The Navy also routed 80 percent of aircraft carrier landing practice to the small and rural Outlying Field Coupeville. That represented a fourfold increase.

This story originally appeared in the Whidbey News-Times, a sibling paper to the Herald.

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