Proposed rule could ban public from swimming, approaching Hawaii spinner dolphins

Photo: Dolphins and You

NOAA Fisheries is proposing to enhance protections for Hawaiian spinner dolphins to prevent disturbance and harassment from dolphin-directed human activities. The proposed rule would prohibit swimming with and approaching a Hawaiian spinner dolphin within 50 yards by any means (vessel, person, or other object) and would be implemented within two nautical miles from shore of the Main Hawaiian Islands and in designated waters between Maui, Lanai, and Kahoolawe where spinner dolphins are found throughout the day.

“During the day, they’re resting in near-shore waters, so it makes them very vulnerable to dolphin-directed activities,” said Ann Garrett, assistant regional administrator for protected resources, National Marine Fisheries Service, Pacific Islands Regional Office. “They may abandon their habitat and have increasing health problems. We can’t function as well as we could with a good night sleep, same with dolphins. Over time, their health may be impacted. They may not nurture young as well. They may abandon their young or habitat, and they may suffer long-term population impacts.”

Officials say the regulations are designed to protect the health and sustainability of our resident spinner dolphin populations by reducing human activities that result in “take” of spinner dolphins. The Marine Mammal Protection Act (MMPA) prohibits the “take” of any marine mammals, including Hawaiian spinner dolphins. Take is defined as “to harass, hunt, capture, or kill” any marine mammal or attempt to do so. “Harass” is further defined by MMPA as any act of pursuit, torment, or annoyance that has the potential to injure a marine mammal or stock in the wild, or potential to disturb a marine mammal or stock in the wild by causing disruption of behavioral patterns. This includes but is not limited to migration, breathing, nursing, breeding, feeding, or sheltering. Exceptions for taking marine mammals are made through a permit or authorization issued by the National Marine Fisheries Service.

NOAA Fisheries identified six situations in which being within 50-yards of a spinner dolphin may be necessary or unavoidable, and made exceptions to the prohibitions in these cases. These proposed exceptions include the following:

  1. Persons who inadvertently come within 50 yards of a spinner dolphin, or who are approached by a Hawaiian spinner dolphin, provided they make no effort to engage or pursue the animals, and take immediate steps to move away from the animals.
  2. Vessels that are underway and approached by a Hawaiian spinner dolphin provided they continue normal navigation and make no effort to engage or pursue the animals.
  3. Vessels transiting to and from a port, harbor, or in a restricted channel when a 50-yard distance will not allow the vessel to maintain safe navigation.
  4. Vessel operations necessary to avoid an imminent and serious threat.
  5. Activities authorized through a permit or authorization issued by the National Marine Fisheries Service to take Hawaiian spinner dolphins.
  6. Federal, State, and local government vessels when necessary in the course of performing official duties.

Richard Holland, president of Ocean Journeys LLC – Dolphins and You, said they drop off customers near dolphins and currently move their vessel 50 yards away.

“Our people stay in a neutral way. We don’t chase them or hoard them or corral them in any way. We allow the dolphins to come to us,” he said.

Holland says he is not in favor of over regulation and plans to attend NOAA’s neighborhood meetings on the issue, but says they also offer snorkeling, water tours and other activities besides swimming with dolphins.

“Would you be able to still have and offer the same type of tour as you do now if these regulations move forward?” KHON2 asked.

“Yes,” Holland replied. “We are not just a dolphin swim tour. We are a cultural tour and in the ways of the ancient, we approach, we enter it with a lot of reverence. We offer prayer and ehu- mai and they are all local people who work with us out there, so it’s a really Hawaiian experience.”

Although not proposed in the regulation, NOAA Fisheries is considering a future rule-making that would involve closures to activities at certain times of day (6 a.m. and 3 p.m.) within certain essential daytime habitats. These would be identified as time-area closures. The rule discusses four bays on the island of Hawaii and one bay on the island of Maui as potential areas in which to designate time-areas closures. NOAA Fisheries is requesting information and comments on the selection of areas, whether time-area closures are necessary in addition to approach regulations, and whether time-area closures, if implemented, should be voluntary or mandatory.

Five potential areas have been identified for time-area closures:

  • Kealakekua Bay, Hawaii Island
  • Honaunau Bay, Hawaii Island
  • Kauhako Bay, Hawaii Island
  • Makako Bay, Hawaii Island and
  • La Perouse Bay, Maui

The proposed rule will be published in the Federal Register on Aug. 24, and the Notice of Availability of the accompanying draft Environmental Impact Statement (EIS) will be published in the Federal Register on Aug. 26.

Following the publication, there will be a 60-day public comment period to voice opinions on the proposed rule.

The Final Rule is expected to be published in the Federal Register in August 2017, with the final EIS and Record of Decision to be published in July 2017. A 30-day public review will follow that publication.

The prohibitions would go into effect in September 2017.

NOAA will continue to work with communities to help them understand how the agency’s proposal may affect them. Public meetings are scheduled for:

  • Sept. 7, 5:30-10 p.m., Konawaena High School cafeteria in Kealakekua
  • Sept. 8, 5:30-9:30 p.m., Kealakehe High School cafeteria in Kona
  • Sept. 21, 5:30-9:30 p.m., Kauai High School cafeteria in Lihue
  • Sept. 22, 5:30-9:30 p.m., Hawaiian Islands Humpback Whale National Marine Sanctuary Visitor Center in Kihei
  • Sept. 27, 5:30-9:30 p.m., Roosevelt High School dining hall in Honolulu
  • Sept. 28, 5:30-9:30 p.m., Waianae High School cafeteria in Waianae

“NOAA is seeking your comments on our proposal, specifically comments that provide new data or identify questions or concerns that need addressing,” said Michael Tosatto, Pacific Islands Regional Administrator of NOAA Fisheries.

Comments must be received no later than 5 p.m. Oct. 23, 2016. You can provide comments, information or data to NOAA by electronic submission, mail, or during a public meeting. Click here for more information.

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