"Incidental take refers to takings that result from, but are not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency or applicant."

50 CFR § 402.02

Incidental take. Never have two such small, casual words held so much meaning.

Let’s first be clear on the meaning of take. You can think of this as in, “to take a life.” It does have a broader meaning under the law, “to [or attempt to] harass, hunt, capture, or kill any marine mammal,” and also includes, “the doing of any negligent or intentional act which results in disturbing or molesting a marine mammal feeding.” However, it’s highly reasonable to assume that take can result in the loss of an animal, even if not on the day of an event.

Incidental is somewhat synonymous with accidental but is deemed foreseeable. But despite being foreseeable—and therefore preventable— it is still allowed by law under certain circumstances.

What does take mean under the Endangered Species Act and what is incidental take?

Take as defined under the ESA means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."
Incidental take is an unintentional, but not unexpected, taking.
When a species is listed as endangered, take prohibitions are automatically extended to it under ESA Section 9.
When a species is listed as threatened, NOAA Fisheries must issue protective regulations in order to extend any take prohibitions to the species under ESA Section 4(d).
Source: NOAA Fisheries.


When it comes to marine mammals and their protection under the Marine Mammal Protection Act, incidental take can be used to sanction activities that appear to run contrary to the entire purpose of the legislation. According to NOAA’s Office of Protected Resources, most authorizations for incidental take have been issued for activities that produce underwater sound—military, oil and gas exploration, and construction.

If ever there came an abysmal time to add a source of potential harm to this population, it would be now. 2020 has been another record-breaking year of near non-attendance by these whales in the Salish Sea, legally designated as their “core critical habitat.” Not at all surprising, given that the spring return to the Fraser River of their favored prey—Chinook salmon—is at an all-time low.

Under the terms of the law, the federal government is required to request public comments prior to making a final ruling. Therefore, at Wild Orca we decided to amplify our voice by joining 29 organizations from across the region to send a letter in opposition to this proposal. This letter laid out the responsibility of the government to uphold the protections afforded to the Southern Residents, not just under the Marine Mammal Protection Act, but also under the Endangered Species Act – given that they were listed as Endangered in 2005, and since that time have diminished in number.

The letter acknowledges the right of the military to conduct training and exercises but notes that previously identified steps to mitigate harm are not being required. For example, the installation of listening stations (hydrophones) in these orcas’ range could provide the Navy with information about their whereabouts. It is well known that the Southern Residents are very vocal—chatty—therefore, hydrophones would provide excellent intelligence about their location, so that potentially harmful activities could be suspended while the whales are within range.

Center For Whale Research

One of the more controversial aspects of this case is that exemption from protection can be granted if the impact is deemed “negligible.” Astonishingly, the National Marine Fisheries Service has already made a preliminary finding that warfare and sonar testing would only have a negligible impact on these orcas. The definition of this under the law is that “the specified activity…cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species through effects on annual rate of recruitment or survival.”

Orcas live in a world of sound. Governor Inslee’s Southern Resident Killer Whale Recovery Task Force recently recommended a number of proposals to limit the impact of sound pollution in the orcas’ environment, due to concerns over their ability to hunt and communicate effectively in a sea of noise. The use of naval sonar and underwater explosions has long been identified as a major risk to whales around the world, resulting in several mass stranding events. In 2003, the Southern Residents were documented fleeing from the sounds of an underwater naval exercise being conducted by the USS Shoup in the Salish Sea, and in 2012 one 3-year old calf was found dead with severe brain injuries and was presumed to have been fatally injured by a sound blast.

Navy Training Blasts Marine Mammals with Harmful Sonar / Center for Whale Research

This population cannot afford an impact or a death to even a single individual. But yet the Navy is seeking authority which would permit harm of up to 51 whales. With only 72 animals remaining, this should not be considered negligible.

Negligent, neglectful certainly, but NOT negligible.

The Update

October 18, 2020

In July 2020, Wild Orca joined with 28 organizations to respond to the Navy’s request to “take” (harm, harass, or kill) marine mammals—including up to 51 of 74 Southern Resident killer whales—during training and testing in the Pacific Northwest.

This story has since received significant media coverage, and in addition to wildlife and conservation organizations raising concerns, Washington State officials added their voice.

In September, likely due to some of this feedback, the Navy updated its Environmental Impact Statement (EIS), with several measures specifically relating to the Southern Resident killer whales. However, these fall far short of recommendations made by Governor Inslee’s Orca Task Force, and those from our joint response.

With the Navy’s current authorization expiring on November 8, it’s anticipated that NOAA is ready to green-light this request, valid for the next seven years, and in so doing, is declaring that the Navy’s activities constitute “negligible” impact. Under no circumstance should harassment of 70% of any population be considered negligible, but especially when the population it’s mandated to protect and recover is smaller now than when listed as endangered in 2005!

It’s unlikely that the request will be denied, as matters of military readiness usually supersede wildlife protection. But if we learn that it’s possible for you to make a difference before the final decision is made, we’ll alert you!

Look out for an action alert coming later this month where you can take action to demand more Chinook for these whales.

What did the Navy update in its 2020 EIS?

They analyzed their potential impact for harm in light of the newly proposed critical habitat for the Southern Resident Killer Whales – i.e. along the West Coast from the US/Canada border to Point Sur, California. (Currently, areas designated as critical habitat are in the Salish Sea.)

They identified additional opportunities to increase mitigation measures in the Northwest Training and Testing Study Area. These were based on an ongoing analysis of the best available science, and measures that were suggested in comments to their 2019 draft EIS, together with comments received during the Marine Mammal Protection Act and Endangered Species Act consultation processes.

They therefore propose:

“Seasonal awareness notification mitigation” within 50 miles from shore, to alert ships and aircraft (operating within the Marine Species Coastal Migration Area) to the possible presence of Southern Resident killer whales (and humpback and grey whales.)

To conduct a maximum of one Unmanned Underwater Vehicle Training event within 12 nautical miles from shore at the Quinault Range Site, and to cancel or move if Southern Resident killer whales are detected at the planned training location during the event planning process or immediately prior to the event as applicable.

To use the lowest active sonar source levels practical to successfully accomplish each event and to not use explosives during testing.

Navy event planners to coordinate with Navy biologists during the planning process prior to conducting Unmanned Underwater Vehicle Training (at 4 different areas) and to cancel or move events to another training location if the presence of Southern Resident killer whales is reported through available monitoring networks.

To issue “annual seasonal awareness notification messages” to alert ships and aircraft operating within the Puget Sound and Strait of Juan de Fuca Mitigation Area to the possible presence of Southern Resident killer whales (and gray whales.)

The Final Decision

November 12, 2020

U.S. Navy gets go-ahead by Government to repeatedly harass critically endangered orcas in the Pacific Northwest over 10-year period.

On November 12, the Government published its final ruling on the U.S. Navy’s application to harm and harass marine mammals in their Pacific Northwest Training & Testing Study Area. This exemption from the protections usually afforded by the Marine Mammal Protection Act is valid from November 9, 2020 to November 8, 2027.

While this conclusion is not surprising—operations considered “military readiness activities” are usually green-lighted—it is extremely disappointing.

NOAA Fisheries created a recovery plan for endangered Southern Resident orcas, and subsequently spent many years tagging and tracking these whales from California to Washington to identify key feeding grounds, and finally proposed six new areas of critical habitat in these coastal waters. Yet with this decision, they have failed to protect this endangered population from harassment in a single one of these areas!

While the government may consider the ruling final, it is unlikely to be the last word on this subject. It seems possible threat of lawsuits will follow—given the critical downward trajectory of this population, lower now than when listed as endangered in 2005—in an attempt to push the Government into affording more meaningful protections, before it’s too late.

Take Action for

Habitat Protection

Unlock Salmon & Orca Recovery Projects

Millions of dollars for Puget Sound habitat restoration is being held up by red tape. Washington State Senate Bill 5146 is the first key to unlock it.

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Unlock Salmon & Orca Recovery Projects

Millions of dollars for Puget Sound habitat restoration is being held up by red tape. Washington State Senate Bill 5146 is the first key to unlock it.

Act Now

Action Guide

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What is a “take”?

A take can be as simple as an animal changing their direction of travel or other behavior patterns, but as severe as death.

Not all takes are created equal. Research vessels routinely report “takes” when they get too close to an animal they are researching, but a “take” also occurs during activities that result in the death of the animal.

The Marine Mammal Protection Action (MMPA) protects animals against “takes”, or harassment. Exceptions can be granted allowing takes for certain activities. The Navy is requesting such an exemption for its proposed activities.

So what’s the big deal with the Navy’s request?

While some “takes” aren’t a big deal and might not result in harm, the activities the Navy is requesting an exemption for are the type of activities that would be likely to result in serious harm or even death.

Current Proposed Navy Activities include:

  • Active Sonar
  • The detonation of 1000 lb. Bombs
  • Explosive Sonobuoys
  • Heavyweight Torpedos
  • Mine Countermeasures and Naturalization
  • and more…

These activities have a high likelihood of resulting in harm to whale(s) without proper mitigation considerations.

In the News