We are about to see whether Congress intended to put some of the food supply for a regionally "threatened" population of fish over the safety of some of the most courageous sailors in the U.S. Navy.
This question is absurd on its face, of course. But it is nonetheless a real policy question today. Current law can be interpreted to put salmon food above sailor safety.
In fact, a Washington, D.C.-based environmental group, Public Employees for Environmental Responsibility (PEER), is so convinced of this interpretation that it has called for the Navy to criminally prosecute officers whom the group suspects to have broken the law.
Let me explain.
In the Persian Gulf War, divers in U.S. Navy Explosive Ordnance Disposal (EOD) units did a spectacular job. Robert M. Compagna, assistant chief of staff for environment and safety in the Navys Northwest regional office, explained their role in a December 18 letter to PEER. "During the 1991 Gulf War," wrote Compagna, "Navy EOD units . . . were called upon to remove mines, which had been placed in the Persian Gulf by Iraq. Due to the extensive in-water training, which they received, the U.S. Navy EOD divers were able to safely and effectively remove the mines with no injuries or loss of life."
Today, says Navy spokesman CDR. Karen Sellers, the USS Constellation is in the Persian Gulf carrying Puget Sound-trained divers.
As far as the Navy can determine from anecdotal evidence, she says, these divers have been training in the sound since before Vietnam. The Navy can document the training back as far as the mid-1980s.
The exercises, however, now raise issues under the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA).
In 1998, acting under ESA, the U.S. Fish and Wildlife Service (FWS) listed Bull trout as "threatened" in the Pacific Northwest. The same year, the National Marine Fisheries Service (NMFS) listed Chinook salmon as "threatened" in Puget Sound, and Chum salmon as "threatened" in Hood Canal, an offshoot of the sound.
All three listings are debatable. "Bull trout and Dolly Varden," FWS says on its website, ". . . were once [until 1980] considered the same species." Dolly Varden are not threatened. NMFS has not listed Chinook or Chum under ESA anywhere in Alaska or in several other Western regions. Nor did it count all the many hatchery-spawned salmon in the region when listing the species in Puget Sound.
(Last year, a federal court ruled that NMFS misinterpreted ESA when it failed to count hatchery fish while listing regional Coho salmon as "threatened." In light of this ruling, NMFS is reevaluating all West Coast salmon populations.)
Bottom line: If the Navy killed every Chinook and Chum in Puget Sound, the species would survive in abundance elsewhere.
But there is no evidence the Navy has hurt the regional populations of these elsewhere-abundant fish.
When Navy officials learned the fish were listed, they contacted NMFS and FWS for a "Biological Opinion" under ESA. Officials from the agencies then witnessed an EOD training exercise in which no salmon or trout were seen killed. But, the officials wrote the Navy in an April 18 letter, "we observed approximately 1,000 dead fish, mostly surf smelt."
These are fish salmon eat. As Lea Mitchell, Washington State director of PEER, told the Seattle Post-Intelligencer, "One of PEERs biggest concerns is the prey source is being impacted."
In their letter, NMFS and FWS officials told the Navy that their Biological Opinion will "take a period of three years." But PEER, citing the strict language of NEPA, wants diver training shut down while environmental assessments are done.
These, under NEPA, could lead to lawsuits by environmentalists seeking injunctions against he Navy.
But PEER wants more.
In a December 23 letter to Vice Adm. Michael D. Haskins, the Navy inspector general, PEER General Counsel Dan Meyer (a Navy veteran) said, "PEER would like your determination as to which officers or civilian equivalents have committed criminal violations" by not adhering to Navy rules about NEPA.
I phoned Meyer to ask if he really wanted Navy officers prosecuted for training divers. "Yeah," he said.
Congress should close this circus now. There was talk last year of exempting the military from NEPA and ESA. Now, it should be the first business of a Republican Congress.